author: Mr. Justice Paxson

text:
    Wheeler et al. versus Philadelphia et al.

    1. The Supreme Court, under the Constitution of 1873, has jurisdiction in equity to restrain a municipal corporation from doing acts contrary to law and prejudicial to the interests of the community.
    2. The provision in sect. 3, art. 5, of the New Constitution, that the Supreme Court shall have original jurisdiction where a corporation is defendant, applies to municipal as well as private corporations.
    3. It is optional with the Supreme Court to exercise original jurisdiction in equity, where the lower courts may entertain it.
    4. A statute relating to persons or things as a class is a general law; one relating to particular persons or things of a class is special.
    5. Sect. 7, art. 5, of the Constitution of 1873, prohibiting local or special legislation, does not prevent classification of municipal corporations with reference to taxation, and the Act of May 23d 1874, classifying cities according to -their population, is constitutional.
    6. The Gas Works of Philadelphia are property belonging to the city, not for speculation, but for the comfort of all the people ; the debts contracted therefor must be paid by the city.
    7. Sect. 7, art. 9, of the Constitution, that the legislature shall not authorize any city, &c., to become a stockholder in any corporation, &c., or to loan its credit, &c., to any corporation, &c., was to prevent a city from becoming jointly interested as stockholder with any company, &c., and from appropriating, &e., money, or loaning its credit to any corporation or individual.
    February 1st 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.

      At the January Term of the Supreme Court, at the instance of Charles Wheeler and others, a rule was awarded to show cause why leave should not be granted to move for a special injunction against the City of Philadelphia, W. S. Stokley, Mayor, Peter A. B. Widener, City Treasurer, Samuel B. Hancock, City Controller, and Nathan Hilles and others, Trustees of the Philadelphia Gas Works ; at the same time, at the instance of. the same relators, a similar rule was granted against the same respondents, except Nathan Hilles and others, Trustees of the Gas Works. The plaintiffs in each bill were tax-payers in Philadelphia. The object of the first bill was to restrain the city from borrowing $1,000,000, to be paid to the Trustees of the Gas Works ; of the other to restrain the city from borrowing another sum of $1,000,000, to be applied to the erection of sewers.
    The first bill set out:
    That by art. 3, sect. 1, of the Constitution of this Commonwealth, no bill shall be so altered or amended on its passage through either house as to change its original purpose, and that “ no bills, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.”
    By sect. 7, that “the General Assembly shall not pass any local or special law * * * regulating the affairs of counties, cities, townships, wards, boroughs or school districts, * * * nor shall they indirectly enact such special or local law by the partial repeal of a general law.”
    By art. 9, sect. 8, that “the debt of any county, city, borough, township, school district or other municipality or incorporated district, except as herein provided, shall never exceed 7 per cent, upon the assessed value of the taxable property therein, nor shall any such municipality or district incur any new debt, or increase its indebtedness to an amount exceeding 2 per cent, upon such assessed valuation of property, without the assent of the electors thereof, at a public election, in such manner as shall be provided by law; but any city, the debt of which now exceeds 7 per cent, of such assessed valuation, may be authorized by law to increase the same 3 per cent, in the aggregate at any one time upon such valuation.”
    On the 20th of April 1874, an act was passed, entitled “ An Act to regulate the mode of increasing the indebtedness of municipalities, to provide for the redemption of the same, and to impose penalties for the illegal increase thereof;” providing:
    Sect. 1. “ Whenever the debt of any county, city, &c., shall be equal to 7 per cent, per annum upon the assessed value of the taxable property, &c., it shall be unlawful to increase the same, and all such increase shall be void, and any obligation issued for such increase, or any part thereof, shall be of no binding force upon such municipality or district, &c. * * * Provided, that any city, the debt of which now exceeds 7 per cent, of such assessed valuation, may, under authority of law to be hereafter enacted, increase the same 3 per cent, in the aggregate at any one time upon such valuation.”
    Sect. 2. Any county, city, &c., may incur debt or increase its indebtedness to an amount in the aggregate not exceeding 2 per cent, upon the assessed value of the taxable property, &c.
    Sect. 3. The indebtedness of any county, city, &c., may be authorized to be increased to an amount exceeding 2 per cent., and not exceeding 7 per cent, upon the last preceding assessed valuation, &e., with the assent of the electors thereof, duly obtained at a public election to be held in the said district or municipality, &c.
    The plaintiffs averred that, “No part of the act provides for the increase by a city whose debt already exceeds 7 per cent, of the assessed value of its taxable property, that the debt of Philadelphia greatly exceeds 7 per cent, thereof, being in fact now 10 per cent., the assessed valuation being, on the 1st of January 1874, less than $549,000,000, and the debt more than $60,000,000. That the act is uniform in its provisions, extending to all counties, cities, &c., in the Commonwealth, and that its result was simply to give legislative expression to a certain part of sect. 8 of art. 9 of the Constitution, providing for the increase, to be determined by a popular vote of any county, city, &c., to an amount not exceeding 7 per cent, of the assessed value of its taxable property.
    On the 23d of May 1874, an act was approved, entitled “ An Act dividing cities into three classes, regulating the passage of ordinances, providing for contracts for supplies and work for said cities, authorizing the increase of indebtedness and the creation of a sinking fund to redeem the same, defining and punishing certain offences in all of said cities, and providing for the incorporation and government of cities of the third class.”
    This act provides (sect. 1): Eor the exercise of certain corporate powers, and having respect to the number, character, powers and duties of certain officers thereof, the cities now in existence or hereafter to be created in this Commonwealth shall be divided into three classes. Those containing a population exceeding 300.000 shall constitute the first class. Those containing a population less than 300,000 and exceeding 100,000, shall constitute the second class; and those containing a population less than 100.000 and exceeding 10,000, shall constitute the third class.
    The corporate powers and the number, character, powers and duties of the officers of cities of the first and second class, and those of the third class now in existence, shall remain as now provided by law, except where otherwise provided by this act.
    Sect. 11. The councils of any city of the first class, the debt of which now exceeds 7 per centum upon the asssessed value of its taxable property, shall be authorized to increase the said debt one per centum upon such valuation, by ordinance pass.ed in the manner directed by this section.
    The plaintiffs show that the Act of May 23d 1874, was introduced into the Senate on the 26th of February, and was known as Senate Bill No. 69. Its title then was,
    “ An Act dividing the cities of this state into three classes, regulating the passage of ordinances, and defining and punishing certain offences therein, and providing for the incorporation and regulation of cities of the third class.”
    As it passed' that body, its provisions were limited strictly to the three subjects stated in its title, viz.:—
    1. Dividing cities into three classes.
    2. Regulating the passage of ordinances and defining and punishing certain offences therein.
    3. Providing for the incorporation and .regulation of cities of the third class; b.ut no part of the bill in any way referred to the increase of the debt of a city which had already reached 7 per cent, of the assessed value of its property.
    After the bill had passed the Senate, it was introduced into the House, and was amended by inserting the councils of any city of the first class the debt of which now exceeds 7 per centum of the assessed value of its taxable property, shall be authorized to increase the debt 1 per centum upon such valuation, and providing for the mode of authorizing such increased debt. With this amendment the bill passed both houses.
    The Senate having refused to concur in the House amendments, a committee of conference was appointed, which recommended that the Senate recede from its non-concurrence, and recommended the alteration of the title of the bill by inserting:—
    “ Providing for contracts for supplies "and work for said cities, authorizing the increase of indebtedness, and the creation of a sinking fund to redeem the same.”
    The report of the committee of conference was adopted by both houses, and the bill was finally passed, and was approved on the 23d day of May 1874.
    The plaintiffs averred that the Act of the 23d of May 1874 was so altered and amended during its passage through the House as to change its original purpose, in violation of the provision of the Constitution; and that it became necessary to alter the title of the bill, so that it should not violate that other provision of the Constitution, viz., that the subject of the bill shall be clearly expressed in its title.
    They further show that the ■ division of the cities of this state into three classes, whereby different laws shall be applicable to these several classes, is in contravention of the constitutional provision that the legislature shall not, directly or indirectly, pass any local or special law regulating the affairs of cities, inasmuch as there is but one city in this Common-wealth — the city of Philadelphia — which contains a population exceeding 300,000.
    They further show, that no provision having been made in the Act of- 23d of May 1874, for submitting to the vote of the qualified electors any proposed increase of the debt of a city of the first class, whose debt already exceeds 7 per cent, of the assessed valuation of its property, so much of said act as provides for such increase without such submission is contrary to the provisions of the Constitution.
    Under authority alleged to have been given by the Act of 23d of May 1874, an ordinance was, on the 18th of June 1874, introduced into the Common Council of Philadelphia, authorizing the mayor, on the requisition of the Trustees of the Philadelphia Gas Works, to borrow on the credit of the city such sums of money as they might require, not exceeding $1,000,000, which ordinance had passed both councils, and been approved by the mayor; that for the reasons heretofore set forth, the Act of 23d of May 1874, gave no valid authority to the municipal government of Philadelphia to borrow the said sum of money prescribed in said ordinance, or any other sum of money, but was, as to such end, wholly unconstitutional.
    The plaintiffs also alleged that by ordinance of March 21st 1835, and subsequent ordinances, persons were authorized to subscribe for shares of the stock of a corporation, &c., to be organized for the purpose of constructing and operating gas works in said city. Said works to be constructed and operated by twelve trustees, to be elected by the councils, and the city reserved the right to take possession of the works and convert the stock into a loan when its councils might deem it expedient. Under these ordinances the requisite capital was subscribed, the works constructed, and the citizens supplied with gas. The capital arising from subscriptions to stock proving insufficient, ordinances were passed, from time to time, authorizing the mayor, on the requisition of the said trustees, to borrow money on the credit of the city and the pledge of the works for their extension. These ordinances provided for the setting apart of a portion of the profits as a sinking fund to secure the principal and interest of said loan, &c., but required the consent of stockholders before said ordinances should go into operation.
    Under an ordinance of January 14th 1841, and subsequent ordinances, the city took possession of said works, and issued certificates of loan to the stockholders in lieu of their stock. More money being required for extensions, further loans for that purpose were authorized by a number of ordinances set out in the bill. The loans are still outstanding and unpaid.
    By the Constitution of this Commonwealth, art. 9, sect. 7, it is provided that “ The General Assembly shall not authorize any city to obtain or appropriate money for, or loan its .credit to, any corporation, association, institution or individual,” and by art. 15, sect. 2, “ no debt shall be contracted or liability incurred by any municipal commission, except in pursuance of an appropriation previously made therefor by the municipal government.”
    And by the 26th sect, of Act of May 13th 1856, supplementary to the Act consolidating the city of Philadelphia, it is provided that supplies for any department of the city shall be purchased or contracted for only after advertisement for sealed proposals therefor; and such contracts are to be awarded only to the lowest bidder.
    The complainants are advised that the Trustees of the Gas Works are not a municipal commission or department of the city. They are neither agents of the city, nor a department of the city acting in its sovereign capacity, and said trustees constitute an association or institution, within the meaning of the Constitution, of a private character, which was, in effect, founded by the city by vesting certain property in'trustees of a declared and definite trust, upon certain defined and irrevocable conditions, with power and control over the trust property, for purposes of gain and commerce, having no aspect or incident of municipal sovereignty, and with cestui que trusts other than the city, who have rights, as such, paramount thereto. Hence, the General Assembly has no power to authorize the defendant, the said City of Philadelphia, to obtain or appropriate money for, or loan its credit to, the defendants, the Trustees of the said Gas Works ; and the said ordinance is without authority of law.
    Nevertheless the defendants, to wit, the Trustees of the Philadelphia Gas Works, threaten and intend to demand the said sum of $1,000,000; and the defendants, the City of Philadelphia, acting by its officers, the other defendants, to wit, the said William S. Stokley, Mayor, &c., threaten and intend to proceed to borrow, on the credit of the city, the said sum of money, and to issue certificates therefor, in the manner prescribed by the said ordinance.
    The prayer was that an injunction may be granted to restrain the defendants from borrowing the said sum of money and issuing cértificates therefor ; and for general relief.'
    The other bill set out that an ordinance had passed the Common Council of Philadelphia, authorizing the mayor to borrow $1,000,000 to construct sewers, and that the Act of May 23d 1874, referred to in the first bill, gave no authority to the authorities of Philadelphia to borrow the money as provided in the ordinance, but that the act was unconstitutional. The’bill, then further sets out substantially as in the former bill; and in conclusion avers that the city, by its officers, W. S. Stokley, Mayor, P. A. B. Widener, City Treasurer, and Samuel P. Hancock, City Controller, threaten and intend to proceed to borrow, &c., the said sum of $1,000,000, for the construction of sewers, &c. The prayer was. for an injunction to restrain the mayor, city treasurer and city controller, defendants, “ from proceeding to borrow the said snm of money, and from issuing certificates therefor,” and for general relief.
    Chief Justice Agnew delivered the opinion of the court, on the rule for leave to move for the special injunction.
    This rule has been taken in order to inquire into our power, since the adoption of the New Constitution, to take original jurisdiction of a bill in equity to restrain a municipal corporation from doing an act contrary to law and prejudicial to the interests of the community. Under the 3d section of the 5th article of the New Constitution, the Supreme Court “ shall have original jurisdiction in cases of injunction where a corporation is a party defendant.” Did the convention mean by the word “ corporation” one class of corporations only, and to confine the exercise of the power of injunction to private corporations? It did not say so. Did it mean so ? It is a word of known legal signification, embracing public and private corporations. If private only were intended, it is a result of mere inference. On what ground can we infer that the convention used a term of art and yet meant what it did not say ? That body was composed largely of lawyers, many of great professional eminence and some professionally familiar with corporations. We must presume they used the term “ corporation” in view of its legal meaning, and also in view of the existing powers of the Supreme Court over corporations. It was well known to them that the power to enjoin municipal corporations against the performance of illegal or unconstitutional acts, had long existed. Judge Sergeant, referring to the equity powers in the Act of 16th June 1836, so early as the year 1844, remarked upon the 5th clause of the 13th section, that over corporations of a municipal character, that court has no general chancery control; but said, “ I speak not now of the next clause, to which I am going to advert, providing especially for injunctions in certain cases, because that clause no doubt applies to all persons, corporations, municipal or otherwise, as well as individuals, and is a remedy of a peculiar character:” Hagner v. Heyberger, 7 W. & S. 106. The same opinion is stated by Woodward, J., in Wharton v. School Directors, 6 Wright 363, and in Prescott v. Bank of Duquesne, 12 Id. 120. In the celebrated case of Sharpless v. The City of Philadelphia, 9 Harris 170, no one thought of interposing the fatal argument of a want of power to restrain a municipal corporation. We have a legislative construction also in the Act of 8th April 1846, forbidding injunctions to restrain the prosecution of public works in Philadelphia, a provision wholly unnecessary if the city was not liable to be enjoined. In Wolbert v. The City, 12 Wright 439, the case was put directly on this act, and the want of power to enjoin not suggested. Then, in The Commonwealth v. Rush, Mayor of Allegheny City, 2 Harris 186, the power was actually exercised. So in Kerr v. Trego et al, 11 Wright 292, it was exercised where two bodies were claiming to be the Common Council of this city. Hill v. Commissioners, 1 Pars. Eq. 507, may also be referred to. The 3d sect, of the 5th art. of the New Constitution is a restriction úpon the general powers possessed by this court. If it were the intention of the convention to restrict the power of injunction to private corporations, it was absolutely necessary to say so, or else by every rule of sound interpretation the power exists as to corporations generally. And fatal would it be to the interests of the state if there were no power in this court to prevent municipal corporations from overstepping the boundaries of their authority and trampling both laws and constitution under foot.
    It has been argued that the New Constitution distinguishes public and private corporations in other sections, referring sometimes to cities and counties and sometimes to railroads and other private corporations. This, however, furnishes no argument that the word “ corporation,” as nomen generalissimum, was .intended to be restricted here to private corporations; for it was necessary to distinguish in other provisions, to reach the specific intent in each. Where the convention meant to provide for a city or a county, or a private corporation specifically, it was necessary to say so. The single question upon the 3d section is, Did the convention mean to confine our original jurisdiction to private corporations ? It did not say so, and there is no reason to infer an intention expressed by no appropriate language.
    But should we exercise the power whenever application is made to us? We think not. There is ample provision for its exercise in the four Courts of Common Pleas of Philadelphia, with a choice among them, and with a right of appeal to us. We hold to the resolution expressed in Commonwealth v. Baroux, 12 Casey 262, and Hottenstein v. Clement, 5 Wright 504, that we are at liberty to decline jurisdiction in view of the ample remedy elsewhere, while our appellate jurisdiction necessarily requires all our time. But we do not deny our jurisdiction. Cases will arise where we must feel it our duty to act. Such we think is the case before us. An important question of constitutional legislation has arisen relating to cities of the first class. The proper interpretation of the 8th section of the 9th article of the New Constitution is in controversy, involving the power of the city of Philadelphia to incur debts for certain municipal purposes. The Court of Common Pleas has declined to decide these important questions. An appeal would be productive of great delay. In the meantime the credit of the city is uncertain. It is no reply to say that there are those who are willing to take the risk and advance the money. If their loans should hereafter be declared invalid, because of the want of power to create the debt, their present willingness will be no salve to cure their wounded expectations.
    Rule for leave to move for a special injunction made absolute, and the motion ordered to be heard in the first week in February.
    On the hearing, February 1st 1875, of the motion for the injunction,

      W. E. Bawle and P. S. Miller argued for the plaintiff.—
    The bill to restrain the sewer loan is one quia timet a recognised head of equity: Baird v. Rice, 13 P. F. Smith 489; Page v. Allen, 8 Id. 338; Wells v. Bain, 25 Id. 39. The Act of May 23d 1874 is unconstitutional: Walker v. Potter, 28 Ohio St. 85. The Supreme Court may inquire whether the legislature has exceeded its power: Cronise v. Cronise, 4 P. F. Smith 255; Jones v. Jones, 2 Jones 350: Gardner v. Collector, 6 Wallace 499; Fowler v. Pierce, 2 Cal. 165; Cooly on Constitution 135, 177; Page v. Allen, 8 P. F. Smith 354. The title of fan act must not mislead, giving the details of some provisions and omitting others : Dorsy’s Appeal, 22 P. F. Smith 192.
    The Act of May 23d 1874 authorizes a loan of its credit to a corporation, association or institution: Western Saving Fund et al. v. The City, 7 Casey 175. The city having entered into the business of manufacturing gas, put itself into the position of a private citizen: U. S. Bank v. Planters’ Bank, 9 Wheat. 907; Curran v. Arkansas, 15 How. 304; Speer v. School Directors, 14 Wright 150; Philadelphia v. Collector, 5 Wallace 727.

      O. E. T. Gollis, City Solicitor, ü. W. Biddle and E. M. Phillips (with whom were P. S. Quinn and W. B. Mann) for defendants.
    —The trustees of the Gas Works are neither a corporation, association or institution within the meaning of the Constitution; they are but the ageijts of the city with specified powers: Walker v. Cincinnati, 21 Ohio St. 52; Pennsylvania Railroad Co. v. Philadelphia, 11 Wright 189.
    February 15th 1875.
   Mr. Justice Paxson

delivered the opinion of the court,

Two bills have been filed by the complainants against the city of Philadelphia, in both of which they aver that they are citizens and tax-payers of said city. In one bill they seek to restrain the city authorities from borrowing upon the credit of the city the sum of $1,000,000, for the extension of the Philadelphia Gas Works; in the other bill they seek to enjoin said authorities from borrowing upon the credit of the city the further sum of $1,000,000, to be applied to the construction of main sewers. The Gas Loan was expressly authorized by ordinance of the City Councils; in the case of the Sewer Loan the ordinance has passed only the Common Council. The ordinances referred to, depend for their validity upon the Act of 23d May 1874, entitled, “ An Act dividing the cities of this state into three classes,” &c. For the exercise of certain corporate powers, and having respect to the numbers, character, powers and duties of certain officers thereof, the cities now in existence or hereafter to 'be created in this Commonwealth, .are divided by the said act into three classes, as follows:

Those containing a population exceeding 300,000 shall constitute the first class.
Those containing a population less than 300,000, and exceeding 100.000, shall constitute the second class; and
Those containing a population less than 100,000, and exceeding 10.000, shall constitute the third class.

It was further provided by the 11th section of said act, that The councils of any city of the first class, the debt of which now exceeds 7 per centum upon the assessed value of the taxable property therein, shall be and they are hereby authorized to increase the said debt 1 per centum upon such valuation,” &c.

The complainants allege as the grounds of their application, that the Act of Assembly, above referred to, is unconstitutional and void, because:—

1. It creates an unconstitutional classification of the cities of the Commonwealth, and by indirection, legislates specially for the city of Philadelphia.
2. It authorizes the increase of the city debt without submission to the popular vote.
3. The act was so altered, during its passage through the House of Representatives, as to change its original purpose.
4. The object of the act is not clearly expressed in its title.

These four grounds of objection apply to both the bills.

As to the bill to which the Trustees of the Philadelphia Gas Works are made defendants, there is another ground:

5. In authorizes the city to obtain money for, or loan its credit to, a corporation, association or institution.

It was alleged on behalf of the city that the plaintiffs had ■no standing in court to enable them to raise these questions, because:—

1. As to the Gas Loan, the burden can never fall on the city, and
2. As to the Sewer Loan, it has only passed one branch of councils, and may never pass the other; or it may be vetoed by the mayor.

It is unnecessary to consider these objections at length. It is too late to question the right of a tax-payer, where money is to be raised by taxation, or expended by the treasury, to proceed in equity to test the validity of the law under which the proposed assessment or expenditure is to be made. Moers v. The City of Reading, 9 Harris 188; Mott v. The Pennsylvania Railroad Company, 6 Casey 9; Page v. Allen, 8 P. F. Smith 338; and other cases following the lead of Sharpless v. The City, 9 Harris 147, have put this question at rest.

The objection that as to the Gas Loan bill the burden of the proposed loan can never fall upon the city, if true in point of fact, would turn the complainants out of court. But the facts do not justify such an assertion. The proposed loan can only be issued upon the credit of the city, and the city’s certificates of indebtedness must be given therefor. The property of the complainants would be responsible for every dollar of the loan. To hold that this responsibility would not, under any circumstances, be enforced, is to assume that the business of manufacturing gas is absolutely free from all the contingencies to which every other branch of business is liable, and that the Gas Trust itself is so far above all other trusts in its own integrity, and that of its numerous employees and agents, as to render defalcations, embezzlements, and mismanagement impossible.

The Sewer Loan bill may be regarded as a bill quia timet, a well-settled branch of equity jurisdiction, recognised by this court in Baird v. Rice, 13 P. F. Smith 489, in which the passage of an ordinance appropriating any moneys, or laying any special tax in aid of the construction of new public buildings at Broad and Market streets, in the city of Philadelphia, was sought to be restrained. Also, in Page v. Allen, 8 P. F. Smith 338, before cited, and in Wells v. Bain, 25 P. F. Smith 39.

Having thus conceded the right of the complainants to file these bills, it remains to consider how far they have made out a case which entitles them to the equitable relief prayed for.

It is alleged that the Act of 23d of May 1874, offends against article 3d of section 7th of the Constitution. The material parts of said section are : “ The General Assembly shall not pass any local or special law * * * regulating the affairs of counties, cities, townships, wards, boroughs, or school districts. * * * Nor shall any law be passed granting powers or privileges where the granting of such powers or privileges shall have been provided for by a general law.” * * *

Without entering at large upon the discussion of what is here meant by a “local or special law,” it is sufficient to say, that a statute which relates to persons or things as a class, is a general law, while a statute which relates to particular persons or things of a class is special, and comes within the constitutional prohibition.

The necessity for classification is recognised in the Constitution itself. In the article upon the judiciary, section 5th, it says: “Whenever a county shall contain 40,000 inhabitants, it shall constitute a separate judicial district.” In section 12 of the same article: “ In Philadelphia there shall be established for every 30,000 inhabitants, one court not of record, of police and civil causes.” Again, in section 27 of the same article: “ In every county wherein the population shall exceed 150,000 the General Assembly shall establish a separate Orphans’ Court.” We are aware that it does not follow that because classification is resorted to in the organic law, the legislature may exercise the same power. -But the power existed at the time of the adoption of the Constitution; it had been exercised by the legislature from the foundation of the government; it was incident to legislation, and its exercise was necessary to the promotion of the public welfare. The true question is, not whether classification is authorized by the terms of the Constitution, but whether it is expressly prohibited. In no part of that instrument can^ any such prohibition be found.

For the purpose of taxation, real estate may be classified. Thus, timber lands, arable lands, mineral lands, urban and rural, may be divided into distinct classes, and subjected to different rates. In like manner other subjects, trades, occupations, and professions, may be classified. And not only things but persons may be so divided. The genus homo is a subject within the meaning of the Constitution. Will it be contended that as to this there can be no classification? No laws affecting the personal and property rights of minors as distinguished from adults ? Or of males as distinguished from females ? Or, in the case of the latter, no distinction between a feme covert and a single woman ? What becomes of all our legislation in regard to the rights of married women if there can be no classification ? and where is the power to provide any future safeguards for their separate estate ? These illustrations might be multiplied indefinitely were it necessary. But it is contended that even if the right to classify exists, the exercise of it by the legislature, in this instance, is in violation of the Constitution, for the reason that there is but one city in the state with a population exceeding 300,000; that to form a class containing but one city is in point of fact legislating for that one city, to the exclusion of all others, and constitutes the local and special legislation prohibited by the Constitution. This argument is plausible, but unsound. It is true, the only city in the state, at the present time containing a population of 300,000, is the city of Philadelphia. It is also true that the city of Pittsburg is rapidly approaching that number, if it has not already reached it, by recent enlargements of its territory.

Legislation is intended not only to meet the wants of the present, but to provide for the future. It deals not with the past, but in theory at least, anticipates the needs of a state, healthy with a vigorous development. It is intended to be permanent. At no distant day Pittsburg will probably become a city of the first class; and Scranton, or others of the rapidily growing interior towns, will take the place of the city of Pittsburg, as a city of the second class. In the meantime, is the classification as- to' cities of the first class bad because Philadelphia is the only one of the class ? We think not. Classification does not depend upon numbers. The first man, Adam, was as distinctly a class, when the breath of life was breathed into him, as at any subsequent period. The word is used not to designate numbers, but a rank or order of persons or things ; in society it is used to indicate equality, or persons distinguished by common characteristics, as the trading classes; the laboring classes; in science, it is a division or arrangement, containing the subordinate divisions of order, genus, and •species.

If the classification of cities is in violation of the Constitution, it follows, of necessity, that Philadelphia, as a city of the first class, must be denied the legislation necessary to its present prosperity and future development, or that the small inland cities must be burdened with legislation wholly unsuited to their needs. For if the Constitution means what the complainants aver that it does, Philadelphia can have no legislation that is not common to all other cities of the state. And for this there is absolutely no remedy but a change in the organic law itself.

This is a serious question. We have but to turn to the statute book to realize the vast amount of legislation in the past, special to the city of Philadelphia. We speak not now of what is popularly known as special legislation, private acts, &c., but of proper legislation, affecting the whole city, and indispensable to its prosperity. We may instance the laws in regard to the quarantine, lazaretto, board of health, and other matters connected with the sanitary condition of the city; the laws in regard to shipping and pilotage as affecting its commerce; laws concerning its trade, such as those that relate to mercantile appraisers, inspectors of flour, bark, beef and pork, butter and lard, domestic distilled spirits, flaxseed, leather, tobacco, petroleum ; and the laws in regard to building inspectors ; the storage and sale of gunpowder ; laws affecting its political condition, as by the division and subdivision of wards, and the establishing of the ratio of representation in councils. We have but to glance at this legislation to see that the most of it is wholly unsuited to small inland cities, and that to inflict it upon them would be little short of a calamity. Must the city of Scranton, over 100 miles from tide water, with a stream hardly large enough to float a batteau, be subjected to quarantine regulations, and have its lazaretto ? Must the legislation for a great commercial and manufacturing city, with a population approaching 1,000,000, be regulated by the wants or necessities of an inland city of 10,000 inhabitants ? If the Constitution answers this question affirmatively, we are bound by it, however much we might question its wisdom. But no such construction is to be gathered from its terms, and we will not presume that the framers of that instrument, or the people who ratified it, intended that the machinery of their state government should be so bolted and riveted down by the fundamental law as to be unable to move and perform its necessary functions.

The Constitution of the state of Ohio contains a prohibition of special legislation similar to our own. The question of the classification of cities under this section of their Constitution was considered by the Supreme Court of that state in Walker v. The City of Cincinnati, 21 Ohio St. 14, and such classification was held to be constitutional.

We do not think that the classification of cities, as contained in the Act of 23d of May 1874, offends against any constitutional provision.

This construction does not open the door to special legislation. It permits legislation for classes, but not for persons or things of a class. • As an illustration, it could not be held to authorize the legislature to open or vacate a particular street in a city of either of the classes named in the act referred to.

If the complainants were right in their position in regard to the classification of cities, and that the act classifying cities is a special act, applicable to Philadelphia alone, it would not help them. The legislature is authorized by the express terms of the Constitution to empower by special act a city to increase its debt. The language of that instrument is “ but any city, the debt of which exceeds seven per centum, may be authorized by law to increase the same.” It was entirely competent for the legislature to have passed an act authorizing the city of Philadelphia, by name, to increase its debt.

This brings us to the consideration of the second objection to the constitutionality of the Act of 23d of May 1874. The 8th section of article 9th of the Constitution, provides that, “ The debt of any county, city, borough, township, school district, or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of taxable property therein, nor shall any such municipality or district, incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the assent of the electors thereof, at a public election, in such manner as shall be provided by law; but- any city, the debt of which now exceeds seven per centum of such assessed valuation, may be authorized by law to increase the same three per centum in the aggregate at any one time upon such valuation.”

This section is not clearly expressed. Yet its true meaning may be gathered with reasonable certainty. The end sought to be attained was clearly a limitation upon the debt of municipalities, and seven per centum upon the assessed value of the taxable property therein was fixed as the maximum. The fact was, however, known to the convention that at that time the debt of the city of Philadelphia and perhaps some other municipalities, exceeded seven per centum. In such. instances an arbitrary provision, that there should be no further increase of the debt, might have worked great injury by the stoppage of public works already commenced and essential to the public convenience and welfare. It was therefore provided, that as to such municipalities the debt might be increased three per centum. The main controversy, however, was as to the manner in which such increase should be accomplished. Here again the distinction is preserved between municipalities whose debt is under seven per centum and those in which it exceeds seven per centum. In the former, the municipal authorities may increase the debt from time to time until two per centum has been added, provided the original debt, with the increase, does not exceed seven per centum. After the two per centum has been added there can be no further increase without the vote of the people. To illustrate:

The whole debt is not to exceed seven per centum.

We will suppose the debt to have been two per centum at the time of the adoption of the Constitution.

Two per centum may be added by the municipal authorities, making the debt four per centum.

No portion of the remaining three per centum can be added without the assent of the electors of such municipality at a public election, in such manner as shall be provided by law. But when a city, whose debt at the time of the adoption of the Constitution already exceeded seven per cent, seeks to increase its debt, it can do so only with the consent of the law-making power of the state. The Constitution has interposed the legislature between such municipality and any further increase of its debt. But when the legislative sanction has been obtained, the municipal authorities may increase the debt precisely as in the case of towns whoso debt is less than seven per centum. The proposed increase hero is one per centum. This clearly does not require a vote of the people. Whether it would have been necessary to have submitted the question to a popular vote, had the increase exceeded two per centum, is a question about which we express no opinion. When the point is legitimately raised we will decide it.

We regard this as the true and reasonable construction of the section of the Constitution referred to. It does no violence to any known rule of interpretation, and carries out the plain object of the section. Ingenious arguments may be based upon the relation of an article or preposition to the other language employed, but a broader view, giving to the words their ordinary signification, and having regard to the mischief sought to -be remedied, leaves us in no doubt as to the correctness of our conclusions.

We need not discuss the third and fourth points raised in the plaintiffs’ bill. It is sufficient to^say in regard to the third, that were we disposed to go behind the Act of Assembly and inquire into the regularity of its passage there is not sufficient proof before us, by affidavit or otherwise, to justify our interference. Nor do we see any force in the objection that the object of the act is not clearly expressed in the title. In Allegheny County Homes’ Appeal, antea 77, it was held that “ if the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to the contents, as has often been said.” Tested by this rule, we do not regard the title as fatally defective.

It remains but to consider the fifth point.-

Article 9th, section 7th, of the Constitution, proYides, that the General Assembly shall not authorize any county, city, borough, township, or incorporated district, to become a stockholder in any company, association, or corporation, or to obtain or appropriate money for, or loan its credit to, any corporation, association, institution, or individual.”

It is alleged that the Gas Trust is an association or institution within the meaning of this section of the Constitution, and that an Act of Assembly authorizing the city to borrow money to extend the Gas Works, offends against said section.

The relation of the city to the Gas Works is not a new subject. It has been before this court upon several occasions, and in the Western Saving Fund Society v. The City, 7 Casey 175-185, will be found a very full history of the Gas Works, as well as an elaborate discussion of the rights of the city therein. We need not repeat what is already known to all who have investigated the subject. It is sufficient to state the conclusions which are legitimately to be drawn from what has heretofore been said and is now presented.

It is clear that the Gas Works are the property of the city of Philadelphia. All the deeds and muniments of title are taken in the name of the city. This is true not only of what may be called the original Gas Works, but of all purchases made since. The works of the Éichmond Gas Company, the Germantown Gas Company, the Southwark and Moyamensing Gas Company, the Manayunk Gas Company, and the Kensington Gas Company, have all been consolidated with the Philadelphia Gas Works. The title to each of these separate works is vested absolutely in the city. No other individual or corporation has any interest in them as stockholder or part owner. The Trustees of the Gas Works have no pecuniary interest in them. It is true they have the control of the management, hut this is by virtue of the original contract between the city and the bondholders and for the protection of the latter. This ■ is the scope of the decisions in the. Western Saving Fund cases. So long as the loanholders remain unpaid they have a right to demand that no change shall be made in the management, either as to the number of the trustees or their mode of appointment. But the moment the loanholders are paid the Gas Works revert to the city, and the trustees have no further duty to perform but to account with the city for their stewardship. They are agents of .the city, nothing more, and their possession of the works is the possession of the city, with this qualification, that until the city pays the debt for which they are pledged, the trustees cannot be moved or disturbed in their management.

For the purposes of this case we must treat this qaestion as if there were no trustees, and the works were operated by the city directly through officers or agents immediately under its control. Such being the case, are we to regard the Gas Works as an “ institution” having a separate, recognised existence apart from the city ? The affirmative of this proposition cannot be successfully maintained. The most that can he urged is, that the city is acting in a double capacity; in the one, exercising rights of sovereignty ; in the other, performing the functions of a private corporation in the manufacture and sale of gas. This tvas the view taken of it by this court, in the Saving Fund Cases, above cited. It was said by Mr. Justice Strong, delivering the opinion of the court, 7 Casey 185: “Nor can there be any doubt that the trust existing in the trustees is a private one, and that the city of Philadelphia, is to be regarded as a private corporation, so far as relates to its contract with the bondholder,s. It was not as a municipality that it dealt with them. As a local sovereign it had no authority to enter into the business of manufacturing and selling gas, for its sovereignty did not extend to such subjects any more than it did to almost any other manufacture.” This was of course predicated of what was then before the court, viz. : whether the city, in violation of its contract with the bondholders, could take the management of the works out of the hands of the trustees. While it is no part of the ordinary and necessary duties of a municipal corporation to supply its citizens with gas and water, it is nevertheless true that it may lawfully do so. Without desiring to enter into a nice discussion of the source of its right or power to do this, the fact that it has been exercised in this and many other states-for a long time unchallenged exists. Rights have grown up ; large expenditures and costly improvements made ; the health and comfort of large communities promoted thereby. The lighting of a city with gas, and supplying it with pure water, are entirely disconnected from wild speculations of the character indicated upon the argument.

We do not think the Gas Works have any separate entity. They resemble the Water Department and the Fairmount Park. Aside from the trustees, and they amount to nothing in our view of the case, the Gas Works may be considered as property belonging to the city, and operated, not for the purpose of speculation, but to promote the comfort of the whole body of the people. As their original acquisition and subsequent use were lawful, debts contracted therefor must be paid by the city. While, as regards the loanholder, the city may be considered as a private corporation, as between the city and her citizens, for whose benefit the works were constructed and are now used, it is of little moment whether we regard the former as a private corporation or a sovereign, legislating for the benefit of its citizens. In either event the latter are bound by the contract of the city. The constitutional provision referred to, was intended to prevent: First, the city from becoming jointly interested as stockholder with any company, association or corporation ; and second, from obtaining or appropriating money for, or loaning its credit to, any corporation, association, institution pr individual. The Gas Works being exclusively owned by the city, it is clear the case does not come within the first division above stated. It appears equally plain that the latter division or clause of the article referred to was not intended to apply to cases where the corporation, association or institution had no legal existence, separate and apart from the city, and where the latter merely sought to borrow money for its own use, in the improvement of its own property, lawfully acquired, for either the comfort, health, or pleasure of its citizens.

This clause in our Constitution, as well as the one in reference to special legislation, was borrowed from the Constitution of the state of Ohio. In Walker v. The City of Cincinatti, before cited, the Supreme Court held, that an Act of Assembly authorizing tho entire construction of a railroad by a city of the first class, where such road was material to the development of the city, and to empower the local authorities to provide means therefore by the taxation of its citizens, was not in violation of the constitutional provision referred to. Says Chief Justice Scott, in delivering the opinion of the court: 11 The mischief which this section interdicts is a business partnership between a municipal or subordinate division of a state, and individuals or private corporations or associations. It forbids the union of public or private capital or credit in any enterprise whatever. In no project, originated by individuals, whether associated or otherwise, with a view to gain, are the municipal bodies named permitted to participate in such manner as to incur pecuniary expense or liability. They may neither become stockholders, nor furnish money or credit for the benefit of the parties interested therein. As this alliance between public and private interests is clearly prohibited in respect to all enterprises of whatever kind, if we hold that these municipal bodies cannot do on their own account what they are forbidden to do on the joint account of themselves and private partners, it follows that they are powerless to make any improvement, however necessary, v'th their own means, and on their own sole account. We may be very sure that a purpose so unreasonable was never entertained by the framers of the Constitution.”

The section of our Constitution now' under consideration is not new. It is substantially the same as the amendment to the late Constitution, adopted in 1857. See article 11, section 7, Brightly’s Purdon 34. Since 1857 five loans, aggregating $4,500,000, have been issued by the city for the benefit of the Gas Works, without an objection on the part of any citizen. The considerations which are now urged upon us are not such as should move a chancellor to interfere, especially when there has been such universal and long-continued acquiescence.

The injunction is refused.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Pleasants’ Appeal.
    1. Bowen, domiciled in Philadelphia, devised all his “real and personal property in Jamaica,” part being slaves, which there were real estate ; after the date of the will, and during his life, Parliament passed an act, by which slaves were set free, and appropriated money to compensate their holders; after testator’s death, his proportion was ascertained by commissioners under the act and paid to his executors. Held, that the act was a conversion into personalty before his death, and a revocation of the devise, and that the compensation received was not substituted for it.
    2. The testator being domiciled in Philadelphia, the compensation did not pass under the will as “ property in Jamaica it followed the person of the testator.
    3. The testator authorized his executors to sell all his property and invest the proceeds “in some safe and productive stock, * * * either in Jamaica or the United States they invested in United States Bank stock, in July 1826, the bank being then in good repute and the stock selling above par ; it failed in about a year and the investment was lost. Held, that the executors were not responsible.
    February 3d 1875.
    Before Agnew, O. J., Skarswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia: No. 168, to July Term 1872.
    In the estate of Austin Montgomery, deceased, sur account of The Pennsylvania Company for Insurance on Lives, &c., administrators d. b. n. c. t. a. of said deceased.

      The controversy in this case arose under the will of John Bowen, who died March 4th 1835, having made his will, dated November 20th 1830, and proved June 17th 1835; letters testamentary were issued to Martha P. Bowen and Austin Montgomery, the executors named in it. At the date of his will and at the time of his death, the testator was domiciled in Philar delphia.
    The will contained these provisions:
    “ I give, &c., unto my wife, Martha P. Bowen, all my real and personal estate and property in the island of Jamaica, * * * during her natural life, provided that she continue unmarried; but if my said wife should again marry, then my will is * * * she shall receive only one-third part of the income thereof during her life. Upon the death of my said wife or her marrying again, I give, &c., my said real and personal estate and property in the island of Jamaica to my son, Austin Montgomery Bowen, and my daughter, Isabella M. Bowen — my son to take two third parts, * * * and my daughter to take one third part as tenants in common, subject, however, should my wife have married again, to the payment to her during her life by my said son and daughter, of one-third of the income thereof. * * * But, notwithstanding the foregoing devises and bequests, I hereby authorize and empower my executrix and executor, and the survivor of them, whenever they or the survivor of them, at any time before my said son shall attain the age of twenty-one years, shall think it expedient so to do, to sell my said real and personal estate and property in the island of Jamaica.' * * *
    “ Should such sale be made, * * * I order and direct that the proceeds of such sale shall be invested by my executrix and executor, &c., in some safe and productive stock, mortgages or other real security, either in Jamaica or the United States of America; and if my said wife shall then be living and unmarried, that the whole of the income of the said proceeds of sale so invested (after deducting expenses) be paid to my said wife for her use while she continues unmarried. But if my said wife should at the time of the said sale .be again married, or should subsequently marry, then my will is, * * * she shall receive only one-third of the income or interest thereof, tobe paid to her annually, during her life.” * *
    [Upon the marriage or death of his wife the proceeds of sale were to be divided between his son and daughter, as was directed as to the real estate.]
    “It is my will, that if either of my said children should die under the age of twenty-one years, unmarried, and without issue, the share * * * bequeathed to the child who shall so die, shall go to my surviving child, * * * but if both of my said children should die under the age of twenty-one years, unmarried, and without issue, then * * * the real estate and property in the island of Jamaica, and the proceeds thereof, if sold, * * * I hereby give to my sister, Isabel B. Montgomery, wife of Austin Montgomery, to hold the same to her for her own use during her life, and, upon her death, then to my brothers, Ralph W. Peacock and George S. Peacock, their heirs, executors, administrators and assigns, share and share alike, as tenants in common.
    “ All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to my beloved wife, _ Martha P. Bow'en, to hold to her, her heirs, executors, administrators and assigns.”
    At the date of the will, the testator owned a plantation, with 130 slaves thereon, called the Bowen Hall estate, and situate in the parish of Yere, in the island of Jamaica. This is variously described in his will, above recited, as “ all my real and personal estate and property in the island of Jamaica,” or “ the real estate in Jamaica,” or “ the real estate and property in the island of Jamaica.” Under the laws of Jamaica slaves were real estate.
    On the 28th of August 1833, the British Parliament passed “ An Act for the abolition of slavery throughout the British colonies, &c.-, 3 & 4 Wm. IY., c, 73, wherein it was provided that on and after the 1st day of August 1834, all persons held in slavery within any British colony should become and be, to all intents and purposes, free and discharged of and from all manner of slavery, and be absolutely and for ever manumitted; and that in order to compensate the persons entitled to the services of the slaves for the loss of such services, 20,000,0007 should be set aside, and, by commissioners to be appointed by the crown, apportioned amongst the several slave colonies, and afterwards divided amongst the holders of the slaves. The material clauses of the Act of Parliament, are given at lai’ge in the opinion of Judge Mercur. The slaves were set free August 1st 1834.
    The commissioners were authorized to frame rules, regard being had to the laws and usages of the respective colonies, for securing the just and equitable distribution of the funds, &c.; the rules to be submitted to the Privy Council, and upon being confirmed by them, to be certified to the Court of Chancery, there to remain of record and be of the same validity as if made by Parliament.
    Rules were accordingly prepared, submitted and confirmed by the Privy Council, March 10th 1835. Amongst others, were the following:
    That in respect to all persons who, as owners or creditors, legatees or annuitants, may have any joint or common interest in any slave or slaves, or may be entitled to or interested in any slave or slaves, either in possession, remainder, reversion or expectaucy, the compensation-moneys to be awarded in respect of such slave or slaves shall be deemed to be of the same nature and impressed with the same character for all purposes whatsoever, so far as the same can be so taken and applied, as the slave or slaves in respect of whom such moneys shall be allotted, and'shall be subject to the same rules of distribution, and to the same charges and liabilities as the same slave or slaves respectively would have been subject to, according to the several estates and interests of the parties entitled thereto, and agreeably to the law an<J usages of the particular colony in which such slave or slaves may be registered or settled.
    That the compensation-moneys to be awarded in respect of any slave or slaves subject to any trusts or powers whatsoever, shall be subject to the same trusts or powers in all respects as the same slave or slaves were subject to.
    That in ease of the death of any person entitled to such compensation-moneys who may die intestate before the award of such compensation, the succession to such moneys shall be the same as the succession to the interest in the slave or slaves in respect of whom the compensation shall be allotted according to the law of the particular colony in which such slave or slaves were registered or settled.
    The testator did not live to receive the compensation-money. All the devisees and legatees named in his will survived him ; but his two children died under the age of twenty-one years, unmarried and without issue. On the 19th June 1835, the executors filed an “ inventory of the household goods and furniture of the late John Bowen,” their appraised value amounting to $2384.50. No other inventory was filed.
    On the 5th of October 1835, the commissioners of compensation awarded'to Martha P. Bowen and Austin Montgomery 2751Z. 3s. Id. for the slaves.
    On the 12th of March 1836, the amount of this award, with interest, $13,767.69, was paid to the executors ; of this sum they invested on the 7th of July 1836, $12,950.79 in the stock of the Bank of the United States, chartered by the Commonwealth of Pennsylvania on the 7th of July preceding. The bank suspended specie payments in May 1837, and failed in February 1841; the whole investment was lost. The executors of Mr. Bowen never filed an administration account. Mrs. Bowen died unmarried on the 15th of July 1849, leaving a will by which she directed as follows :
    “ I direct that so much of my. six per cent, bonds of the city of Cincinnati as may be necessary for the purpose be sold, and the proceeds thereof to be applied as a repayment to the Bowen Hall estate in the island of Jamaica for certain moneys received from the sale of land belonging to the estate, and which moneys have been used in the management of the said estate.” And she appointed J. Fisher Learning and John Bowen, late Ralph W. Peacock, executors. The auditor of Mr. Learning’s accounts, reported as to the power of sale given to her and her co-executor by the will of John Bowen; “ The power of sale appears to have been partially exercised (whether adequately or not the auditor does not undertake to determine), and the proceeds, amounting to about $2600, received by Mrs. Bowen. Austin Montgomery, surviving executor of John Bowen, and husband of Mrs. Isabel B. Montgomery, claimed the.sum of $2639.32, with interest from July 5th 1849, for moneys received from the Bowen Hall estate by Mrs Bowen during her lifetime, and which she directed to be repaid to that estate by the clause in her will, already recited. This claim was admitted to be correct by the executor of Mrs. Bowen.”
    After Mrs. Bowen’s death, Mrs. Isabel B. Montgomery the next life-tenant, found the Jamaica estate in a very low condition, the buildings dilapidated, &c., and stock wanting. ' She did not make any repairs to the houses, but authorized her agents in Jamaica to expend money for wages of labor, and restocking the place, so as to bring it into cultivation. On a settlement with her agents, on the-23d of September, she was found to be indebted to them $2286.37; her husband, Austin Montgomery, paid this amount to the agent on the 9th of December 1850.
    On the 21st of May 1851, Mr. Learning, the executor, &c., of Mrs. Bowen, paid to Austin Montgomery, as executor, &c., of Bowen, $2929.51 in full, principal a,nd interest of the amount directed by Mrs. Bowen’s will to be repaid to her husband’s estate. On the final settlement' of Mrs. Bowen’s estate, it was ascertained that it would not pay its creditors in full, and on the 18th of August 1854, the auditor reported that Mr. Montgomery, the executor, should refund $431.93 of the $2929.61 which had been paid to him as surviving executor of Mr. Bowmn’s will; it was accordingly repaid. At this audit, John Bowen (whose name had been changed by Act of Assembly from Ralph W. Peacock), one of the remainder-men, in his own right, and as administrator, &c., of George S. Peacock, the other remainder-man, claimed indemnity for losses from the investment of the funds of Bowmn, the testator, in the stock of the Bank of the United States; the auditor dismissed the claim, chiefly for reasons not involving the question of the propriety of the investment.
    On the 29th of January 1855, Austin Montgomery, as surviving executor, &c., of Bowen, the testator, executed to Learning, the executor, &e., of Mrs. Martha P. Bowen, the other executor, ce release of all demands which he might have against him individually or as executor, or by reason of the claim of the remainder-men, set forth in the above-mentioned auditor’s report.
    Austin Montgomery died November 5th 1855, having made his will, dated January 27th 1851, giving all his estate to his wife, Isabel B. Montgomery; he appointed her his executrix; letters testamentary were issued to her November 13th 1855, but she never filed any inventory or account. She died December 16th 1865, having made a will, of which John T. Montgomery and Edward E. Law were appointed executors, to whom, after some controversy as to the validity of the will, letters testamentary were issued July 11th 1866.
    After the death of Austin Montgomery, letters of administration, d. b. n. c. t. a. of Bowen the testator were issued to James Pleasants ; he was also administrator, &c., of John Bowen (late Peacock) and George S. Peacock, the remainder-men under the testator Bowen’s will.
    On the 31st of April-1868, the executors, &c., of Isabel B. Montgomery filed their administration account. Before the auditor to whom it was referred, Pleasants presented claims for the $13,477.77, compensation received for slaves, arid the $2929.61 repaid under Mrs. Bowen’s will with interest. The executors of Mrs. Montgomery having in their hands a balance of about $119,000, by consent of all the parties, $20,000 were set aside to meet these claims, and the remainder of the balance distributed to the parties entitled under her will.
    About July 10th 1869, administration d. b. n. c. t. a. of the estate of Austin Montgomery was granted to “ The Pennsylvania Company for Insurance on Lives,” &c. ” Upon the application of parties interested under the will of Bowen, the testator, the Orphans’ Court appointed an auditor to state an account of the administration of Isabel B. Montgomery of the estate of Austin Montgomery, and to report the amount of assets which had come into her hands from his estate. The auditor reported, February 19th 187 0, that Mrs. Montgomery had received from Austin Montgomery’s estate an amount beyond all allowances, exceeding the sum set aside to meet the claims for the investment in United States Bank stock and the money repaid under Mrs. Bowen’s will, and that Mrs. Montgomery’s executors should be charged with the sum so set aside, which then amounted to $21,111.93. This sum was afterwards transferred to The Pennsylvania Company for Insurance on Lives, &c., as administrator, &c., of Austin Montgomery, deceased.
    So far as can be gathered from the report of the auditor — in which the foregoing facts were found — and the history of the case in the appellant’s paper-book, The Pennsylvania Company, &c., administrator d. b. n. c. t. a. of Austin Montgomery, deceased, settled the account of their administration, which was referred to an auditor to report distribution. He found that the accountants were chargeable with $21,111.93.
    The claims which were specially before the auditor were by the representatives of R. W. Peacock (now John Bowen) and George S. Peacock, for the amount of compensation paid for the slaves; also, for the $2929.61, repaid under the direction of Mrs. Bowen’s will, to Austin Montgomery as surviving executor of Bowen tbe testator’s will.
    The auditor reported that the Act of Parliament was an equitable conversion of the slaves into personal property, citing Richard v. Attorney-General of Jamaica, 6 Moore’s Privy Council Cases 331, a case in which the effect of the same Act of Parliament as to conversion was considered. He further reported that there being a conversion, the property, thus being personal estate, did not pass under the specific gift of all his “ real and personal estate and property in the island of Jamaica,” but had no locality apart from the person of the owner : it therefore followed the law of the pei’son and passed to the widow as residuary legatee.
    As regards the investment in United States Bank stock the auditor, quoting the clause in Bowen the testator’s will, said that the executors “ were bound to invest the money in some safe and productive stock, mortgages or other real security, either in Jamaica or the United States of America.” This duty they fulfilled as far as the bulk of the fund was concerned, by investing the same in said stock of the Bank of the United States. In July 1836, when said purchase of stock was made, the stock of said bank was generally regarded as a good and safe investment by the community — by business men; was selling at about the price at which the said executor and executrix bought, viz.: $123, which was $23 above its par value; that it sold for as much as $122.50 in October 1838, the fluctuations not being very great between 1836 and 1838. The bank was paying specie, and continued to do so, until about the 11th of May 1837. Not only was its reputation good, but its character was good so far as any ordinary person, cautious and seeking for information, could then discover, if he had scrutinized its affairs ; * * * The dividends on the stock were such as to characterize^the stock as “ productive” also. * * *
    It would be altogether contrary to equity to hold that Austin Montgomery, having power to invest in a “ safe and productive stock,” was not authorized to invest in the United States Bank stock in July 1836. And having once made a proper investment, he could not be held liable for not selling it at a loss before the bank failed. * * * Upon the foregoing hypothesis, that portion of the compensation fund which was not invested, the said Austin Montgomery would be obliged to account for.
    In reference to the balance of the sum $2929.61 repaid under the directions of Mrs. Bowen’s will, he reported : “ It must be assumed that the sale of land spoken of by Mrs. Bowen in her will, was one made during the minority of her son, and a valid one. It is further submitted that the direction to repay money to Bowen Hall estate was not intended as a gift but an honest restoration by Mrs. Bowen to the estate of her husband of a sum equal to the principal money she had received from a sale of part of his estate in Jamaica, and which she, as life-tenant, had used in the management of said estate.
    The said $2929,61 being the proceeds of sale of land under the will of John Bowen, it was the plain duty of Austin Montgomery, under the Sd clause of said will, upon receiving said money, to invest the “ same' in some safe and productive stock, mortgages or other real security either in Jamaica or the United States of America and not having done so, he became responsible for the amount to all parties interested. * * *
    This claim is allowed after deducting from the amount thereof the $431.93 refunded by order of court towards paying her debts, as hereinbefore mentioned, the interest to be computed on the balance from the death of Mrs. Isabel B. Montgomery. * * * The auditor cannot say that the estate of Austin Montgomery is liable for more than he received and was finally allowed to hold, viz., $2497.68, with interest. * * * He reported therefore that the estate of Austin Montgomery was liable for the balance of the amount paid him, which arose from the money repaid under the direction of Mr. Bowen’s will and was paid to him. This sum, with interest to February 16th 1872, amounted to $3421.82, the remainder (after deducting costs and expenses), amounting to $17,765,21, he awarded to the executors, &c., of Isabel B. Montgomery, deceased.
    James Pleasants filed exceptions to the report of the auditor ; they were quite voluminous, but raised the following questions :
    Who were the persons entitled under the will of John Bowen, the testator, to the money received as compensation for his slaves; was the Act of Parliament a conversion into real estate, and if so, was the gift of his property in Jamaica specific, so that, whether real or personal, the compensation passed under it ?
    The other question was whether the executors were responsible for the loss arising from the investment in the stock of the Bank of the United States.
    The Orphans’ Court dismissed the exceptions and confirmed the report of the auditor.
    Pleasants appealed to the Supreme Court, and assigned for error, that the Orphans’ Court erred in dismissing the exceptions and confirming the report of the auditor.

      It. II. McGrath and J. U. Gowen (with whom was 3. Hood), for appellants, argued in support of the following propositions :
    By the Emancipation* Act and the rules made under them, the compensation-money was a substitute for the slaves, and was deemed to be of the same nature and impressed with the same character for all purposes whatsoever as the slaves in respect of whom such money was allotted, and was subject to the same rules of distribution as the slaves would have been subject to.

      The compensation-money was not subject to the ordinary rules for the devolution of property, but the Emancipation Act and the rules under it provide and enact a complete and special code or system for the distribution of the compensation fund, and exempt and withdraw it from the ordinary rules of law respecting debts and choses in action, conversion, implied revocation, ademption, the lex loci rei sites, and after-acquired property.
    By the will of John Bowen, his real and personal estate in the island of Jamaica, — which would include this compensation-money substituted for the slaves, — passed to his widow for life, and on her death, after the death of her children, to IsabelB. Montgomery for life, and on her death absolutely to Ralph W. and George S. Peacock, whose estates are represented by the appellant.
    The investment of the compensation-money, when received, by the executors of John Bowen’s will, in the stock of the Bank of the United States in 1836, where it was lost, was not an investment in a “ safe and productive stock” under the direction contained in his will, and they are liable to the appellant for the loss occasioned thereby.
    Appellant’s claim is not barred by lapse of time, he having no right of action until the death of Mrs. Montgomery, the life-tenant, in 1865.
    As to the question of conversion, Richards v. Attorney General, cited by the auditor, is not binding on our courts : Cathcart v. Robinson, 5 Peters 280; Koontz v. Krable, 16 Md. 555; Skelly v. Bank, 9 Ohio St. 616; Lebanon Bank v. Mangan, 4 Casey 452. The money appropriated by Parliament was a more donation to be accepted on its conditions: Kellogg v. Waite, 12 Allen (Mass.) 529. The Act of Parliament did not vest the money; that was accomplished by the award of the commissioners : Vanhorne v. Dorrance, 2 Dall. 317; United States v. Wells, 2 W. C. C. 161.
    The devise was not revoked by the Act of Parliament: Taylor’s Settlement, 1 Hare 596; Walker’s Case, 21 Law & Eq. 85; Stewart & Harner’s Trusts, 5 De G. & J. 483; Count’s Estate, 4 Id. 503; Pennell’s Appeal, 8 Harris 515; Lloyd v. Hart, 2 Barr 473 ; Hayes’ Appeal, 2 P. F. Smith 449. The executors Avere responsible for loss by the investment in Bank of United States stock: Hemphill’s Appeal, 6 Harris 303 ; Nyce’s Estate, 5 W. & S. 254; Pray’s Appeal, 10 Casey 108 ; Worrell’s Appeal, 11 Harris 48. The suspension of specie payments by the hank should haA'e put the executors on their guard: Morris v. Wallace, 3 Barr 319; Ihmsen’s Appeal, 7 Wright 431; Wills’ Appeal, 10 Harris 325 ; Hill on Trustees 583; McCahan’s Appeal, 7 Barr 56; Jones’ Appeal, 8 W. & S. 150.

      Gr. M. Dallas and P. McCall (with whom was J. Sword), for appellees.
    If specific property be given by will, the donee can take only the specific thing given; if at testator’s death he does not own it, the gift is revoked: Farrar v. Winterton, 5 Beav. 1; Moore v. Raesbeck, 12 Sim. 123. Where a testator has devised land and afterwards sold it, the devise is revoked and the purchase-money is not substituted : Mayer v. Gowland, 2 Dick. 563 ; Bennett v. Tankerville, 19 Ves. 170 ; Townley v. Bedwell, 14 Id. 591; Lawes v. Bennett, 1 Cox 167; Rose v. Jessup, 7 Harris 284 ; Leiper’s Appeal, 11 Casey 420, even where land is devised to be sold and the proceeds are given : Arnald v. Arnald, 1 Brown’s C. C. 403 ; Newbold v. Broadknight, 1 Russ. & My. 677. Although the compensation for the slaves continued real estate, yet being a change of the thing devised, the devise was revoked: Sparrow v. Hardcastle, 3 Atkyns 802; Brydges v. Chandos, 2 Ves. Jr. 427 ; Knollys v. Alcock, 5 Id. 653; Cave v. Holford, 3 Id. 650 ; Marwood v. Turner, 3 P. Wms. 167; Abney v. Miller, 2 Atkyns 593. So where the change arises from acts over which the testator has no control: Attorney-General v. Vigor, 8 Ves. 282; Wright v. Rose, 2 Sim. & Stu. 324; Durant v. Friend, 11 Law & Eq. 2; Ludlam’s Estate, 1 Harris 193; Hoke v. Herman, & Id. 301.
    May 10th 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

The contention in this case may be resolved into two questions. The one covered by the first four assignments of error; the other, by the sixth and seventh assignments.

The first question is, to whom, under the will of John Bowen, was given the compensation-money, subsequently paid, for the liberation of his slaves ?

On the 20th of November 1832, he was the owner of a plantation, with 130 slaves thereon, situated in the island of Jamaica. On that day, being domiciled in the city of Philadelphia, he made his last will and testament. Therein and thereby he' devised and bequeathed to his wife all his real and personal estate and property in the island of Jamaica, for her own use, during her natural life, provided she continued unmarried, with remainders over terminating in the persons for Avhose estate the appellant is administrator. All the rest, residue and remainder of his estate, both real and personal, he devised and bequeathed to his wife, her heirs and assigns. He died on the 4th of March 1835, domiciled in Philadelphia.

This will was duly proved before the Register of Wills, in Philadelphia, on the 17th of June 1835, and letters testamentary granted to the executors therein named;

At the date of the will, slaves in Jamaica were real estate. They must have been transferred by acts inter vivos, or by devise, in the same manner, and with the same formalities as lands: 1 Burges’ Colonial and Foreign Laws 663-4.

On the 28th of August 1833, the British Parliament passed the Act of 3 & 4 Will. IV., ch. 73. It is entitled, “An Act for the abolition of slavery throughout the British colonies; for promoting the industry of the manumitted slaves, and for compensating the persons hitherto entitled to the services of such slaves.” In the preamble is recited: “ Whereas, divers persons are holden in slavery within divers of his majesty’s colonies, and it is just and expedient that all such persons should be manumitted and set free, and that a reasonable compensation should be made to the persons hitherto entitled to the services of such slaves, for the loss they will incur by being deprived of their right to such services.” Subject to certain obligations, and a limited apprenticeship provided by the act, section 12 declares: “All and every the persons who, on the 1st day of August 1834, shall be holden in slavery within any such British colony as aforesaid, shall, upon and from, and after the said 1st day of August 1834, become and be to all intents and purposes, free and discharged of and from all manner of slavery, and shall be absolutely and for ever manumitted ; and that the children thereafter to be born to any such persons, and the offspring of such children, shall, in like manner, be free from their birth; and that from and after the said 1st day of August 1834, slavery shall be and is hereby utterly and for ever abolished and declared unlawful throughout the British colonies, plantations and possessions abroad.”

Sect. 24 declares: “And whereas, towards compensating the persons at present entitled to the services of the slaves to be manumitted and set free by virtue of this act, for the loss of such services, his majesty’s most dutiful and loyal subjects, the Commons of Great Britain and Ireland in Parliament assembled, have resolved to give and grant to his majesty the sum of 20,000,000/. sterling.”

Other sections of the act provide a mode for the distribution and apportionment of the fund among the several persons who may prefer claims thereon, after adequate and satisfactory provision shall have been made in the colonies respectively, for giving effect to the act.

The colonial government of Jamaica made the required provision in March. 1834. Under the action of the commissioners appointed for that purpose, and under the general rules adopted, there were found to be 311,692 slaves in Jamaica, and the sum of 6,161,827/. 6s. lOJti. was given to pay for them. To the executors of John Bowen, and as compensation for his slaves manumitted by said act, was awarded the sum of 2751/. 3s. Id., on the 13th of February 1836. This sum was subsequently paid over to the executors, amounting at the time of its receipt to $13,477.77.

The appellant, as the representative of the parties entitled to the remainder in the real estate devised in Jamaica, claims .this fund. His counsel contend, that inasmuch as by the laws of Jamaica, the slaves were real estate at the time of the execution of the will of John Bowen, the compensation-money paid after his death being in lieu of the slaves, passed to the same devisees who would have been entitled to them had they remained real estate.

After the execution of his will and before his death, the legal status of his slaves had undergone a radical change. The British Parliament had exercised its transcendent powers. The 1st of August 1834 had come and gone. Slavery in Jamaica was on that day, and thenceforth, “utterly and for ever abolished.” No longer could persons be there sold or purchased, devised, or inherited as slaves. Their real estate quality was then divested and fell with their bonds of slavery. Hence, at the time of John Bowen’s death, and for seven months next preceding it, he owned no slaves. Whether they had been taken from him, with or without his con'sent, they had, nevertheless, in fact and by law, been taken, and he did not die owning them. They had ceased to have the specific existence which they had when the will was executed. This entire destruction of their existence as slaves, withdrew them from the operation of the will devising them as real estate. It operated as a revocation of the will quoad hoc: Skerrett v. Burd, 1 Whart. 246 ; Blackstone v. Blackstone, 3 Watts 335 ; Hoke v. Herman, 9 Harris 301. The appellant cannot invoke the aid of the statute of 1 Vict. c. 26, passed after the death of John Bowen.

As then the devisees of the real estate could not take the shares themselves, they cannot take the compensation received for them in lieu thereof. The devise was specific. It was of real estate in Jamaica. The conversion took place in the lifetime of the testator. The money received as a substitute cannot be held by said "devisees: Sleech v. Thornington, 2 Ves. 561; Humphreys v. Humphreys, 2 Cox 184; Ashburner v. Maguire, 2 Bro. Ch. 108; 2 P. Wms. 330; Hoke v. Herman, supra.

It is true, at the time of the death of John Bowen, the precise amount of compensation-money to which he was entitled had not been ascertained and declared; yet his right to a just and reasonable proportion of the 20,000,000i. appropriated, could not be questioned. The faith of the British government was unequivocally pledged for its payment in the Act of Emancipation.

The right of the former owner of the slaves to compensation, and the assumption of the government to make it, are clearly admitted in the title, in the preamble, and in the body of the act. It was not a right which could be enforced by an action, inasmuch as a subject cannot sue his king. This affected only the mode of its collection, not the validity or existence of the demand. It was a valid subsisting claim against the government. The government admitted its indebtedness and actually paid the money.

It is contended further, on the part of the appellant, that a proper construction of the rules framed by the commissioners and ratified hy her majesty’s counsel, give this compensation-money to the devisees, who would have been entitled to the slaves had they remained such at the death of the testator. Those rules may be said to constitute a part of the Act of Parliament on which they are engrafted. The 3d, 4th and 5th rules are cited as establishing this conclusion. A careful reading of them does not lead our minds to that result. The facts for which they provide do not exist in the present case. No person had any joint or common interest with John Bowen in the slaves in question; nor had any other person any interest in them, either in possession, remainder, reversion or expectancy; nor were they held subject to any trust or powers whatsoever. He was the sole owner when the Act of Parliament was passed, and so continued until it went into full effect. To him, and to him alone, was the compensation-money then due. It partook of the character of a chose in action, for the recovery of which the owner was denied a common-law right of action against the debtor, but for the payment of which a specific mode had been provided by statute. If, however, the construction to be given to this Act of Parliament was doubtful, and the general rules adopted in pursuance thereof, were uncertain and obscure, Ave Avould give great Aveight to a construction put on them by the court in England. Richards v. Attorney-General of Jamaica, 6 Moore’s Privy Council Cases 381, rules this case. There Clayton, the owner of plantations and slaves thereon, in the island of Jamaica, on the 13th of June 1834, devised his real and personal estate. He died on the same day. His will was attested by tAvo witnesses only. The law of Jamaica at that time required a Avill to be attested by three witnesses, in order to pass slaves or other real property. The Avill was, therefore, void as to the devise of real estate. After the compensation-money had been paid to the executors, a contention arose as to its distribution. The court in Jamaica held that it partook of the nature of real estate to the same extent as the slaves, and di'd not pass under the will. On appeal to the Privy Council the decree was reversed. In an able and exhaustive opinion, it Avas held, the legislature became the purchaser of the slaves under the 3 & 4 Will. IY., c. 73, from the date of the act, and that the money to be received, under .the compulsory sale of the slaves, was converted into personal estate, and passed as such to the specific legatees under the Avill. The argument made before us, that the law did not go into full effect until the adoption of the rules, in 1835, was there made, and it was urged that the testator had died before their adoption. It was answered, “-If (as they held) the act itself constituted this money personal estate, the right to it had vested before the rules were made.”

It will be observed that Clayton died before the time designated in tbe act for tbe slaves to become free; Bowen did not die until afterwards. The latter lived until their manumission had become an accomplished fact. The claim for compensation had then fully ripened. Thus fortified by the decision which an English court, .composéd of able judges, has put on this act, and the identical kind of property, we have no difficulty in concluding that at the time of the death of John Bowen his claim for compensation was personal estate.

The next claim made, but not strongly pressed on the argument, is, that if it was personal estate, it passed under the specific devise. To this two answers may be given: 1. The devise was of “ personal estate in Jamaica.” This compensation claim cannot be held to have been in Jamaica. It was due and payable in England. The language of the will was insufficient to take this claim from the residuary devisees: Hunter’s Estate, 6 Barr 97; Bredlinger’s Appeal, 2 Grant’s Cases 461; McGlaughlin v. McGlaughlin, 12 Harris 20; German v. German, 3 Casey 116. 2. This claim for compensation was a debt. It had in law no situs, but followed the person of the creditor. The Ux loci rei sites is, with great propriety, disregarded. John Bowen died domiciled in the city of Philadelphia. The money collected on this claim did not, therefore, pass under the specific devise of personal estate in Jamaica: Desesbats v. Berquier, 1 Binn. 386 ; Guier v. O’Daniel, Id. 349, in note; Sill v. Worswick, 1 H. Black. 609.

This view of the case makes it unnecessary to consider at length the sixth and seventh assignments, which relate to the loss of the money after invested. The executors were authorized, in the words of the will, to invest in some safe and productive stock, mortgage, or other real security, either in Jamaica or the United States of America.” In July 1836; the investment was made in the stock of the Bank of the United States. The auditor has found that the stock of the bank was then generally considered a good and safe investment by the community. It was selling for $23 per share above the par value, and the market value continued about the same for several months thereafter. The bank continued to pay specie until the 11th of May 1837. Under the powers given to the executors to invest, and an honest exercise of that power, we think it would be a very harsh application of law to their sound discretion, after this great lapse of time, to hold the executors personally liable for the loss of the bank stock. They should not be held responsible for not possessing a knowledge, and not exercising a forethought, superior to the great body of intelligent and prudent business men.

Decree affirmed and appeal dismissed at' the cost of the appellant.