text:
    Finan, Appellant, v. Sutch.

      Negligence — Master and servant — Plasterer—Scaffold.
    A master does not insure his own employees against each other, nor is he bound to supervise or direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass provided for them and must use their own judgment in the handling and use of it.
    A plasterer cannot recover from his employer damages for personal injuries sustained by the breaking of a board in a scaffold on which he was working, where it appears that the board broke because of a knot in it; that the employer had furnished an abundant supply of good lumber for the construction of the scaffold; and that the scaffold had been built by journeymen plasterers under a rule of their organization, which required them to construct scaffolding for their own use. In such a case the plasterers who built the scaffold were fellow servants of the man who was injured.
    Argued Jan. 7, 1908.
    Appeal, No. 190, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 5, Phila. Co., J une T., 1902, No. 3,140, for defendant non obstante veredicto in case of Thomas Finan v. Daniel K. Sutch.
    Before Mitchell, C. J., Fell,- Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Staake, J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $2,000.
    The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Robert TV. Archbald, Jr., with him Thomas Diehl and Sinvpson de Brown, for appellant.
    TV. TV. Snvithers, for appellee.
    March 16, 1908 :
   Opinion by

Mr. Justice Elkin,

The appellant was injured while employed as a plasterer by falling from a scaffold on which he was working at the time a board he was standing on broke. The trial judge submitted the case to the jury and a verdict was rendered in favor of the plaintiff. Subsequently after due consideration, on motion made, judgment non obstante veredicto was entered for defendant. The negligence alleged in the statement of claim is that the scaffold was improperly and negligently constructed and by reason of the faulty construction and improper materials used the board broke and the injuries resulted. The fact is that there was a knot in the board which was hidden by the mortar so that it could not be seen. This weakened the board to such an extent that it gave way under the weight of appellant. The question is whether the appellee is guilty of negligence under these circumstances. The evidence shows that the scaffold was erected by journeymen plasterers in the employ of appellee from materials furnished by him before appellant began work. The testimony is uncontradicted that appellee furnished an abundant supply of good lumber and other materials for the construction of the scaffold and that the journeymen plasterers who erected it used their own discretion in selecting the particular boards and other materials used in that construction. It was not the duty of the employer to examine every piece of lumber used in the construction of the scaffold. It was his duty to provide suitable lumber and other materials, and under the rules of their organization the journeymen plasterers were required to construct the scaffold for their own use. They were the fellow servants of appellant and if they negligently constructed the scaffold, or selected from the general supply of lumber furnished for that purpose a board with a knot in it, and that should be held to be a negligent act, it would be the negligence of a fellow servant who selected a board weakened in this respect, and not of the master who provided a plentiful supply of good material. This case in all important particulars is ruled by Ross v. Walker, 139 Pa. 42, wherein it was held that the master does not insure his own employees against each other, nor is he bound to supervise or direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass provided for them, and must use their own judgment in the handling of it and in the erection of the scaffold. Under the rules of the organization to which appellant belongs the emplojmr was not permitted to build the scaffold. His duty ended when he furnished proper materials with which to construct it, which he did, and it would be a most unjust rule to hold him responsible for the construction with which he had nothing to do, or for the .selection of a piece of bad lumber, by a fellow servant of appellant, when he had furnished an ample supply of good lumber for this purpose. We think the learned court below properly disposed of the case. /

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Vulcanite Portland Cement Company, Appellant, v. Allison.

      Constitutional law — Special legislation — Mechanic’s lien — Attachment against owner — Act of June 4,1901, P. L. 431, sec. 28.
    Section 28 of the mechanic’s lien Act of June 4,1901, P. L. 431, which gives to a subcontractor or material man a right to issue an attachment execution against the owner, or other party indebted to the contractor for labor or materials furnished, is special legislation in favor of a special class of creditors, and offends against article III, sec. 7 of the constitution which forbids the general assembly from passing any local or special law “providing or changing methods for the collection of debts, or the enforcing of judgments.”
    Argued Jan. 14, 1908.
    Appeal, No. 256, Jan. T., 1907, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1907, No. 673, making absolute rule to dissolve attachment execution in case of the Vulcanite Portland Cement Company v. John W. Allison Company, defendant, and William R. Dougherty, garnishee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to dissolve attachment execution.
    From the record it appeared that prior to June 1,1906, William R. Dougherty had a contract with the owner of No. 919 Walnut street for the erection and construction of a building thereon; and John W. Allison company had a contract with Dougherty to furnish labor and materials towards said structure. From December 18, 1906, to February 7,1907, plaintiff furnished cement to the John W. Allison company, which was used in the construction of the building. Plaintiff received some payments on account of said cement, but on June 1,1907, the John W. Allison company owed plaintiff a balance of $1,511.35, and to recover this amount plaintiff on that day issued a writ of summons under section 28 of the Act of June 4, 1901, P. L. 431, and summoned as garnishee William R. Dougherty, who had in his hands moneys due the John W. Allison company under his sajd contract to furnish labor and materials towards the construction of said building. Thereupon the John W. Allison company petitioned, for a rule to show cause why plaintiff’s attachment should not he dissolved, averring the unconstitutionalty of section 28, which rule the court allowed, and on June 17, 1907, made absolute; whereupon plaintiff appealed.

      Error assigned was the order of the court.

      M. Hampton Todd, for appellant.
    Section 28 of the act of 1901 is constitutional: Seeds v. Eastwick, 23 Montgomery County Law Repr. 90 ; Nacey v. Kates, 10 Del. Co. Repr. 83; Hoffa’s App., 1 Pa. Superior Ct. 357 ; Com. v. Fisher, 213 Pa. 48 ; Seabolt v. Commissioners, 187 Pa. 318 ; Bates v. Santa Barbara County, 90 Cal. 543 (27 Pac. Repr. 438).

      Walter Biddle Saul, with him E. O. Michener, for appellee.
    The section of the act under discussion applies only to a certain class of persons, to wit: those who have furnished labor or material in the erection of buildings, and is, therefore, special legislation : Com. v. Fisher, 213 Pa. 48 ; Com. v. Gilligan, 195 Pa. 504 ; Strine v. Foltz, 113 Pa. 349 ; Com v. Zacharias, 181 Pa. 126 ; Safe Dep. & Trust Co. v. Fricke, 152 Pa. 231 ; Ayars’ App., 122 Pa. 266 ; Tennessee Producers’ Marble Co. v. Grant, 14 Pa. Dist. Rep. 453.
    March 16, 1908:
   Opinion by

Mr. Justice Elkin,

Suit was brought in this case by attachment and summons under section 28 of the mechanic’s lien Act of June 4, 1901, P. L. 431. The single question presented for determination by this court is whether this section offends against article 3, section 7 of the constitution, which provides, among many other things, that the general assembly shall not pass any local or special law providing or changing methods for the collection of debts, or the enforcing of judgments.” The language of the section is as follows : In any suit brought to recover for labor done, or labor or materials furnished, to a structure or other improvement, whether the contract shall have been recorded or not, the plaintiff, if he files of record at the time of beginning the suit an affidavit setting forth the facts, may summons also therein the owner, or any other party, indebted to the defendant for labor done, or labor or materials furnished to such structure or other improvement.; the effect of service of such writ, upon such third party, shall be to attach the moneys then or thereafter becoming due such defendant. If the defendant, at any time before verdict or judgment shall file an affidavit that he does not owe plaintiff anything by reason of labor done, or labor or materials furnished, to such structure or other improvement, the summons against the garnishee shall be quashed by the court, upon motion, unless within fifteen days after notice and service of a copy of such affidavit the plaintiff enter approved security in double the amount of his claim, conditioned that he will prosecute his suit with effect, or will pay all costs, damages and reasonable fees paid or suffered by the defendant, in case of his failure so to do.” It must be conceded that the right to summon the owner or other party indebted by a writ in the nature of an attachment at the commencement of a suit authorized by this section, where no such proceeding had been authorized prior to the approval of the act of 1901, does provide a new method for the collection of a debt, and if this new method applies to a special class it is within the prohibition of the constitution. The constitution is a barrier against the enactment of local or special laws relating to the prohibited subjects. There is a clear line of distinction between local and special laws; the former relate to locality and have to do with territorial limitations, as for instance, if the act be limited in its operation to a particular county, or township, or borough, or district, and does not apply generally to the whole state, it is local; while the latter relate to persons or subjects, or subject-matter, of a particular class or kind and are therefore special. A statute may be both local and special, and it is so when it is intended to apply only to a particular locality and to deal with a special class. A special law may have general application throughout the commonwealth upon the subjects intended to be affected by its operation. Section 28, under which the writ of attachment was issued in the present case, does not come under the ban of prohibited local legislation, but it is a special law, because it only applies to a particular class of creditors; that is, those who supply labor or materials used in the construction of a building. That it is a special remedy for a particular class of creditors seems to be conceded, but it is contended that this does not make it special in the constitutional sense. The principal argument made in support of this position is that all mechanics’ lien laws relate to a special class of creditors, and it is argued if section 28 is held to be unconstitutional because it is a special law, all acts relating to mechanics’ liens passed since the adoption of the new constitution must be declared invalid for the same reason. The argument is plausible and forceful, but not convincing. This is not the test by which the constitution is to be interpreted. It may be, that if the whole system of mechanics’ lien laws had been introduced into our statutes in the first instance after the adoption of the new constitution, the courts might have been compelled to hold that such acts came within the prohibited class of special legislation. Indeed, it is difficult to see how this result could have been avoided. We, however, are not confronted with such a question. Tor more than a century statutes relating to mechanics’ liens have been passed by our legislature. The system grew up and became a fixed policy of our law long before there was any constitutional barrier against special legislation. This method of filing, a lien and enforcing the collection of the debt thus secured had been provided by law in our state about seventy years before the new constitution was adopted, and it is not conceivable that the framers of our fundamental law intended to disturb the old method of procedure relating thereto. The constitution does not in terms undertake to do any such thing, and certainly no such implication can arise from any reasonable interpretation thereof. A fair construction of the constitution leads to the conclusion that the intention of its framers was not to prohibit legislation relating to old methods for the collection of debts or the enforcing of judgments recognized and in general use at the time of its adoption, but to prevent the enactment of local and special laws providing new methods or changing old ones and applicable only to particular localities or to special classes. The language of the constitution is that no local or special law shall be passed “ providing or changing methods for the collection of debts or the enforcing of judgments.” This can only mean that the local or special legislation prohibited is such as'provides new methods, not then in existence, or changes old methods, then existing, for these purposes. The mechanics’ lien laws proper do not fall within this prohibition because they do not provide a new method for the collection of a debt or the enforcing of a judgment. The procedure under these statutes is an old method. It is a proceeding in rem, well understood and of general application at the time of the adoption of the constitution. These laws were founded upon the theory that those who furnished labor and materials in the construction of a building should have the right to file a lien against it, that is, against the structure itself into which their labor and materials entered, in preference to other general creditors, who had not directly contributed to the construction of that particular building. In such a proceeding the building could be taken even if the owner had not contracted the debt. The act of 1901 provided a new remedy, a departure from the settled policy of the law relating to this subject, and gave the right to pursue the owner or other person indebted in a personal action, that is, by attachment. This new method would seem to be foreign to the whole system of mechanics’ lien laws, and heretofore was no part of it. It is in the nature of an action in personam, while the old method was a proceeding in rem. Mechanics’ lien laws proper, intended only to give the right of lien against the building itself and the ground upon which it was erected, as a- security for the debt, do not con-, template anything in the nature of a personal action.

It must now be determined whether sec. 28 is a special law within the meaning of the constitution. Prior to the act’ of 1901 the appellant could only be considered one of the general creditors of its debtor. There was no contractual relation between the owner of the land, or the contractor under the owner and the appellant. It could only pursue a method for the collection of its debt like any other general creditor. The section under which this suit was instituted gives a preference by authorizing moneys due the debtor by the contractor to be attached in the hands of the latter, and thus a special class of preferred creditors is singled out from the general creditors of the debtor, and a new method is thus provided for the collection of a debt due this special class. It is a right of attachment for moneys due the debtor in the hands of a third party which, before the act of 1901, was applicable to the payment of the general creditors without preference. This is certainly legislation for a special class of creditors, and there is no sufficient reason given why the constitutional inhibition should not apply. Special laws may be, in some instances, justified by classification, but this can only be done on the ground of imperative necessity growing out of peculiar conditions. As was said by Mr. Justice Stebbett in Ayars’ Appeal, 122 Pa. 266: “ To justify classification, there must be a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class separately that would be useless and detrimental to others.” There are no manifest peculiarities in the class of creditors mentioned in sec. 28 to create a necessity which imperatively demands legislation for that particular class. As an illustration of the preference given to the special class of creditors to which sec. 28 applies, let us assume that appellant company furnished 100 barrels of cement to the defendant, which were used in the building constructed by the garnishee as contractor, and that a rival cement company furnished the same amount of cement to the defendant, intended to be used in the construction of the building, but in fact not so used, and which remained the personal property of the defendant at the time of the institution of this proceeding. In such a case the appellant company, under the provisions of sec. 28, could become a preferred creditor by attaching the fund due from the owner or contractor, while the rival cement company could only be a general creditor of the debtor, in this instance a subcontractor. In perspnal actions of this character there is no imperative necessity Avhich Avould justify the singling out of a special class of creditors from the general creditors of a debtor. The liens of mechanics and material men against the building into which their labor and materials entered are protected by the settled policy of our law for more than a century, but there is no necessity, imperative or otherwise, for extending the system so as to prefer this class of creditors in personal a ctions.

Judgment affirmed.


text:
    Jacobs, Appellant, v. Clearview Water Supply Company.

      Corporations — Water companies — Eminent domain — Acts of April 29, 1874, P. L. 73, and May 16,1889, P. L. 226 — Public use.

    A water company chartered under the Act of May 16, 1889, P. L. 226, which amended clause 9 of sec. 2, of the general corporation act of April 29, 1874, has the right of eminent domain, inasmuch as the legislature in the act of 1889 clearly intended to confer upon companies incorporated for the supply, storage or transportation of water and water power for commercial and manufacturing purposes, the same rights, privileges and powers as those possessed by companies chartered for the supply of water to the public under clause 9 of the act of 1874.
    A legislative declaration that the purpose for which a corporation is incorporated is a public use, is not conclusive and final. The question whether the use is or is not public, must be determined by the courts.
    It is not essential that the whole community or any considerable portion thereof, should directly enjoy or participate in an improvement, to make the use public. If the proposed improvement tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the community, the use is public.
    A water company incorporated under the Act of May 16, 1889, P. L. 226, for the supplying, storage or transportation of water and water power for commercial and manufacturing purposes, is incorporated for a public use, and is invested with the right of eminent domain. The fact that the principal consumer of the water of the company will be a railroad company, and that owing to the nature of the country very few, if any, citizens are engaged in commercial or manufacturing enterprises, is immaterial as to the question of public use.
    Mestrezat and Stewart, JJ., dissent.
    Argued Jan. 17, 1908.
    Appeal, No. 78, Jan. T., 1907, by-plaintiff, from decree of O. P. Juniata Co., Sept. T., 1906, Eo. 3, dismissing bill in equity in case of Joseph Jacobs v. Clearview Water Supply Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain the defendant from locating, building and laying a water-pipe line upon the land of the plaintiff, and for taking the waters of Licking Creek.
    Before Shull, B. J.
    The court found the following to be the facts :
    1. Plaintiff is the owner in fee of a tract of land containing 110 acres, situate in Milford township, Juniata county, Pa., the southern line of which said lands is along and through a stream of water known as Licking Creek. Said tract is traversed by a public road or highway.
    2. Defendant company was duly incorporated March 11, 1905, under the provisions of the act of April 29, 1874, and its supplements, for the purpose of “ the supply, storage or transportation of water and water power for commercial and manufacturing purposes in the township of Milford, in the county of Juniata, and state of Pennsylvania.”
    3. Defendant company by corporate action on March 20, 1905, appropriated 5,000,000 gallons of water daily from Licking Creek, where its dam is being erected on said creek, and also appropriated by said action the rights of way for laying pipes to conduct from said point of taking the said waters to Denholm and the Marrows, which said right of way extends through lands of plaintiff, thirty feet in width, and a distance of 1,548 feet, of which distance 1,184 feet is in the public road above referred to. Subsequent to such appropriation and condemnation defendant company became the purchaser of the lands lying within the basin of the source of Licking Creek, including the lands where its impounding dam is now being located.
    5. That on April 30,1906, defendant company filed its petition and bond for taking by condemnation proceedings a right of way thirty feet wide and 385 feet long on which to lay its pipes through lands of plaintiff; to which bond exceptions were filed on the ground of insufficiency of bond, indefinite location, want of necessity, and that it was the evident intention to take the water outside of township. The exceptions after hearing and upon due consideration were overruled and bond was approved.
    6. That no viewers have been asked for by either party to assess the damages occasioned by such appropriation and taking, and defendant company before and at the hearing, conceding the right of plaintiff to additional bond for the appropriation of the highway or other rights, proffered with surety a bond in such sum as the court might order.
    7. Defendant company is now and has been for several months prior to the filing of the bill engaged in the erection of an impounding dam about two miles above plaintiff’s lands, and had partially completed a 2,000,000 capacity reservoir at Denholm, and a 1,000,000 capacity reservoir at the Narrows, all situate and located within the township of Milford.
    8. The pipe line or intake from the impounding dam is constructed of a sixteen inch cast iron pipe, capable of delivering at the Denholm reservoir, which is the supply of the Narrows reservoirs, 2,000,000 gallons of water per day.
    9. The capacity of flow of Licking Creek at the dam is 14,000,000 gallons daily in dry season and upwards of 25,000,000 at other seasons.
    10. Plaintiff does not use the waters of the stream for ordinary domestic purposes or otherwise except a few barrels at the time he threshes his crops, and occasionally washes a buggy at the stream.
    The court dismissed the bill.

      Error assigned was decree dismissing the bill.

      J. N. Keller, for appellant.
    The right of eminent domain can be exercised to serve a public use only: Pittsburg v. Scott, 1 Pa. 309 ; Smedley v. Erwin, 51 Pa. 445 ; Edgewood R. R. Co.’s App., 79 Pa. 257 ; Finney v. Somerville, 80 Pa. 59 ; Peifly v. Mountain Water Co., 214 Pa. 340 ; Com. v. R. R. Co., 27 Pa. 339 ; Bly v. White Deer Mt. Water Co., 197 Pa. 80 ; Farmers’ Market Co. v. R. R. Co., 142 Pa. 580 ; McLeod v. Central Normal School Ass’n, 152 Pa. 575.
    The Clearview Water Supply Company is a private corporation strictly: McLeod v. Central Normal School Ass’n, 152 Pa. 575 ; Girard Storage Co. v. Southwark Co., 105 Pa. 248 ; East Side Bank v. Tanning Co., 170 Pa. 1; Peifly v. Mountain Water Co., 214 Pa. 341 ; Carother’s App., 118 Pa. 468 ; Farmers’ Market Co. v. R. R. Co., 142 Pa. 580 ; Varner v. Martin, 21 W. Va. 534 ; Cole v. LaGrange, 113 U. S. 1 ; Loughbridge v. Harris, 42 Ga. 500 ; Ryerson v. Brown, 35 Mich. 333.

      John G. Johnson, with, him J. Howard Neely and E. H. Hall, for appellee.
    The bill is evidently filed under the provisions of the Act of June 19, 1871,- P. L. 1360, as the allegation in the fourteenth paragraph of said bill is that, “ his private rights are injured and invaded.”
    Under this act, the plaintiff is limited to the inquiry as to the nature and extent of the franchise prima facie conferred by the charter, and cannot inquire into the conduct of the corporation under its charter: Gaw v. R. R. Co., 196 Pa. 442 ; Oliver v. Bridge Co., 197 Pa. 344 ; Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.
    The defendant company has the right to take the water from the creek: Brown v. Corey & Peterson, 43 Pa. 495.
    The defendant has the right of eminent domain: Pittsburg v. Scott, 1 Pa. 309 ; Price v. R. R. Co., 209 Pa. 81.
    In none of the cases cited, where there has been, by the legislature, a clear and unequivocal grant of power to do what is proposed to be done, has the court ever interfered with the exercises of the power: Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.
    March 16, 1908 :
   Opinion by

Mr. Justice Elkin,

The defendant company was chartered under clause 9, section 2 of the general corporation act of 1874, as amended by the supplemental act of 1889. Clause 9 of the original act provided only for the incorporation of companies for “ the supply of water to the public.” Water companies created under clause 9 for the supply' of water to the public for domestic purposes are invested with the right of eminent domain. This is not denied in the present proceeding, and could not be for it is so provided in the statutes and has been so decided by the courts. We start with this proposition as settled law. It is equally well settled that a company incorporated under clause 18 of the act of 1874 for the storage, transportation and furnishing of water with the rights, privileges and powers thereby conferred, is presumably a corporation for private purposes not intended to supply water for public use, and is not invested with the right of eminent domain: Peifly v. Mountain Water Company, 214 Pa. 340. Here, then, is a clear line of distinction between water companies incorporated under clauses 9 and 18 of the original act of 1874, one for a public use with the right of eminent domain, and the other for a private purpose not enjoying such right. The legislature made the distinction and the courts have recognized and followed it. The respondent company was incorporated under clause 9, but not for the supply of water to the public as authorized in the original act, but for the supplying, storage or transportation of water and water power for commercial and manufacturing purposes” as provided in the supplemental Act of May 16, 1889, P. L. 226. For some reason, no doubt satisfactory to the legislative mind, the original classification of water companies under the act of 1874 was not deemed adequate to cover public necessities, and as a result the act of 1889 was passed, which broadened the scope and character of companies to be organized under clause 9. It is perfectly clear that the legislature in the act of 1889 intended to confer upon companies incorporated for the supply, storage or transportation of water and water power for commercial and manufacturing purposes the same rights, privileges and powers as those possessed by companies chartered for the supply of water to the public under clause 9 of the act of 1874. The legislative intention to make a distinction between a corporation created under clause 9 for a public use and one created under clause 18 for private purposes clearly appears not only in the statutes relating to such corporations but in the decisions of the courts. This position is not seriously controverted in the present case, but it is contended that even if the legislature did invest a company incorporated for the supply, storage and transportation of water and water power for commercial and manufacturing purposes with the right of eminent domain, such legislative authority is not conclusive of the rights of the parties here, because whether the purpose for which the respondent company was incorporated is a public use is a question to be finally determined by the courts. We so understand the rule and must therefore determine whether the use for which the respondent company was chartered is a public one within the meaning of the law. Eminent domain has been defined to be the sovereign power vested in the commonwealth to take private property for public use. It is a reservation in the grant of land by the state to a private owner, not necessarily expressed, but always implied, and is paramount to the right of ownership in the individual. It has been authoritatively stated that this power is not created by constitution or statute, but is an inherent attribute of sovereignty itself. It is true, however, that the exercise of the power is always regulated by constitutional and statutory law. It can only be called into existence in the mode and by the tribunal provided by law : City of Madison v. Daley, 58 Fed. Repr. 751. It has its foundation in the imperative law of necessity which alone justifies and limits its exercise. For this reason it has been uniformly held that the power can only be invoked when public exigency or necessity requires the exercise of the sovereign right. To justify the taking of the property of an individual under this power the use must be a public one. The legislative determination of what constitutes a public use presumptively makes the purpose so declared a public use: Pittsburg v. Scott, 1 Pa. 309. This is only a presumption, however, and does-not conclude parties from raising the question before the courts for judicial determination. The legislative declaration that the use is a public one does not conclusively determine whether the purpose so declared is a public use: Great Western Natural Gas & Oil Company v. Hawkins, 66 N. E. Repr. 765. In the case at bar there can be no doubt that the legislature intended to declare the purpose for which the respondent company was incorporated to be a public use, and did confer upon it the right of eminent domain. Is there any sufficient reason why this legislative declaration of a public use should not be upheld? To constitute a public use, it is essential that the general public be to some extent entitled to a fixed and definite right to participate in the use, not as a mere matter of favor, nor by permission of the owner, but as a matter of right. All the authorities agree that it is not essential that all citizens living in a community should have the same degree of interest in the use. It is sufficient that the general public, or any considerable portion thereof, should have a right to the use. Mills on Eminent Domain, section 12, states the principle in the following language : “ It is not essential that the whole community or any considerable portion thereof, should directly enjoy or participate in an improvement, to make the use public. If the proposed improvement tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the community, the use is public.” The building of reservoirs for the storage of water and the laying of mains for the purpose of supplying and transporting water and water power for commercial and manufacturing purposes would tend to increase the industrial enterprises and promote the productive power of all 'citizens who desire to avail themselves of water or water power for these purposes in that community. It is conceded that the supply of water to the public for domestic purposes is a public use, but it is denied that the supply of water for commercial and manufacturing purposes is a public use. The distinction is more apparent than real. It rests on a very narrow edge. It is based on the theory that a large number of individual citizens living in the community where the respondent company transacts its business will not engage in commercial and manufacturing enterprises, and therefore will not participate in the use of water and water power for such purposes. An enterprise does not lose the character of a public use because that use may be limited by circumstances to a comparatively small part of the public: DeCamp v. Hibernia Railroad Company, 47 N. J. Law. Rep. 43 ; Dietrich v. Murdock, 42 Mo. 279.

Under the obligations of its charter every individual citizen in the township of Milford desiring to connect with its mains has the right to demand a supply of water for commercial and manufacturing purposes from the respondent corporation. The right to demand a supply of water for these purposes does not depend upon what the appellee company may choose to do, but what, under its charter, it must do, and that is, furnish water to all citizens along its line who demand it for the purposes intended. The respondent admits its duty in this respect and expresses its willingness to perform that duty to the public. It is contended, however, that the principal consumer of water will be the Pennsylvania Railroad Company and that by reason of the nature of the surrounding country, very few, if any, individual citizens either are, or will be, engaged in commercial or manufacturing enterprises, and hence no considerable portion of the inhabitants of the community can be supplied with water. The number of persons who may be benefited is not the test of a public use. It is the experience of most water companies that the number of patrons at first is small. This is also true as to railroad companies. They frequently exercise the right of eminent domain through great stretches of territory where there may not reside a single individual at the time to enjoy the public use, but it has never been held that on this account the use was not a public one. Indeed, we have held just the opposite in our own cases, as will appear in the opinion of our Brother Brown in Deemer v. Railroad Company, 212 Pa. 491.

We conclude, therefore, that the purpose for which the respondent company was incorporated is a public use, and that it is invested with the right of eminent domain. Of course, in the exercise of that power it must act within constitutional and statutory limitations. The statutes provide the mode in which to exercise the power and their provisions must be strictly followed. We do not deem it necessary to consider all the questions raised before the learned court below, because they depend upon the vital question in the. case which is here determined.

Decree affirmed at the cost of appellant.

Mestrezat and Stewart, JJ., dissent.


author: Mr. Justice Fell,

text:
    Gibbons, Appellant, v. Connor.

      Wills — Trusts and trustees — Gift of income — Husbands and wives of deceased children — Codicil.
    The testator devised the residue of his estate to his executors in trust to pay the income to his wife for life and at her death in trust to pay the income to his five children, share and share alike, and to the issue of any deceased child. He added this provision, “provided, however, that upon the decease of either of my said children, without leaving lawful issue and leaving a husband or wife surviving, then my said trustees shall pay one-half of such deceased child’s share of the rents, issues and profits of my said residuary estate unto the surviving husband or wife for and during all the term of his or her natural life. And the remaining one-half part of such deceased child’s share shall go to and be divided equally among my said remaining children and the issue of my deceased child or children in manner aforesaid.” There was no devise of the corpus of the estate. The gift of income to the husbands and wives of deceased children was revoked by a codicil in these words: “ This clause I desire to revoke and the whole share shall go to and be divided between my surviving children share and share alike, and in no way whatever shall the husband or wife of any of my deceased children receive any portion of my estate.” Held, that the trust created by the will should be upheld as long as any of the testator’s children survived, to give effect to his intention that the husband or wife of a deceased child should be excluded from any participation in his estate.
    Argued Jan. 20, 1908.
    Appeal, No. 370, Jan. T., 1907, by plaintiff, from decree of O. P. PTo. 4, Pbila. Co., June T., 1904, Pío. 5,077, dismissing bill in equity in case of Charles J. Gibbons v. Catharine A. Connor et al.
    Before Mitchell, C. J., Pell, Bkown, Mesteezat, Potteb, Elkin and Stewaet, JJ.
    Affirmed.
    Bill in equity for partition.
    Before Willson, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court.

      John G. Johnson, with him Wm. M. Montgomery and John C. Bell, for appellant.
    One-fifth of the realty, upon the death of the wife, vested in fee simple in the complainant: Cooper v. Pogue, 92 Pa. 254 ; Drusadow v. Wilde, 63 Pa. 170 ; France’s Est., 75 Pa. 220 ; Curry v. Patterson, 183 Pa. 238.
    Even if this was but an equitable fee simple, it was executed into a legal fee simple: (1) because no beneficial purpose can be subserved which prevents the execution of a trust where the cestui que trust is sole beneficiary, even though it be the desire of the testator to protect such beneficiary from improvidence or from alienating the estate; (2) because, even though the proposition under subhead (1) is not maintainable, there was no intent disclosed to guard the beneficiary against improvidence or alienation : Josselyn v. Josselyn, 9 Sim. 63 ; Saunders v. Vautier, 4 Beav. 115 ; Rocke v. Rocke, 9 Beav. 66 ; Young’s Case, 18 Beav. 199 ; Shallcross’s Est., 200 Pa. 122 ; Keyser’s App., 57 Pa. 236 ; Fisher v. Taylor, 2 Rawle, 33; Vaux v. Parke, 7 W. & S. 19 ; Brown v. Williamson, 36 Pa. 338 ; Barnett’s App., 46 Pa. 392 ; Shankland’s App., 47 Pa. 113 ; Kinsel v. Ramey, 87 Pa. 248 ; Kay v. Scates, 37 Pa. 31 ; Barker’s Est., 159 Pa. 518 ; Wickersham’s App., 18 W. N. C. 36 ; Churchman’s Est., 18 Phila. 228 ; People’s Sav. Bank v. Denig, 131 Pa. 241.

      Joseph P. MeOullen, with him JohnJ. Orem and Daniel C. Donoghue, for appellees, cited:
    Spring’s Est., 216 Pa. 529 ; Harris v. Harris, 205 Pa. 460 ; Kline’s App., 117 Pa. 139 ; Joyce’s Est., 19 Phila. 45 ; Nevins’s Est., 192 Pa. 258 ; Shalters v. Ladd, 141 Pa. 349 ; Bacon’s Appeal, 57 Pa. 504 ; Hemphill’s Estate, 180 Pa. 95 ; Wolfinger v. Fell, 195 Pa. 12.
    March 16, 1908 :
   Opinion by

Mr. Justice Fell,

The testator devised the residue of his estate to his executors in trust to pay the income thereof to his wife for life and at her death in trust to pay the income to his five children, share and share alike, and to the issue of any deceased child. He added this provision, “ provided, however, that upon the decease of either of my said children, without leaving lawful issue and leaving a husband or wife surviving, then my said trustees shall pay one-half of such deceased child’s share of the rents, issues and profits of my said residuary estate unto the surviving husband or wife for and during all the term of his or her natural life. And the remaining one-half part of such deceased child’s share shall go to, and be divided equally among my said remaining children and the issue of my deceased child or children in manner aforesaid.” There was no-devise of the corpus of the estate. The gift of income to the husbands and wives of deceased children was revoked by a codicil in these words: This clause I desire to revoke and the whole share shall go to and be divided between my surviving children, share and share alike, and in no way whatever shall the husband or wife of any of my deceased children receive any portion of my estate.”

The appellant is one of the children of the testator and sought a partition of the estate on the ground that a gift of the rents, issues and profits of the real estate, in the absence of a limitation over, was a gift of the corpus of the estate, and that upon, the death of his mother, the life tenant, his interest in the estate became absolute. The bill was dismissed for the reason, among others, that the trust created by the will should be upheld as long as any of the testator’s children survived, to give effect to his intention that the husband or wife of a deceased child should be excluded from any participation in his estate.

The provision in relation to the husbands and wives of deceased children was not limited to the case of the death of a child before the death of the life tenant. The words, “ upon the decease of either of my said children,” in the gift over to a surviving husband or wife do not mean that the gift shall take effect only upon the contingency of death before a particular time but upon the death of a child whenever it shall occur.- The trustees are then to pay one-half of the deceased child’s share of the rents, issues and profits unto the surviving husband or wife and the other half to the, testator’s children. A payment was contemplated which before had gone to a child and this could not be prior to the death of the testator’s wife, to whom the whole income was payable for life.

It was the intention of the testator, as shown by this provision, that the estates given to his children should be free from the incidents of courtesy and dower, which would have resulted from a vesting of the corpus of the estate in his children. The codicil did not merely revoke this provision. It directed that the whole income should go to the testator’s children and grandchildren and that in no way whatever should the husband or wife of a deceased child receive any portion of the estate. It took away the restricted interest before given to the husbands and wives of deceased children and deprived them of any interest in any event in his estate. The intention disclosed is that they should .receive nothing either under the will or under the law. To give effect to this intention, if for no other reason, the trust should be upheld.

The decree of the court dismissing the'bill for a partition of the estate is affirmed at the cost of the appellant.


text:
    Ball’s Estate.

      Trusts and trustees — Auditor—Distribution of fund.

      An auditor appointed to settle the account of a trustee and to report distribution has no authority to pass upon a claim by an executor of one of the distributees under the deed of trust against an assignee of the distributee’s share, based on a right of action to recover another and distinct fund arising from the share assigned at the time of the assignment, and for a consideration that covered both.
    Argued Jan. 21, 1908.
    Appeal, No. 30, Jan. T., 1908, by L. M. Taussig, from decree of C. P. Ho. 4, Phila. Co., March Term, 1891, Ho. 931, dismissing exceptions to auditor’s report in Trust Estate of George B. W. Ball and wife.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report óf B. Gordon Bromley, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to auditor’s report.

      E. Spencer Miller, with him ’William Trautwine, Jr., and Joshua Matlack, for appellants.

      J. Howard Morrison, for appellee.
    March 16, 1908 :
   Opinion by

Mr. Justice Fell,

Bobert FI. Ball had a vested interest in remainder in a trust estate settled by his father and mother by deed in 1882. At the death of his mother he was entitled to receive one-third of the share set apart for him ; the rest of the share was to be held in trust for him for life. In 1895 he sold and assigned the third of his share to the United States Life Insurance and Trust Company. He died in 1897. Upon the death of his mother in 1904, an auditor was appointed to settle the account of the trustee and to report distribution.

At the audit the claim of the company to the share it had bought was contested by the administratrix of the estate of Robert H. Ball. The ground of objection to the claim, as stated in an offer of proof, was that at the time of the sale of the share and asa part of the same transaction Robert H.Ball obtained for the company a policy of insurance on his life; that the money paid by the company was for this and for the assignment of the share; that it did not then or since have any interest in his life and the policy was a wagering one; that it realized from the policy a sum sufficient to reimburse it for all payments made Avith interest thereon. The rejection of this offer of evidence gives rise to the only question involved in this appeal.

The account before the auditor was that of the trustee of the estate of Geo. B. W. Ball and Avife, and in reporting distribution the auditor was to determine Avho Avere entitled to shares of the estate under the terms of the deed or by virtue of assignments of interests by those entitled thereunder. Had the validity of the assignment been questioned, or had there been a dispute as to whether it was absolute or conditional, it would ha Am been the duty of the auditor to hear testimony and decide these matters. But the validity of the assignment was not disputed and it was conceded that it was absolute and unqualified. There was an out and out sale of the share. The only basis of the appellant’s contention Avas that the appellee had received the proceeds of a policy of insurance on a life in which it had no insurable interest and that, as against the estate of the insured, the law Avould not permit it to retain the money; in other words, that she had a right of action to recover another and distinct fund arising from a thing assigned at the same time the share was assigned and for a consideration that covered both. Her claim \Aas that of a creditor of the appellee on which the auditor had no authority to pass.

The decree is affirmed at the cost of the appellant.


author: Mr. Justice Mestrezat,

text:
    Commonwealth ex rel., Appellant, v. Superintendent of Philadelphia County Prison.

      Extradition — Constitutional law — Sufficiency of warrant — Character of the offense.

    Under the act of congress of February 12, 1793, Rev. Stat. 1022, passed in furtherance of sec. 2, art. IV, of the constitution of the United States, relating to extraditions, it is requisite that a demand for the fugitive from justice be made by the executive authority of the state or territory from which he fled; that this be accompanied by an indictment found, or an affidavit made before a magistrate charging the fugitive with having committed a crime against the law of the state or territory; and that the copy of the indictment or affidavit be certified as authentic by the chief executive of the state or territory from which such person fled. The court must also find that the accused is in fact a fugitive from justice.
    If the jurisdictional facts authorizing the extradition of the accused appear from the papers, the court on a hearing in habeas corpus proceedings will not go into the merits of the case, nor determine the guilt or innocence of the accused; nor will the court consider evidence to the effect that the criminal proceedings were instituted in the demanding state with bad motives.
    It is the province of the courts of the state where the crime was committed to declare what its laws are and to determine whether particular acts on the part of an alleged offender constitute a crime under such laws.

      Appeals — Records—Evidence—Extradition proceedings — Bill of Exceptions.

    An appeal from an order in extradition proceedings takes up only the record, and not the evidence. The fact that the judge of the quarter sessions granted a bill of exceptions, is immaterial, since it is based on no statutory authority.
    Argued Jan. 21, 1908.
    Appeal, No. 228, Jan. T., 1908, by plaintiffs, from judgment of Superior Court, Oct. T., 1906, No. 1,906, affirming order of Q. S. Phila. Co., Eeb. T., 1907, No. 2, remanding relator to custody in case of Commonwealth ex rel. Richard C. Flower v. The Superintendent of Philadelphia County Prison.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from judgment of the Superior Court.

      The facts appear by the opinion of the Supreme Court. See 33 Pa. Superior Ct. 594.

      Error assigned was the judgment of the Superior Court.

      John O. Bell, with him John MeClintock, Jr., John G. Grad/y and E. Glinton Rhoads, for appellant.
    In a requisition proceeding a relator will not be remanded when the writ is not sought in good faith to secure punishment for crime, but is intended to enforce the collection of a debt: Work v. Corrington, 34 Ohio, 64 ; Tennessee v. Jackson, 36 Fed. Repr. 258 ; Grin v. Shine, 187 U. S. 181 (23 Sup. Ct. Repr. 98); In re Herres, 33 Fed. Repr. 165 ; Ex parte Slauson, 73 Fed. Repr. 666 ; Hyatt v. People, 188 U. S. 691 (23 Sup. Ct. Repr. 456); Bruce v. Rayner, 62 C. C. A. 501 (124 Fed. Repr. 481); People ex rel. v. Hyatt, 172 N. Y. 176 (64 N. E. Repr. 825); Ex parte Butler, 7 Luz. Leg. Reg. 209 ; People ex rel. Lawrence v. Brady, 56 N. Y. 182 ; Wilcox v. Nolze, 34 Ohio, 520 ; Illinois v. Pease, 28 Sup. Ct. Repr. 58 6; In re Fowkes, 53 Fed. Repr. 13 ; In re Dana, 63 Fed. Repr. 886.
    The appellate court will on appeal investigate the facts of a case to the extent of determining whether the lower court acted within its jurisdiction, or whether it considered a right to which the relator was entitled: In re Hummell & Bishoff, 9 Watts, 416 ; Chester County Republican Nominations, 213 Pa. 64 ; Independence Party Nomination, 208 Pa. 108 ; Robb’s Nomination, 188 Pa. 212 ; Com. v. Gibbons, 9 Pa. Superior Ct. 527 ; Prospect Brewing Co.’s Petition, 127 Pa. 523 ; Com. v. Edmiston, 30 Pa. Superior Ct. 54 ; Com. v. Perkins, 124 Pa. 36 ; In re Chetwood, 165 U. S. 443 (17 Sup. Ct. Repr. 385); In re Cuddy, 131 U. S. 280 (9 Sup. Ct. Repr. 703); Dibble v. Bellingham Bay Land Co., 163 U. S. 63 (16 Sup. Ct. Repr. 939); In re Panzara, 51 Fed. Repr. 275 ; Wright v. Henkel, 190 U. S. 40 (23 Sup. Ct. Repr. 781); Ornelas v. Ruiz, 161 U. S. 502 (16 Sup. Ct. Repr. 689); Gosline v. Place, 32 Pa. 520 ; Com. v. Butler, 19 Pa. Superior Ct. 626 ; Com. v. Blatt, 165 Pa. 213.

      Morris Wolf, with him John M. Patterson, assistant district attorney, and Samuel P. Rotan, district attorney, for appellee, cited:
    Com. v. Edmiston, 30 Pa. Superior Ct. 54 ; Com. v. Linaugh, 13 Pa. Dist. Rep. 486 ; Com. v. McCandlass, 7 Pa. C. C. Rep. 51 ; Grin v. Shine, 187 U. S. 181 (23 Sup. Ct. Repr. 98); Pettibone v. Nichols, 203 U. S. 192 (27 Sup. Ct. Repr. 111); In re White, 55 Fed. Repr. 54 ; In re Bloch, 87 Fed. Repr. 981 ; Bruce v. Rayner, 62 C. C. A. 501 (124 Fed. Repr. 481); In re Strauss, 126 Fed. Repr. 327 ; Singleton v. State, 144 Ala. 104 (42 So. Repr. 23); Blackwell v. Jennings, 57 S. E. Repr. 484 ; In re Herskovitz, 136 Fed Repr. 713 ; Ex parte Slauson, 73 Fed. Repr. 666 ; Work v. Corrington, 34 Ohio, 64.
    March 16, 1908:
   Opinion by

Mr. Justice Mestrezat,

The constitution of the United States, article IY, section 2, provides that: “ A person charged in any state with treason, felony or other crime, who shall flee from, justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” Pursuant to this constitutional provision and to carry it into effect, congress passed an act which provides that: Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, .... and cause the fugitive to be delivered to such agent (of the demanding state) when he shall appear: ” Sec. 5278 of the Revised Statutes of the United States.

The requisition of the executive of the demanding state must show that the accused has committed a crime within the jurisdiction of that state, and that he is a fugitive from justice. It must be accompanied by a copy of the indictment found or affidavit made before a magistrate charging the offense committed, and duly certified by the governor. In pursuance of the requisition it is the duty of the governor of the state in' which the accused is found to issue his warrant and cause the accused to be arrested and delivered to the agent representing the executive of the demanding state. The accused may contest the validity of the extradition proceedings on habeas corpus. He may show that he is not charged with a crime in the demanding state, or that he is not a fugitive from the justice of the demanding state. The.se are jurisdictional facts, and if the accused can successfully controvert either, he is entitled to be discharged from custody. The question of whether a crime is charged against the accused in the demanding state is one of law, and to be ascertained from the requisition and the papers accompanying it: Ex parte Spears (Cal.), 22 Am. St. Rep. 341; Roberts v. Reilly, 116 U. S. 80; Munsey v. Clough, 196 U. S. 364. Whether the accused is a fugitive from the justice of the state demanding his return is one of fact, and, when controverted, to be ascertained and determined like any other question of fact. It is the duty of the demanding governor, and it will be presumed that he has performed that duty, to satisfy himself that a crime has been committed by the accused within his jurisdiction. If an indictment has been found or an affidavit made before a magistrate charging the crime, a copy thereof duly certified as authentic by the governor and accompanying his requisition, will be sufficient evidence, prima facie, that a crime has been charged against the accused in the demanding state.

On receipt of a requisition in proper form it is the duty of the governor of the asylum state, under the act of congress, to issue his warrant for the arrest of the accused. When the sufficiency of the executive warrant is contested on a writ of habeas corpus, it should disclose on its face: (1) That a demand by the executive has been made for the party in custody as a fugitive from justice, and that the demand is accompanied by a copy of an indictment or affidavit charging him with having committed a crime within the demanding state; (2) that the copy of such indictment or affidavit was certified as authentic by the governor of the state making the demand;-(3) and that the person demanded is a fugitive from justice : Roberts v. Reilly, 116 U. S. 80; Ex parte Reggel, 114 U. S. 642. On trhe application for a release, it is not a question óf whether the offense is sufficiently set forth in the warrant, but whether the statement in the warrant shows that the accused has been charged with a crime against the law of the state from which he has fled, and for that purpose a general description in the warrant is sufficient: Brown’s Case (Mass.), 17 Am. Rep. 114. The warrant is presumptive but not conclusive evidence that the person is a fugitive from justice : People v. Hyatt (N. Y.), 92 Am. St. Rep. 706; Hyatt v. People ex rel. Corkran, 188 U. S. 691; Munsey v. Clough, 196 U. S. 364. And in a general way the extradition warrant is prima facie evidence of the existence of every fact which the executive was obliged tó determine before issuing it: In re Kingsbury, 106 Mass. 223; Illinois v. Pease, 207 U. S. 100. But the accused may show by competent evidence, as a ground for his release, that he is not a fugitive from the justice of the demanding state, and thereby overcome the presumption to the contrary arising from the face of the warrant: Illinois v. Pease, 207 U. S. 100.

If the jurisdictional facts authorizing the extradition of the accused appear from the papers, the court on a hearing in habeas corpus proceedings will not go into the merits of the case, or determine the guilt or innocence of the accused. It is the duty of the asylum state to protect the liberty of its. citizens and not permit interstate extradition proceedings to be made a pretext for removing them to another jurisdiction for a purpose other than that within the intendment of the federal constitution. On the other hand, it is equally the duty of the state to aid in the punishment of crime committed in another state, by the prompt extradition of the guilty person found within its jurisdiction'as a fugitive from justice. Ho state can be the asylum of a fugitive from justice, and hence it should promptly honor the requisition of a sister state for the extradition of a prisoner legally accused of committing an offense against the laws of that state. If the court on habeas corpus inquires into the merits of the charge against the prisoner or into the motives which inspired the prosecution in the demanding state, it exceeds its authority under the constitutional and statutory provisions regulating the extradition of criminals. The mandate of the constitution requires “ a person charged in any state with a crime ” to be delivered by the asylum state to the state whose laws he has violated. That state alone can determine the guilt, or innocence of the offending party. The theory and the intention of the constitutional and statutory provisions are that the offender shall be compelled to submit himself for trial to the courts of the state in which the offense was committed, and hence it would be usurpation of authority for the courts of another state to undertake to determine the question of his guilt in a habeas corpus proceeding. Assuming that the demanding state has complied with the requirements of the federal constitution and the act of congress in making the requisition fbr the accused, it would be equally an unconstitutional exercise of power for the court of the asylum state to inquire into the motives of the prosecution, instituted in conformity with the laws of the demanding state, and release the offender and thereby prevent his extradition for trial in the latter state. The only possible effect of permitting the motives of the private prosecutor to be shown on a habeas corpus extradition proceeding would be to show the guilt or innocence of the accused. If a person is guilty of an offense against the laws of a state, it is no defense for him to allege that the prosecution was inspired by improper motives. It very frequently happens that criminals are brought to punishment only by persons who have motives other than the vindication of the violated law; but it has never been held that such reason was sufficient to invalidate a conviction for a criminal offense. Good faith and courtesy require a state to honor the demand of a sister state for the return of a fugitive from justice. When, therefore, the executive of a state has issued a requisition in proper form for a person charged with a crime against the laws of that state, and the executive of the asylum state has honored the requisition and issued a warrant, regular on its face, for the arrest of the accused, it will be presumed that both executives have been duly satisfied of the existence of the jurisdictional facts necessary in extradition proceedings, and the court on habeas corpus should not refuse to recognize the validity of and enforce the warrant of the executive of the asylum state unless the accused clearly and satisfactorily shows that he is not a fugitive from justice within the meaning of the federal constitution and the act of congress.

This is a habeas corpus proceeding instituted in the court of quarter sessions of Philadelphia county to secure the release of Richard C. Plower who was held by the respondent by virtue of an extradition warrant issued by the governor of this state. The petition for the* writ, avers that Plower “ is deprived of his liberty, unjustly as he apprehends, by reason of a requisition, issued by the governor of the state of New York for some criminal or supposed criminal matter.” No other facts or reasons why he should be discharged are set forth in the petition. The writ was granted by the court to which the respondent answered that Plower was held by virtue of a warrant issued by the executive of this state requiring Plower to be arrested and delivered into the custody of the agent of the state of New York to be taken back to the state from which Plower had fled, pursuant to a requisition of the governor of the state of New York. The warrant issued by the governor of this state recites that the governor of New York has represented to him that Plower stands charged with the crime of grand larceny, first degree, committed in the county of New York, state of New York, and has fled from justice in that state and taken refuge in the state of Pennsylvania, that he has demanded of the executive of this state that Plower be arrested and delivered to the agent of the state of New York, there to be dealt with according to law. The warrant further recites that the requisition “ is accompanied by a copy of the indictment, which is certified as authentic by the said governor (of New York), and is now on file in the office of the secretary of the commonwealth.” The relator offered to prove on the habeas corpus hearing that the prosecution was inspired by improper motives and that the extradition proceedings were not in good faith to secure the punishment for crime. The offer was refused. The relator was remanded and an exception was noted for him. An appeal was taken from the quarter sessions to the Superior Court, which affirmed the order of the quarter .sessions in remanding the prisoner. Prom the judgment of the Superior Court, the relator has appealed to this court.

If an application had been made for the writ of habeas corpus to this court it would have been our 'duty on the hearing to have made the same investigation that the quarter sessions did, and to have determined the legality of the extradition proceedings under which the relator was held, but we have no such duty on this appeal. The hearing before us is as an appellate court and not as a court of first instance. The proceedings are before us on a writ of certiorari, and it would have been called such prior to the act of 1889, which requires all appellate proceedings to “be taken in a proceeding to be called an appeal.” While that act requires all appellate proceedings to be designated an appeal, this court on the hearing must necessarily observe the prior distinction between the writs which bring legal proceedings into the court for review. The act simply requires the appellate proceedings to be called an appeal, but it does not compel or require the appellate court to disregard, on the hearing, the prior distinction between the writs. An appeal in name may, therefore, be a writ of error or a certiorari in legal effect, and it is necessary, in every case, to look into the record, and determine at the outset of our examination whether what is called an appeal is such in fact, or is a writ of error or a certiorari: Rand v. King, 134 Pa. 641, 646. In a case of habeas corpus issued and heard by the court below, we have distinctly ruled that an appeal from the order in such cases has only the effect of a certiorari. In the case in hand, therefore, we must regard the writ as a certiorari and that only brings up for review the record in the case. Hence our authority must be confined to ascertaining the regularity of the proceedings of the court which heard the habeas corpus. Looking at that record, there can be no - doubt of the regularity of the proceedings had before the quarter sessions. The petition for the habeas corpus simply averred that the relator was deprived of his liberty by virtue of the requisition of the governor of New York. It did not aver that the crime charged against him was inspired by improper motives or that he was not in the state of New York at the time when the offense is alleged to have been committed, or that he was not the defendant named in the warrant. As shown by the record, the relator admitted at the hearing that he was the person named in the warrant, and that he was in the state of New York at the time the crime was committed.- The return to the writ disclosed that the relator was charged with a crime in the state of New York and that a copy of the indictment, certified as authentic by the governor of that state, accompanied the requisition for Flower’s extradition. It is not denied that he was found in this state and arrested here by virtue of the extradition warrant issued by the governor. He is, therefore, a fugitive from the justice of the state of New York : Roberts v. Reilly, 116 U. S. 80. The proceedings before the quarter sessions, as shown by the record, are legal and regular in every respect, and the facts thus disclosed show that the court was entirely right in remanding Flower to the custody of the respondent. On this writ, we are not permitted to determine whether the evidence offered by the relator’s counsel at the hearing should have been received and considered by the quarter sessions. It is no part of the record. There is no way of making it a part of the record so as to have the refusal of the offer of the evidence reviewed by this court. The fact that the quarter sessions noted an exception and sealed a bill of exceptions will not authorize us to review the action of the court in declining to hear the evidence : Middleton v. Commonwealth, 2 Watts, 285. We must, therefore, affirm the order of the quarter sessions remanding the prisoner, and also the judgment of the Superior Court affirming that order.

But if the question was properly before us, we are clear that the quarter sessions was right in refusing to hear the evidence offered by the relator. The warrant disclosing that the extradition proceedings were in exact compliance with the constitution and laws of the United States, and it appearing that the relator was a' fugitive from justice, the' evidence offered would not have justified his release from custody if it had been received. It tendedlo “show, as claimed by his' counsel, that the relator whs hot guilty of the crime charged against him in the indictment, and that the prosecution was inspired by an improper motive. The quarter sessions of Philadelphia county was hot the proper forum to determine either of. these questions. The relator is charged with an offense against the laws of the state of New York, ahd the proper tribunal to determine his guilt or innocence is a court of that state, A,s said by Mr. Justice Hablan in Appleyard v. Massachusetts, 203 U. S. 222, in a proceeding to extradite a prisoner for the crime of grand larceny, first degree, the same as alleged here (p. 227): It is the province of the courts of New York (where the crime was committed) to declare what its laws are, and to determine whether particular' acts on the part of an alleged offender constitute a crime under such laws.” Nor is it material that the relator alleges that the private prosecutor, instituting the criminal proceedings in New York, was inspired by malicious or otherwise improper motives. The prosecution is by the state of New York. The indictment alleges that a crime has been committed against the laws of that state, and demands the return of the relator to the state that he may be tried for the offense committed. The governor of the state of New York in making the requisition acts for the state, and not for the private prosecutor, and it has not been shown, and does not appear, that his action or that of the executive of this state, who issued the warrant for the relator’s arrest, is not in good faith and for the purpose of the extradition of a person bona fide accused of a crime in the state of New York. In Pettibone v. Nichols, 203 U. S. 192, where fraud and bad faith between the governors of the demanding and asylum states were alleged, it was said by the supreme court of the United States (p. 203) : “We pass by, both as, immaterial and inappropriate, any consideration of the motives that induced the action of the governor of Colorado. This court will not inquire as to the motives which guided the chief magistrate of a state when executing the functions of his office.” If, as alleged by the relator, the private prosecutor in New York instituted the criminal proceedings with bad motives, that may possibly be shown on the trial as affecting the issue being tried before the jury, but it cannot be introduced here because, as we have seen, the guilt or innocence of the relator is not a question to be determined on a habeas corpus in Pennsylvania, but by a court and jury in the state of New York where the crime is alleged to have been committed.

We need not consider or determine the constitutionality of the Act of May 24, 1878, P. L. 137, 2 Purd. (13th ed.) 1761. The relator was not restricted to the proof of his identity on the hearing before the quarter sessions, but was afforded every opportunity to show the illegality of the extradition proceedings and that he was not a fugitive from justice. In other words, he was given an opportunity to controvert the jurisdietional facts which authorized the extradition proceedings, and that was all he was entitled to on a habeas corpus. The proceedings before the quarter sessions were conducted as though the act of 1878 had no existence, and, therefore, there is no ground on which the relator can ask this court to pass upon the constitutionality of the act.

It is to be regretted that the relator has been able by use of our judicial process to delay his return to the state of New York, and his consequent trial for the crime charged against him in that jurisdiction. He admits that he is the person named in the extradition warrant, and that he was in New York at the time the crime is alleged to have been committed. He does not allege that his return to New York is sought for religious or political reasons, nor that his indictment in that jurisdiction was prompted by such reasons. He does not claim that there is any prejudice existing against him in that state, or that he cannot have a fair and impartial trial in that jurisdiction for the crime charged there against him. His sole pretense for demanding a release from arrest and return to New York on the extradition warrant, as shown by his offers of evidence, is that the prosecution was not made in good faith and is for the purpose of collecting a debt. Conceding this allegation to be true, it simply goes to his guilt or innocence, and he manifestly must have that question adjudicated in the courts of the state against whose laws the crime is alleged to have been committed. Instead, therefore, of resist-. ing a return to the state of New York to be tried for the offense he should, under the facts disclosed in the record, have voluntarily returned to that jurisdiction and demanded an immediate trial on the indictment. He is charged with grand larceny, a disgraceful and heinous offense, and if he be innocent, as he alleges, he should have submitted himself at once to the jurisdiction where the crime was alleged to have been committed. He is, and has been since his arrest, which is more, than a year ago, within two hours of New York, where he can have a fair and impartial trial and his innocence declared by a court and jury of unquestioned jurisdiction. Yet, instead of seeking this opportunity to vindicate himself, he has, since the day of his arrest, invoked the aid of every court in this jurisdiction having cognizance of the matter, to prevent his return to New York, and to defeat a trial on the merits of the crime charged against him. The facts of this case, as shown by the record, do not warrant such conduct by an innocent man, and unmistakably show that the relator should have been retupned-to New York without delay.

It must be distinctly understood that this commonwealth cannot 'be madé an asylum for the criminal class of any state, domestic or-.foreign, and that when a member of that class seeks a refuge here, the processes of our courts may not be used; to prevent his return to the state or country whose justice he has fled. Such rule should be strictly enforced in interstate extradition proceedings. The provisions of the federal constitution and the act of congress should be enforced by the states in good faith to effect the purpose intended, and no technical or formal objection to extradition proceedings should be allowed to avail the accused in evading a speedy trial in the demanding jurisdiction when there has been a substantial compliance with the constitutional.and statutory requirements regulating such proceedings. The public welfare demands that crime' committed against the laws of any state should be punished, and while each state should carefully guard and protect the liberty of its citizens, yet it should yield a willing compliance to the request of a sister state for the return of a fugitive from justice. This will carry out the manifest intention of the compact between the states, and tend to establish better, and more harmonious relations between them. ' As correctly said by-Mr. Justice Harlan in Appleyard v. Massachusetts, 203 U. S. 222, 227: “ The constitutional provision relating to fugitives from justice, as the history of its adoption will show, is in the nature of a treaty stipulation entered into ¡for the purpose of securing a prompt and efficient administration .of the criminal laws of the several States — an object of the '..first concern, to the people of the entire country, and which each State is bound, in fidelity to the constitution to recognize. A. faithful, vigorous enforcement of that stipulation is vital to the harmony and welfare of the States.”

The judgment of the Superior Court, affirming the order of the’ quarter sessions, is affirmed; and the record is remitted to the quarter sessions with directions that the said Richard C. Mower forthwith'surrender himself into the'custody to which he was'remanded, and that the aforesaid order .hereby affirmed and-the governor’s warrant referred to in this proceeding be fully carried into effect.


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    Kelley Springfield Road Roller Company, Appellant, v. Schlimme.

      Contract — Sale—Conditional sale — Bailment—Personal property — Alternative remedies.

    In an action upon promissory notes where it appears that defendant received from plaintiff a machine under an instrument in writing called a lease, by which the defendant was to “ pay for the use and hire ” of the machine a certain sum of money each month for a term of months, arid thereafter upon the payment of SI.00 to receive a bill of sale for the' machine, and it also appears that the plaintiff had the right upon default by the defendant to enter upon defendant’s premises and take possession of the- machine- without trespass, the plaintiff cannot, after having taken possession of the machine at the end of the term, and before any money had been paid, maintain an action against the defendant on the notes. In such a case the remedy of the plaintiff is in the alternative. He may either affirm the contract and sue on the notes, or take posses-' sion of the machine. Having elected one remedy he cannot have the benefit of the other.
    Argued Feb. 3, 1908.
    Appeal, Nos. 279 and 280, Jan. T,, 1907, from orders of .C. P. Montgomery Co., Oct. T., 1906,. Nos. 150 and 151, refusing to take off nonsuits in cases of the Kelley Springfield Road Roller Company v. John Schlimme and the Kelley Springfield Road Roller Company v. Schlimme Construction Company.
    Before Mitchell, C. J., Fell, Bkqwn, Mestkezat, Pottek,’ Elkin and Stewakt, JJ.
    Affirmed.
    Assumpsit on promissory notes.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subse-< quently refused to take off.

      Error assigned was refusal to take off nonsuit.

      G. Rodman Fox and N. II. Larzelere, for appellant.
    In the case at bar, there was no rescission of the contract, for default in payment, during the terms of the lease, but there was an express carrying out of their contract after the expiration of the rental period, and they had the right to recover upon the notes which were given as collateral security for the payment of the rent, and in all good conscience should be paid what their contract called for: McGrann v. Pittsburg & Lake Erie R. R. Co., 111 Pa. 171.

      Louis M. Ohilds, for appellees.
    The contract is not a contract of leasing : Rowe v. Sharp, 51 Pa. 26 ; Myers v. Harvey, 2 P. & W. 478.
    After the machine was taken back plaintiff had no right to sue on the notes: Campbell Printing Press & Mfg. Co. v. Hickok, 140 Pa. 290 ; Seanor v. McLaughlin, 165 Pa. 150 ; Durr v. Replogle, 167 Pa. 347 ; Kirkwood’s Assignment, 2 Pearson, 257.
    March 16, 1908:
   Opinion by

Mr. Justice Mestrezat,

The above cases were tried together in the court below, and as they arise out of the same transaction and the decision of the two cases depends on the same legal principle, we will dispose of them together.

On or about April 15, 1904, the plaintiff company delivered to the defendant, John Schlimme, two steam road rollers. They remained in his possession until November 1, 1904, when a written contract was entered into between the plaintiff company and the Schlimme Construction Company for the rollers. This contract was in the shape of a written offer by the defendant company, and an acceptance by the plaintiff company. It was called a lease. The defendant company was to receive the rollers, and pay for their use and hire for a period of thirteen months the sum of $5,400, payable, except $250 cash in hand, in thirteen notes, one due each succeeding month. The monthly payments, secured by notes, were as follows: the first, third and fourth months, $200; the second month, $150 ; the fifth to the twelfth month inclusive (8 months), $500 ; and the thirteenth month, $400. The notes were to draw interest at the’ rate of six per cent.

The contract provided that the possession and ownership of the rollers should not pass from the plaintiff company, and “ at the expiration of this lease they shall be returned to them.” It also provided that in case the defendant company failed to protect the machines “ or in case any of the said notes are not paid at maturity, or within-thereafter,” the plaintiff company “ shall have the right to enter upon the premises where said rollers may be located, and take possession of, and remove same without trespass.”

The agreement concluded with a provision that if the defendant company paid all the notes, it should have the privilege of purchasing the rollers, and that for the further consideration of one dollar, you will sell and deliver said rollers to us and make a bill of sale for the same.”

The contract was signed by the Schlimme Construction Company, and the notes were signed by John Schlimme. The cash in hand was not paid nor were any of the notes paid. No money whatever was paid by Schlimme or the construction company to the roller company on the contract. The rollers were kept by the construction company until on or about September 27, 1906, when, according to the testimony of the plaintiff’s sales agent, the plaintiff entered the premises of the construction company and took possession of the rollers, “ in exercising of the rights reserved in this contract, whatever they may be.” So far as the evidence discloses, the plaintiff still retains possession of the rollers and claims them as its property.

These two suits were brought by the Kelley Springfield Road Roller Company to recover the $5,400 and its interest, one of the suits being brought on the notes against John Schlimme; the other, on the contract against the Schlimme Construction Company. On the trial, the court granted a nonsuit in each case which it subquently refused to take off. The plaintiff has taken these appeals.

The rights of the parties in these actions depend upon the contract between the plaintiff company and the construction company, and the subsequent action of the parties in pursuance thereof. The contract itself shows that the $5,400 required to be paid for the use of the rollers constituted the full value of the rollers. That .appears conclusively from the stipulation in the contract by which the plaintiff company was to sell and deliver the rollers to the construction company on the payment of that sum and an additional nominal consideration;' While the contract provides that the sum named shall be “ for the use and hire of the said steam road rollers for a period of thirteen months,” yet the clause providing for the sale determines the fact that the sum was the full consideration for the machines. The rental value fixed by the contract was, in the judgment of the parties, the market value of the rollers when the construction company took possession of them.

The contract may be regarded as dual: (1) a hiring or bailment, and (2) a contract of sale. The ultimate purpose of the agreement was a sale of the rollers to the construction company. If the latter complied with the terms of the contract as to payment, the title of the machines passed to the construction company, and it could demand of the plaintiff a bill of sale transferring the title to it. The possession of the machines passed to the construction company upon the execution and delivery of the contract, and it had a right to the possession of the machines so long as it complied with the terms of the agreement, that is, made the payments stipulated in the contract. The title would follow the possession as soon as all the installments of the consideration money were paid, and then an indefeasible title to the machines would become vested in the construction company.

The so-called lease or bailment was to preserve the ownership of the bailor until the full consideration money was paid. The plaintiff company did not intend the title to the machines to pass from it until that event had occurred, and, under our decisions, the contract entered into by the parties was legitimate and legal for such purpose.

By the provisions of the agreement, it will be observed that “ at the expiration of this lease they (the rollers) shall be returned to them (the plaintiff).” If for any reason the sale had not been consummated, as contemplated in the contract, it would have been the duty of the construction company to return the rollers to the plaintiff at the expiration of the thirteen months. Of course, it is not to be reasonably inferred, that the construction company would pay the $5,400, the value of the machines, and redeliver them to the plaintiff at the expiration pf the so-called lease. On the other hand, the reasonable presumption is that if the construction company had paid the $5,400, it would have required the plaintiff to comply with the stipulation in the contract and transfer the title to the machines to the construction company. This it had a legal right to do, and the presumption is that it would have done so.

Under the contract, the plaintiff had two remedies for a default in payment of the installments stipulated to be paid in the agreement: it could, in affirmance of the contract, have brought suit as each installment became due, permitting the machines to continue in possession of the defendant company; or it could “ enter upon the premises where said rollers may be located, and take possession of, and remove same without trespass,” thereby rescinding the contract. These two remedies are secured to the plaintiff by the agreement of the parties. They are unquestionably not cumulative, but are in the alternative. This necessarily follows from the conceded fact that the pay for the use and hire ” of the rollers was their full market value, and the stipulation that on the payment thereof the title to the property was to pass to the construction company. There is no ground whatever for interpreting this contract so as to impose on the construction company a penalty of the full value of the machines for a failure of the company to comply with the agreement. To subject the company to such penalty, it must be so stipulated in the contract in clear and unmistakable language. On the contrary, we find in the agreement provisions for its enforcement as well as its rescission. As already suggested, the plaintiff could enforce the payment of the several installments as they severally became due by an action at law. This would be in affirmance of the contract and would give the construction company the right to retain the possession of the machines. If, however, the plaintiff corapan}'' desired to rescind the contract and repossess itself of the machines, it was fully authorized to do so by the terms of the agreement on a breach thereof by the construction company failing to. make any one or all of the payments stipulated in the contract. The failure to make the payments as they became due was a breach of the contract and the plaintiff had the right to rescind “ and take possession of, and remove same without trespass.” There was one condition, however, imposed upon the plaintiff company’s action in this respect, and that was that if it took possession of the machines and thereby rescinded the agreement, it could not demand payment of the unpaid installments of money provided in the contract. The plaintiff’s assertion of its right to rescind by repossessing itself of the machines was the end of its alternative right to enforce the agreement by compelling payment of the consideration money. This is the proper interpretation of the agreement of the parties as clearly disclosed by its terms.

The construction company retained possession of the machines for several months after the expiration of the thirteen months named in the contract. So far as the evidence discloses, no- payments whatever were made by the construction company to the plaintiff, nor did the former return the machines to the latter “ at the expiration of this lease.” The notes, taken as collateral for the rental, remain unpaid. On or about September 27, 1906, the defendant company, as testified by its sales agent, “removed these rollers, took them from The Schlimme Oonstruction Company under the rights reserved in the contract, .... in exercise of the rights reserved in this contract, whatever they may be.” As suggested by the plaintiff’s counsel, until the contrary appears, it will be presumed that what action was taken by the parties relative to the transactions arising out of the contract was taken in pursuance of the contract and to carry out its terms and conditions. By the terms of the contract, the plaintiff was authorized to take possession of the rollers only “ in case any of the said notes are not paid at maturity, or within-thereafter,” or on failure of the defendant company to protect the machines. There is no allegation that the construction company failed to protect the machines, and hence it must be assumed that the plaintiff company repossessed itself of the machines because the notes, the consideration named in the contract, were not paid. The plaintiff’s action, therefore, in taking possession of the machines was in strict compliance with the contract authorizing it do so in default of payment of the consideration money. This was a right reserved in the contract, and according to the testimony of the plaintiff’s employee, possession of the machines was resumed “ in exercise of the rights reserved in this contract, whatever they mny be.” The right to repossess itself of the machines was not confined to any period or any time. The company could take the machines in default of the payment of any installment, or, at its own pleasure, it. could wait until all of the consideration money was due or any time thereafter and take possession of the machines. The action of the company in this respect depended solely upon its own pleasure. The right of the construction company to return the machines, as provided in the agreement, is altogether different from the right of the plaintiff company to take possession of them. There is nothing disclosed by the record tending to show that the rollers were removed by the plaintiff by reason of the construction company having failed to return them at the expiration of the lease. On the contrary, as we have seen, the plaintiff’s own employee testified that the rollers were removed “ in the exercise of the rights reserved in this contract.” Those rights permitted a removal in case any of the said notes are not paid at maturity, or within-thereafter.” It is, therefore, clear that the plaintiff removed the rollers in pursuance of the provision of the contract which permitted such action on failure of the construction company to pay the consideration money. This act of the plaintiff was a rescission of the contract, and deprives the plaintiff of any right of action on the contract or on the notes to enforce payment of the money stipulated to be paid in the agreement. The plaintiff cannot retain the machines, and at the same time demand payment of their value. The contract does not so provide, and justice will not permit it. The manifest purpose of both parties to this agreement was, in the language of Chief Justice Gibson in Myers v. Harvey, 2 P. & W. 478, “ that the contract of bailment should preserve the ownership of the bailor during the particular relation created by it, and the contract of sale which supersedes it should transfer the title as soon as it was called into action by the payment of the price.” It was not the intention that the construction company should pay the price and that the plaintiff should retain the machines.

This case is ruled by the doctrine announced in Seanor v. McLaughlin, 165 Pa. 150, and Campbell Printing Press &Mfg. Co. v. Hickok, 140 Pa. 290. In the former case, in which the contract provided for a personal judgment for the consideration money or the retaking of the machine, Mr. Justice Dean, delivering the opinion of the court, said (p. 156): “ Either remedy was complete in itself, and the plaintiffs, on default, could adopt either; but they were not cumulative; they could not adopt both, unless it was plainly expressed in the contract, or a necessary implication from its terms. The words of this contract negative such a construction. . . . They (the plaintiffs) rescinded the contract by retaking into their possession the subject of it, Avhich. they had a' right to do, and then immediately entered their bond and issued execution to levy on other property of defendant, which they had no right to do, for the contract or obligation, to which the bond was collateral, no longer existed. It ought to have been surrendered to defendant when he demanded it at the time plaintiffs took away the machine.”

The judgment of the court below in each case is affirmed.