text:
    Kemmerer Iron & Steel Company v. Bittenbender, Appellant.

      Appeals — Arbitration—Referee’s findings of facts.

    A referee’s findings of fact confirmed by the court below and based upon sufficient evidence will not be reversed by the appellate court in the absence of manifest error.
    Argued Feb. 22, 1911.
    March 20, 1911:
    Appeal, No. 355, Jan. T., 1910, by defendant, from order of C. P. Lackawanna Co., Sept. Term, 1907, No. 1520, dismissing exceptions to referee’s report in case of Kemmerer Iron & Steel Company v. W. E. Bittenbender et al.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of William Leach, Esq., referee.

      Errors assigned were in dismissing exceptions to referee’s report.

      Samuel B. Price, with him Cole B. Pierce and W. W. Baylor, for appellants.

      B. L. Levy, with him John P. Kelly, C. P. O’Malley and George B. Taylor, for appellee.
   Per Curiam,

As suggested by the learned counsel for the appellants, the crucial question in the case is whether the $9,000 of bonds issued by the appellee company were purchased by the appellants or were taken as collateral security for the indebtedness of the appellee to the appellants. The referee found that the bonds in question were sold and not pledged to the appellants. The finding of the referee was confirmed by the court below. After a careful consideration of the case, we find sufficient evidence before the referee to warrant his finding and having been approved by the court, it will not be disturbed.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Miles Land Company, Appellant, v. Pennsylvania Coal Company.

      Equity — Jurisdiction—Ejectment bill — Remedy at law — Act of June 7, 1907, P. L. 440.

    1. A bill in equity praying for an injunction to restrain the mining of coal, for an inspection of the mines, for discovery, and an accounting of coal mined and removed, and averring ownership of the plaintiff in the land, is properly certified under the Act of June 7, 1907, P. L. 440, to the law side of the court when the answer claims ownership in fee simple in the defendant.
    2. In such a bill the primary question is one of title, and the right to discovery and account is dependent on the plaintiff’s title to the land.
    Argued Feb. 21, 1911.
    Appeal, No. 255, Jan. T., 1910, by plaintiff, from decree of C. P. Lackawanna Co., May Term, 1909, No. 5, certifying to the law side of the court the case of Miles Land Company v. The Pennsylvania Coal Company.
    Before Mestrezat, Potter, Stewart, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction and for an account. Before Edwards, P. J.

      Error assigned was in certifying the case to the law side • of the court.

      March 20, 1911:

      Samuel B. Price, with him Cole B. Price, for appellant.

      Everett Warren, with him Henry A. Knapp and Charles P. O’Malley, for appellee.
   Per Curiam,

This bill prayed for an injunction to restrain defendant from mining coal under two parcels of land containing in the aggregate about six acres, and for an inspection of the mines, for discovery and an account of the coal mined and removed from the premises. It averred that the plaintiff is the owner of the land; the answer denies such ownership and avers that the defendant company owns the land in fee simple. The court below held that the bill would not lie, that the title must be determined in an action at law, and certified the case, under the Act of June 7, 1907, P. L. 440, to the law side of the court. This is the error assigned on this appeal.

We think the court was clearly right. The defendant company was in possession and mining the coal, and claimed to own the premises in fee. The primary question was one of title. The right to discovery and account prayed for in the bill was dependent on the plaintiff company’s title to the land. If it had title, the relief prayed for followed; if it did not have title, it could demand neither discovery nor an account, as it had no interest in the coal mined by the plaintiff. The proper forum to settle the first and controlling question is the law side of the court. In the meantime, the plaintiff company has an ample remedy to protect and preserve its rights in the coal now being mined by the defendant.

The order certifying the case to the law side of the court is affirmed.


text:
    Pellio, Appellant, v. Bulls Head Coal Company.

      Corporations — Stockholders’ bill — Actions—Right of stockholder to bring suit in his own name — Notice to the company to bring suit.

    A bill brought by an individual stockholder of a corporation in his own name to recover moneys wrongfully taken from the corporation will be dismissed where the only application to the officers of the company to bring suit in its name was by a mere notice addressed to the president and attorney of the corporation notifying them to bring suit and only inferentially indicating the parties against whom action was to be taken.
    Argued Feb. 21, 1911.
    Appeal, No. 254, Jan. T., 1910, by plaintiff, from decree of C. P. Lackawanna Co., Nov. Term, 1909, No. 1, dismissing bill in equity in case of John W. Pellio v. Bulls Head Coal Company et al.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for a receiver and an accounting.
    Edwards, P. J., filed the following opinion:
    In another case, Pellio v. Bulls Head Coal Co., 224 Pa. 379, the plaintiff secured a decree compelling the said company to reassign to him five shares of the capital stock of the corporation, obtained from him through fraud and misrepresentation. Our decree was affirmed and the plaintiff’s cross appeal was dismissed. It appears in that case that the plaintiff asked for a decree not only for the recovery of his stock but for an accounting on the part of the company and for the repayment into the corporate treasury of certain sums of money alleged to have been wrongfully appropriated by certain officers of the company. We heard evidence in said case on all the allegations of the plaintiff’s bill and formulated findings of fact in accordance therewith; but when we had fully considered the merits of the controversy it appeared very clear to us that the only relief plaintiff was then entitled to was a decree reinstating him as a stockholder on certain conditions. The terms of our decree having been complied with, the plaintiff is before us in the present case as a stockholder with the rights accorded to a stockholder under the law.
    The defendants named in plaintiff’s bill are the Bulls Head Coal Company, David J. Whiteford, Emma J. Dudley (formerly Emma J. Burr), and Emma J. Dudley, executrix of C. A. Burr, deceased — four defendants.
    The allegations of plaintiff’s bill are briefly and in part as follows:
    1. The Bulls Head Coal Company was organized in 1901 with a capital stock of $25,000, the total number of shares issued amounting at par to $22,500, Burr owning $10,000 and Whiteford $9,000.
    2. The defendant company immediately after its incorporation engaged in the mining and selling of coal. Burr was president, and Whiteford, secretary and treasurer.
    3. Burr and Whiteford managed the company in a manner to suit themselves, paid such dividends as they pleased, drew large salaries and otherwise misapplied the funds of the company. From about April, 1904, to July, 1906, the sum of $49,000 was paid in salaries to three of his defendants, viz.. C. E. Burr, D. J. Whiteford and Emma J. Dudley.
    4. On July 31 there was in the treasury of the company the sum of $14,496.01. On August 17 of the same year plaintiff was induced to part with his stock.
    5. In accordance with the decree of the court in a former proceeding plaintiff has again become a stockholder of the company. The money in bank July 31,1906 ($14,496.01), has been distributed to the stockholders as dividend, none of which has been paid to the plaintiff. A new board of directors and new officers have been elected, and the company still carries on the business of mining and selling coal.
    6. A written notice was served on May 24, 1909, on the Bulls Head Coal Company to bring suit against D. J. Whiteford and the estate of C. A. Burr, deceased, and the company has neglected to do so.
    There are other paragraphs in the bill but we need not refer to them now. The plaintiff prays for the appointment of a receiver and for various accountings.
    It is clear that the plaintiff is before us as a stockholder of the defendant company, and, under the allegations of his bill, that he is entitled to relief either in equity or law, the main question to be considered now being one of procedure. The substance of his complaint is that certain sums of money were unlawfully diverted from the treasury of the company and paid to three individuals under the guise of salaries, and he is seeking the aid of the court to secure the return of the funds so misappropriated into the treasury of the corporation.
    There are two ways in which this can be done. Under certain conditions a stockholder may bring suit on behalf of the corporation without first requesting the managers or directors to bring such proceedings, but this may be done only under exceptional circumstances. A case in point is that of Treat v. Ins. Co., 203 Pa. 21. In this case the officers of the insurance company had reinsured all of its risks in another company. The company had no office, solicited no risks and was practically defunct; in other words the business had been abandoned. The officers, it appeared, had appropriated the funds of the company to their own use. It was held, that in such a case it was not necessary for a shareholder to request the manager to apply for a receiver, before filing his bill.
    The facts of the case at bar, as gathered from the bill, are different. The defendant company is a going corporation. It has a president, secretary, treasurer and a board of directors and was carrying on “the business of mining coal” when the bill was filed. It is true that there are new officers, new directors and some new stockholders; but the corporation is an active one and is clothed with the usual corporate powers.

      The other way to secure the relief sought by the plaintiff is indicated in the case of Wolf v. R. R. Co., 195 Pa. 91. This case fully explains the law. Mr. Justice Mitchell says:
    “The first matter for consideration is the status of the plaintiff to maintain such a bill. It is a bill to assert rights of the corporation, and therefore must ordinarily be brought by the corporation, itself. The right of an individual stockholder to act for the corporation is exceptional and only arises on a clear showing of special circumstances, among which inability or unwillingness of the corporation itself, demand upon the regular corporate management, and refusal to act are imperative requisites. And the refusal by the corporate management must appear affirmatively to be a disregard of duty and not an error of judgment, a nonperformance of a manifest official obligation, amounting to a breach of trust: 2 Beach on Private Corporations, sec. 878. There must be averred and proved an actual application to the directors, and a refusal by them to bring suit or to allow plaintiff to do so in the corporate name, and where misconduct of the directors themselves is alleged, the bill must show an effort to secure plaintiff’s rights through meetings of the corporation: 2 Beach on Private Corporations, secs. 882, 885. 'The shareholder should set forth in his bill the efforts that he has made to induce the corporation to act in the matter, should allege its refusal or failure to sue,’ and 'facts showing that he has left undone nothing which in reason he might have done to prevail on the corporate management to bring the action;’ Taylor on Private Corporations, secs. 138, 140. See also Morawetz on Private Corporations, secs. 241, 244.”
    The counsel for plaintiff appears to have followed the procedure suggested in Wolf v. R. R. Co., 195 Pa. 91, because he attempted to comply with the requirement of notice to the corporation. A copy of the notice is attached to plaintiff’s bill as exhibit “A.” We hold this notice to be insufficient. It is directed to the “Bulls Head Coal Co.; S. S. Spruks, President; C. Comegys, Esq., attorney. Gentlemen: You are hereby notified to bring suit,” etc. A corporation is managed by its board of directors, and as is stated in the case cited: “There must be averred an actual application to the directors, and a refusal by them to bring suit.”
    We hold also that the notice ought to state specifically the parties against whom the corporation is to bring suit. Only in an inferential way can this be gathered from the notice in this case.
    We are not called upon to decide the question of the right of the plaintiff to bring suit in his own name, rather than in his name for the benefit of the corporation, the Bulls Head Coal Company. If the money alleged to have been misappropriated by the former officers of the company were recovered in legal proceedings, the sum so recovered should go into the treasury of the company, and the plaintiff would thereby reap a profit depending upon the amount of stock held by him and depending also upon the financial condition of the company at the time. The money recovered in such a suit after satisfying creditors would belong to the stockholders of the company and could be distributed among them as dividends. As an illustration wre can use the facts set forth in the bill. During a period of about two years the sum of $49,000 was paid in the form of salaries to three persons who controlled the corporation. Supposing that $4,000 would have been a fair compensation for their services, the balance of $45,000 would be the amount of the misappropriation. Because the plaintiff owns five shares of the stock, or one-forty-fifth of the capital, it does not follow that he would be entitled to that proportion of the money recovered in a suit. His right as a stockholder to a distributive share of the assets of the company would depend on other factors in the equation.
    Reducing the plaintiff’s case, as set forth in his bill, to its lowest terms, it means that the directors of the defendant company, being trustees for all the stockholders, are under a legal obligation to bring suit against certain alleged wrongdoers to recover certain sums of money belonging to the company; and, that the said directors failing in this duty after notice, the plaintiff has the right to bring such a suit for and in behalf of the corporation. This is the substance of the plaintiff’s case.
    March 20, 1911:
    It should be understood that we sustain the demurrer in this case on the single ground of‘the insufficiency of the notice exhibited in plaintiff’s bill, leaving open the other questions, which are not specifically raised by the, demurrer. The nature of the case is such that the plaintiff’s bill cannot be amended.
    Now, March 7, 1910, the demurrer is sustained and the plaintiff’s bill is dismissed with costs.

      Error assigned was decree dismissing the bill.

      Samuel B. Price, with him Cole B. Price, for appellant.—
    A request to, and refusal by, the president of the corporation, is sufficient: Chicago v. Cameron, 120 Ill. 447 (11 N. E. Repr. 899); Averill v. Barber, 53 Hun, 636 (6 N. Y. Supp. 255); Becker v. Gulf City St. Ry. & R. E. Co., 80 Tex. 475 (15 S. W. Repr. 1094); Ball v. Rutland R. R. Co., 93 Fed. Repr. 513.
    Ordinarily notice to or knowledge of the president of the bank is notice to and knowledge of the corporation: Bank of Pittsburg v. Whitehead, 10 Watts, 397; Louisville Trust Co. v. Louisville N. A. & C. Ry. Co., 75 Fed. Repr., 433; Fouche v. Merchants’ Nat. Bank of Rome, 110 Ga. 827; First Nat. Bank of Bethlehem v. Peisert, 2 Pennypacker, 277.

      Cornelius Comegys, I. H. Burns, E. L. Burns and Thos. F. Wells, for appellees, cited: Wolf v. R. R. Co., 195 Pa. 91..
   Per Curiam,

The judgment is affirmed on the opinion of the learned court below.


text:
    Norris v. Breakwater Company, Appellant.

      Appeals — Failure of court below to write opinion — Remitting record.

    Where the court below fails to file an opinion, in making absolute a rule for judgment for want of a sufficient affidavit of defense, and merely enters an order “rule absolute,” the record will be remitted so that the court below may indicate its reasons for its action.
    Argued March. 23, 1911.
    March 27, 1911:
    Appeal and certiorari, No. 3, Jan. T., 1911, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1910, No. 8, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Edward W. Norris v. The Breakwater Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Record remitted.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned was order making absolute rule for judgment.

      John Kent Kane, with him Emanuel J. Myers, for appellant.

      F. S. Laws, of Lewis, Adler & Laws, for appellee.
   Per Curiam,

The affidavit of defense in this case covers seventeen pages of printed matter in appellant’s paper-book. Judgment was entered against the defendant for its alleged insufficiency. The court below must have had reasons for deeming it insufficient, but what they were we do not know. No specifications of insufficiency were filed by the appellee, and all that we have from the court below is “Rule absolute.” In such a case the reason or reasons entertained by the court for holding the affidavit of defense insufficient should be given, and the record is remitted that we may be informed why this affidavit was deemed so. The duty is not ours in the first instance of saying why an affidavit of defense is insufficient. Upon return of the record leave will be granted to move to advance the hearing of the appeal.


author: Mk. Justice Fell,

text:
    D’Jorko, Appellant, v. Berwind-White Coal Mining Company.

      Negligence — Mines and mining — Safety lamps — Bore holes — Act of May 15, 1893, P. L. 52, 61 — Mine foreman — Fellow servant — Act of June 10, 1907, P. L. 523.

    1. The provision of the Act of May 15,1893, P. L. 52, relating to the use of safety lamps in bituminous coal mines applies only to mines where inflammable gases are found or a sudden inflow of gas is likely to be encountered, and the requirement in the act as to bore holes applies only when the place is being driven towards, or in dangerous proximity to, an abandoned mine or a part of a mine “suspected to contain inflammable gases, or which may be inundated with water.”
    2. In an action to recover damages for the death of a miner killed by an explosion, alleged to have been caused by failure to require the use of safety lamps and to drive bore holes, the plaintiff is not entitled to recover, if there is no proof that the mine is gaseous, and no sufficient proof as to the necessity for driving bore holes.
    3. The owner of a bituminous coal mine who has appointed a mine foreman as provided by the Act of May 15, 1893, P. L. 52, 61, is not responsible for the consequences of an explosion in his mine resulting from the negligence of such mine foreman.
    4. The employers’ liability Act of June 10,1907, P. L. 523, does not apply to a mine foreman appointed under the Act of May 15, 1893, P. L. 52. If it did apply to such a foreman, the act would be unconstitutional.
    Argued Oct. 6, 1910.
    Appeal No. 197, Oct. T., 1910, by plaintiff, from judgment of C. P. Jefferson Co., April Term, 1910, No. 132, on verdict for defendant in case of Veronica D’Jorko v. Berwind-White Coal Mining Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Reed, P. J.
    The court charged as follows:
    [If it were permissible under the law which in my judgment controls the disposition of this case to submit it to you for determination upon the evidence I would feel constrained to say that there is very little, if any, evidence of negligence on the part of either the mine foreman or on the part of the fire boss to sustain a verdict against either, much less to sustain a verdict against the defendant company.] [1]
    [The plaintiff alleges two grounds of negligence upon which a right of recovery is based: First, the failure to provide safety lamps for use in the mines; and, Second, the failure to drive bore holes for the ascertainment of inflammable gases, etc. There has been no testimony offered to support the first ground of complaint, and the evidence to show that there was a necessity for driving bore holes is of a very doubtful, circumstantial character. It is so meager that the case is brought dangerously near the realm of conjecture on that question; and the law forbids the submission of a case where the evidence leaves the alleged negligence so doubtful that the jury has to guess at it in reaching a verdict.] [2]
    But if I could see my way to submit the case to you upon the evidence, I am confronted with an act of assembly, passed May 15, 1893, which places the underground workings of mines like the one in question in the charge and supervision of a mine foreman. [The conduct and operation of the interior of the mine, so far as the same relates to the safety of the employees, is taken out of the possession and control of the owner, and placed in charge of a certified foreman, with whom the owner or his superintendent may not interfere.] [4]

      [Counsel for the plaintiff have made special reference to sec. 1 of art. Y of this act, which forbids the accumulation of explosive gas to exist in the worked-out or abandoned parts of a mine when it is practicable to remove it; and to sec. 3 of the same article, which provides for the driving of bore holes when mining is being carried on in dangerous proximity to an abandoned mine or part of a mine suspected of containing inflammable gases. And the failure to drive these bore holes is the negligence charged against the defendant. The latter part of sec. 3 provides, however, that the work of driving bore holes is to be done under the immediate instruction of the mine foreman;] [5] and sec. 1, of art. XX, provides that the mine foreman shall attend personally to his duties in the mine, and carry out all the instructions set forth in said act of assembly. In other words, the necessity for driving bore holes and the driving of such holes belong to the interior workings of the mine, and as such are committed to the charge and supervision of the mine foreman. He is not only liable in damages to anyone injured by his neglect or refusal to perform the duties imposed upon him by the statute, but he is also criminally liable for neglect or refusal to perform all the duties required to be performed by him.
    [It has been repeatedly decided by our appellate courts that under this statute the mine owner is not responsible or liable for the negligence or neglect of duty of the mine foreman. As late as March 28th of this year the Supreme Court, in an opinion delivered by Mr. Justice Mestkezat in the case of Dempsey v. Buck Run Coal Company, 227 Pa. 571, held that where the plaintiff alleged that he was injured by an explosion of gas which had accumulated in the mine by reason of improper appliances and by failure of the defendant to place proper tail battices to prevent gas entering the place in which he was working, etc., there could be no recovery against the company or owner of the mine: and this for the reason that the statute referred to took from the owner the interior workings of the mine, and placed the same in charge of a certified foreman.] [6]
    [I am unable to distinguish the case on trial from the case referred to. And, following this latest utterance of the Supreme Court on the matters here involved, I must assume the responsibility of deciding as a matter of law that there can be no recovery by the plaintiff against the defendant under the facts in this case.] [7]
    [Reference has been made to what is known as the employers’ liability act, passed in 1907; but in my opinion has no application to the facts here, and does not change the law as heretofore declared as applicable in the circumstances of this case.] [8] [If it did, I would have to hold that it was unconstitutional and void so far as this case is concerned, in that the legislature may not take the control and management of one’s business out of his hands and place it in charge of another and prohibit him from in any way interfering with the control and management of the person in whose charge it has been placed, and at the same time make him answerable in damages for that person’s negligence or mismanagement of the same.] [11]
    [For the reasons stated, the defendant’s point asking for binding instructions in its favor, is affirmed, and a verdict is directed accordingly.] [12]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-12) portions of charge.

      W. M. Gillespie, with him W. B. Adams, for appellant.—
    The defendant was bound by the regulations of the statute to see that the exposed position was protected before its machinery was set in motion and its servants subjected to danger: Ross v. Walker, 139 Pa. 42; Staebler v. Warren-Ehret Co., 223 Pa. 129; Ricks v. Flynn, 196 Pa. 263; Gilbert v. Tanning Co., 221 Pa. 176.
    If the owner himself or his superintendent performs the duties of the mine foreman, the owner is responsible because the superintendent is not a creature of statute, but an appointee of the owner: Wolcutt v. Erie Coal & Coke Co., 226 Pa. 204; Ricks v. Flynn, 196 Pa. 263; Gilbert v. Tanning Co., 221 Pa. 176; Lillie v. Amer. Car & Foundry Co., 209 Pa. 161; Foster v. Steel Co., 216 Pa. 279.
    April 10, 1911:
    A master is bound to furnish a reasonably safe place for his servants, and to know that appliances once safe may become unsafe: Schall v. Cole, 107 Pa. 1; Baker v. R. R. Co., 95 Pa. 211; Patterson v. Pittsburg R. R. Co., 76 Pa. 389; Wagner v. Chemical Co., 147 Pa. 475; Trainor v. Phila. & Reading R. R. Co., 137 Pa. 148; Ross v. Walker, 139 Pa. 42; to the same effect is Iron Shipbuilding Works v. Nuttall, 119 Pa. 149; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Woodward v. Shumpp, 120 Pa. 458; Groves v. McNeil, 226 Pa. 345.

      Cadmus Z. Cordon, for appellee.
    The negligence, if any, was that of the mine foreman: Dempsey v. Buck Run Coal Co., 227 Pa. 571.
    The defendant company is not liable to the plaintiff, under the law, for injuries sustained by reason of the negligence of the mine foreman or fire boss: Durkin v. Coal Co., 171 Pa. 193; Hall v. Simpson, 203 Pa. 146; Golden v. Mt. Jessup Coal Co., 225 Pa. 164; Dempsey v. Buck Run Coal Co., 227 Pa. 571.
   Opinion by

Mk. Justice Fell,

The plaintiff’s husband was killed by an explosion in the defendant’s mine where he was employed in operating a pneumatic coal cutter. The negligence alleged was in the failure to require the crew working at the place of the accident to use safety lamps and in not driving bore holes as required by the Act of May 15, 1893, P. L. 52. The provision of the act, relating to the use of safety lamps, applies only to mines where inflammable gases are found or a sudden inflow of gas is likely to be encountered and the requirement as to bore holes, only when the place is being driven towards or in dangerous proximity to an abandoned mine or a part of a mine “suspected to contain inflammable gases or which may be inundated with water.”

There was no proof that the mine was gaseous and no necessity for the use of safety lamps was shown. The testimony as to the necessity for driving bore holes was too meager and uncertain to sustain a finding for the plaintiff on that ground. It appeared from the testimony of the plaintiff’s witnesses, that they had worked in the mine for a number of years with open lights and that they had experienced no trouble from gas, and knew of none and that the escape of gas from an unused part of the mine to the place where the accident happened was merely a probability under certain conditions that were not shown to exist. But, even if the alleged negligence in failing to drive bore holes had been established, the negligence would have been that of the mine foreman, for which, as the learned trial judge correctly held, the mine owner would not be responsible.

The Act of May 15, 1893, P. L. 52, 61, takes the management of mining operations in bituminous coal mines out of the control of the owner and places it in the charge and control of a certified mine foreman, with whom the owner or his superintendent may not interfere. The employment of a mine foreman is made compulsory and his control of the underground workings of the mine is as full and absolute as that given to the foreman in anthracite mines by the Act of June 2, 1891, P. L. 176, and nothing is left to the judgment and control of the owner. In Durkin v. Kingston Coal Co., 171 Pa. 193, it was held in regard to the latter act, that a person injured by reason of the negligence of the mine foreman had no right of action against the owner of the mine for the reason that the state made the mine foreman its representative and vested in him the determination of all questions relating to the security of miners with power to compel compliance with his directions. This decision has since been approved and followed in a number of cases, among which are Golden v. Mt. Jessup Coal Co., 225 Pa. 164; Dempsey v. Buck Run Coal Co., 227 Pa. 571, which arose under the act of 1891, and Wolcutt v. Erie Coal & Coke Co., 226 Pa. 204, where the act of 1893 was considered. The underlying principle in these decisions is that an employer cannot be held responsible for the negligence of a person over whom he has no control and to whom, in all matters of judgment and direction in the management of his property, he is subordinated.

The employers’ liability act of June 10, 1907, P. L. 523, does not effect a change in the law as before announced. If the words “foreman or any other person in charge or control of the works” for whose negligence the employer is made liable and who in any action for death or injury is made the agent of the employer, apply to a representative of the state, certified by it to be competent, employed by its direction and placed in charge of the works, to carry out its instructions, the act would be unconstitutional. In view of the decisions upon the subject before the passage of the act, it should be assumed that it was not the legislative intent to include a class for whose negligence this court had held an employer cannot be made liable. The act should therefore be so construed as to limit its application to persons over whom an employer has control and who in fact represent him. This is as far as legislation can go.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Commonwealth v. Casey, Appellant.

      Constitutional law — Special legislation — Regulation of hours of labor— Municipalities — Municipal corporations — Private powers and duties— Classification — Act of July 26,1897, P. L. 418.

    1. The Act of July 26,1897, P. L. 418, entitled “An Act to regulate the hours of mechanics, workingmen and laborers in the employ of the State or municipal corporations therein, or otherwise engaged in public works,” is unconstitutional, inasmuch as it contravenes Art. Ill, sec. 7, of the constitution of Pennsylvania which provides that “the General Assembly shall not pass any local or special law .... regulating labor, trade, mining or manufacturing.”
    2. Although the act, by its terms, includes all the municipalities in the state, yet, as its subject is one not within the purposes of classification, it is a special law within the meaning of the constitution.
    3. Municipalities with respect to matters not political and governmental, but proprietary and private, are to be regarded as private corporations.
    4. So far as a municipal corporation is endowed by law with the power of contracting, and is made capable of acquiring, holding and disposing of property, and subject to the liabilities incident to the exercise of such power and capacity, such municipal corporations must stand on the same ground of exemption from legislative control and interference as a private corporation.
    Argued Oct. 18, 1910.
    Appeal, No. 183, Oct. T., 1910, by defendant from judgment of Superior Ct., April T., 1910, No. 101, affirming judgment of Q. S. Allegheny Co., June Sessions, 1909, No. 217, on verdict of guilty in case of Commonwealth v. John F. Casey.
    Before Fell, C. J., Beown, Mesteezat, Pottee, Stewaet and Moschzisker, JJ.
    Reversed.
    Appeal from judgment of the Superior Court. See 43 Pa. Superior Ct. 494.
    The only point involved in the case is the constitutionality of the Act of July 26, 1897, P. L. 418.

      Error assigned was the judgment of the Superior Court.

      Denis M. Behen, for appellant.
    A municipal corporation possesses two classes of powers and two classes of rights, public and private. In all that relates to one class, it is merely the agent of the state, and subject to its control. In the other it is the agent of the inhabitants of the place, the corporators, maintains the character and relations of individuals and is not subject to the absolute control of the legislature, its creator: Cleveland v. Construction Co., 67 Ohio, 198; Atkins v. Randolph, 31 Vt. 226; Ryan v. New York, 177 N. Y. 271 (69 N. W. Repr. 599); Hunter v. Pittsburg, 207 U. S. 169 (28 Sup. Ct. Repr. 40).

      That a municipality is not merely a political and territorial subdivision of the state, like counties, townships and school districts, and other quasi corporations, created wholly for a public purpose, i. e., for the purpose of civil administration, but has duties, capacities and responsibilities of a private nature as well, is well settled'in Pennsylvania in a long line of cases: Wheeler v. Philadelphia, 77 Pa. 338; Shuter v. Phila., 3 Phila. 228; Philadelphia v. Fox, 64 Pa. 169; Bucher v. Northumberland County, 209 Pa. 618; Western Savings Fund Society v. Philadelphia, 31 Pa. 175; Western Savings Fund Society v. Philadelphia, 31 Pa. 185; Briegel v. Phila., 135 Pa. 451; Ford v. School District, 121 Pa. 543; Erie School Dist. v. Fuess, 98 Pa. 600; Elliott v. Phila., 75 Pa. 347; Boyd v. Ins. Patrol of Phila., 113 Pa. 269; Philadelphia v. Giltmartin, 71 Pa. 140; Kibele v. Philadelphia, 105 Pa. 41; Bodge v. Philadelphia, 167 Pa. 492; Com. v. Vrooman, 164 Pa. 306.
    It is respectfully submitted that this statute under consideration — where the so-called public work is done by the municipality in its private or proprietary capacity, as in the case at bar, by contract with a private contractor —denies both to the municipality and the contractor the right to agree with their employees upon the measure of their compensation, — thus invading their rights of liberty and property as guaranteed them by the constitution of Pennsylvania.

      John Marrón, with him F. C. McGirr and W.A. Blakeley, district attorney, for appellee.
    The Act of July 26, 1897, is constitutional: Atkin v. Kansas, 191 U. S. 207 (24 Sup. Ct. Repr. 124); Ellis v. U. S., 206 U. S. 246 (27 Sup. Ct. Repr. 600); Williams v. Eggleston, 170 U. S. 304 (18 Sup. Ct. Repr. 617); Clinton v. Railroad Co., 24 Iowa, 455; In re Dalton, 61 Kan. 257; State v. Irrigation Co., 63 Kan. 394 (65 Pac. Repr. 681); Mayor, etc., of Frederick v. Groshon, 30 Md. 436.
    The act of 1897 is a constitutional exercise of police power: Holden v. Hardy, 169 U. S. 300; Powell v. Pennsylvania, 127 U. S. 678 (8 Sup. Ct. Repr. 992, 1257); Powell v. Com., 114 Pa. 265; Com. v. Beatty, 15 Pa. Superior Ct. 5; Com. v. Brown, 8 Pa. Superior Ct. 339; Com. v. Hamilton Mfg. Co., 120 Mass. 383; Davidson v. New Orleans, 96 U. S. 97; Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. Repr. 1064); Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499).
    April 10, 1911:
   Opinion by

Mr. Justice Stewart,

This appeal challenges the constitutionality of the Act of July 26, 1897, P. L. 418, entitled “An act to regulate the hours of mechanics, workingmen and laborers in the employ of the state or municipal corporations therein, or otherwise engaged on public works.” Briefly, the act provides that eight hours out of the twenty-four of each day shall make and constitute a legal day’s work for mechanics, workingmen and laborers engaged and employed as indicated in the title, and makes failure to comply with its provisions, on the part of any person or persons contracting with the state or any municipal corporation, a misdemeanor punishable by fine not exceeding $1,000.

The defendant, with another, contracted with the city of Pittsburg to construct for the municipality a filtration plant. He was charged with violation of the act in that he had permitted and caused certain mechanics, workingmen and laborers employed by him and his associate upon the work, to labor on certain days named more than eight hours in the twenty-four; was found guilty and sentenced accordingly. On appeal to the Superior Court the constitutionality of the act was upheld, and the judgment and sentence of the court below were sustained. In the conclusion thus reached we cannot concur. In the consideration of the question thus presented little is to be gained from the decisions in other states, with respect to laws regulating hours of labor. What may be in strict accordance with the constitution of another state, may be in open conflict with our own; and while it may be that in one or more states, where the constitutional limitations are not unlike ours, decisions are to be found upholding such legislation as we have here, yet upon examination of the cases it will be seen that they rest fundamentally on a doctrine which has not only never been recognized with us, but one which is opposed to the general current of authority. This doctrine so identifies the municipality with the state as to resolve every municipal power and function into an expression of agency derived from the state; whereas that which has met with the more general acceptance distinguishes clearly between those powers and functions in the exercise of which the municipality is the agent and representative of the state, and those which it has been invested with for the accomplishment of ends, in which the sovereign has no concern whatever, holding that as to the latter the municipality is to be regarded as a private corporation. The bearing of this distinction upon the present controversy will be apparent when we state the governing question in the case. It is this: does the act under consideration offend against the constitutional inhibition of special laws regulating labor, art III, sec. 7? If municipalities, notwithstanding the clear distinction between their governmental and proprietary powers, are nevertheless to be regarded in whatever they do as instrumentalities and agents of the sovereign power, then it follows that inasmuch as the state, like the individual, can limit the hours of labor of its own employees it may impose what regulations it chooses upon its subordinate subdivisions, since the servants of the latter are the servants of the former. If, however, the distinction is to be allowed, and municipalities with respect to matters not political and governmental, but proprietary and private, are to be regarded as private corporations with corresponding powers and duties, then the inquiry must be whether the act under consideration is a special or general law. We have said that the doctrine that municipalities are to be considered in no other light than agencies of the state is opposed to the general current of authority. In support of this we quote what is said by Judge Dillon in his excellent work on Municipal Corporations, sec. 66 (39). It is impossible to abridge the extract within narrower limits than the text without impairment of the thought. “It assists to an understanding of the extent of legislative power over municipal corporations proper (incorporated towns and cities) to observe that these, as ordinarily constituted, possess a double character; the one governmental, legislative, or public; the other, in a sense, proprietary or private. The distinction between these, though sometimes difficult to trace, is highly important, and is frequently referred to, particularly in the cases relating to the implied or common law liability of municipal corporations for the negligence of their servants, agents or officers in the execution of corporate duties and powers. On this distinction, indeed, rests the doctrine of such implied liability. In its governmental or public character, the municipal corporation is made, by the State, one of its instruments, or the local depository of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state rather than for itself. In this respect, it is assimilated, in its nature and functions, to a county corporation, which is purely part of the governmental machinery of the sovereignty which creates it. Over all its civil, political or governmental powers, the authority of the legislature is, in the nature of things supreme and without limitation, unless the limitation is found in the constitution of the particular state. But in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the state at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual; and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded quo ad hoc as a private corporation, or at least not public in the sense that the power of the legislature over it or the rights represented by it, is omnipotent.” The cases cited by Judge Dillon in support of the text show how widely the view expressed has prevailed. To quote at length from these decisions would unduly lengthen this opinion, and for that reason it must be avoided; but the question is so concisely stated and so satisfactorily resolved in Atkins v. Randolph, 31 Vt. 226, 237, that a quotation from the opinion in that case may be allowed: “It is true,” says Judge Barrett, in delivering the opinion of the court, “that in some respects the legislature have a power in respect to municipal corporations that they have not in respect to private corporations, or individuals. They may alter or abolish municipal corporations at pleasure, but yet not so as to defeat the pecuniary rights of individuals as against such corporations, or as depending on their existence.' The legislature have the same power in respect to private corporations when that power is reserved in the law creating them. So far as a municipal corporation is endowed by law with the power of contracting, and as such, is made capable of acquiring, holding and disposing of property, and subject to the liabilities incident to the exercise of such power and capacity, such municipal corporations must stand on the same ground of exemption from legislative control and interference as a private corporation.” The same views are expressed in the more recent cases of People ex rel. v. Coler, 166 N. Y. 1, and in Cleveland v. Clements Bros. Construction Co., 67 Ohio, 197; and while the naked question has never been expressly decided by the supreme court of the United States, yet that court in its adjudications, as said by Justice Moody in the recent case of Hunter v. Pittsburgh, 207 U. S. 161, 179, has never extended the absolute power of the state over the property of municipal corporations beyond property held and used for governmental purposes; while in numerous cases, many of which he cites, he says that that court has noticed the distinction which Judge Dillon makes. The decisions in our own state on the main proposition, are in entire accord with the authorities we have cited, and clearly recognize the dual character of municipal corporations with respect to their powers and duties. In Western Savings Fund Society v. Philadelphia, 31 Pa. 175, it is said by Lewis, C. J.: “The restriction upon the power of a municipal corporation to enter into contracts which may prevent it from performing its duty to the public, is nothing more than the application of the principle which avoids the contracts of individuals when they are detrimental to the public rights. But the contracts which a municipal corporation may make for the purpose of supplying the inhabitants with gaslight in their streets and houses, relate to the ‘things of commerce,’ as distinguished in the civil law from the ‘things public,’ which are regulated by the sovereign. Such contracts are not made by the municipal corporation, by virtue of its powers of local sovereignty, but in its capacity of a private corporation. The supply of gaslight is no more a duty of sovereignty than the supply of water. Both these objects may be accomplished through the agency of individuals or private corporations, and in very many instances they are accomplished by those means. If this power is granted to a borough or a city, it is a special private franchise, made as well for the private emolument and advantage of the city as for the public good. The whole investment is the private property of the city, as much so as the lands and houses belonging to it.” In the case immediately following, between the same parties (Western Savings Fund Society v. Phila., 31 Pa. 185) it is said by Strong, J.: “As a local sovereign it (city of Philadelphia) has no authority to enter into the business of manufacturing and selling gas, for its sovereignty did not extend to such subjects, any more than it did to almost any other manufacture. It is true, a municipal corporation is not bound by any engagement which prevents a discharge of the duties imposed upon it by its organic law, for the plain reason that such engagements are contrary to law. But when such a corporation engages in things not public in their nature, it acts as a private individual, no longer legislates, but contracts, and is as much bound by its engagements as is a natural person.” Following these cases we have Philadelphia v. Fox, 64 Pa. 169, the effect of which is strangely misapprehended, since it is cited as expressing a contrary view. The point there decided, germane to the present inquiry, was that a municipal charter is not a contract with the state,-and that the state through the legislature has the power to enlarge or modify the internal arrangement of the municipality so chartered, or extinguish it at its pleasure. But it was there held that so long as the municipality exists, while constantly in subjection to the will of the sovereign, it yet enjoys the right, and is subject to the liabilities of any other corporation, public or private; that “this was the very object of making it a body politic, giving it a legal entity and name, a seal by which to act in solemn form, a capacity to contract and be contracted with, to sue and be sued, a persona standi in judicio, to hold and dispose of property, and thereby to acquire rights and incur responsibilities.” The cases we have cited were all approved and followed in Wheeler v. Philadelphia, 77 Pa. 338, and again in Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393. A very brief extract from the opinion in the latter case will indicate the point there at issue, and show the attitude of the court with respect to the matter about which we are inquiring: “The supplying of water and gas to a city is not a municipal duty. Hence, when the city undertakes to do so, it acts, not by virtue of any rights of sovereignty but exercises merely the functions of a private corporation.” Further examination of our own cases is unnecessary. Those we have cited show conclusively that with us municipal corporations exist in this dual character, and that as to those concerns which are not governmental and political, they enjoy the rights and are subject to the duties which attach to private corporations. Under the doctrine asserted in all our cases, the city of Pittsburg in constructing its filtration plant as a necessary part of its water system, was not exercising a right of sovereignty; was not therefore an agent or instrumentality of the state, but was acting as a private corporation. How then does this case stand? The act, by its terms, includes all the municipalities in the state, and it is urged that inasmuch as it includes all of a class, it is therefore not special, but general. It requires no argument to show that this attempt at classification, if so intended, must fail. In the matter of legislative classification, regard is always to be had to the subject to which it relates. Notwithstanding the act embraces all of a particular class, yet if the subject is one not within the purposes of classification, the law is special. Such is the doctrine of our cases, especially emphasized and expounded in Ayars’ Appeal, 122 Pa. 266, and in Wyoming Street, 137 Pa. 494. The purpose and subject of the act under consideration are both clearly expressed in the title, which reads “An act to regulate the hours of mechanics, workingmen and laborers in the employ of the state or municipal corporations therein, or otherwise engaged on public works.” The basis of all classification is a difference in conditions. When difference in conditions exists to an extent that certain political subdivisions would be oppressed by general laws required for the welfare or convenience of certain other subdivisions, classification may be resorted to to provide proper legislation for each. When no such difference exists, classification is never allowed. It is impossible to suggest a difference between municipal corporations and private corporations that would make a regulation as to number of hours to be employed in a day suitable for one class unsuitable for the other. There is no pretense that there is any such difference. So far as labor is concerned, no more is involved in the construction of public works than in private enterprises of like character. The classification here attempted is not with a view to meet the wants of municipal corporations as distinguishable from other corporations, but to ameliorate labor conditions, and it rests on neither distinction nor difference. As well attempt to classify for labor regulations corporations according to their capital stock, and impose the regulations upon those only whose capitalization brings them within the designated class. Following our own adjudications, too explicit to be mistaken, it results necessarily that the act under consideration offends against the seventh section of art. Ill of the constitution, which forbids special legislation regulating labor. If this were an attempt by general law to regulate the hours of labor throughout the state, the argument in support of the act based on legislative exercise of police power, would call for consideration; but as the case stands, discussion of this larger question would be wholly irrelevant. We rest our decision on the conclusion reached, that the act transcends the power of the legislature, in that it is special with regard to a subject which can only be legislated upon by general law.

The judgment of the Superior Court is reversed, as well the judgment of the court of quarter sessions of Allegheny County, and the defendant is discharged from his recognizance.


author: Mr. Justice Moschzisker,

text:
    Dolan’s Estate.

      Decedents’ estates — Lien for debts — Two years limit on real estate— Partition — Conversion.
    1. Where, within two years from the date of the death of a decedent, real estate in which the decedent had an undivided interest is sold under partition proceedings instituted in her lifetime, and the fund arising therefrom is paid to her executrix, a general creditor of the decedent, who has commenced no action for his debt within two years from the death of the decedent, has no lien upon the fund.
    2. In such a case the fund is real estate, and the lien is lost by failure to comply with the Act of June 8,1893, P. L. 392.
    Argued Jan. 4, 1910.
    Appeal, No. 166, Jan. T., 1910, by A. E. Ford, from decree of O. C. Phila. Co., Oct. T., 1909,' No. 144, dismissing exceptions to adjudication in Estate of Clara Dolan, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    Lamorelle, J., the auditing judge, found the facts to be as follows:
    The one question to be determined is whether any of the creditors, save and except the undertaker and those whose advances were incident to administration, have any claim whatsoever upon the fund; and, to decide that, we must first ascertain whether it is real estate or personalty that is to be distributed. If it is real estate, then, as none of the creditors have complied with the Act of June 8, 1893, P. L. 392, their so-called lien is gone, and they are not entitled to participate.
    And in the first place it will be necessary to trace the origin of the fund.
    It appears that Clara A. Dolan, as one of the ten children of Thomas Moore, deceased, was the owner of an undivided one-tenth interest in and to certain real estate situate in the county of Philadelphia, and State of Pennsylvania. On January 2, 1907 (two weeks prior to her decease), she filed a bill in equity in common pleas, No. 2, as of December Term, 1906, No. 2309, for partition. Her death was afterwards suggested of record, and Gertrude S. Lubey, as testamentary guardian of said Clara Adelaide and Edward Rodney Dolan, minors, was substituted of record as plaintiff. Gertrude S. Lubey, as executrix, also appeared as a party respondent. In due course, a master was appointed, who, after having filed his report finding that no partition could be had without prejudice or spoiling the real estate; and that none of the parties were willing to take any of the separate properties at the valuations put upon them, recommended that a sale be ordered. On September 22,1908, the master was directed to make sale of the various properties, and, by decree of November 21, 1908, to make “partition and distribution .... among the several parties. . . .” All of the properties, except one, were sold by the master within two years from the date of the death of decedent. That one, situate No. 1639 North Broad Street, was sold at private sale by the master, under the authority of Act of May 22, 1895, P. L. 114, on June 11, 1909, and the sale duly confirmed by the court, June 22, 1909.
    All moneys, as received, were distributed by the master to the parties entitled thereto, with the exception of the one-tenth now before the auditing judge. One-half of this fund, as appears from his sixth interlocutory report, was claimed by The Commonwealth Title Insurance arid Trust Company, guardian of Edward R. Dolan, one of said minor children, after the payment of the debts of Clara A. Dolan. On the other hand, the executrix (ancillary) claimed that the fund should be paid to her in order that the orphans’ court, as the proper tribunal, might distribute it, this court being the only one for the ascertainment of a decedent's debts. Upon the authority of Anderson v. Anderson, 183 Pa. 480, the master awarded the fund to the present accountant as executrix ancillary, and his report was confirmed by decree entered April 8, 1909.
    The auditing judge overruled the claim of the creditors on the ground that they had lost their lien upon the fund by failing to comply with the provisions of the act of 1893, and awarded the fund to the heirs.
    Exceptions to the adjudication were dismissed by the court.

      Errors assigned were in refusing to allow the claim of the creditor, A. E. Ford, and in awarding the fund to the heirs.

      C. Berkeley Taylor, with him Albert S. L. Shields, for appellant.
    It is well settled in Pennsylvania that liens upon an undivided interest in real estate are discharged by a sale in partition and cast upon the fund. Wright v. Vickers, 81 Pa. 122; Stewart v. Allegheny Nat. Bank, 101 Pa. 342; Reed v. Fidelity Ins. Trust & Safe Dep. Co., 113 Pa. 574; Eckels v. Stuart, 212 Pa. 161.
    April 10, 1911:
    This same conclusion was reached in another line of cases that holds that in a sale in partition conversion takes place when the deed is delivered and the money paid: Biggert’s Est., 20 Pa. 17; Demmy’s App., 43 Pa. 155; Brennan’s Est., 220 Pa. 232; Arndt’s App., 117 Pa. 120.
    The fiction which still treats the fund for distribution in partition as real estate was intended to enable the court to determine who was to take among the heirs in distribution and was never intended to deprive creditors of payment: Yerkes v. Yerkes, 200 Pa. 419.

      F. Markoe Rivinus, with him H. Gordon McCouch, for appellee,
    cited: Com. v. Pool, 6 Watts, 32; Stoner’s Est., 8 York Leg. Rec. 27.
   Opinion by

Mr. Justice Moschzisker,

Within two years from the date of the death of Clara A. Dolan, certain real estate in which she had an undivided interest was sold under partition proceedings instituted during her lifetime, and $4,435.75 of the fund arising therefrom was awarded and paid to her executrix. The appellant, a general creditor who failed to reduce his claim to judgment, contends that the lien of the decedent’s debts not of record was relegated to and seated upon her share of the proceeds of the real estate, and that the delay in distribution beyond the two year period could not affect his status as a lien creditor or prevent him from receiving payment out of the fund.

The orphans’ court held that as the appellant had failed to comply with the act of June 8, 1893, P. L. 392, which provides that, “No debts of a decedent .... except they be secured by mortgage or judgment, shall remain a lien upon the real estate of such decedent longer than two years after the decease of such debtor, unless an action for the recovery thereof be commenced .... within the period of two years . . „ he had lost his lien and was not entitled to be paid out of the fund. In so ruling the learned court below followed the law as laid down by this court as far back as 1837, and not since departed from. In Com. v. Pool, 6 Watts, 32, a decedent’s land was sold in an action for partition and the proceeds came into the hands of his personal representative. The action was upon an award to one of the heirs, and the defense was that the fund had been applied to the payment of a debt of the decedent due to one Rupp. The debt in question had been reduced to judgment in an action against the administrator instituted more than seven years after the decedent’s death, and the plaintiff claimed that it was barred by the act of 1797 (4 Dallas’s Laws of Penna., 155, 157) “in favor of the heirs;” but the court below ruled that the judgment was a lien, and that it had been properly paid out of the fund. In reversing we said, per Gibson, C. J.: “The only exception sustained or entitled to remark was taken to the charge in relation to the lien of decedent’s debt to Rupp. If money, the representative of land converted for partition, follows the nature of its principal, the lien is confessedly gone; and it is decisive that the conversion was for distribution among heirs and not creditors. The executor or administrator, having the money in hand, may undoubtedly apply it, in the event of deficiency of personal assets to debts not barred by time; but only because another order to sell would be nugatory; and thus his indirect power over the fund, like the conversion of it, is the creature of necessity. The power is collateral to the purpose, which is not to pay, but distribute; and that there is a conversion at all, is a defect that is endured because it cannot be avoided, but it is tolerated no further than is necessary to accomplish the end it was intended to serve, the money being land for everything else. Equitable conversion is dependent on the particular object to be attained by it, insomuch that if the property be more than sufficient for it, the surplus passes, at the next transmission, as if it had not been converted at all: Leigh and Dalzell on Conversion, 2. A sale for partition, therefore, works a conversion of the form without a transmutation of the essence; and this distinguishes it from a sale for payment of debts, of which transmutation is the primary and entire intent. ... In every judicial sale for the payment of debts, however, the money raised for the object is in a course of administration, and no process lies against it to enforce or continue a lien on it; but money raised incidentally by process of partition, is land in another form, and attended with inheritable qualities. . . . Being land, then, for purposes of descent, why is not the money land for purposes of lien? If the limitation annexed to the lien by the act of 1797, were exclusively for the security of purchasers, there would be sufficient reason to hold the debts to be an indefinite charge; but as the heirs are equally objects of protection, there is no more reason to dispense with the injunctions of the statute, where the form of the property has been changed, in respect to the one than there is in respect to the others; in both cases the mischief to be remedied by it is the same. And no injustice is done by this to the creditor, who may secure his debt by simply bringing and prosecuting an action, or filing a statement of his demand within the seven years; in neither case an onerous precaution. The point is entirely within the principle of Kerper v. Hoch, 1 Watts, 9; and the debt ought not to have been allowed as a charge on the fund in the hands of the administrators.”

The act of 1797 referred to in the case just cited is practically identical in language with the act of 1893, supra, except that the period in the former was seven years and in the latter it is two years. The appellant does not attempt to distinguish that case from the present one, and, indeed, on principle it would be impossible to do so. In the case under review the fund was paid to the executor, but, although changed in form, in the eyes of the law, it remained real estate, distributable as such, and within the purview of the act of 1893 to the same extent as the fund in the other case was within the act of 1797. To quote from the opinion of Judge Lamorelle in the court below: “If in the partition proceeding there had been no sales, but instead a division in kind, it cannot be doubted that the holdings of the estate of Clara A. Dolan would be in fact real estate; why, therefore, should a sale create anything more than a change in form, though not in substance? Consider the purpose of such a proceeding: it is simply to give one his share in severalty, which, prior to that, he held in common; in no sense is it for the purpose of creating a fund for the payment of debts.”

The appellant lost his lien by failing to commence an action for the recovery of his debt within the period required by the act, and no error was committed in awarding the fund to the heirs.

The decree of the court below is affirmed, the appellant to pay the costs.


text:
    London Guarantee & Accident Company, Ltd., v. Ogelsby, Appellant.

      Insurance — Indemnity insurance — Premium—“Kind of work ”— Contract.

    Ia an action to recover premiums on policies of indemnity insurance, it appeared that the defendant was a contracting plumber, employing in his business not only plumbers, but helpers, laborers and others. In a schedule in the policy under the caption of “Kind of work ” were included “Plumbers inside buildings ” and “Plumbers exterior construction.” The estimated pay roll for the policy term of the first class was $10,000 and of the second class $2,000. Following the schedule was this clause: “The estimated pay roll covers wages of all persons employed at the places mentioned above, including executive officers and office men and drivers and drivers’ helpers, except as follows: Except assured and office force.” Held, that the policy included all persons engaged in defendant’s plumbing business, whether they were actual plumbers or not, and that the insured was liable for premiums in accordance with this construction of the contract.
    Argued Jan. 5, 1911.
    Appeal, No. 175, Jan. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1906, No. 4710, on verdict for plaintiff in case of London Guarantee & Accident Company, Ltd., v. William P. Ogelsby.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover the premiums on a policy of indemnity insurance. Before Brégy, P. J.
    At the trial the jury under the instructions of the court returned a verdict for $2,345.31.
    On a motion for judgment for defendant n. o. v. Brégy, P. J., filed the following opinion:
    This is a suit to recover the amount claimed to be due to the plaintiff as deferred premiums on policies of indemnity insurance.
    The amount claimed is due if the policies issued by the plaintiff company insured the defendant against accidents — to his helpers, laborers, and others that were engaged in the work of his plumbing business — in addition to the plumbers themselves. The defendant’s contention is that the policies only insured the actual plumbers— if he is right in this, the verdict is wrong.
    The best way to determine this is to ascertain whether, if suit was brought for illustration for injury to a plumber’s helper or laborer, would the insurance company be liable.
    And in doing this the principle must be kept in mind that in construing the policy, it must be construed as strongly as possible against the company issuing the policy.
    In the policy there is a section of it called “ Schedule.” In the fourth section of that schedule this is what appears:
    4th. The place or places where work is to be carried on, the kind of work at each such place, the number of employees and estimated pay roll at each, such place as stated below:

    The first question is, does the entry under the title “Kind of Work,” indicate or mean that only plumbers were insured? We believe that entry applied only to the business or kind of work Mr. Ogelsby was engaged in, and this view clearly appears to be right, when we look at sec. 5 of the schedule, which is in these words:
    “The operations carried on are those usual to the trade or Idnd of work described above.” We then have the assertion that the policy which insured Mr. Ogelsby was against accidents occurring during the carrying on of operations usual to the kind of work described under that title. Mr. Ogelsby was a contracting plumber, doing the kind of work mentioned in the schedule under the title “Kind of Work.”
    This applies, of course, only to the kind of operations that the policy covered. We think the question as to what persons were insured is settled by the twelfth section of the schedule, taken in connection with the entry under the item “Estimated Pay Roll for Policy Term,” in sec. 4 of the schedule. The entries under the above caption are $10,000 and $2,000.

      “The estimated pay roll covers wages of all persons employed at the places mentioned above including executive officers and office men and drivers and driver’s helpers, except as follows: Except assured and office force.”
    The premiums to be paid for the policy is to be based upon the amount of the pay roll of the insured persons. It is a percentage of the pay roll under sec. 4, as already stated. Mr. Ogelsby put down the sum of $10,000 as the amount of “Estimated Pay Roll for Policy Term”— opposite the entry “Plumber’s inside building — including the making of house connections, gas, steam and hot water apparatus, filters and installation of ventilating plants away from the shop,” and opposite the words “Plumber’s exterior construction work only” the sum of $2,000 was put down.
    We think the answer to the question as to what these two entries — $10,000 and $2,000 — mean settles the question of the insurance company’s responsibility.
    Section 12 says: “The estimated pay roll (that is, the entries above alluded to) covers the wages of all persons employed at the places mentioned above, etc., etc.”
    In a suit against the insurance company, it seems to us that a defense by them that the estimated pay roll only covered actual plumbers, would fail in view of the words of sec. 12, so often quoted by us.
    Otherwise the state of affairs would be that a company issuing a policy to a customer who indicated under the words “ Kind of Work” that his business was that of a general contracting plumber, and who had indicated the amount of his pay roll, with the assertion in the schedule (which is signed by the applicant for insurance), that the pay roll covered the wages of all persons employed at the places mentioned — did not insure all persons so employed.
    To construe that policy as strongly as these words would permit, must result in holding this company liable. This makes the present defendant liable.
    The offer made of testimony to alter the terms of the policy we think did not come up to the legal requirements. Iii our opinion there is no doubt about the construction of the policy and the admission of what was offered would be most dangerous.
    April 10, 1911:
    The rule for a new trial is discharged and the motion for judgment n. o. v., etc., is dismissed.
    Kinsey, J., concurring.

      Error assigned was in giving binding instructions for plaintiff.

      Ruby R. Vale for appellant.
    The policy applied to plumbers only: Dives v. Fidelity & Casualty Co., 206 Pa. 199; People’s Ice Co. v. Employers’ Liability Assur. Corp., 161 Mass. 122 (36 N. E. Repr. 754); Wooleman v. Casualty Co., 87 Mo. App. 677; Fidelity & Casuality Co. v. Wagon & Lumber Co., 125 S. W. Repr. 653; Maryland Casualty Co. v. Ry. &. Electric Co., 92 Ark. 306 (122 S. W. Repr. 994).

      W. W. Smithers, for appellee.
    The policy was properly construed by the court below: Smith v. Ins. Co., 103 Pa. 177; Reynolds v. Casualty Co., 30 Pa. Superior Ct. 456; Hughes v. Accident Ins. Co., 222 Pa. 462; Humphreys v. Ben. Assn., 139 Pa. 264; Western & Atl. Pipe Lines v. Ins. Co., 145 Pa. 346; New Amsterdam Casualty Co. v. Mesker, 106 S. W. Repr. 561.
   Per Curiam,

The majority of the court is of opinion that the judgment appealed from should be affirmed for the reasons stated in the opinion of the learned president judge of the common pleas.


text:
    Philadelphia to use v. Townsend, Appellant.

      Road law — Streets—Paving—Charges for paving — Discretion of councils — City of Philadelphia — Act of March SO, 1866, P. L. 364-

    1. The Act of March 30, 1866, P. L. 354, which provides that the charges made by the city of Philadelphia for paving “shall be fixed, from time to time, by ordinances of councils,” commits to the discretion of councils the fixing of the cost charge of paving, and unless such a charge is fixed at an obviously unreasonable figure in a proceeding against a property owner to recover the cost of paving, the courts will not interfere, or even receive evidence upon the point.
    2. The courts will not review the discretion of councils in fixing the cost charge of paving at the rate of $2.60 per square yard although the actual contract price of the work is only $2.16 per square yard.
    Argued Jan. 6, 1911.
    Appeal, No. 201, Jan. T., 1910, by defendants, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 4,411, M. L. D., on verdict for plaintiff in case of Philadelphia to use v. Henry C. Townsend et al., Trustees.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Scire facias sur municipal lien for paving. Before Barratt, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,600. Defendant appealed.

      Errors assigned were (1, 2) overruling offers of evidence as set forth in the opinion of the Supreme Court.

      Alex. Simpson, Jr., for appellants.
    The rejected offer of proof shows that the city is attempting to charge the property owners with the cost of paving the intersections, in direct violation of the acts of assembly.
    The actual cost of the paving is all that can be recovered, while here the offer of proof shows that considerable in excess thereof is charged: Philadelphia v. Sellers, 6 Phila., 253; Philadelphia v. Cottage Co., 9 Phila. 84; Lea v. Phila., 80 Pa. 315; Witman v. Reading, 169 Pa. 375; Park Avenue Sewers, 169 Pa. 433.
    April 10, 1911.
    These assessments being local taxes for a local improvement, in the nature of things there can be no recovery beyond the cost of the improvement: Hammett v. Phila., 65 Pa. 146; Weber v. Reinhard, 73 Pa. 370; Phila. v. Pemberton, 208 Pa. 214.

      E. O. Michener for appellee.
    The city of Philadelphia has the right to fix by general ordinance the price to be charged per square yard for paving streets as against the abutting properties, without regard to the amount of the contract price between the contractor and the city: Philadelphia v. Jewell, 135 Pa. 329; Philadelphia v. Sellers, 6 Phila. 253; Philadelphia v. Cottage Co., 9 Phila. 84; Stroud v. Philadelphia, 61 Pa. 255; Lea v. Philadelphia, 80 Pa. 315; Phila. v. Coates, 18 Pa. Superior Ct. 418; Williamsport v. Hughes, 21 Pa. Superior Ct. 443; Leominster v. Conant, 139 Mass. 384 (2 N. E. Repr. 690); Philadelphia v. Miller, 2 W. N. C. 302.
   Opinion by

Mr. Justice Moschzisker,

The city of Philadelphia entered into a contract with the use plaintiff for the paving of a certain street, including intersections, at a price of $2.16 per square yard. The contractor agreed to accept in payment assessment bills against the abutting properties at the rate of $2.60 per square yard, that being the figure fixed’ by a general ordinance as the cost of street paving, any balance over the total of such bills to be paid in cash out of the city treasury. A municipal claim was filed against the property of the defendant in which he was charged for paving at the rate named in the ordinance. At the trial the defendant offered to prove the street paving contract at $2.16 per square yard; that the total of the work under the contract amounted to $57,111.81; that of this amount $55,105.33 was paid by the giving of assessment bills, including the one by virtue of which the lien against his property was filed; that the cost of paving the intersections at the contract price of $2.16 a square yard amounted to $11,190.57, only $2,006.48 of which came directly out of the city treasury, the balance of $9,184.09 being paid by assessment bills; that if this latter sum were apportioned among all the assessable properties according to the square yards of paving in front of each, it would result in a credit of $266.22 upon the claim in this case; that the only direct expenses to which the city was put in connection with the paving were the cost of seeing that the work was done according to contract and for advertisements, which altogether did not exceed $660.97; that if this latter sum were apportioned among the assessable properties the defendant’s proportion would not exceed $23.61; that the fees actually paid in all of the other departments or bureaus of the city government in any way having to do with street paving were greater than their charges or expenses during the period that the work in question was being contracted for and performed; that there were no other charges directly or indirectly connected with said improvement for which the city had been or could be made liable, unless the salaries of the mayor, the city solicitor, and the director of the department of public works, and the chiefs of the bureaus of highways and surveys, rent of rooms and expenses of councils were to be considered and apportioned, as to which the defendant conceded no estimate or apportionment could be made and that such items were not intended to be covered by the offer; finally, that the special benefit accruing to the defendant’s property by virtue of the improvement was less than the cost of paving at $2.16 per square yard. Counsel for the defendant stated, “The purpose of the offer is to claim as a matter of law that the utmost that the city can recover is either the $2.16 per square yard or the $2.16 per square yard plus the cost to which the city was directly put in connection with this work.” The offer was overruled. A verdict was rendered for the plaintiff for the full amount of the claim and the defendant has appealed. The question is, should the court below have received the proffered evidence?

Section 40 of the Act of February 2, 1854, P. L. 21, provides: “It may be prescribed by ordinance that paving of streets, except at the intersections thereof .... shall be done at the expense of the owners of the gr'ound in front of which such work shall be done, and liens may be filed by the said city for the same;” sec. 8 of the Act of April 21, 1855, P. L. 264: “The charges .... shall be at not exceeding the following rates .... for street paving $1.00 per square yard; and all extra or further charge and for intersections shall be paid out of the general taxation;” and sec. 1 of the act of March 30, 1866, P. L. 354: “That so much of the eighth section (of the act of 1855) as limits the charges to be made by the city of Philadelphia .... for street paving to $1.00 per square yard .... so far only as said limitations are concerned, and all other acts and parts of acts which limit the charges made by said city for ... . paving .... be and the same are hereby repealed, and hereafter all said charges and rates shall be fixed, from time to time by ordinance of councils.”

Referring to these acts, Mr. Justice Mitchell, in Philadelphia v. Jewell, 135 Pa. 329, at p. 340, said: “The act of 1843 allowed the property owner to show in defense that the price charged for the work is 'greater than the value thereof/ but, this having been found to be inconvenient in practice subsequent acts changed the system so far as to permit the city to fix the charge which should not be questionable: Lea v. Philadelphia, 80 Pa. 315. The city now collects from the property owner, not the value of the work, but its cost as fixed by ordinance; and this mode of ascertaining and fixing the cost is sustained on the ground of the public necessity and convenience, inherent in all rational taxation, that there should be a settled, ascertained, uniform, and practical method of computing the amount due by the taxpayer.” In Lea v. Philadelphia, supra, we said per curiam: “From the very nature of the work the cost must consist of many items .... which can be ascertained only by a fair estimate of the entire cost, and the average per foot. This was necessarily left to the local authority, which alone could determine it justly, and apportion it fairly. Hence, the legislature . . . . committed the adjustment of the cost .... to the city itself, as the only just means of fixing a rightful charge upon the lot owner.” These excerpts are applicable to the case at bar. The charge made against the property of the defendant of necessity includes, in addition to the actual contract price and ascertainable incidental expenses, not only a proportion of many other expenses directly connected with such work, but also a proportionate part of the cost of the maintenance of the city government indirectly connected with and properly chargeable thereto, which it would be altogether impossible to fix or apportion with any degree of accuracy. Under the act of assembly the city had the right to assess the property at the rate fixed in the ordinance. The fact that it saw fit to pay the contractor by the transfer of assessment bills, rather than by a direct payment in cash, does not alter the case in the least; nor can we see that the comparatively small amount of cash paid out of the city treasury justifies the conclusion that the city is attempting to charge the property owners with the cost of paving the intersections. This is only another way of saying that the city derived a profit from the contract, which would be “a mere inference not warranted by the facts alleged:” Philadelphia v. Coates, 18 Pa. Superior Ct. 418.

The offer was not to show that the price per yard for paving provided in the general ordinance was grossly, or obviously, or clearly excessive; it did not so describe the charge, nor did it contain any facts or figures which if substantiated would have upheld any such characterization. Conceding that such a tax must be limited to the cost of the improvement, it is for councils to say, considering the contract price and the other elements to which we have already adverted, what that cost will amount to, and what the charge shall be. In other words, the fixing of the cost charge is committed to the discretion of councils. It may be that an abuse of discretion on the part of councils in fixing the charge would be reviewable by the courts: Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479; Kittanning Borough v. Natural Gas Company, 26 Pa. Superior Ct. 355; Chambersburg Borough v. Chamberburg Gas Co., 38 Pa. Superior Ct. 311. But unless such a charge should be fixed at an obviously unreasonable figure the courts would not interfere, or even receive evidence upon the point: New Hope Borough v. Postal Tel. Cable Co., 202 Pa. 532; Allentown v. Western Union Tel. Co., 148 Pa. 117; Western Union Tel. Co. v. City of Philadelphia, 22 W. N. C. 39; Kittanning Borough v. Natural Gas Co., supra. Granted the power, in the present case the difference between the contract price and the charge fixed by councils was not so considerable as to justify judicial interference.

The assignments of error are overruled and the judgment of the court below is affirmed.


author: Mr. Justice Brown,

text:
    Miller v. Philadelphia, Appellant.

      Municipalities — Contracts—Appropriation by councils — Legal expenses — Act of April 21,1858, P. L. 885.

    1. . Under the Act of April 28,1858, P. L. 385, no contract is legally binding upon the city of Philadelphia unless there has been “an appropriation sufficient to pay the same previously made by councils.”
    2. Where councils pass an ordinance appropriating $5,000 to pay counsel for legal services rendered, in a particular suit mentioned, and, by another item, appropriating $10,000 “for expenses connected with the investigation” of transactions connected with the suit and similar matters, a special counsel, after receiving the sum of $5,000 for services rendered in the suit before the ordinance was passed, cannot claim any of the $10,000 mentioned in the second item, although he has earned additional compensation over and above the sum of $5,000, and is morally entitled to receive it.
    Argued Jan. 6, 1911.
    April 10, 1911:
    Appeal, No. 189, Jan. T., 1910, by defendant from judgment of C. P. No. 5, Phila. Co., March T., 1909, No. 668, on verdict for plaintiff in case of E. Spencer Miller v. Philadelphia.
    Before Fell, C. J., Bkown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit for counsel fee. Before Staake, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $5,830. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      Robert Brannan, assistant city solicitor, with him Frederick Beyer, assistant city solicitor, and James Alcorn, city solicitor, for appellant,
    cited: Windrim v. Phila., 9 Phila. 550; Matthews v. Phila., 93 Pa. 147; Bladen v. Phila., 60 Pa. 464; Perrot v. Phila., 83 Pa. 479; Phila. v. Johnson, 47 Pa. 382; Gamble v. Phila., 14 Phila. 223; Spofford v. Phila., 18 Phila. 267.

      Frank P. Prichard, for appellee.
   Opinion by

Mr. Justice Brown,

The appellee rendered valuable professional services to the city of Philadelphia as assistant counsel associated with the city solicitor in litigation resulting from the investigation of certain contracts with D. J. McNichol for municipal improvements, and that he ought to be paid the very reasonable compensation for which he asks is not to be doubted; but that is not the question before us on this appeal. What we are to decide is whether, under the admitted facts, he was entitled to the judgment which he recovered in the court below.

The appellee was employed as assistant counsel for the city of Philadelphia in pursuance of an ordinance authorizing the mayor to employ him, and he represented the city in the litigation referred to from the fall of 1906 until the spring of 1907. During that period he received no compensation for his services. On March 14, 1907, the city councils passed a resolution authorizing the city solicitor to enter into an agreement with D. J. McNichol et al. for the submission of all matters in controversy between them, including certain equity proceedings begun by the city, to Hon. Samuel Gustine Thompson as referee. Acting upon this resolution the city solicitor and the appellee signed an agreement of reference to Judge Thompson, the appellee having been asked by the mayor and the city solicitor to continue his connection with the litigation. The proceedings before Judge Thompson as referee began about March 29, 1907, and the appellee represented the city at all of the meetings before him, until the controversy was finally disposed of. On March 29, 1907, an ordinance of city councils was approved, appropriating $5,000 to the mayor to pay counsel for the legal services rendered in the filtration suit and the further sum of $10,000 for expenses connected with the investigation and litigation of filtration and boulevard accounts and contracts. It clearly appears from the preambles in the ordinance that the appropriation of $5,000 for. legal expenses was intended for the appellee, and that sum was paid to him. The services for which he claims compensation were rendered subsequently, and, the $5,000 item of the appropriation having been exhausted, he (bases his action upon the second item, which appropriated $10,000 "for expenses connected with the investigation and litigation of filtration and boulevard accounts and contracts.” The single question on this appeal is, Did that appropriation include his services subsequently rendered to the city?

By sec. 30 of the Act of May 13, 1856, P. L. 567, it is made the duty of city councils “in all cases, when making appropriations, to state the items of expenditure under separate and distinct heads for which such appropriations are intended;” and, by sec. 3, art. VII, of the Act of June 1, 1885, P. L. 37, the controller of the city is required to “keep separate accounts for each specific item or appropriation made by councils to each department, and require all warrants to state specifically against which of said items the warrant is drawn.” Section 4 of the same article provides that “he shall not suffer any appropriation to be overdrawn or the appropriation for one item of expenses to be drawn upon for any other purpose.” Following the mandatory language of the act of 1856, the city councils, by the ordinance of March 29, 1907, stated the items of expenditure under separate and distinct heads for which each appropriation was intended. One item, for $5,000, was “to pay counsel for the legal services rendered in the filtration suit;” the other, for $10,000, was “for expenses connected with the investigation and litigation of filtration and boulevard accounts and contracts.” The title of the ordinance is, “An ordinance to make an appropriation to the mayor for legal and other expenses relating to filtration suit.” Two distinct purposes are set forth in this title, the first, an appropriation for legal expenses, and the item of $5,000 in the ordinance is “to pay counsel for the legal services rendered in the filtration suit;” the second purpose, according to the title of the ordinance, is for “other expenses.” This manifestly means expenses other than for legal services of counsel, for such services had been provided for in the clause immediately preceding. This second item of appropriation of $10,000 carried out the second purpose of the act as expressed in the title. It is clear that no other interpretation can be given to the ordinance of March 29th than that there were two distinct appropriations for two distinct purposes. The appropriation of $5,000 for legal services has been received by the appellee, and, as there was no appropriation to pay him any further sum for the legal services which he rendered before Judge Thompson, he has no legally recoverable claim against the city, for, by the fifth section of the Act of April 21, 1858, P. L. 385, the legislature has declared “that no debt or contract hereafter incurred or made shall be binding upon the city of Philadelphia unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils.” This section was called by a very learned judge “the palladium of Philadelphia taxpayers;” and another member of the court of common pleas of Philadelphia county, who subsequently became chief justice of this court, said of the act of 1858, in Windrim v. City of Philadelphia et al., 9 Phila., 550: “This act of assembly is notice to the plaintiff, and all the world, that there is but one method by which a contract can be made binding upon the city. It is a flat bar to any recovery by the plaintiff in an action at law.” The one method by which a contract can be made binding upon the city of Philadelphia is “an appropriation to pay the same previously made by councils:” Bladen v. Philadelphia, 60 Pa. 464; Perrot v. City of Philadelphia, 83 Pa., 479; Matthews v. City of Philadelphia, 93 Pa. 147. The statutory condition precedent to the plaintiff’s right to recover does not exist, and the law cannot, therefore, help him in making his morally meritorious claim. Defendant’s point for binding instructions should have been affirmed.

Judgment reversed.