author: Mr. Justice Brown,

text:
    City of Reading v. United Traction Company, Appellant.

      Street railways — Rate of fare — Strip tickets — Ordinances—Agreement— Equity.

    The right of a traction company to discontinue the sale of strip trolley tickets at the rate of six for a quarter on all its lines will not be taken from it by implication where all that appears is that a third party, whether the authorized agent of the company or not, in communicating with a committee of councils in reference to certain proposed changes and extensions of certain lines of a lessor company, stated in a letter that “there would be no increase in fare” the fare not to be increased being to carry a passenger on the .designated lines between certain points; and that the councils in an ordinance granting permission for the extensions provided “that the rate of fare shall .not exceed five cents for a single fare, or .six tickets for twenty-five cents,” there being nothing in the ordinance to indicate that the sale of six tickets for twenty-five cents, good on all the company’s lines, was to be continued.
    Argued Feb. 27, 1911.
    Appeal, No. 40, Jan. T., 1911, by defendants, from decree of C. P. Berks County, No. 1,012 equity docket, 1910, in case of City of Reading v. United Traction Company, Front & Fifth Street Railway Company, and. Reading Transit Company, Appellants.
    Before Fell, C. J., Brown, Potter, Elkin, and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Endlich, P. J.
    The following facts appear from the record:
    The United Traction Company was formerly the lessee of the various street railways in the city of Reading. The Reading Transit Company is the present lessee under a lease from the United Traction Company. The Front & Fifth Street Railway Company is one of the original lessor companies.
    In 1906 the Front and Fifth street line and the Schuylkill avenue line radiated from tbie center of Reading to the outskirts, running not parallel but in the same general direction. Each was a single track railway with turn-outs and each terminated in a dead end. It was deemed desirable that the dead ends be connected by a loop, so that cars could run out one street and in the other, thus abolishing the necessity for turn-outs. This suggestion was taken up by Dr. Walter A. Rigg, who was a son of the president of the United Traction Company, who conferred with the railway committee of the city councils on the subject, writing the following letter:
    “John A. Rigg, Pres. “ H. C. Moore, Asst, to Pres.
    “T. W. Grookett, Jr., “S. E. Rigg, Geni. Supt.
    Sec’y & Treas.
    “ UNITED TRACTION COMPANY
    “Reading, Pa., Oct. 6, 1906.
    “ Mr. Ira W. Stratton,
    “ Chairman, Railways Committee of Councils of the City of Reading, Pennsylvania.
    “Dear Sir:
    “In answer to your inquiries concerning the removal of the turnout on Schuylkill Avenue in the event of the laying of an additional track on Windsor Street, to better the railway service in the northwestern section of the City, and as to the service, fare, etc., I can only say that all turnouts are obstructions to be avoided if possible, and that therefore in the event of the action you refer to, the turnout on Schuylkill Avenue will be removed.
    “It is manifest to the Company as well as to the public in that district that the travel is congested under the present arrangement, and this would of course be relieved by the so-called loopj which would enable the Company to give more frequent service, and that would be done. The only limit of the service in all cases being the possibilities under the circumstances. In this case I may say that the Company would give a more frequent service than the present ten-minute schedule, and will increase the service from time to time as the travel may warrant.
    “There would be no increase in fare. The fare limit would be Buttonwood Street, that is, a single fare would carry a passenger from any part of town to any point on Schuylkill Avenue or around the loop to Front & Buttonwood streets, and for incoming passengers a single fare would be good from Schuylkill Avenue and Buttonwood street, and points beyond, around the loop to any part of the City.
    “Yours truly,
    “(Signed) Walter S. Rigg.”
    The committee reported to councils, presenting the above letter and recommending the grant of permission to make the connection suggested and the passage of an ordinance for that purpose. Such an ordinance was at once passed, in the following form:
    “ Section 1. Be it ordained by the Select and Common Councils of the City of Reading: That the ordinance entitled, ‘An ordinance granting the Front & Fifth Street Railway Company the privilege of laying a single track railway, with necessary curves, turnouts, connections and switches, beginning at Front and Schuylkill Avenue, there connecting with the track of the Reading City Passenger Railway Company, thence north on said Front Street to Oley Street, thence West on Oley Street to Weiser Street, thence North on Weiser Street to Windsor Street, thence East on Windsor Street to Front Street, thence connecting with the track of the Reading & Temple Electric Railway Company, and to cross all other streets and to erect poles and string overhead wires to operate the same/ approved November 11, 1902, be and the same is hereby amended so as to grant the Front & Fifth Street Railway Company the privilege of laying a single track railway on Windsor Street from Weiser Street to Schuylkill Avenue, with necessary curves and connections, subject to all the conditions, provisions, restrictions and stipulations of the ordinance to which this is an amendment, and of sec. 2 and sec. 3 of this ordinance.
    “Section 2. That the rate of fare shall not exceed five (5) cents for a single fare, or six tickets for twenty-five (25) cents."
    In March, 1910, the company stopped the sale of “strip tickets" at the rate of six for a quarter on all their lines.
    The city thereupon filed this bill in equity.
    A preliminary injunction issued, commanding the company to “restore and continue the practice as to the sale of tickets on its cars pursued prior to March 18, 1910, and they are commanded .... to sell to passengers on the cars of the said Union Traction Company in the City of Reading six tickets for twenty-five cents, each ticket constituting one fare.” This injunction was later made permanent.

      Error assigned was the decree of the court.

      Isaac Hiester and C. H. Ruhl, with them R. L. Jones, for appellant,
    cited: Philadelphia v. Phila. Rapid Transit Co., 224 Pa. 544, and 228 Pa. 325.

      Henry P. Keiser, city solicitor, for appellee.
    July 6, 1911.
   Opinion by

Mr. Justice Brown,

The court below, in its sixth finding of fact, found that “The stipulations contained in the letter of Oct. 6, 1906, relative to the removal of the turn-out on Schuylkill Avenue the fare limit and the fare itself, were carried out, the United Traction Co. accepting all over the city for a single fare 5 cents in cash or one of 6 tickets sold in strips for 25 cents.” This, to say the least, is misleading. The bill avers and the answer admits that for years prior to the date of the filing of the bill the rate of fare charged by the United Traction Company for a continuous passage, with transfers at various intersections of its railways, had been five cents, or, at the option and request of passengers, six tickets, each constituting one fare, were sold for twenty-five cents, and each of said tickets was good for a ride upon any of the cars of the company at any time and was accepted in the same manner and to the same effect as if a cash fare of five cents had been paid. What the company did after the letter of October 6, 1906, from Walter A. Rigg, and the approval of the ordinance permitting the connection of the Front & Fifth Street Railway Company’s track with the Schuylkill avenue line, was merely a continuance of what it had done of its own motion for a long time prior thereto, and, not having been required by any law, ordinance, contract or agreement with the city to introduce a strip system, or to continue it, the company’s right was to discontinue it at any time prior to the approval of the ordinance which, in the opinion of the learned chancellor below, has imposed upon the company the duty of selling to all passengers on its cars in the city of Reading, six tickets for twenty-five cents, each ticket constituting one fare and good on any of its lines. The question before us is not whether, under the ordinance, the United Traction Company ought to be compelled to sell six tickets for twenty-five cents, good over the Schuylkill avenue or Front and Fifth street railway fine. The bill was not filed for the purpose of having that question determined. Its prayers are that the United Traction Company be required to continue to sell six tickets, each constituting one fare, for twenty-five cents to passengers on the cars operated by it; that the discontinuance of the sale of said tickets be decreed to be in violation of the ordinance of December 8, 1906; and that the letter of October 6, 1906, from Walter A. Rigg, be decreed an obligation on the part of the United Traction Company to sell six tickets for twenty-five cents, each constituting one fare for a passenger over any one of the lines controlled by the said company and to be good on any car on any one of its lines in the city of Reading.

Even assuming that Rigg was authorized to act for the United Traction Company, or, if not authorized to act for it, that it subsequently ratified what he did, what was done by him that committed the company to an agreement to continue for all time to sell six tickets for twenty-five cents, each, good for a single fare over any one of the lines operated by it? His letter to the chairman of the railways committee of councils related solely to the proposed change in the operation of but two of the lines leased by the traction company. They were the Schuylkill avenue and the Front and Fifth street lines. Not another line operated by the company was mentioned in the letter or referred to in the interviews between Rigg and the chairman of the railways committee. And what is said in the letter? Simply that “there would be no increase in fare.” Nothing is said about a sale of six tickets for twenty-five cents. The fare not to be increased was to carry a passenger from any part of the city to any point on Schuylkill avenue or around the loop to Front and Buttonwood streets, or from Schuylkill avenue and Buttonwood street and points'beyond around the loop to any part of the city. Two months after the letter was written the ordinance was approved, the second section of which provides that the rate of fare shall not exceed five cents for a single fare, or six tickets for twenty-five cents. Though this ordinance' granted to the Front & Fifth Street Railway Company the privilege of connecting with the Schuylkill avenue line and was formally accepted by the railway company, the learned court below correctly held that the United Traction Company was bound by its provisions. But as there was nothing in Rigg’s letter to indicate that when he wrote it he had in his mind all of the lines operated by the traction company, so there is nothing in the ordinance to indicate that the sale of six tickets for twenty-five cents, good over all of its lines, was to be continued by the United Traction Company; and one of its valuable rights is not to be taken from it by any process of reasoning to show that, under the circumstances, it had impliedly agreed to surrender such right. If the city of Reading had intended, as a condition of the passage of the ordinance of December 8, 1906, that the United Traction Company should continue permanently the sale of six tickets for twenty-five cents, good over all of its lines, such a provision could have been expressly written into the ordinance, and the acceptance of it by the Front & Fifth Street Railway Company, followed by the United Traction Company’s exercise of the privilege granted by it, would commit that company to its provisions; but this is not the situation. Nothing in the letter nor in the ordinance can be construed into an agreement by the United Traction Company to continue the general sale of strip tickets, and its right was, and the right of the Reading Transit Company, its successor, is, to charge a fare of five cents for every passenger riding on its lines, except as it may be committed by the ordinance of December 8, 1906, to continue to sell six tickets for twenty-five cents, good to or from points on the Schuylkill avenue and Front and Fifth street railway lines. That question, however, is not to be passed upon until it is properly raised.

The decree of the court below is reversed and the bill dismissed at the cost of the appellee.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Selig v. Philadelphia, Appellant.

      Municipalities — City of Philadelphia — Powers—Taxation—Assessment of property.

    The Act of March 14, 1865, P. L. 320, and its supplements, withdrawing from the councils of the city of Philadelphia supervisory power over the assessment of real estate and conferring power upon the court of common pleas of the county of Philadelphia, to appoint a board of revision of taxes, establishes a complete system for assessing taxable property and the councils of Philadelphia are without power to appropriate moneys for the purpose of a duplicate assessment, which, when made, would have neither validity or utility.
    Argued, Feb. 28, 1911.
    Appeal, No. 346, Jan. T., 1911, by defendants, from decree of C. P. No. 2, Phila. Co., No. 1,646, in equity, granting injunction in suit of Emil Selig v. City of Philadelphia, John E. Reyburn, Mayor of the City of Philadelphia, John M. Walton, Comptroller of the City of Philadelphia, Murrell Dobbins, Treasurer of the City and County of Philadelphia, A. M. DePrefontaine, Henry R. Shoch, Edward W. Patton, Peter E. Costello, John H. Baizley, Thomas Wagner, Jr., a joint special committee of select and common councils, and Manufacturers’ Appraisal Company.
    Before Pell, C. J., Potter, Elkin, and Stewart, JJ.
    Affirmed.
    Bill in equity to have set aside an ordinance of the city councils of Philadelphia, approved August 5, 1910, and a certain contract dated August 10, 1910, entered into in pursuance thereof, and to enjoin any payments under this contract.
    The facts appear in the following opinions of the lower court by Sulzberger, P. J., and Wiltbank, J.
    Sulzberger, P. J.: •
    This is a motion for preliminary injunction on a bill by citizens, residents and taxpayers, to prevent the payment of moneys of the city of Philadelphia, alleged to be due by said city to a corporation of another state doing business within this commonwealth, under a contract entered into between the city and it on August 12, 1910. Under the terms of that contract it was provided that the corporation in question should make a report to a committee of councils of Philadelphia of an appraisal, showing, in its judgment, the present value in money of the lands and buildings comprised in wards fifth, sixth, seventh, eighth, ninth, tenth and twenty-second in the city of Philadelphia, in consideration for which services the city agreed to pay for said report and appraisal the sum of $1.70 for each appraisal of land valued and reported, and, in addition, the sum of $1.70 for each building valued and reported, the payments to be made in installments as follows: $15,000 on the last day of August, 1910; $10,000 on the last days of September, October and November, 1910, and the balance on the completion of the valuation and delivery of the report, which must be on or before Decernber 15, 1910; it being understood that the total payments under the contract should not exceed $85,000.
    The plaintiffs contend that the contract is void, and that no payment can be made thereunder, because:
    1. It was awarded without competition.
    2. The price is exorbitant..
    3. The Somers system, under which the work is to be done, is composed of two elements, personal judgment and well-known arithmetical rules, and that arithmetical rules, being the property of all persons, have no pecuniary value.
    4. The report of the contracting company would be valueless, because, when put in the possession of councils, the latter have no authority over the subject.
    5. The ordinance authorizing the contract and the contract itself are void, because—
    (a) The ordinance is in violation of the Act of assembly of May 23, 1874, sec. 3, P. L. 230.
    (b) Because the contract is in violation of the Act of assembly of May 23,1874, sec. 6, P. L. 230.
    (c) Because the passage of the ordinance and the making of the contract are not within the power of the city, and the payment of money thereunder would be an appropriation of money for a corporation in violation of art. IX, sec. 7, of the constitution.
    Some testimony was offered on both sides. We are clear, however, that its consideration is of no substantial importance.
    In our view, the question is one of law purely, involving the consideration of the power of the city of Philadelphia to use the money of the city for the purpose contemplated. Under the constitution and laws of Pennsylvania, all the sovereignty inherent in a state, and not ceded to the United States of America, belongs to the commonwealth and to the commonwealth alone. Within its domain there are no co-ordinate sovereignties. There are agencies called counties, cities, towns, etc., upon whom the power to exercise certain portions of the state sovereignty, within certain limits and for certain specified purposes, may from time to time be conferred by the state. Cities upon which such powers are conferred are commonly said to have city charters. These charters, however, are merely revocable at the will of the legislature by laws properly enacted. From the historical fact that in England there were charters of a higher grade for certain cities, no consequences can be drawn for our commonwealth. Doubtless it was. felt, when sovereignty was divided between the United States and our commonwealth, that a further subdivision within the commonwealth would imperil its position, if any question should ever arise between its sovereignty and that of the nation. At all events, the one and indivisible nature of our state sovereignty has been consistently and jealously guarded.
    By the constitution of 1874, art. Ill, sec. 7, it is expressly provided that the general assembly should not pass any local or special law incorporating cities, towns or villages, or changing their charters, the manifest object being to prevent the conferring upon one locality of powers of a higher grade than could safely be conferred on all.
    Taxation is one of the highest functions of sovereignty. Its effect is to take for the use of the State a portion of the private property of a citizen, upon his implied consent to such taking, which implied consent may not, in law or in fact, be denied. In order that such taxation shall be fair and equal, the state has established a uniform system, providing for assessors of counties, whose duty it is to take an account of real and personal property belonging to each of the taxable inhabitants within their jurisdiction. And these assessors must swear that they will justly and honestly to the best of their judgment, assess and value every separate lot, piece or tract of land, with the improvements thereon, and all personal property made taxable by the laws of this commonwealth at the rate or price which they, after due examination and consideration, believe the same would sell for, if sold singly and separately and at .a bona fide sale, after full public notice, and that they will perform their duties with honesty and fidelity, according to the laws of this commonwealth, without fear, •favor or affection, hatred, malice or ill-will. This oath is under the Act of July 27, 1842, sec. 9, P. L. 441, and by sec. 10 of the same act a board of revision is provided, whose duties, under sec. 13, are defined to be to examine and inquire whether the returns of the assessors have been made in conformity with the laws of this commonwealth, and whether all property to be valued for taxation for state and county purposes has been valued at a sum or price not less than the same would bring, after full public notice, at a public sale, supposing each separate lot or piece or tract of land, with the improvements, or the personal property of each individual, company or corporation only were to be sold. They are, moreover, to consider the written communications of any taxable inhabitant of the county relative to any property which such taxable inhabitant shall believe to have been reduced too low or raised too high, and raise or reduce the same so as to revise and equalize the assessment.
    This system, general through the state, was altered by the consolidation Act of February 2, 1854, P. L. 21, for the city of Philadelphia, and the councils of that city were made the supervisory power, but after the lapse of a decade, to wit, on March 14, 1865, this special privilege to the city was withdrawn and power was conferred upon the court of common pleas of the county of Philadelphia to appoint a board of revision of taxes, and this act, with the supplements thereto, has had the effect of bringing the system within the city into its former harmony with the system prevailing in the state generally. It has been used without question for forty-five years, and by common consent has been accepted as a substitute for the legislation on that subject, contained in the consolidation act of 1854, for the obvious reason that where the simultaneous administration of an earlier system and a later system is practically impossible, the act establishing the later system, by necessary implication, repeals the former act.

      We have, therefore, a complete system established by the commonwealth itself for ássessing taxable property. By the concession of the commonwealth, the' taxes on one great class of property taxable by the State are yielded to the city, to wit, the taxes on real estate. By no stretch of imagination can it be conceived that the city has any power over the assessors or the board of revision on questions affecting the assessment of subjects of taxation in which the state alone is concerned to the exclusion of the city. If, therefore, the city claims any power in the premises, it must be only a partial power. Its utmost contention cannot go beyond a claim that it may interfere with the assessment of real estate, but not with the assessment of personal estate. Any power claimed by a municipal corporation to supervise, in part or in whole, a department created by the commonwealth must be based upon an express grant, or upon necessary implication from such a grant.
    The able presentation of this case by the learned counsel for the various defendants has not indicated to us any such grant of power. The full and satisfactory discussion of the various questions involved has, however, made plain that the making of this contract was based on a supposed power of the city to expend municipal taxes for the establishment of a complicated and extensive censorship of a state department, whose rulings are subject to appeal, not to the municipal councils, but to the courts of the commonwealth. No reason has been shown why this power, if it exists, in the councils of the city of Philadelphia does not inhere likewise in all the municipal corporations within the commonwealth, nor has it been made clear that this censorship is or ought to be limited to but one department or bureau of the state government.
    To follow the claim to its logical conclusion would be to place at the mercy of a temporary majority in councils enormous sums of money for the mere purposes of complaint and criticism, to duplicate existing state agencies responsible to proper tribunals, by phantom municipal agencies, totally irresponsible and totally powerless. This is not an orderly, legal or constitutional mode of correcting public abuses.
    By the third section of the Act of May 15, 1841, P. L. 393, any assessor or assistant assessor who shall knowingly or intentionally omit, neglect or refuse to assess and return any property, person or thing made taxable by law, or shall knowingly and intentionally assess, rate or value the same at more or less than he shall know and believe the just cash value or rate thereof, or neglect or refuse to assess any tax required by law, shall be guilty of misdemeanor in office, and on conviction thereof be subject to imprisonment for not less than three nor more than twelve months, and fined in a sum not less than $100 nor more than $200.
    Moreover, from the decision of such an assessor there is an appeal to the board of revision, and from the decision of the board of revision an appeal to the court of common pleas. These are orderly and legal modes of carrying on public business, and involve no capricious outlay of vast sums of public money for mere purposes of inquiry.
    The most that can be said for the defendants’ position is that they desire to show that, in some way not known to the assessors, a more equal and just system of fixing valuations can be devised than is at present in use. With the merits or demerits of the particular system in question we have no concern. It seems to be conceded by all that, whatever system is adopted, its basis must be the fair prices obtained by actual sales in each vicinity. The most that can be contended is that it is theoretically possible from such actual sales to derive a stable law which shall ascertain the general judgment of buyers as to values in a particular vicinity. In view of the great differences between the intellects of men, and having regard to the complexity of modern urban life and the vicissitudes in national financial conditions and prosperity, the establishment of such a fixed rule cannot be said to be easy of attainment. Assuming, however, that the difficulty has been perfectly solved, and that it shows that the law now regulating the judgment of assessors is inadequate and should be replaced by an improved standard, the proper forum to address is the legislature of the commonwealth. One who, by his industry, his talent and a happy combination of circumstances, has succeeded in solving the problem may, if he chooses, preserve it as a trade secret with which he is unwilling to part, save for an adequate consideration. We are bound to assume that the legislature, representing the people of this commonwealth, will be alert to amend laws that need improvement, and also to give just compensation to anyone who renders service to the commonwealth.
    From all this, however, it is impossible to gather, or by any process of reasoning to infer, a power in the councils of Philadelphia to appropriate large masses of the funds collected by taxation for the mere purpose of .a duplicate assessment, which, when made, will have neither validity nor utility. It has no validity, because the assessment as made by the constituted authorities stands. It has no utility, because the assessment does not of itself disclose the method employed in the making of it with such precision and certainty that the legislature could incorporate it into an act of assembly instructing the assessors how they are to proceed.
    There is no provision in the constitution or in the statutes which expressly confers such vague powers upon the city of Philadelphia, nor is there anything in them from which the grant of such powers could be necessarily or even remotely implied. We entertain grave doubts whether the legislature itself could constitutionally duplicate an official bureau whose province it is to act, by an unofficial bureau without any governmental function whatever.
    Be that as it may, we are clearly of opinion that the councils of the city of Philadelphia had no power to direct the payment asked to be restrained.
    Let a preliminary injunction issue to John M. Walton, Esq., comptroller of the city of Philadelphia, and Murrell Dobbins, Esq., treasurer of the city and county of Philadelphia, restraining them from paying to the said The Manufacturers’ Appraisal Company any sum or sums of money under the authority of the ordinance of councils exhibited to us as exhibit “B,” attached to and a part of the bill of complaint. Security to be entered in $5,000.
    Wiltbanic, J.:
    This is a motion for a special injunction to restrain certain officers of the city and county of Philadelphia from paying to the Manufacturers’ Appraisal Company any sum or sums of money under and in pursuance of an intended authority or direction in a certain ordinance of councils, and to enjoin the defendants from performing any act or acts preliminary to the making of such payments.
    Some preliminary suggestions occur to us as worthy of mention here, although they do not state or affect what we conceive to be the point open for our order.
    The litigation has been inaugurated by taxpayers of the city in consequence of its employment of a corporation to make appraisals of real estate in houses and lands situate in certain wards, and of the appropriation by councils of a sum of $85,000 to be expended in part or in whole in compensation for the services and outlay of the company engaged.
    It has been shown to us by competent and extended proof that the object of the employment was and is to secure a scientific ascertainment of values by the use of a method brought to our notice as the Somers system. This system has been discussed at large. A respectable company, one of the defendants, avails itself of it, and for the purposes of this inquiry it may be regarded as embodying a defensible method, worthy of intelligent and earnest study.
    With respect to it, however, certain inquiries are pertinent. What is the authority and what the sanction of this appraisement? Does it bind persons or bodies, civic or politic? Is it a method of lawful municipal action? And, were we to assume it to result in an ascertainment of values, would it be open to just criticism on the part of the taxpayer that the proper tests had not been applied, and that, in its most important particular, the test adopted had been an avowed departure from the rule of market value? This rule prevails here at common law and by statute (Act of July 27, 1842, P. L. 441), and is inflexible.
    We find no answer to these inquiries which accredits the system and discloses features superior to those of the procedure of the state officers now and for many years engaged upon the same work.
    A standard of market value is always available, and it should not be superseded by an artificial scheme, the peculiar merits of which, if any, are not published, and which, therefore, its advocates may well claim we are not in position either to approve or condemn.
    The present, however, is not a question of the merit of the Somers system, or of the sanction or authority of the investigation and report in which some of the defendants are engaged; but it is a question solely of the authority of the city to pay moneys provided for as incident to the contract with the Manufacturers’ Appraisal Company. Whether the order for this appraisement is within the law or not I conceive we have not the jurisdiction to determine, because its promulgation by the city, according to the papers in evidence, rests in the legislative discretion of councils, if they have'the authority to act, and this discretion we may not review.
    It is not disputed that the councils have authority to make proper investigation in matters of civic government, in the interest of the municipality and for the benefit and welfare of the citizens at large. We cannot be asked to interfere with the exercise of a function both lawful and beneficial: Stegmaier v. Goeringer, 218 Pa. 499; Com. v. Pittsburg, 183 Pa. 202. Here, however, an exhaustive investigation with relation to taxation has been provided and prescribed by the legislature, and has proceeded, according to one statutory method or another, from the beginning of the history of the municipality to this day. The officers to whom it is, and has been, committed are experts chosen under legislative sanction, and they are the fountain of information open to councils, and of them no complaint is made by the defendant. Indeed, there has been at bar a special and official disclaimer of any imputation upon the skill, the industry, or the integrity of the assessors in charge of the work. The legislative instrumentality may not be overridden by the agency created by the city authorities, and the work of that agency must therefore of necessity be legally ineffective. No new assessment is within the power of the municipal legislative body as a consequence of the judgment of the Manufacturers’ Appraisal Company. The best that could be obtained from an admirable return of skilled workmen would be a statistical report not conclusive even of the mathematical values of a comparatively small number of districts of the city out of the many comprising the whole.
    It has been conceded in the able argument offered in behalf of the officers of the city that there is no express legislative authority in the councils of the city to appropriate moneys in this behalf, and that if the present appropriation is lawful it is in virtue of an implication of authority. It is contended that it is thus lawful. We have considered the arguments and proofs submitted on this point. We fail to find warrant for the affirmative contention.
    In Com. v. Pittsburg, 183 Pa. 202, it was held that the city might appropriate money to a committee of private citizens which had been created by the chamber of commerce, a corporation therein existing, and later approved and accredited by the city councils, to defray the expenses of surveys for a ship canal, and to secure information from experts touching the practicability of such canal and the probability of its commercial advantage. It was held that the appropriation was valid as within the power of the councils. The argument on the part of the contestants was that this action was within the inhibition of sec. 7, art. IX. of the constitution, which forbids a municipality “to appropriate money or loan its credit to any corporation, association, institution or individual.” The Supreme Court did not sustain the appeal. The judgment there proceeded, according to our understanding, upon the doctrine frequently announced, and herein expressed, that in matters of civic government councils may legislate in the interest of the municipality for the benefit and welfare of the citizens at large where they do not interfere or impinge upon the sphere and authority of agencies already created for the attainment of the same object or violate the conditions of their charter. That case differs from this in that there had been created no power to act upon the important subject committed to a body described upon the record as “The Provisional Committee of the Lake Erie and Ohio River Ship Canal.” In the case at bar we have already shown that the state has provided a public department for the appraisal of real estate.
    In Lesley v. Kite, 192 Pa. 268, the councils of Philadelphia gave subcontractors a remedy that was analogous to an attachment of certain funds due by the city to the principal contractor, although the legislature had provided no such remedy. The ordinance was held invalid, as an attempt to provide an action inconsistent with, and not authorized by, the existing legislative system. The Supreme Court said: “Councils are powerless to provide any remedy to be used as a substitute for attachment or any other remedy which the legislature has heretofore withheld on grounds of public policy or otherwise.” In Bechtel v. Fry, 217 Pa. 591, it was adjudged that the county commissioners had no authority to pay special counsel in a criminal prosecution in which the county was interested, for the reason that the legislature had committed to a special officer the duty of prosecuting offenders against the peace and dignity of the state and of bringing them to judgment.

      In Grannis v. Commissioners, 81 Minn. 55 (83 N. W. Repr. 495), individuals had been employed to make search for land which the constituted authorities had failed to list for taxation, and were to receive a compensation contingent on the amount discovered and reported. It was held: “The Legislature has provided officers whose duty it is to levy all taxes, officers to cause all property to be properly assessed and placed upon the tax rolls, and officers for the collection of such taxes. ... It is true that a county is interested and concerned in the matter of the collection of taxes. Its revenues are derived chiefly therefrom, and it is important to it, and to the State as well, that all property properly taxable pay its just share and proportion of the public burdens. But the county is not charged with the duty of seeing to it that all such property is assessed and placed upon the tax rolls. Other officers acting independent of the county are charged with the performance of such duties and they are alone responsible therefor. The matter of unearthing and discovering property which has escaped taxation is not only not necessary to the exercise of the corporate powers of a ' county, but is beyond its express or its implied authority.”
    In Stevens v. Henry County, 218 111. 468 (75 N. E. Repr. 1024), the court enjoined payment upon a contract for the employment of a tax expert, which employment was independent of the legislative system then in force. “The statute having designated the proper officers to discharge this duty and having charged them therewith, and provided for the compensation they, shall receive, we do not think the county, in the absence of any specific grant, had power to enter into the contract” — under review.
    The limitations upon the power of a municipality to legislate the appropriation of funds out of the course of the usual and ordinary administration of the affairs common to the life of such a body, have been ascertained in many of the states of the union, and laid down with precision upon final judgments of the courts of last resort. These decisions have been in accord with the views we herein express. We may cite Minot v. West Roxbury, 112 Mass. 1; Coolidge v. Brookline, 114 Mass. 592; Mead v. Acton, 139 Mass. 341 (1 N. E. Repr. 413); Henderson v. Covington, 77 Ky. 312; Frankfort v. Winterport, 54 Me. 250; Westbrook v. Deering, 63 Me. 231. These cases have been relied on as bearing mainly upon the question of the power of a municipality to expend money in an appeal to a state legislature for the grant of additional and special municipal authority, but the discussion therein of the issues severally involved is sufficiently wide and authoritative to afford light and assistance in the treatment of the question at large. The plaintiffs have shown an equity to relief under the first clause of the third prayer of the bill.
    DECREE
    This cause came on to be heard at this term and was argued by counsel, and upon consideration thereof it was ordered, adjudged and decreed as follows:
    Let a preliminary injunction issue to John M. Walton, Esquire, comptroller of the city of Philadelphia, and Murrell Dobbins, treasurer of the city and county of Philadelphia, restraining them from paying to the said Manufacturers’ Appraisal Company, any sum or sums of money, upon the authority of the ordinance of councils, exhibited to us as exhibit “B,” attached to and made a part of the bill of complaint. Security to be entered in $5,000.

      Error assigned was the decree of the court.

      John C. Bell, with him Paxson Deeter, for Manufacturers’ Appraisal Company, Francis Shunk Brown, for councils’ committee, and James Alcorn, city solicitor, and Ernest Lowengrund, for appellants.
    — Councils have the power to investigate the valuation and assessment of real estate within the city, and they have the power to make an appropriation for the purpose of securing expert services in such an investigation: Philadelphia v. Flanigen, 47 Pa. 21; Eckstein’s Petition, Yard’s App., 148 Pa. 509; Com. v. Pittsburg, 183 Pa. 202; State v. M., K. & T. Ry. Co., 164 Mo. 208 (64 S. W. Repr. 187).

      Horace Stern and Hampton L. Carson, with them Morris Wolf, for appellee.
    — No power, express or implied, is given by the legislature to councils of the city of Philadelphia, concerning the making of assessments of real estate or to make contracts or pay money for said assessments, nor to contract for an investigation in regard thereto: Lesley v. Kite, 192 Pa. 268; Whelen’s App., 108 Pa. 162; Bloomsburg Land Imp. Co. v. Bloomsburg Boro., 215 Pa. 452; Pittsburg’s Petition, 138 Pa. 401; Stevens v. Henry County, 218 Ill. 468 (75 N. E. Repr. 1024).
    July 6, 1911:
   Per Curiam,

The decree appealed from is affirmed for the reasons stated in the opinion of the learned judges of the common pleas.


author: Mr. Justice Potteb,

text:
    Smith, Appellant, v. Philadelphia & Reading Railway Company.
    ( Negligence — Railroads—Master and servant — Defect in appliances— Previous knowledge — Nonsuit.
    1. In an action against a railroad company to recover damages for the death of an employee of another railroad lawfully using the tracks of the defendant, where-the plaintiff’s case rests on the contention that defendant was negligent in allowing a derailing switch to be out of repair, a nonsuit is properly entered if the undisputed testimony shows that the switch was inspected the day before the accident and found in good condition and working properly, that the device was in good order within an hour and a half of the accident, and that two trains passed over it without any difficulty and the only evidence in the case tending to show that the switch was out of order is that of a witness who saw the condition of things only at the moment of the accident.
    2. In an action against an employer to recover for injuries done to an employee or a person in the position of an employee, where the basis of recovery is an alleged defect in appliances or machinery, it is not enough to show that the defect existed at the moment of the accident but it must also appear that the master had an opportunity of previous knowledge or that the facts were such that he ought to have known of the defect.
    Argued March 8, 1911.
    Appeal, No. 7, Jan. T., 1911, by plaintiff, from judgment of C. P. Franklin Co., April T., 1909, No. 37, for defendant non obstante veredicto in case of Emma L. Smith v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff's husband. Before Gillan, P. J.
    Charles M. Smith, the husband of the plaintiff, died from injuries sustained by the wrecking of a train of the Western Maryland Railroad Company while running on the tracks of the Philadelphia & Reading Railway Company on May 30, 1907. Smith was the engineer of the train. The plaintiff alleged that the cause of the accident was the defective condition of a derailing switch.
    Verdict for plaintiff for $10,203.08. The court subsequently entered judgment n. o. v. for defendant. Plaintiff appealed.

      Error assigned was in entering judgment for defendant n. o. v.

      O. C. Bowers, with him John W. Hoke, for appellant.—
    The case was for the jury: Phila. & Read. R. R. Co. v. Huber, 128 Pa. 63; Wilson v. Penna. R. R. Co., 177 Pa. 503; Potter v. Natural Gas Co., 183 Pa. 575.

      J. B. Buthrauff, of Buthrauff & Nicklas, and J. W. Wetzel, of Wetzel & Hambleton, for appellee,
    cited: McLean v. Schoenhurt Co., 225 Pa. 100; Mensch v. Penna. R. R. Co., 150 Pa. 598.

      July 6, 1911:
   Opinion by

Mr. Justice Potteb,

After taking ample time to consider carefully all the testimony in this case, the learned judge of the court below reached the conclusion that the evidence was not sufficient to establish any fact which could fairly be deemed negligence upon the part of the defendant company. He therefore entered judgment for the defendant, notwithstanding the verdict. As the trial judge says, the burden of plaintiff’s contention is, that the accident was due to the negligence of the defendant in allowing the derailing switch to be out of repair. Evidence as to any faulty construction was lacking, and there was nothing to show that the switch was not such an one as is generally used for the purpose. The testimony of the section foreman and the track walker shows that the switch was inspected the day before the accident and was found in good condition and working properly. The undisputed evidence of other trainmen showed that the device was in good order, within an hour and a half of the accident, and that one train and another engine east bound, passed through it without, any difficulty. The only testimony that appears in the case tending to show that the switch was out of order, was that of the witness Kindle, who saw the condition of things only at the moment of the accident. We have searched the record in vain for any evidence, prior to his observations, to show that the derailing switch was not in good condition and working properly. It is unnecessary to say that, in order to recover, the plaintiff was bound to show by affirmative proof, the cause of the accident, and that it resulted from some negligent act on the part of the defendant. Counsel for plaintiff place great stress upon the fact that there was testimony to show that, after the accident, a nut was found broken off the derailing switch, and that the absence of this nut prevented the switch from working properly. But it was not shown how, or'by whom, or how long before the accident, if at all, the nut was broken off. Plaintiff’s husband was not an employee of the defendant company, but was at the time in the service of another railroad lawfully using the tracks of the defendant. We assume, however, that it owed to him the same degree of care as that which it was obliged to exercise for the protection of its own trainmen. The rule of law is plain, that “it is not enough to show that the defect existed at the moment of the accident. It must also appear that the master had an opportunity of previous knowledge, or that the facts were such that he ought to have known of the defect:” Mixter v. Coal Co., 152 Pa. 395. That much must be shown in order to convict him of negligence in failing to repair.

The language used by this court in Mensch v. Penna. R. R. Co., 150 Pa. 598, 610, is very appropriate to the facts here shown. “A nut may wear off from a bolt by the ordinary usage of travel, or it may be forced off by rough handling in the movement of the train, but for this alone there is no liability to an employee, because it is one of the risks of the business. If an opportunity to discover the defect were shown to have existed, and no attempt to repair was made, then a condition of liability would arise which in the absence of exculpatory proof would justify an inference of culpable negligence. The same would be true if a prior actual discovery of the defect had been shown. But the difficulty of the case, as it seems to us, is, that there is no proof of either of these contingencies, and in the absence of such proof the case for the plaintiff can only be adjudged by conjecture.”

Our examination of all the testimony leads us to agree with the conclusion reached by the trial judge, that there was not sufficient affirmative proof of negligence upon the part of the defendant to justify the submission of the question to the jury.

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


author: Mr. Justice Stewart,

text:
    Bush v. Philadelphia & Reading Railway Company, Appellant.

      Negligence — Railroads—Automobiles—“ Stop, look and listen ” — Contributory negligence.

    1. In determining the question of the contributory negligence of a person crossing railroad tracks, though the mere act of stopping does not of itself show that he stopped at a proper place, or that there was not another and better place where he should have stopped again, or that his duty of looking and listening was performed with the proper care and attention, yet stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clear that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the ease to the jury.
    2. In an action to recover damages for the wrecking of an automobile by a railroad train in a collision at nighttime upon a public crossing on a borough street where the driver of the automobile testifies that he stopped his machine and looked and listened about nine feet from the first track, and it is admitted that before reaching this point he had passed no place where he could have had a view of an approaching train, the questions whether he stopped a sufficient length of time to inform himself of conditions, and whether he advanced with due caution from that point, are to be determined, not by'hard and fast rules of positive duty applicable in all cases, but by the jury upon a consideration of all the circumstances in the case.
    Argued March 7, 1911.
    Appeal, No. 351, Jan. T., 1910, by defendant, from judgment of C. P. Northampton Co., June T., 1909, No. 63, on verdict for plaintiff in case of S. R. Bush v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to an automobile. Before Scott, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict for plaintiff for $4,792.50 and judgment thereon. Defendant appealed.

      Errors assigned were in refusing judgment for defendant.

      James W. Fox, with him Edward J. Fox, for appellant.

      H. J. Steele, with him Robert A. Slots, for appellee;
    July 6, 1911.
   Opinion by

Mr. Justice Stewart,

This action was for the recovery of damages for the wrecking of plaintiff’s automobile by a passing train on the defendant’s road. The collision occurred at nighttime, on a public crossing on one of the streets in the borough of South Bethlehem. The machine was being driven by an employee of the plaintiff on the business of the latter. The finding of the jury is conclusive on the question of the defendant’s negligence. No question is raised as to the sufficiency of the evidence to support such finding; nor are the instructions of the court on this branch of the case complained of. The only question is whether the court should have held as matter of law, that the negligence of the driver contributed to the accident. In his opinion filed refusing judgment non obstante, the learned trial judge speaks of the case as a close one; and so it is, upon its general facts; but with respect to the question we are now considering we regard the case as falling clearly within a long line of cases which vindicate the final conclusion of the court. The testimony of the driver, if believed, shows literal compliance on his part with those rules of duty, the nonobservance of which this court has repeatedly said must be adjudged negligence per se. He stopped, looked and listened before entering upon the tracks with his machine. While none of the other witnesses called on behalf of the plaintiff would positively confirm all that the driver testified to, none of them testified directly to the contrary of what he said, while all admitted that appearances as they were there presented to bystanders supported the driver’s testimony. The place where he stopped his machine was about nine feet from the first track. Admittedly, before reaching this point he had passed no place where he could have had a view of an approaching train. Whether he stopped a sufficient length of time to inform himself of conditions, and whether he advanced with due caution from that point, were questions to be determined not by hard and fast rules of positive duty applicable in all cases, but by the jury upon a consideration of all the circumstances in the case, not the least important of which was the fact appearing here that the time required to pass from the place where the driver stopped his machine to the place where the collision occurred, was but three or four seconds at most, and that through open gates implying to the ordinary traveler an invitation to advance. The evidence shows that these gates, though operated in daytime for the avoidance of accidents, were, by some regulation of the company, the wisdom or necessity for which is left unexplained, never lowered after eight o’clock in the evening. But the. driver testified that he was not familiar with the neighborhood and knew nothing of the rules of the company in this regard. The law with respect to such cases as this is so clearly expressed in Ely v. Railway Co., 158 Pa. 233, by the late chief justice, that no other citation of authority is required. It is there said: “The mere act of stopping does not it is true of itself show that he stopped at a proper place, nor that there was not another and better place where he should have stopped again, or that his duty of looking and listening was performed with the proper care and attention, but stopping is opposed to the idea of negligence, and unless, notwithstanding the stop the whole evidence shows negligence so clear that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury.”

While upon the whole evidence the jury might well have hesitated before reaching their conclusion that this driver stood clear of negligence, yet the question was exclusively for them, since the evidence to establish negligence on his part was not so clear or positive as to exclude other inference. The case was one for the jury and was submitted under proper instructions.

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


author: Mr. Justice Potter,

text:
    Wells v. Erie Railroad Company, Appellant.

      Negligence — Master and servant — Safe appliances — Duty to furnish and inspect — Inconsistency of statement — Evidence—Identification— Conflict of laws.

    1. In an action to recover damages for injuries resulting from an accident which occurred in New York state, the case is for the jury where it appears that the plaintiff, who was employed by defendant company in unloading heavy timbers, was hurt by reason of the breaking of a rope or sling, which caused a number of pieces of timber to fall upon him; that the rope or sling which broke had been furnished by the defendant, that it had been prepared by. the men working on another job, that it had been continuously in use three or four years, although the limit of its safe use was fixed by some of the witnesses at from eight months to a year; that it had not been inspected, was weather-beaten, worn and rotten and unfit to sustain anything like the weight required; without anything to show that any other slings which might have been used were sufficient and suitable for the particular use to which the defective rope was being applied, and without any evidence being offered by the defendant to show that it had furnished sufficient or suitable rope. Vogel v. Bridge Co., 180 N. Y. 373, distinguished.
    2. In such a case there is no inconsistency in a statement which alleges first, that the ropes and appliances used in lashing the timbers were old, rotten and insufficient; and second, that they were not properly inspected; since both relate to the same feature of negligence.
    3. In such a case the testimony of witnesses who examined a broken rope after the accident and described its condition, is properly submitted to the jury even though they did not identify completely the rope they saw with the one which broke, where the uncontradicted evidence is that but one broken sling was seen on the job, the coincidence in the admitted facts making it more reasonable to conclude that the rope which the witnesses examined was the one which had been in use rather than to conclude that it was not identical with the latter.

      Practice, C. P. — Court and jury — Reservation—Form.

      4. A reservation in the following form is good: “We reserve as a question of law whether or not there is any evidence in the case upon which the plaintiff is entitled to recover.”
    Argued, March 13, 1911.
    Appeal, No. 265, Jan. T., 1910, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1909, No. 133, on verdict for plaintiff in case of Otis L. Wells v. Erie Railroad Company.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Fanning, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $9,000. Defendant appealed.

      Errors assigned were (1) in refusing to compel the plaintiff to elect between different causes of action averred in the statement; (2-4) certain rulings on evidence; (5, 6, 8), refusing binding instructions.

      Rodney A. Mercur, with him Halsey Sayles, for appellant.
    — This ruling of the trial judge is flatly contradictory to a host of authorities in this state, and among them we may cite the following: Higgins v. Fanning & Co., 195 Pa. 599; Spees v. Boggs, 198 Pa. 112; Alexander v. Penna. Water Co., 201 Pa. 252; Price v. Lehigh Valley R. R. Co., 202 Pa. 176; Marsh v. Lehigh Valley R. R. Co., 206 Pa. 558; Dalton v. Towanda Borough, 215 Pa. 402.
    The defendant relies, as controlling the case at bar, on the case of Vogel v. American Bridge Co., 180 N. Y. 373 (73 N. E. Repr. 1).
    The Vogel case has been cited with approval and followed in the following cases: Mahoney v. Cayuga Lake Cement Co., 126 N. Y. App. Div. 164 (110 N. Y. Supp. 549); Evans v. Kodak Co., 129 N. Y. App. Div. 768 (113 N. Y. Supp. 986); McMillan v. Shade Cloth Co., 134 N. Y. App. Div. 28 (117 N. Y. Supp. 1081); Mulligan v. McDonald, 135 N. Y. App. Div. 536 (120 N. Y. Supp. 522); Beauregard v. Tunnel Co., 136 App. Div. 834 (121 N. Y. Supp. 865); Ebbitt v. Milliken, 103 N. Y. App. Div. 211 (92 N. Y. Supp. 1033); Nappa v. R. R. Co., 195 N. Y. 176 (88 N. E. Repr. 30); Webber v. Piper, 109 N. Y. 496 (17 N. E. Repr. 216); Agresta v. Stevenson, 112 N. Y. App. Div. 367 (98 N. Y. Supp. 594); Messina v. U. S. Mtge. & Trust Co., 113 N. Y. App. Div. 914 (100 N. Y. Supp. 1129); Connolly v. Hall & Grant Construction Co., 117 N. Y. App. Div. 387 (102 N. Y. Supp. 599):

      L. T. Hoyt, of Hoyt & Schrier, with him Chas. E. Mills, for appellee,
    cited: Baker v. Allegheny Valley R. R. Co., 95 Pa. 211.
    July 6, 1911.
   Opinion by

Mr. Justice Potter,

The plaintiff in this case was employed by the defendant company to aid in unloading heavy timbers, and in transferring them from one car to another. The defendant supplied ropes to be passed around the timbers, which were arranged in piles, so that a number of pieces could be lifted and swung over at one time. The necessary power for lifting the timbers was obtained from a steam engine operating a derrick or crane, connected with the ropes and tackle. During the early progress of the work, one of the ropes broke, the timbers fell, and the plaintiff was severely injured. It was charged that the rope by which the timbers were slung, and which was furnished as part of the apparatus, by the defendant, was not fit for use, and was supplied without a reasonably careful attention to its condition.. Upon the trial the jury were instructed that the plaintiff could not recover if there was anything about the appearance of the rope or sling, when it was placed in use, to indicate to him that it was not safe. Or if he failed to exercise proper care for his own protection, during the work. Or if good slings or ropes were supplied by defendant, which might have been used by the men, instead of the unfit rope. As to some of these matters there was discrepancy in the testimony; but as questions of fact, they were properly for determination by the jury.

In the first assignment of error counsel for appellant complain that the trial judge did not compel the plaintiff' to elect as between what they termed two wrongs which were charged in the statement. These allegations were, first, that the ropes and appliances used in lashing the timbers together were old and rotten and insufficient; and second, that they were not properly inspected. 'We think this criticism is without merit. The substantial negligence charged, was supplying an article unfit for the use for which it was intended. If the charge was true, the failure to subsequently inspect it was only an aggravation of the original wrong. There was no inconsistency in the two statements; both related to the same feature of negligence. If the rope was bad when brought into use, an inspection either then or afterwards would only have revealed what the defendant was'in duty bound to know.

In the second, third and fourth assignments, it is alleged that the trial judge erred in refusing to strike out the testimony of certain witnesses, because they did not identify completely the rope which they examined, and whose condition they described, with the rope which gave way at the time of the accident. We think the testimony of these witnesses was properly submitted to the jury. The identification of an object by a witness is necessarily an exercise of his judgment. The uncontradicted testimony showed that but one broken sling was seen on the job, as it was expressed. The coincidence in the admitted facts made it more reasonable to conclude that the rope which the witnesses examined and found in bad condition, was the one which had been in use, rather than to conclude that it was not identical with the latter. The coincidence was therefore properly laid before the jury as a guide to their judgment in deciding upon the probability of the pieces of rope being identical. In addition to the evidence of these men, to which objection was made, the plaintiff testified that he saw the broken rope lying on the ground after the accident, and that a Mr. Rice, who was in charge of the men, picked it up, and that he saw him go with it as far as the blacksmith shop-. There was also the evidence of the bridge foreman to the effect that he made an examination of the broken sling or rope in the blacksmith shop, and identified it as a rope that he had examined and condemned prior to the accident, and had thrown away as unsafe, and had forbidden its further use. He identified it by the way in which it was spliced. There is nothing in the evidence to indicate that the broken rope or sling described by the witness, was not the one which caused the injury. These assignments are therefore overruled.

In the sixth assignment of error counsel for appellant criticise the form of the reserved point which was, “We reserve as a question of law whether or not there is any evidence in the case upon which the plaintiff is entitled to recover.” The reservation in its form follows precisely that which was approved in Newhard v. Penna. R. R,. Co., 153 Pa. 417. Mr. Justice Dean there said (p. 426): “Whether there is any evidence of a fact essential to recovery is a pure question of law, and was decided to be a good reservation in Wilde v. Trainor, 59 Pa. 439, where Justice Shakswood most carefully considers the whole question, and examines all the authorities.” The proper form of a reservation was again thoroughly discussed and the essentials of a good reservation carefully pointed out by the present chief justice, in Casey v. Paving Company, 198 Pa. 348. The reservation here was unquestionably good. In any event, no harm was done to appellant in this respect, for the trial judge did not enter judgment n. o. v. All questions as to defendant’s right to binding instructions may be raised on this appeal, and they have been raised by the fifth and seventh assignments of error.

The accident for which recovery was sought occurred in the state of New York, and the case was therefore tried under the rules of law prevalent there. Counsel for appellant contend that the evidence does not disclose such negligence as would permit recovery under the law in New York. They rely upon the decision in Vogel v. Bridge Co., 180 N. Y. 373, in which it was held that when the employer had furnished a sufficient supply of ropes strong enough for the work, it was not liable for injuries to a workman, caused by the breaking of a defective rope which the foreman by an error of judgment directed to be used, instead of another rope which might have been selected from the supply furnished. It appears from the opinion in that case, that there was no dispute as to a sufficiency of suitable rope having been furnished by the defendant. That point in itself is enough to distinguish the case from the one now before us. In the present case it was charged, and there was evidence to support the allegation, that the rope furnished by the defendant was improper and unsafe. In a later New York case, Pluckham v. Bridge Co., 104 N. Y. App. Div. 404, affirmed without opinion in 186 N. Y. 561, the distinction is noted between a case where the master has furnished sufficient suitable rope for the purposes of the work, and one where he has not done so. Where a suitable rope was not furnished, the master was held liable for the consequences arising from the use of a defective article. Here there was evidence tending to show that the sling or rope which broke had been furnished by the defendant, and that it had been prepared by the men working on another job, and that the rope had been continuously in use three or four years, although the limit of its safe use was fixed by some of the witnesses at from eight months to a year. The evidence further tended to show that the rope in question had not been inspected, and that it was weather-beaten, worn and rotten, and unfit to sustain anything like the weight required. While it did appear upon examination of some of the witnesses that there were other slings that could have been used, it was not shown that they were sufficient and suitable for the particular use to which the defective rope was being applied when it broke. No evidence whatever was offered by the defendant to show that it had furnished sufficient or suitable rope. Under the evidence, we think it is clear that the question whether or not appellant had performed its duty in furnishing a sufficient quantity of suitable rope, was for the jury. The trial judge applied the doctrine of the New York case in his charge to the jury; and instructed them that, if the defendant had provided suitable and proper appliances for the work, it could not be held responsible for a defective rope selected from the supplies by the employees. No complaint is made here of the instructions to the jury; but it is contended that the case should not have been submitted to the jury at all. Even under the New York rule, the master could not be relieved of liability unless it clearly appeared that it had furnished a sufficient supply of suitable rope for the purpose required. Giving to appellant the full benefit of the rule for which it contends, the case was for the jury.

While not necessary for the purposes of this case, yet it may not be out of place to note that the distinction which seems to have been made in New York has not been recognized in our own state, nor does it seem to embody the rule which prevails generally. In 26 Cyc. 1136, it is said: “It is not only the duty of a master to use ordinary care to furnish his servants with a reasonably safe place to work, and with reasonably safe machinery and appliances, but he must also, by inspection from time to time, and by the use of ordinary care and diligence in making repairs, keep them in a reasonably safe condition.” This expression of the rule is in line with our own decisions. Thus, in Baker v. Allegheny Valley R. R. Co., 95 Pa. 211, where the plaintiff's husband was killed under circumstances somewhat similar to those attending the accident in this case, it appeared that the rope which broke had been in use and exposed to the weather two or three years, perhaps more, and had become rotten and unsafe. Mr. Justice Sharswood said (p. 216): “It is the duty of employers to renew instruments of this character at proper intervals. The expense would certainly not be great and a due regard to the lives of their servants imperatively demands it.” In Lohr v. Philipsburg, 156 Pa. 246, Mr. Justice Mitchell refers to the duty laid down for an employer as being that of “not only furnishing safe tools to his workmen, but in knowing their liability to decay, and in replacing them at the proper time.”

Our examination of the record in this case satisfies us that the defendant had the full benefit of everything to which it was entitled under the law of the place where the accident occurred.

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


text:
    Brown v. Title Guaranty & Surety Company, Appellant.

      Principal and surety — Contracts—Surety company — Construction— Eminent domain — Land damages — Railroads—Conveyance of fee.

    1. The trend of all our modern decisions, federal and state, is to distinguish between individual and corporate suretyship where the latter is an undertaking for money consideration by a compány chartered for the conduct of such business. In the one ease the rule of strictissimi juris continues to prevail; with respect to the other, because it is essentially an insurance against risk, underwritten for a money consideration by a corporation adopting such business for its own profit, the courts generally hold that such a company can be relieved from its obligation of suretyship only where a departure from the contract is shown to be a material variance. The doctrine that a surety is a favorite of the law, and that a claim against him is strietissimi juris does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves “surety companies” their business is in all essential particulars that of insurance. Their contracts are usually in the terms prescribed by themselves, and should be construed most strictly in favor of the obligee.
    2. Land taken from an owner under the right of eminent domain for railroad purposes has no further practical value to the owner, in view of the rights of the railroad company in it and over it, and therefore, though only an easement is taken for the public use, no deduction is made, in practice, in the assessment of damages, for the reversionary right.
    3. Where a surety company enters into a contract of suretyship with a landowner to secure tbe payment to him of damages resulting from the. taking of his land by a railroad under right of eminent domain,the contract stipulating that the surety company would pay him, if the railroad did not, the amount of damages to which he might be entitled in consequence of the location and construction of the railroad, after said amount had been agreed upon by him and the railroad company or assessed under the provisions of the statute, there is no material departure from the bond and the surety company is liable thereunder where an agreement is entered into between the landowner and the railroad company fixing “the value of the land and the damages to the property by reason of the location, and construction of the railroad through it” at a fixed sum, and providing for the conveyance of the land to the railroad company in fee.
    Argued March 13,1911.
    Appeal, No. 52, Jan. T., 1911, by Title Guaranty & Surety Co., from judgment of C. P. Bradford Co., Sept. T., 1908, No. 46, on verdict for plaintiff in case of John H. Brown v. Title Guaranty & Surety Co., and the Pittsburg, Binghamton & Eastern Railroad Company.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit against principal and surety on a condemnation bond. Before Fanning, P. J.
    The opinion of the Supreme Court states the case.
    Judgment against the Pittsburg, Binghamton & Eastern Railroad Company for want of an appearance. Verdict and judgment for the plaintiff for $2,226 against the Title Guaranty & Surety Company by direction of the court with question of law reserved, on which final judgment was entered for the plaintiff on the question of law reserved. The Title Guaranty & Surety Company appealed.

      Error assigned was in entering judgment for plaintiff and refusal of judgment for the surety company.

      Wm. A. Skinner, with him Wm. Maxwell and Stone & Brooks, for appellant.
    — The defendant company never agreed to become surety for the payment to Brown of the purchase price of the land in fee simple.

      The appropriation of land under the power of eminent domain does not give a fee simple estate therein in the absence of express statutory language to that effect, but only a right to use and occupy the land for the purpose for which it is taken: Lazarus v. Morris, 212 Pa. 128; Pittsburg & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23; Pittock v. Telegraph Co., 31 Pa. Superior Ct. 589; Oakland Ry. Co. v. Keenan, 56 Pa. 198; Lance’s App., 55 Pa. 16; Dilts v. R. R. Co., 222 Pa. 516; Hasson v. R. R. Co., 8 Phila. 556; Carter v. Turnpike Co., 22 Pa. Superior Ct. 162.
    ■ The modern doctrine announced in Young v. American Bonding Company, 228 Pa. 373, and cited by the lower court in the opinion filed does not work such a radical change in the law of suretyship as to make the surety liable in this case: Bauschard Co. v. F. & C. Co., 21 Pa. Superior Ct. 370; Hutchinson v. Woodwell, 107 Pa. 509; American Bonding Co. v. Inv. Co., 150 Fed. Repr. 17.

      T. S. Hickok, of Sechrist & Hickok, with him Lilley & Wilson, for appellee.
    — If an entire lot is taken, its value at the time of taking determines the amount of the damages Junction R. R. Co. v. Philadelphia, 88 Pa. 424; Washington Cemetery v. Prospect Park & Coney Island R. R. Co., 68 N. Y. 591.
    Where an easement is taken for a highway the compensation is generally estimated in practice at the value of the land itself: Penna. R. R. Co.’s App., 2 Walk. (Pa.) 506; Pennsylvania R. R. Co. v. Bruner, 55 Pa. 318; Tucker v. R. R. Co., 27 Pa. 281; Penna. R. R. Co. v. Heister, 8 Pa. 445; Penna. Schuylkill Val. R. R. Co. v. Paper Mills, 149 Pa. 18; Dilts v. Plumville R. R. Co., 222 Pa. 516; Pitts., Ft. Wayne & Chi. Railway v. Peet, 152 Pa. 488; Reading v. Davis, 153 Pa. 360; Junction R. R. Co. v. Boyd, 8 Phila. 224.
    The defendant company is a concern for the purpose, among others, of assuming for pay risks of the nature it did assume in this case, and undoubtedly this risk in question was upon a valuable consideration. The law draws a distinction between such sureties and cases of suretyship by private persons for the accommodation of their friends: Young v. American Bonding Company, 228 Pa. 373.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

The route of the Pittsburg, Binghamton & Eastern Railroad Company, as surveyed and laid out, ran through lands of the appellee. He accepted its bond, with the appellant as its surety, to secure the payment of the damages to which he might be entitled. The condition of the obligation was as follows: “If the said Pittsburg, Binghamton & Eastern Railroad Company shall pay or cause to be paid unto the said John H. Brown such amount of damages as the said John H. Brown shall be entitled to receive, in consequence of the location and construction of said railroad after the same shall have been agreed upon by the parties or assessed by and under the provisions of the acts of the general assembly, in such case made and provided, whether the same exceed the amount of the penalty in this bond mentioned, or not, without fraud or further delay, then this obligation to be null and void; otherwise to be and remain in full force and effect.” Some months after the bond was given to the appellee he and the railroad company agreed, in writing, that the value of the land and the damages to his property by reason of the location and construction of the railroad through and over it amounted to $5,500, and the agreement provided that upon the payment of the said sum, with interest, he would execute and deliver a deed to the railroad company for the right of way and the land occupied, free and clear of all incumbrances. The unsuccessful contention of the appellant in the court below, renewed here, is that the agreement of the appellee with the railroad company, made without notice to or consent by it, released it from liability on the bond, because “the amount agreed to be paid by the railroad company included not only the damages contemplated by the bond, but, in addition thereto, the value of the land itself, which, for the consideration agreed upon, the obligee agreed to convey to the railroad company in fee simple.”

The appellant is engaged in the business of becoming surety. It assumes its undertakings for a consideration and the rule of strietissimi juris which applies to an individual surety is relaxed as to it. “ The trend of all our modern decisions, federal and state, is to distinguish between individual and corporate suretyship where the latter is an undertaking for money consideration by a company chartered for the conduct of such business. In the one case the rule of strietissimi juris prevails, as it always has; with respect to the other, because it is essentially an insurance against risk, underwritten for a money consideration by a corporation adopting such business for its own profit, the courts generally hold that such' a company can be relieved from its obligation for suretyship only where a departure from the contract is shown to be a material variance. ‘ The doctrine that a surety is a favorite of the law, and that a claim against him is strietissimi juris does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves “surety companies” their business is in all essential particulars that of insurance. Their contracts are usually in the terms prescribed by themselves, and should be construed most strictly in favor of the obligee:’ 32 Cyc. 306, and the authorities there cited in support:” Young v. American Bonding Company, 228 Pa. 373. See also City of Philadelphia v. Fidelity & Deposit Company of Maryland, 231 Pa. 208, decided at present term.

The appellant’s contract of suretyship with the appellee was that it would pay him, if the railroad company did not, the amount of damages to which he might be entitled in consequence of the location and construction of the railroad, after said amount had been agreed upon by him and the railroad company or assessed under the provisions of the statute. The appellee and the railroad company agreed “that the value of the land and the damages to the property by reason of the location and construction of the railroad through it” amounted to $5,500. If the agreement had stopped there, it is to be assumed that the appellant would not be questioning its liability on the bond, for this agreement was simply what viewers would have been required to find and report, if they had been appointed to assess the damages. Sec. 11 of the general railroad Act of February 19, 1849, P. L. 79, provides that it shall be the duty of the viewers, inter alia, “to estimate and determine the quantity, quality and value” of the lands taken or occupied, and “to estimate and determine whether any, and, if any, what amount of damages has been sustained.” The sole question to be determined is whether the agreement to convey the land in fee to the railroad company was a material departure from what was contemplated by the terms of the appellant’s bond. If it was not, the appellant has not been prejudiced, and cannot, therefore, successfully contend against its liability.

If an entire lot of ground, and not merely a portion of it, is taken for railroad purposes, the value of the entire lot at the time of the taking determines the amount of damages: Spring City Gas Light Company v. Pennsylvania Schuylkill Valley R. R. Co., 167 Pa. 6. No allowance is made for any reversionary interest in the owner, for the fee, subject to the easements or right of way, is absolutely worthless: Junction Railroad Company v. Philadelphia, 88 Pa. 424. The interest acquired by a railroad company under the right of eminent domain, while not a fee, is not a mere easement or right of way. It is more. It is the right to the actual and exclusive possession of the property at-all times and for all purposes except where a way crosses it: Pittsburgh, Ft. Wayne & Chicago Ry. v. Peet, 152 Pa. 488; Reading v. Davis, 153 Pa. 360; Dilts v. Plumville R. R. Co., 222 Pa. 516. “Such title is sometimes called an easement., but it is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure including necessary foundations and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee. ... It would seem to be rather a fee in the surface and so much beneath as may be necessary for support, though a base or conditional fee, terminable on the cesser of the use for railroad purposes. But whatever it may be called it is in substance an interest in the land special and exclusive in its nature:” Mitchell, J., in Pennsylvania Schuylkill Valley R. R. Co. v. Reading Paper Mills, 149 Pa. 18. Land taken from an owner under the right of eminent domain for railroad purposes has no further practical value to the owner, in view of the rights of the railroad company in it and over it, and che records may be searched in vain to find where anyone has purchased as a thing of value the ultimate reversionary right of the owner of the fee upon the cesser of the railroad company’s use of the land, and, therefore, it is that, though only an easement is taken for the public use, no deduction is made, in practice, in the assessment of damages for the reversionary right: Pierce on Railroads, 159. While authorities in support of this need not be multiplied, one directly in point may be cited. In Murray et al. v. County Commissioners, 53 Mass. 455, a turnpike road was changed into a public one, and the owners of the fee in the bed of the turnpike claimed that the land reverted to them on the discontinuance of the road by the turnpike company, and asked for the appointment of a jury to assess their damages as if the road were being originally laid out. In holding that they were entitled to no damages, Shaw, C. J., in delivering the opinion of the court, said: “The proprietors have already been paid for a perpetual easement over their land, for all the actual uses and purposes of public travel; a payment commonly estimated in practice at the value of the land itself.”

The agreement between the railroad company and the appellee as to the amount of damages to which he was entitled was substantially such as is contemplated by the act of 1849, and the covenant of the appellant was to pay the damages so ascertained and agreed upon. If the railroad company got a deed for the land, it acquired nothing in effect under the same that it had not acquired in the exercise of its right of eminent domain, and for what it so acquired the appellant agreed to pay, if it did not. In giving the deed the appellee did nothing to the prejudice of the appellant.

Both assignments of error are overruled and the judgment is affirmed.


text:
    Archambault’s Estate
    (No. 1).

      Practice, O. C. — Decisions in limine — Wills—Construction.
    1. The courts of Pennsylvania have no jurisdiction to declare the construction of a will and rights under it by way of advice in limine, and without adverse litigants actually before them.
    2. Where a testator, after directing that the income from certain real property should be paid to his widow for life, makes provision for a fund to support a church pew in perpetuity out of the income after her death, the validity of the latter provision cannot properly be raised in court until after the termination of the widow’s life estate.
    Argued March 20, 1911.
    Appeal, No. 363, Jan. T., 1910, by Virginia M. Hart, from decree of O. C. Phila. Co,, Jan. Term, 1907, No. 272, in dismissing exceptions to adjudication in Estate of Victor E. Archambault, Jr., deceased.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to adjudication.

      Theodore F. Jenkins, for appellant.

      A. I. Phillips, with him J. Kirk McCurdy, for Dora B. Archambault and the trustees under the will, etc., appellees.

      Samuel H. Thomas, with him Robert D. Maxwell, for legatees, appellees.
    — The discussion of this question is premature: Fabian’s Est., 18 Phila. 175.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

In the fourth paragraph of the will of Victor E. Archambault, Jr., he provided as follows: “After the death of my said wife, I direct my trustees to set aside out of the income from my said property at the Northeast corner of Eleventh and Market streets, or out of the income from the proceeds of the sale of that property, a sum, the interest of which will be sufficient to pay the rent, for all time to come, of my pew, number six, in the Church of the Holy Trinity, situate at the Southwest corner of Nineteenth and Walnut streets in the city of Philadelphia, to be free forever as a memorial to myself.” Upon the audit of the account of the trustees, it was contended upon behalf of Mrs. Virgina M. Hart, claiming as heir, under the intestate laws that this provision taking effect at the death of the cestui que trust for life, was void for uncertainty as to the amount required, and that it and all subsequent provisions relating to the trust, fell, and that the estate passed, therefore, under the intestate laws.

The auditing judge and the court below in banc refused to take this view, and held that this question could not properly be raised until the expiration of the life estate, and it was not therefore to be considered or decided at the present time. We agree entirely with this conclusion. It is clear that the testator made his wife the first object of his bounty, for after giving her the house in which he lived, and all of his personal property, he directed that all the net income from his property at Eleventh and Market streets should be paid to her for life. Clearly the widow was entitled to the entire sum which was ready for distribution, under the present account. Any question as to the ultimate distribution of the estate cannot arise until after the termination of the life estate. There is abundant authority to sustain the auditing judge, in declining, at the present time, to declare the rights of the parties under the will, as respects the subsequent trusts. In Willard’s Appeal, 65 Pa. 265, speaking of the settlement of questions arising upon the construction of a will, by way of anticipation, Mr. Justice Sharswood said (p. 268): “The acts of assembly which confer jurisdiction on the orphans’ court may be searched in vain for any such power. Without authority so derived we must say that the decree below or in this court on appeal would be inconclusive and possibly a snare. It would not be binding upon any of the parties; certainly not upon those of them not sui juris. Consent cannot give jurisdiction. Any opinion which we should express upon the proper construction of this will in this appeal would be merely extrajudicial.” The same principle is reiterated in Tyson’s Estate, 191 Pa. 218, where Mr. Justice Mitchell said (p. 224): “It is quite true that the courts of Pennsylvania have no jurisdiction to declare the construction of a will and rights under it by way of advice in limine, and without adverse litigants actually before them. It is not desirable that they should have.”

In the present case, the setting out of an estate for the life of the widow is clearly a valid limitation, which is readily separable from the subsequent limitations. There is no good reason for involving it in any way with the provision for the distribution of a portion of the remainder which is claimed to be void by reason of uncertainty. It will be time enough to meet the question of the validity of the provision for a fund to support a church pew in perpetuity, when that question can properly be raised after the termination of the life estate. Its consideration and decision would have been premature, upon the audit of the account in this case.

The specifications of error are dismissed, and the decree of the orphans’ court is affirmed. '


text:
    Archambault’s Estate
    (No. 2).

      Wills — Trusts and trustees — 1/i.fe tenant and remainder-men — Rent— Apportionment — Landlord and tenant.

    1. Where a testator devises certain real estate to his executors in trust to rent and manage with power to sell and invest and to pay over the net income to his widow for life and after her death to make certain payments out of the income from the property or from the proceeds of its sale, and at the time of testator’s decease the property is leased for a term ending January 1, 1913, at a rental of $1,041.67 per month, and thereafter a third party, in pursuance of an agreement with the original lessees, enters into a new lease with the trustees for the term of ten years, the rental to'be paid: $10,000 in cash at the signing of the lease, $1,041.67 to be paid monthly until January, 1913, and thereafter $1,750 per month during the remainder of the lease, the $10,000 is properly payable to the widow as rental accrued in her lifetime.
    2. In Pennsylvania rent is not apportionable in respect of time.
    Argued March 20,1911.
    Appeal, No. 364, Jan. T., 1910, by Madeleine A. Hart, from decree of O. C. Phila. Co., Jan. T., 1907, No. 272, dismissing exceptions to adjudication in Estate of Victor E. Archambault, Jr., deceased.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to adjudication.

      Theodore F. Jenkins, for appellant.
    — It is respectfully submitted that the $10,000 was paid for the privileges which the lessee obtained, that the increased rent to be paid during the last six years was because of a supposed increased rental value of the property during that time: Askew v. Woodhead, L. R. 14 Ch. Div. 27; Walsh’s Trusts, 7 L. R. Ir. 554; In re Rodes, L. R. 1 Ch. Div. (1909) 815; Davies v. Harrison, L. R. 2 Ch. Div. (1907) 296; Fullerton’s Will, L. R. 2 Ch. Div. (1906) 138.

      A. I. Phillips, with him J. Kirk McCurdy, for appellees,
    cited: Earp’s Will, 1 Parson’s Select Equity Cases, 453.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

Victor E. Archambault, Jr., died January 10, 1906, seized in fee of the premises at the northeast corner of Eleventh and Market streets, Philadelphia, and leaving a will dated February 9, 1904, which was duly admitted to probate and letters testamentary thereunder granted. He devised the property above mentioned to his executors in trust to rent and manage the same, with power to sell and invest the proceeds and to pay over the net income to his wife during the term of her natural life, and after her death to make certain payments out of the income derived from the property or from the proceeds of its sale; a portion of such income to be paid to testator’s niece, Madeleine A. Hart, during her life. At the time of testator’s death the premises in question were leased for a term ending January 1, 1913, at a rental of $12,500 per annum, payable in monthly installments of $1,041.67 each. The United Gas Improvement Company having arranged with the former lessees, entered into a new lease with the trustees for the term of ten years from January 1, 1909, the rent to be as follows: $10,000 in cash at the signing of the lease; $1,041.67 to be paid monthly until January, 1913, and thereafter $1,750 per month during the remainder of the term. The lessees paid the $10,000, entered into possession, and also paid the subsequently accruing installments of rent each month.

On November 10, 1909, the trustees filed an account, wherein they charged themselves with the $10,000 paid by the lessees on the execution of the lease. At the audit, the widow claimed the whole $10,000, as rent accrued in her lifetime, but the niece, Madeleine A. Hart, contended that this sum should be ratably distributed over the whole term for the benefit of those entitled to it during the term. The auditing judge held that the amount was to be treated as rent of the year in which it was paid, and awarded it all to the widow. Upon exceptions, the court in banc modified the decree to the extent of distributing the $10,000 in equal monthly payments during the term of four years from January 1, 1909. This was done upon the theory that it would make the rent reserved conform in its monthly collections to the reasonable economic value of the property during that part of that term.

The appellant here complains that the court below erred in not directing that the $10,000 should be apportioned in equal monthly payments to those entitled to the beneficial interest during the ten years from January 1, 1909, the certain term of the lease. In the opinion of the auditing judge, as in that of the court in banc, the rule of the common law was recognized that rent is not to be apportioned in respect to time. It is not to be regarded as accruing from day to day, as interest does. This rule has been altered in England by the apportionment act of 1870, 33 and 34 Victoria, chap. 35, so that rents, annuities, etc., are now there considered as accruing, like interest, from day to day, and are made apportionable in respect to time. See 1 Woodfall on Landlord and Tenant (1st Am. ed. 1890) *405-6. But we know of no such legislation in Pennsylvania. In Agnew’s Estáte, 17 Pa. Superior Ct. 201, it was held that where rent was paid to a life tenant in advance, and the life tenant died before the expiration of the term for which the rent had been paid, the remainder-man could not recover any portion of the amount so paid in advance from the estate of the life tenant, although both had joined in the lease. Referring to the Act of February 24,1834, sec. 7, P. L. 70, Judge Beaver further said (p. 203): “But this section relates to rents accruing, not to those which have accrued; and, if it has any application to this case, would by inference at least indicate that rents which had accrued would be properly included in the estate of a deceased life tenant.”

In the case at bar, the widow is entitled under the will of her husband to the entire net income accruing from the premises at Eleventh and Market streets, during her lifetime. As to when or how the income should be paid to her by the trustees, the will is silent. But the net income belonged to her, whenever it was realized. It matters not whether the sum of $10,000 in question be regarded technically as rent, as it was called in the lease, or as a bonus; it was certainly income derived from the premises which were made the subject of a trust for her benefit during her lifetime. Being received by the trustees during the lifetime of the widow, she was clearly entitled to it under the will. Suppose the building had been rented for an extraordinary sum for a short time, as buildings are known at times to be let upon unusual occasions such as the passing of a pageant, or during inaugural, or other ceremonies. Certainly such extraordinary rent would belong to the life tenant. We do not agree with the suggestion of the court below that the rule of law that rent is not apportion-able, applies only to “normal rent.” We see no reason for any such distinction, and no authority to sustain it has been cited. For some reason satisfactory to itself, the new tenant was willing to pay a large bonus to the trustees for an extension of the lease. The remainder-men have not been prejudiced in any way by the transaction. In addition to the bonus, the trustees are. receiving the same rental, $12,500 per annum, as that reserved in the original lease. After January 1, 1913, the rental will be at the increased rate of $21,000, per annum. We agree with the auditing judge that the payment of this bonus of $10,000, or the initial payment of that sum as rent, however it may be regarded, belongs to the life tenant, and should have been awarded to her. The court in banc was in error in directing that the sum should be apportioned over a period of four years. However, the life tenant has acquiesced in the final decree of the orphans’ court, and has taken no appeal. Her counsel is here asking that the decree of the court below be affirmed. The present appeal is by one of those interested in remainder, who contends that the sum should be apportioned throughout the entire term of the lease, a period of ten years. The specifications of error filed in her behalf are dismissed, and the decree of the orphans’ court is affirmed.