text:
    Sherman v. Herr, Appellant.

      Equity — Answer—Responsive answer — Contracts—Evidence.
    A responsive answer to a bill in equity denying the existence of a contract is met and overcome, where three disinterested witnesses for the plaintiff testify to the existence of the contract, and this evidence is supported by the testimony of the plaintiff and admissions of the defendant.

      Contract — Consideration—Mutuality—Joint purchase of shares of stock — Equity—Specific performance.

    An oral contract between two persons to purchase shares of stock of a corporation does not lack mutuality, where by its terms it provides that the purchase is to be made by either of the parties as opportunity might offer, for their mutual benefit, and that after the shares were purchased they were to be equally divided between the parties, each paying one-half of the purchase price. In such a case either party has the right in the exercise of good faith to pay what he deems proper for the stock, and the other party must pay one-half of the money expended. If it appears that the stock is not procurable in the market, and that its pecuniary value is not readily ascertainable, the contract may be specifically enforced. The person purchasing the stock and refusing to share it with the other party, is a trustee ex maleficio of the other party, and equity will enforce the trust.

      Whsre the original subscribers to the stock of a corporation agree that in case any of them might desire to sell their stock, they shall first offer it to the remaining subscribers, and it appears that of the remaining three original subscribers two had sold their stock to other parties in violation of the agreement, such an agreement cannot be set up against the other one of the three original subscribers when he attempts to compel a third party to deliver'to him stock which such third party had contracted to deliver.
    Argued Feb. 18, 1908.
    Appeal, No. 353, Jan. T., 1907, by defendant, from decree of C. P. Lebanon Co., Equity Docket, 1906, Ho. 9, on bill in equity in case of Ray T. Sherman v. Rudolph F. Herr.
    Before Mitchell, O. J., Fell, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Bill in equity for specific performance.
    Before Ehbgood, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree enforcing specific performance.

      C. V. Henry, with him W. U. Hensel, for appellant.
    The contract is void for uncertainty : Sherman v. Sherman, 17 S. & R. 45 ; Graham v. Graham’s Executors, 34 Pa. 475 ; Hammer v. McEldowney, 46 Pa. 334 ; VanHorn v. Munnell, 145 Pa. 497 ; Purves’s Estate, 196 Pa. 438 ; Frick v. Ozias, 1 Phila. 177.
    A court of equity will not decree specific performance of an agreement to buy and dividé shares of stock where it has an ascertainable market value, more than half the stock of the company having changed hands within a year at slightly varying prices : Goodwin Co.’s Appeal, 117 Pa. 514.

      Charles H. Killing er, for appellee.
    Mutual promises are a valuable consideration for a binding contract that surviving stockholders should have an option to purchase stocks at book values ; such an agreement is valid and lawful: Fitzsimmons v. Lindsay, 205 Pa. 79.
    The contract is enforceable in equity : Northern Cent. Ry. Co. v. Walworth, 193 Pa. 207 ; Fitzsimmons v. Lindsay, 205 Pa. 79 ; Goodwin Co.’s Appeal, 117 Pa. 514 ; Leach v. Fobes, 77 Mass. 506 ; Cushman v. Thayer Mfg. Jewelry Co., 76 N. Y. 365 ; Bumgardner v. Leavitt (W. Va.), 12 L. R. A. 776.
    A trust exists as to this stock : McCutcheon v. Smith, 173 Pa. 101 ; Fairlamb v. Hempshire, 7 W. N. C. 92 ; Kennedy v. McCloskey, 170 Pa. 354.
    March 16, 1908 :
   Opinion by

Mr. Justice Mestrezat,

The court below found the following contract to have been entered into by the parties : “ Ray T. Sherman, the plaintiff, and R. F. Herr, the defendant, on August 20, 1906, mutually and verbally agreed with each other- to procure by purchase the 150 shares of stock of A. G-. Stauffer and the 150 shares of stock of W. A. Wengert in said Calcite Quarry Company for their mutual benefit, the purchase to be made by either of them, as opportunity might offer, and after being so purchased the said shares were to be equally divided between them, each paying one-half of the purchase price.”

There was ample evidence before the court to support this finding. At least three disinterested -witnesses in addition to the plaintiff and the admissions of the defendant sustain the contract as found by the court. The responsive answer of the defendant to the bill was, therefore, overcome by the testimony on the part of the plaintiff. In fact, the defendant’s own admissions when on the witness stand tend to contradict his answer filed to the plaintiff’s bill. The learned judge was clearly right in finding the contract to be as he has stated it in his opinion.

There was no lack of mutuality in the contract. Sherman and Herr agreed to buy the 300 shares of stock owned by Stauffer and Wengert, and divide the shares between them. Either party was to make the purchase as opportunity might offer, and each was to pay one-half of the purchase price. The contract was, therefore, mutual, and the mutual promises constitute a valuable consideration and make the contract valid : Berger’s Appeal, 96 Pa. 443 ; Fitzsimmons v. Lindsay, 205 Pa. 79 ; 23 Cyclopedia of Law and Procedure, 452.

The contract between the parties contemplated the purchase of the Stauffer and Wengert stock and its division equally between the plaintiff and the defendant. It is true there was no specific price fixed by the parties in their agreement at which the stock was to be purchased. This, however, was not necessary to the validity of the contract. The stock was to be purchased for the mutual benefit of the parties, and either was authorized to make the purchase whenever there was a favorable opportunity. The price at which the purchase was made fixed the price which the one making the purchase was to receive from the other party. The main and important feature of the agreement was the purchase of the stock, both parties being willing to pay the price at which it could be obtained. Each party, therefore, was unrestricted as to the price he should pay the owner of the stock, and the other party was bound to accept it at the price at which, in good faith, the purchase was made. Either party making the purchase had the right to enforce contribution from the other for the one-half of the money expended to obtain the stock. The contract as to price, therefore, is capable of being made certain, and hence the maxim id certum est quod cerium reddi potest is applicable.

¥e have no doubt as to the right of the plaintiff to have specific performance of the contract. It appears from the findings of the court that the stock is not procurable in the market and its pecuniary value is not readily ascertainable. It further appears that the stock is of peculiar value to the plaintiff in order that he may obtain a proper and legitimate control over the management of the corporation. In such cases, the court will require the party to specifically perform the contract and deliver the stock: 26 Am. & Eng. Ency. of Law (2d ed.), 122; Leach v. Fobes (Mass.), 71 Am. Dec. 732 ; Cushman v. Thayer Manufacturing Jewelry Company (N. Y.), 32 Am. Rep. 316; Bumgardner v. Leavitt (W. Va.), 12 L. R. A. 776. Under such circumstances, the injured party would sustain irreparable injury and adequate relief could not be given by an action at law. Equity would, therefore, afford him relief : Northern Central Railway Company v. Walworth, 193 Pa. 207; Goodwin Company’s Appeal, 117 Pa. 514; New England Trust Company v. Abbott, 162 Mass. 148.

The contract entered into by the parties required them to act in the utmost good faith towards each other in purchasing the stock. Each acted for the other as well as himself. Equity, therefore, will not permit the purchaser to hold the stock which was purchased for the other party. A party purchasing stock under the circumstances of this case becomes a trustee and holds it for the other party in the joint venture: 23 Cyclopedia of Law and Procedure, 455. He is a trustee ex maleficio for the plaintiff and as such is required to account to the plaintiff for the one-half of the stock he purchased: Kennedy v. McCloskey, 170 Pa. 354; Fairlamb v. Hempshire, 7 W. N. C. 92. Confidence was reposed by the plaintiff and defendant in each other in entering into the .contract to make the purchase of this stock, and justice forbids that it shall be abused: Rankin v. Porter, 7 Watts, 387.

It is argued by the defendant’s counsel that the plaintiff is not entitled to relief in equity because it would violate the agreement between the original subscribers which provides that in case any of them might desire' to sell their stock they shall first offer it to the remaining subscribers who should have the option to buy. That argument, however, overlooks the fact that there are only three of the original stockholders owning stock at this time, two besides the plaintiff; and that these two stockholders have by their action in selling their stock to other parties waived their right to insist upon the enforcement of the agreement between the original stockholders. There are, therefore, none of the present owners of the stock who are in a position to assert his right to enforce the agreement between the original stockholders to buy the stock of anyone who desired to sell.

Under the facts found by the court below, which are amply supported by the evidence, the plaintiff is entitled to the relief he seeks in the bill filed in this case, and, therefore, the decree is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    O’Malley, Appellant, v. Loftus.

      Will — Devise—Life estate.

    Testator by his will directed as follows: “I give and bequeath to my son — Frank, on his reaching the age of twenty-one years, a lot of land being number twenty on Lackawanna avenue in the Eighth ward said City of Scranton together with all improvements thereon, also a lot of land on Jefferson avenue said city being number nineteen (19) Block, 73 in the ninth ward, with all improvements thereon, to have and to hold the same for and during his natural life, and at his death I give and bequeath the same to his next nearest blood relations, share and share alike.” All parts of the will were badly punctuated; and in another clause apt words were used to give an estate in fee. Held, that the son took only a life estate in the Lackawanna avenue lot.
    Argued Feb. 24, 1908.
    Appeal, No. 241, Jan. T., 1907, by-plaintiffs, from judgment of C. P. Lackawanna Co., Sept. T., 1906, No. 1,389, for defendant on case stated in suit of P. J. O’Malley and Genevieve M. O’Malley v. John J. Loftus.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    Before Edwards, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered judgment for defendant on the case stated.

      Error assigned was in entering judgment for defendant on the case stated.

      Charles P. O'Malley, with him E. K. Willard, Everett Warren and Henry A. Knapp, for appellants.
    No paper-book filed for appellee.
    March 16, 1908 :
   Per Curiam,

The decisive question in this case is whether Frank McCann took a fee to lot No. 20 on Lackawanna avenue, under the following. clause of his father’s will: “ Eighth. I give and bequeath to my son — Frank, on his reaching the age' of twenty-one years, a lot of land being number twenty on Lackawanna avenue in the Eighth ward said city of Scranton together with all improvements thereon, also a lot of land on Jefferson avenue said city being number nineteen (19) Block, 73 in the ninth ward, with all improvements thereon, to have and to hold the same for and during his natural life, and at Ms death I give and bequeath the same to Ms next nearest blood relations. share and share alike.”

The seventh, clause of the will devising land to another son is in the same words, except the name of the devisee and the description of the property devised. It was construed in McCann v. McCann, 197 Pa. 452, and it was held that the words, “ next nearest blood relations,” as used by the testator, did not mean heirs general^, and that only a life estate was given. The land in question in that case, as in this, was that devised by the first part of the clause, but the only question raised by the appeal related to the application of the rule in Shelley’s Case. It is now argued that the devise of the Lackawanna avenue lot, ending with the word “ thereon,” followed by a period, was complete in itself and passed the fee, and that the limitation over at the end of the clause applied only to the Jefferson avenue lot.

But it is evident that no reliance whatever can be placed on the punctuation of the will as indicating the intention of the testator. Throughout the whole will periods are used where commas should have been used, and in very many cases they are used where no punctuation was required. In other parts of the will apt words to devise a fee are used, and the construction contended for would defeat the evident intention of the testator. On this subject it was said by the learned judge of the common pleas : “ The devise to Frank McCann of lot 20, on Lackawanna avenue, is without words of inheritance, although the testator in paragraphs 3 and 4 used apt words to convey a fee simple estate. According to paragraph 4 the wife is given a life estate in the homestead, but at her death the property is devised to her daughter ‘ absolutely to herself and her heirs and assigns forever.’ We find the same words used in paragraph 3. If the testator intended to give a fee simple estate to his children in the properties mentioned in the other paragraphs, is it not reasonable to conclude that he would have used words of inheritance, as he had already done in paragraphs 3 and 4 ? It is true that words of inheritance are not necessary to carry a fee rather than a life estate ; but this provision of the act of assembly is of no avail if it ‘ appears by a devise over or by words of limitation or otherwise that the testator intended to devise a less estate.’ ”

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Kuhbach v. Irving Cut Glass Company, Appellant.

      Mandamus — Alternative mandamus — Awarding writ — Waiver of irregularities — Return—Practice, C. P.

    Where the court in making an order for mandamus against a corporation inadvertently uses the word “issued” instead of “awarded,” and the prothonotary instead of issuing the writ of mandamus prepares a certified copy of the petition and order of court, which the sheriff serves upon the president of the company, the proeeedihg is wholly irregular. The prothonotary should issue a writ in the alternative form demanding the respondent to do the things required in the order of the court. Such irregularity, however, may be waived by an agreement that the paper served on the president shall be regarded as an alternative writ,'followed by a return made by the president “for himself and the other-respondents, officers of the said corporation.” It is no argument that the agreement should not be enforced, because the president would otherwise have been subject to an attachment.

      Corporations — Stockholders’ rights to inspect hooks — Mandamus.
    Where a stockholder furnishes sufficient data to warrant the conclusion that there is mismanagement and that the affairs of the company are not conducted in a proper manner and in the interests of the stockholders, he has a right to demand of the officers of the company permission to examine the books, records and accounts of the corporation so that he may protect his interests by a bill in equity or otherwise; and if the demand is refused and he makes application to the court to enforce it, a mandamus should be awarded. The mere fact that the relator in such a proceeding is a stockholder in a competing company, is not of itself sufficient to deprive him of the relief which he seeks by mandamus; nor is an offer by the defendant company to buy the relator’s stock at a price fixed by the company a sufficient answer to his demand for an inspection of the books and papers of the company.
    At common law a stockholder of a trading corporation has a right to examine the books and papers of the company at a reasonable time and place, and for a proper purpose.
    Argued Feb. 24, 1908.
    Appeal, No. 264, Jan. T., 1907, by-
    defendant, from order of O. P. Wayne Co., March T., 1907, Eo. 99, awarding mandamus in case of John Kuhback v. Irving Cut Glass Company.
    Before Fell, Bkown, Mesteezat, Pot-tee and Stewaet, JJ.
    Affirmed.
    Petition for mandamus.
    Before Ptjbdy, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in awarding writ of mandamus.

      II. Wilson, with him P. II. Hoff, for appellant.
    The relator had no proper purpose for the examination of the books : Com. v. Pass. Ry. Co., 133 Pa. 237 ; Rex v. Merchant Tailors’ Co., 2 B. & A. 115 ; Com. v. Coit, 15 W. N. C. 484.

      Charles A. MeCariy, for appellee.
    Plaintiff -was entitled to the writ: Neubert v. Armstrong Water Co., 211 Pa. 582 ; Com. v. R. R. Co., 3 Pa. Dist. Rep. 115 ; Com. v. Phœnix Iron Co., 105 Pa. 111.
    March 16, 1908 :
   Opinion by

Mr. Justice Mestrezat,

This is a mandamus to compel the defendant company, a trading corporation, to permit the relator, a stockholder, to inspect its books and records. The objections of the defendant to the petition, the order of the court, and the form of the writ and its service were well taken and would have to be sustained if they had not been waived. The Act of June 8, 1893, P. L. 345, 3 Purd. (13th ed.) 2424, prescribes the mode of procedure in mandamus proceedings. The petition should contain the jurisdictional facts, and upon its presentation the court should award an alternative writ. The writ, as in other cases, should be issued by the prothonotary in the usual form. In this case, however, the court in making the order inadvertently used the word “ issued ” instead of awarded,” and the prothonotary instead of issuing the writ of mandamus prepared a certified copy of the petition and order of court which the sheriff served upon the president of the company. This was wholly irregular and not a compliance with the well-established practice in- such cases. The prothonotary should have issued a writ in the alternative form commanding the respondent to do the things required in the order of the court.

The defendant company, however, waived all defects in the proceedings prior to the return. It agreed that the papers served on the defendant’s president should be regarded as an alternative writ of mandamus, and filed a return thereto. By filing a return in pursuance of this agreement, the company waived all the irregularities in the proceedings. ' The papers were served only on the president of the company, but he made a return for himself and the other respondents, officers of said corporation.”' The plaintiff took chances in failing to name the officers, as contemplated by section 7 of the act of 1893. The papers were served only upon George H. Reichenbacher, and of course he is the only one who could be compelled to make a return to the writ. He, however, as president of the company, has answered for all the officers of the corporation, and they are, therefore, in court and subject to its orders.

It has been argued that defendant’s agreement that the papers should be considered as an alternative writ'of mandamus should not be enforced, because the president of the corporation would otherwise have been subject to an attachment. But this is not sufficient to relieve it from the agreement, because if an attachment had been awarded, it could have been superseded by' an appeal, and that would have prevented the enforcement of the attachment against the president until the appéal was disposed of. We notice the irregularities in the proceedings so that our silence may not be construed to mean a tacit approval of the defective pleadings.

The case was heard below .on the petition, the return and a demurrer to the return. The court awarded an alternative writ requiring the defendant to give the relator, with his clerk or clerks, access to all the books, records and papers of the company, or such of them as he may require in order to secure information regarding the matter set forth in the petition. The petitioner purchased at public auction on June 2, 1906, eight shares of the stock of the corporation, owned by the estate of Peter Orockenberg, one of the eight original stockholders ; and subsequently the company issued to Kuhbach a stock certificate. He requested the company to give him information as to its condition, the volume of business done, the amount of profits and the financial standing of the company. The information was refused. He also made a request of the officers for permission to examine the books, records and papers of the company, including pay roll, sales book, debits and credits of the company. This request wa,s likewise refused. The relator then filed this petition setting forth certain facts alleged to show reckless mismanagement of the corporation by its officers, and praying for a mandamus on the officers of the company to compel them to permit him to inspect the books and papers of the company and thereby acquire certain specific information to enable the relator, if necessary, to file a bill in equity to restrain the mismanagement which exists in the company. The petitioner avers that the company gave him a statement showing the alleged standing of the company on January 1, 1907; that if the statement is correct and shows the actual condition of the affairs existing in the company it discloses reckless mismanagement of the company’s business to such an extent that steps should be taken to correct the apparent mismanagement which exists in the company ; that if the statement is false, he is entitled to know what the real condition of affairs is in the company in which he has his money invested. The petitioner then states in detail some, items in the statement furnished him which he alleges sustain the allegation of mismanagement. In addition to what is disclosed by the items in the statement referred to, he alleges, what has not been denied by the return, that the company was very prosperous and paying large dividends up till July 25, 1904, and that since that time it has not declared a dividend, but is in debt as shown by its statement. The petitioner further avers that if the company is permitted to conduct its business, in the manner shown by the statement furnished him on January 1, 1907, it will soon become insolvent and perhaps necessitate a dissolution of the corporation. It is further averred that the petitioner has been denied all information by the officers of the company as to the business of the company, and that such information is necessary in order to enable the petitioner, as he purposes doing, to file a bill in equity against the company and its officers for the purpose of restraining them from the further commission of the acts complained of.

The return does not deny certain facts alleged in the petition, which we think are material and sufficient to warrant the court in granting the relief which the relator seeks. It does deny, however, the allegations of mismanagement of the business of the corporation, or that its business has been conducted in a way and manner injurious to the stockholders. It alleges that the relator in making a demand for the inspection of the books is not acting in good faith for the reason that he is a director in a competing glass company and desires the in formation that it may be used to the advantage of that company.

It is averred in the petition, and not denied by the return, that the business of the company was very prosperous prior to July 25, 1904, when Peter Crockenberg died. He was the owner of the five shares sold at auction and purchased by the relator. During the four years prior to the death of Crockenberg the earnings of the company amounted to 320 per cent on its capital stock. Since his death, and while the relator has owned the stock, a period of about three years, no dividends have been paid or declared by the corporation. The statement of January 1, 1907, shows, among other things, $3,780 due the incorporators for wages, and $1,244.40 loaned by them to the corporation and secured by notes, making a total of $5,024.40 due the incorporators who are also directors of the company. The statement further shows a bank note for $2,000, bills payable amounting to $2,199 and more than |800 due as commissions and expense of salesmen. There is also, as appears by the statement, a mortgage on the building for $6,300. The petition further avers that, from his knowledge of the company’s business, he believes that the capital stock should now be worth many times its original par value, and that a dividend of at least ten per cent should be declared by the company if its business had been properly, intelligently and economically transacted.

We think the averments in the petition, taken in connection with the statement of January 1, 1907, were sufficient to warrant the court in awarding the mandamus. The petition does not have to aver facts sufficient to sustain a bill filed for an accounting. The stockholders of a corporation are the owners of its franchise and its assets and they have a right to be informed of the financial condition of the company. When, therefore, a stockholder furnishes sufficient data to warrant the conclusion that there is mismanagement and that the affairs of the company are not conducted in a proper manner and in the interests of the stockholders, he has a right to demand of the officers of the company permission to examine the books, records and accounts of the corporation so that he may protect his interests; and if the demand is refused and he makes application fto the court to enforce it, a mandamus should be awarded. The facts averred in the relator’s petition were sufficient to justify the court in granting the alternative writ, and subsequently in awarding the peremptory writ.

That the relator is a stockholder in a competing company is of itself not sufficient to deprive him of the relief he seeks in this proceeding against the defendant company. This has been distinctly ruled in Cobb v. Lagarde, 129 Ala. 488. It is there said (p. 495): “ The defendant set up in his answer that the petitioner’s purpose in wanting to inspect the books was an improper one. This was defensive matter, and the burden was on the defendant to show it, and we are not prepared to say that he has done so. The fact of petitioner being a stockholder in a rival concern and that he may thereby gain some advantage by an inspection of the books of the defendant company, does not necessarily show an improper purpose in making demand for inspection, and will not deprive him as a stockholder of his right of investigation into the management of the affairs of the company.” In the case at bar there is simply an averment, on belief, that the relator desires the information to use it for the advantage of a competing company. It is not alleged in the return that the averment can be supported by proof.

The offer of the defendant company to buy the relator’s stock at a price fixed by it is no answer to his demand for an inspection of the books and papers of the corporation. He is not required to sell his stock to the defendant company or its officers at any price, and especially at a price to be named by them. In fact, it would be difficult for him to know what would be a fair and reasonable price for his stock until he gets the very information he demands in this proceeding. Nor is it an answer to the relator’s application that the company will furnish him extracts or copies from its books, or that the company will agree to have them inspected by an expert selected by it and the relator. These propositions on the part of the company entirely overlook the rights of a stockholder in a trading corporation. As we have suggested, the stockholders are.the owners of the company’s assets, and for the protection of their interests they have a right to be informed of the management of its business. If, therefore, there is apparent mismanagement or misconduct by the officers of the corporation, a stockholder has a right to make an investigation for himself and ascertain the true condition of the company’s affairs. Of course, this right to examine the books, records and papers of the company must be exercised in good faith and at a proper time and place so as not to interfere with the business of the company. But subject to this limitation, the officers of the company must permit the stockholder to investigate the company’s affairs, and if they fail to do so on a reasonable and proper demand, the court will, on proper application, enforce the demand by mandamus.

It is settled that at common law a stockholder of a trading corporation has a right to examine the books and papers of the company at a reasonable time and place, and for a proper purpose. In Commonwealth v. Phoenix Iron Company, 105 Pa. Ill, it is held that a stockholder in a trading corporation, who is denied access to corporate records and information as to corporate affairs, may, in certain cases, have a mandamus to compel the production of such books and papers as are essential to him for some proper and definite purpose, such as an accurate ascertainment and legal assertion of his rights as a stockholder. In that case Justice Tbutstkey speaking for the court said (p. 116): “ Unless the charter provides otherwise, a shareholder in a trading corporation has the right to inspect its books and papers and to take minutes from them, for a definite and proper purpose, at reasonable times. The doctrine of the law is, that the books and papers of the corporation, though of necessity kept in some one hand, are the common property of all the stockholders.” When the same case was before this court again, 113 Pa. 563, it was said (p. 572): “Under the circumstances mentioned, and for the purposes stated, we are of the opinion that according to our ruling when the case was here before, the relator is clearly entitled to an examination of the books and papers of the company. Such a right is of course not to be exercised to gratify curiosity, or for speculative purposes, but in good faith and for a specific, honest purpose, and where there is a particular matter in dispute, involving and affecting seriously the rights of the relator as a stockholder. ... A stockholder in a trading corporation must certainly have some rights which a board of directors should respect. Sellers (the relator) was not bound to accept the mere statement of the board, whether under oath or otherwise, as to the contents of the books, etc. He had a right to a reasonable personal inspection of them, and with the aid of a disinterested expert might make such extracts as were reasonably required in the preparation of the bill he purposed to bring.”

In Huylar v. Cragin Cattle Company, 40 N. J. Eq. 392, 398, it was said by Chancellor Runyon delivering the opinion (p. 398): “ Stockholders are entitled to inspect the books of the company for proper purposes at proper times. Such a right is necessary to their protection. To say that they have the right, but that it can be enforced only when they have ascertained, in some way without the books, that their affairs have been mismanaged, or that their interests are in danger, is practically to deny the right in the majority of cases. Oftentimes frauds are discoverable only by examination of the books by an expert accountant. The books are not the private property of the directors or maiiagers, but are the records of their transactions as the trustees for the stockholders.”

In the case in hand, the petitioner avers that the information he seeks is necessary to enable him, as he purposes doing, to file a bill in equity against the company and its officers to restrain them from mismanaging the business of the company. The truth of this averment is apparent, and unless the petitioner secures the information, it is very doubtful whether he can maintain a bill against the defendant company and its officers. He has been denied all information as to the business of the corporation, and his only remedy is the one he invokes in this proceeding. It may be that when he examines the books and papers of the corporation he will be satisfied that the company’s affairs have been properly conducted by the officers, but under the facts disclosed in his petition that is no reason for denying him an opportunity for examining the books and papers of the company so that he may satisfy himself of the condition of its affairs in order to protect his investment in the company. So far as the record discloses, the relator has presented sufficient facts in his petition to warrant his allegation of mismanagement, and he has, therefore, the right to examine the books and papers of the company. The mandamus was properly awarded.

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


text:
    Clark, Appellant, v. Burschell.

      Taxation — Assessment—Appeal from assessment — Excessive valuation —Legality of assessment — Equity.
    The remedy of a citizen aggrieved by an excessive valuation of his property is by an appeal to the county commissioners and to the court of common pleas. He has no standing to raise such an inquiry by a suit in equity.
    A bill in equity attacking the legality of a tax assessment on the ground that the valuations had not been fixed by the assessors acting together as a board, is properly dismissed where the court finds as a fact that although the assessors each made a separate estimate they had subsequently met as a body, and made a final assessment.
    Argued Feb. 24, 1908.
    Appeal, No. 52, Jan. T., 1908, by-plaintiffs, from decree of C. P. Lackawanna Co., Sept. T., 1907, No. 15, dismissing bill in equity in case of John H. Clark et al. v. Victor Burschell et al.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Newcomb,, J., filed the following opinion.
    CONCLUSIONS OF FACT.
    1. The plaintiffs are resident taxpayers of the borough of Dunmore, in this county. Each in his own behalf has taken an appeal from his assessment in the borough as finally adjusted by the county commissioners sitting as a board of revision for-the year 1907. The appeals are still pending for trial in the common pleas of this county. The defendants are the county commissioners; “ the burgess and town council, .... the school directors of the school district .... and William J. McCarty, collector of taxes of the borough of Dunmore.” Who the burgess is, and who are the men composing the council and school board are not shown. Defense was taken by the commissioners “ on behalf of all the defendants ” as appears by the answer.
    2. Dunmore was incorporated as a borough by special Act of assembly approved April 10, 1862, P. L. 526. By Act of June 2, 1871, P. L. 1325, and supplement of April 9, 1872, P. L. 1053, it was divided into six wards, each of which elects an assessor for the term of three years in conformity with the provisions of the Act of February 14,1889, P. L. 7, as amended by the Act of May 8, 1889, P. L. 133. At the spring election in February, 1904, assessors were accordingly elected in the several wards who afterwards qualified and assumed the duties of their respective offices for the term prescribed by law. The triennial assessment for 1907 occurred the last year of the term for which they were elected.
    3. Some time in the fall of 1906 the blotters for this assessment were delivered to the assessors by one of the county commissioners coupled with the instructions as to their duty to organize and proceed with the assessment as a board of assessors. Thereupon the same evening they did so organize by the election of a chairman and a secretary. This was followed by a general discussion as to methods in which committees of the school board and town council took part. It was agreed that on a certain day the board as so organized should meet with these committees and go over certain principal streets with view to the adoption of some standard of valuation which it was assumed could be used by the assessors as a working basis in order to secure reasonable uniformity in assessment.
    4. Three of the assessors accordingly met the committees and in the absence of the other three made some effort to carry out the plan, but failing to agree on such basis one of the assessors withdrew. The other two made some further effort looking to uniformity as between their own wards. After that each made his assessment in his own way without reference to the others, except that before returning their blotters to the commissioners there was another meeting of the assessors at the town hall for discussion. To what extent, if at all, the assessments were supervised by their organized' action as a board before their returns were made is very uncertain.
    5. After their blotters were returned, however, and before they were accepted by the commissioners, the assessors in a body met with the commissioners in one of the court rooms. The date of this meeting is not definitely shown, but would appear to have been in April or early in May, 1907. The school board had a representative present on that occasion. There was also another taxpayer present, but -whether as representative of the council is not clear. At that time the assessments were generally canvassed and such changes were made in the valuations as by common consent of the assessors or a majority of them were thought necessary or proper. Afterwards sitting as a board of revision the commissioners heard complaints, reviewed and adjusted the valuations. The records of the commissioners’ office show that the revision for the borough of Dunmore began on May 31, 1907, and continued from day to day until complete. As so adjusted the total valuation was $4,259,283 as against the last preceding valuation of $1,979,356.
    6. The assessors were instructed by the commissioners to enter full valuation on their blotters. So far as appears, in the first instance, they disregarded the instruction. Two assessed at what they considered one-third and another at some fraction not considered by him to exceed one-half the actual value. Whether the other three failed to assess at full value does not appear. In the opinion of one witness the final assessment as revised by the commissioners varies materially in a number of instances from the actual value ; generally as being too low, although in a few cases he considers it too high.
    CONCLUSIONS OF LAW.
    1. The Act of July 9,1901, P. L. 613, applies to the borough of Dunmore. It requires that in making the valuation of property the assessors of all the wards shall act as a board of assessors and as such shall make the assessment of all subjects of taxation in the borough for all purposes, with return thereof, to the county commissioners, subject to their revision under existing laws. It is further provided by the act that the triennial assessment shall be made in the last year of the term for which the assessors are elected.
    2. By the Act of May 15, 1841, P. L. 393, assessors are required to assess each subject of taxation at its market value as nearly as it can be ascertained.
    3. In this case, while the assessors organized as a board, they failed to conform to the act of 1901 in making the 1907 assessment except as they met with the commissioners in a body and adjusted the assessment after their blotters had been returned as stated in the fifth conclusion of fact.
    4. The presumption is that the commissioners, local authorities and all other persons concerned had the benefit of the concurrent action of the assessors in that adjustment. There is nothing to overcome this presumption. The conclusion is, therefore, warranted that in this way the purpose of the statute was substantially accomplished.
    5. Jurisdiction to inquire whether the assessment was made in conformity with the laws of the commonwealth and property assessed at not less than its actual value is lodged with the commissioners sitting as a board of revision under the Act of July 27, 1842, P. L. 441, sec. 13. The presumption is that such jurisdiction was properly exercised and irregularities were corrected in this case. This conclusion is not invalidated by the opinion of a witness that, as finally revised, some properties are overvalued and others undervalued. That only raises questions which may be tried at the instance of the taxpayer affected, upon appeal from the action of the board of revision. As to three of the wards the presumption is that the assessments as returned were at not less than the actual value in accordance with the assessors oath of office.
    6. Hence the evidence does not warrant the conclusion that in its entirety the assessment is illegal and void and that the defendant taxing authorities are without jurisdiction to levy and collect the taxes in question.
    7. For whatever special injury either of the plaintiffs may have sustained in the premises he may have redress at law through his pending appeal.
    8. Any supposed injury that may be common to all the taxables of the borough by reason of the failure of the assessors to act at all times as a board, would be of infinitely less consequence than the inconvenience to the defendants which would result from a decree annulling the assessment. It would, moreover, be impracticable to cause a new triennial assessment to be now made, because the assessors have gone out of office and been succeeded by others who can only make a triennial assessment in the last year of their term.
    9. Therefore, because first, it cannot be said the assessment is void; second, the relief asked for would confer little if any benefit upon the plaintiffs, especially in comparison with the inconvenience the defendants would thereby suffer; third, the plaintiffs have a remedy at law; and, fourth, the impracticability of getting a new assessment by the proper officers at this time, the injunction asked for should be refused and the bill dismissed at the plaintiffs’ costs.

      Error assigned was the decree of the court dismissing the bill.

      M. J. Martin, with him John G. Me Aside, for appellants.

      John P. Kelly, with him John J. Toohey, county solicitor, Clarence Balentme, Joseph CPBrien aud Willimn J. Fitzgerald, for appellees.
    March 16, 1908:
   Per Curiam,

If the appellants were aggrieved by reason of the excessive valuation of their properties for taxation, the law furnished an adequate remedy by appeal to the county commissioners and to the court of common pleas. They had no standing in equity to raise that inquiry. The legality of the assessment was the only question properly involved. The failure of the appellants to sustain the allegation that the valuations had not been fixed by the assessors acting together as a board was conclusive of the controversy.

The decree is affirmed at the cost of the appellants for the reasons stated in the opinion of the learned judge of the common pleas.


text:
    Bradbury, Appellant, v. Burschell.

      Taxation — Levy o} taxes — Discretion of county commissioners — Estimates by controller — Equity.
    Equity can only interfere with the functions of the county commissioners either for disregard of a positive duty as prescribed by statute, or a clear abuse of discretion.
    Section 5 of the Act of June 27, 1895, P. L. 403, prescribes the duty of the controller, inter alia, in respect to advising the commissioners annually as to the probable expenditure for the fiscal year. It does not undertake to restrict the power of the commissioners in and about levying the taxes to the limits of the controller’s estimate.

      In exercising the power of the county to levy taxes the commissioners are by necessary implication vested with a reasonable discretion in determining the amount to be levied. In the exercise of that discretion they have the right to consider, in addition to the controller’s estimate (1), an uncertainty as to the final assessment due to the extensive advance in valuations in accordance with their attempt to equalize them in a triennial year; (2) an existing deficiency in the sinking fund; (3) an increase in the expenses for witnesses and jurors that could not be foreseen at the time of the controller’s estimate; (4) any expense, such as registration, etc., not covered by the estimate; and (5) any probable expense for general repairs to the county bridges, reindexing records and erection of a house of detention, as contemplated by them.
    In view of a deficiency in the sinking fund the commissioners have the right to levy for that purpose more than would have been required had the fund been regularly provided for. They cannot, however, add 40 that fund any surplus that might remain from any other part of the levy.
    The fact that either the nominal or estimated proceeds of the levy largely exceed the total estimate of the controller does not in itself show a breach by the commissioners of any legal duty.
    Argued Feb. 24, 1908.
    Appeal, No. 53, Jan. T., 1908, by-plaintiffs, from decree of O. P. Lackawanna Co., Nov. T., 1907, No. 10, dismissing bill in equity in case of Charles E. Bradbury et al., Taxpayers, v. Victor Burschell et al., County Commissioners.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Newcomb, J., filed the following opinion :
    The prayer Of this bill is: 1. For a decree annulling the levy of county taxes for the current year; 2. For an injunction to restrain the collection of such taxes; and 3. For an order in the nature of a mandatory injunction directing the commissioners to make a levy in conformity with the estimates of the controller.
    From the pleadings, evidence and arguments of counsel I find the following:
    CONCLUSION OF FACT.
    1. The plaintiffs are resident taxpayers of this county. The defendants are the county commissioners joined with the several collectors of county taxes. Having in 1900 attained a population of upwards of 150,000 the county has had since 1901, the office of controller in place of auditors. The office was in the first instance, filled by appointment of the present incumbent, Edward A. Jones, who has continued to serve ever since by virtue of successive elections.
    2. In pursuance of the act of June 27, 1895, creating the office and prescribing the'duties of the controller in such counties, Mr. Jones, on Eebruary 1 this year, submitted to the commissioners his estimate in detail of the probable expenditures to be incurred by the county for the fiscal year beginning January 1, 1907. This included a statement of the bonded indebtedness and the amount of money that should stand to the credit of the sinking fund at the end of the year, together with the amount in the fund at that date.
    3. This being a triennial year the commissioners with a view to equalizing assessments undertook an extensive examination not only of surface but also of underlying mineral lands, which form a large part of the taxable property of the county. This resulted in delaying the levy until September 19. The total valuation as it then stood on their books was $91,670,277. The rate established was five and one-half mills on the dollar.
    Duplicates were thereupon issued to the collectors accordingly.
    The form of action taken in fixing the rate was by resolution recorded in the commissioners’ minutes, as follows:
    “ On motion by Mr. Burschell, seconded by Thomas, the following resolution was adopted: Resolved for the purpose of defraying the estimated expense of Lackawanna county as submitted by the county controller for the year 1907, the following levy upon the taxable property in said county for the year aforesaid be made, for general county purposes four and one-half mills on each assessed dollar of valuation, for sinking fund purposes three-fourths mills on each assessed dollar of valuation, for bridge fund purposes one-fourth mills on each assessed dollar of valuation, being in all five and one-half mills upon each dollar of assessed valuation, of all taxable property in Lackawanna county, for the fiscal year 1907, a levy of five and one-half mills on each dollar is hereby made for said year and there is hereby levied a per capita tax of one dollar upon each male dog and two dollars upon all female dogs in the county of Lackawanna except in the cities of Carbondale and Scranton, for the year 1907.”
    4. It is apparent that at this rate the levy would on the face valuation, yield $504,186.53, and exclusive of the sinking and bridge funds would exceed the controller’s estimate by upwards of $200,000. It is conceded that the valuation of these properties varies largely from what it has been heretofore, and that as to them the attempt at equalization is somewhat experimental. So far as that fact may be relevant, its effect is to leave the total valuation as ultimately to be settled very uncertain.
    5. In asserting the right to exercise some discretion in the premises the commissioners regarded the controller’s estimate as too low in several instances. In particular it was so considered with respect to the cost of registration which was omitted and amounts to about $30,000. This item has been more than doubled by act of assembly passed some months after the estimate was submitted. The same was in a measure true as to its items, “ Court expenses ” and “Commonwealth’s cost,” both of which had been increased by Act of June 1, 1907, P. L. 364. The controller’s estimate for bridges referred only to the cost of restoring bridges destroyed by flood, without reference to new bridges or repairs occasioned by ordinary wear and decay. Since March 30, 1905 (P. L. 81), there had been a statute requiring the county to make such repairs, but it had as yet been overlooked or ignored in making the estimates in this county. By September, this year, demands for such repairs were becoming somewhat urgent. A constable’s return of certain bridges as unsafe had been referred to the September grand jury by whom a report was made calling attention to the statute as requiring action by the county commissioners. This circumstance does not distinctly appear in the evidence but is believed to be what Commissioner Burschel intended to refer to when he testified : “ Since the controller made his estimate a law has been enacted which compels the county to take care of all bridges.” Evidently he erroneously supposed the proceedings before the grand jury were based on the Act of February 14, 1907, P. L. 3. But that simply enlarges the powers of the county with reference to altering county bridges. While it makes the action of the commissioners dependent on the recommendation of the grand jury, the law “ which compels the county-to take care of all bridges ” is the act of 1905. The expense of such repairs might be considerable in view of the fact that the county already has some 250 bridges. The controller’s estimate was not intended to cover the possible expense of reindexing the records in the prothonotary’s and recorder’s offices, the need of which is urgent and had been recommended by the court in conference on the subject between the commissioners, the controller and the judges. The cost of that would be no small item, probably upwards of $50,000. While it does not so appear on the evidence, it is only fair, considering the nature of the case, to say that no order for reindexing had been made because of the lack of funds available for the purpose. Aside from these things the controller estimated nothing for the county’s share of a state road then being projected and for which contracts have since been awarded, involving a possible expenditure of $6,000 to $8,000.
    6. Hence it was by no means apparent that the controller’s estimate would cover the probable demands on the county. On the contrary, unless it could be supposed that the items “ Contingencies ” and “ Miscellaneous,” aggregating $17,800, would be adequate to meet the increased expense for witnesses, jurors and registration, its inadequacy Avould naturally suggest itself, except so far as it might be made up from an excess in the receipts from liquor licenses, personal state tax, county officers, etc. The receipts from those sources exceeded the estimate by nearly $17,000, most of which had been realized at the time of the levy and, therefore, may be presumed to have been known to the commissioners. Tet those three sums, aggregating less than $35,000, could hardly have been assumed to be more than enough to meet the cost of registration and primaries which had been omitted from the estimate and the additional court and commonwealth’s cost as in the meantime increased by statute. If, in other items, the variations could be assumed to balance each other, there would still be no apparent margin for any additional expenses Avhich the commissioners felt bound to and did consider, such as the cost of bridge repairs and new records, both of which were likely to call for large sums. The same is true with regard to the cost of a house of detention which had been considered in conference between the judges, commissioners and controller. The only estimate by the controller in that regard was to cover the current expenses. The commissioners had in mind the erection of a building, on premises owned by the county, at a cost of something like $15,000. This, of course, depends upon the recommendation of the grand jury. While there is no evidence that such recommendation has been made, we believe it is on file.
    7. It turns out that so" far as it went the estimate did fairly cover the expenditures actually incurred to date, being too low in some particulars and ample in others.
    What amount will be required to complete'the payments for the year cannot now be ascertained. The controller estimates that he will pay out during the month $35,000 more. But whether that will cover all the accounts for the fiscal year ending with this month is uncertain.
    8. The bonded indebtedness of the county on January 1, 1907, was $510,000 and is made up of the several issues shown in the schedules of the controller’s statement coupled with his estimate as set forth in the second conclusion. The issue of 1902 was a refunding of several earlier issues in 1903. In that year a sinking fund tax was first levied, no provision for the redemption of bonds having been theretofore made. To some extent that may account for the disparity between the amount of that fund as it is and the amount which ought to stand to its credit. Reference to the controller’s statement shows that in his opinion it should have to its credit at the end of this year $171,816.64 and that at the beginning of the year it had a little upwards of $25,000. How much it is actually short of what it ought to be has not been shown and I have not undertaken to calculate. But that the disparity as shown by the estimate is to some extent unreal is evident from the fact that the $171,816.65 includes both principal and interest, while the interest has been paid to the first of this year. So the figures would seem to be the result of a method of bookkeeping in which the canceled coupons are carried forward on the debit side of the account with a view to its ultimate balance as the bonds mature. On the other hand, no interest appears to have been, calculated for the fractional part of the fiscal years in which the bonds were issued. This makes an apparent deficit on the debit side as calculated by the controller of $26,123.61.
    9. According to the terms of the bonds the amount which would be regularly required this year for the sinking fund would be $45,316.66.
    10. It is thus apparent that, whatever the levy may have been heretofore for sinking fund purposes, the amount actually realized by the fund is by no means equal to the principal sum the county should now have on hand. Whether that is due to an insufficient levy or to the failure of collections does not appear. Some part of the deficiency no doubt will eventually be met by the interest which is accruing to the fund in bank.
    11. It is conceded by plaintiffs that considering the fact that this is a triennial assessment an allowance of fifteen per qent in place of the estimated ten per cent would only be a reasonable reduction for abatements, etc. . The face of the levy for sinking fund would amount to $68,752.21. Deducting fifteen per cent would leave $58,439.80, which would exceed the amount required if the fund had been regularly provided for.
    12. The same allowance would reduce the total nominal revenue from $504,186.53 to $428,558.56. Adding to that the receipts for licenses, office earnings, etc., $126,939.45, would bring the possible revenues up to $555,498.01.
    13. Adding the estimate of $35,000 to the total disbursements of $321,540.66 to December 1, would make a total of $356,540.66, to which add bridge fund, $7,500.39, and sinking fund, $45,316.66, makes a total possible expenditure of $409,357.71.
    14. This would leave a possible excess of revenue over expenditures of $146,140.30. But that is neither certain, nor was it reasonably apparent to the commissioners in view of the uncertainly as to the extent of abatements and the expenditures that were liable to arise. The county may be called upon at any time for extraordinary expenses in replanking and making other repairs to the numerous bridges. The reason why it has not been as yet called upon to incur the expense of reindexing the records has already been noted. If it be conceded that there is nothing to prevent the collection of the amount levied for sinking fund, then the possible excess would be smaller. It might be reduced to $122,704.25.
    CONCLUSIONS OF LAW.
    1. Equity can only interfere with the functions of the county commissioners either for disregard of a positive duty as prescribed by statute, or a clear abuse of discretion.
    2. Sec. 5 of the Act of June 27, 1895, P. L. 403, prescribes the duty of the controller, inter alia, in respect to advising the commissioners annually as to the probable expenditures for the fiscal year. It does not undertake to restrict the power of the commissioners in and about levying the taxes to the limits of the controller’s estimate.
    3. In exercising the power of the county to levy taxes the commissioners are by necessary implication vested with a reasonable discretion in determining the amount to be levied. In, the exercise of that discretion they have the right to consider, in addition to the controller’s estimate: (1) An uncertainty as to the final assessment due to the extensive advance in valuations in accordance with their attempt to equalize them in a triennial year; (2) an existing deficiency in the sinking fund; (3) any increase in the expenses for witnesses and jurors that could not be foreseen at the time of the controller’s estimate; (4) any expense, such as registration, etc., not covered by the estimate; (5) any probable expense for general repairs to the county bridges, reindexing records and erection of a house of detention, as contemplated by them.
    4. In view of a deficiency in the sinking fund the commissioners have the right to levy for that purpose more than would have been required had the fund been regularly provided for. (Therefore they are within their legal rights in levying and collecting the supposed excess for that fund if collected in full, viz.: to the amount of $68,752.71.) They could not, however, add to that fund any surplus that might remain from any other part of the levy.
    5. The fact that either the nominal or estimated proceeds of the levy largely exceed the total estimate of the controller does not in itself show a' breach by the commissioners of any legal duty. Neither does that fact, coupled with the circumstance that there may be a possible excess of upwards of $100,000 over the actual demands on the treasury for the current year, warrant the conclusion that there was a clear abuse of their discretion in the premises.
    6. The facts found are insufficient to warrant a decree for the relief prayed for, and, accordingly, the bill should be dismissed at the plaintiffs’ cost.
    DISCUSSION.
    Argument was heard and the case submitted December 20th, inst. While counsel have been urgent for a speedy disposition of it we have not the benefit of briefs on either side. The best consideration possible, in the limited time to be had in view of other official engagements, has been given to the several questions raised.
    That equity may restrain the collection of taxes unlawfully levied is not open to question. Relying upon that jurisdiction the plaintiffs attack this assessment as unlawful, first, because on its face it exceeds the controller’s estimate, and, if not that, second, because there was an abuse of the commissioner’s discretion in levying an amount which bids fair to exceed by upwards of $100,000 the actual expenditures of the fiscal year.
    It is freely admitted by the learned counsel for plaintiffs that the validity of the first position depends upon the construction of sec. 5, Act of June 27, 1895, P. L. 408.
    If it be construed as taking away all discretion from the commissioners and devolving upon the controller the exclusive power of determining the amount of taxes to be levied it is not apparent how there would be any escape from the conclusion that to this extent the section is repugnant to the constitution. Its title is, “An act creating the office of County Controller in counties of this commonwealth containing one hundred and fifty thousand inhabitants and over, prescribing his duties, and abolishing the office of County Auditor in such counties.” This gives no intimation of any purpose to reorganize the powers of the commissioners’ office by transferring its most distinctive and important function to the controller. Yet, if bound by the controller’s estimate the duty of the commissioners so far as concerns the amount of taxes to be raised becomes merely perfunctory; a purely clerical or ministerial function. If there be two obvious constructions of a statute one of which is offensive to the constitution the other will be adopted. But we do not feel driven to that choice of constructions.
    Considering the nature of the duties prescribed for the controller, together with the extent and character of the public accounts to be kept in his office, it is manifest that his accounts at the beginning of each year were intended to form a source of information as definite and complete as possible, covering the ordinary expenses for the preceding year; and that the commissioners should have the benefit of such advice as the accountant could give by way of detailed estimates prepared in the light of such accounts. We are not impressed with the contention that such estimate was intended to operate as a restriction beyond which the commissioners may not lawfully go in making their levy. That position is wholly untenable except on the theory referred to that the function of determining the amount of taxation theretofore vested in the commissioners is no longer with them but by the act of 1895 was transferred to the controller. It may be true that the terms of the act can fairly be construed as limiting the minimum amount to be levied. In providing that the commissioners “ shall fix such rate of taxation .... as will raise a sufficient sum to meet the said expenditures ” it may be meant that they shall not go below the controller’s estimate. But that we are not called upon to decide; neither do we express any opinion as to whether there would be any objection to such construction on constitutional grounds. In respect to the theory that the estimate binds the commissioners we are only called upon to determine whether the attempt to raise more revenue than was estimated is prohibited by the statute, and we hold it is not. To hold that it is would put the county to the risk of grave embarrassment by an error of the controller’s judgment. It is conceivable that some controller might estimate the total expenses that in his opinion should be incurred at $100,000, while to a moral certainty the commissioners would know that they would amount to three times that figure. Short of this the plaintiff’s theory, if sound, cannot stop.
    Obviously the question of abuse of discretion is an alternative. For this ground cannot be assumed without surrendering the other. This position, however, has the advantage of being free from technical objections. But on the merits it fails because it cannot be said with any certainty that from the standpoint of the commissioners the levy was excessive in view of the probable expenses for which provision could legitimately be made. Nothing less than an unreasonable surplus then apparent would show a clear abuse of their powers. Had this not been a triennial year a somewhat different question might have been presented. Had there been no novel method resorted to with a view to equalization resulting in a marked advance in coal assessments, the question might be very much simplified. The practical difficulties to be contended with in determining the extent and value of such lands are not to be entirely overlooked in considering the weight of the argument based upon the face of the levy. Under the conditions as they are no one can now tell what the final valuation will be. So far as concerns the possibility that $68,000 and some odd hundred dollars may be raised for the sinking fund, the case is free from difficulty, even though under normal conditions $45,316 would have met this year’s requirement. The existing deficiency in the fund will have to be made up some time. There is no claim that the full face of that levy would, if collected, bring the fund up to its present requirements. What proportion of the deficit shall be levied this year is, we apprehend, for the commissioners to determine. Their power to levy taxes to complete this fund is the same as the power to make a levy to pay a debt presently due and demandable. What amount may be required to meet the general demands on the county for this year’s taxes is somewhat conjectural.
    But even though there should be a surplus' of upwards of $100,000 in view of the expenditures additional to the controller’s estimate which they had reason to anticipate, that event will not serve to overcome the presumption that the commissioners exercised their discretion fairly and reasonably. Nor is the inference contended for aided by the circumstance that in form the import of the resolution fixing the rate suggested a levy in accordance with the estimate. In substance the thing done shows there was no intention to conform to the figures submitted by the controller. They have given their reasons for exceeding the estimate. There is nothing to contradict their testimony and we cannot say their reasons were invalid. It follows that the plaintiffs failed to make good their complaint that the levy was unlawful, and, consequently, the court cannot interfere with its enforcement.

      Error assigned was decree dismissing the bill.

      M. J. Martin, with him John Q. McAshie, for appellants.

      John P. Kelly, with him John J. Toohey, county solicitor, Clarence Balentine, Joseph O’Brien and WilUam J. Fitzgerald., for appellee.
    March 16, 1908:
   Per Curiam,

Nothing can profitably be added to the thorough and able discussion of the question involved by the learned judge of the common pleas. The decree is affirmed on’his opinion at the cost of the appellants.