text:
    Wheeler, Appellant, v. The Equitable Trust Company.

      Insurance — Title insurance — Mortgage—Indemnity.
    Where a policy of title insurance of a mortgage is by its terms a general contract of indemnity against loss from defects or unmarketability “ of the title of the insured to the estate, mortgage or interest ” in the real estate included in the mortgage, and the policy contains in a note to a schedule a guaranty to complete certain buildings according to plans and specifications mentioned, the court will construe the whole contract to be one of indemnity; and where it also appears that the insured, who held the mortgage as collateral for a loan, had bought it in at his own sale, permitted by the terms of the loan, at a price equal to the loan, and thereafter had foreclosed the mortgage and bought in the real estate, ¿he insured will not be permitted in an action on the policy to show a defect in title or that the houses had not been completed in accordance with the plans and specifications. In such a case it is immaterial that the insured, and not a stranger, bid the mortgage up and bought it in at an amount equal to the loan, and it is also immaterial that the only other bidder was the insolvent borrower. The insured having bought the mortgage at a price equal to the loan, suffered no loss, and is therefore entitled to no indemnity.
    Argued March 27, 1908.
    Appeal, No. 389, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 5, Phila. Co., March T., 1901, No. 309, on verdict for-defendant in case of Susan Earnum Wheeler, Executrix of the last Will and Testament of Charles Wheeler, deceased, v. The Equitable Trust Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a policy of title insurance.
    The facts appear by the opinion of the Supreme Court, and by the previous report of the case in 206 Pa. 428.
    At the trial the plaintiff made the following offer :
    Mr. Johnson: I am willing that the case shall be tried upon the acceptance of fact that at the time the mortgage was sold by the holder of the judgment note there was not then due upon the judgment note, principal, interest and costs in a sum greater than the $53,000.
    The Court: Then you can make your offers and we can have the whole question settled by the court in banc.
    Mr. Johnson : So that your honor’s ruling will now be upon a state of facts appearing upon the record, which meets what was in your mind as to the only reason why you would permit proof.
    Upon this supposition of facts the plaintiff now offers to prove that the title of the mortgaged premises was defective in that the right to the bed of the street had not been acquired. And also prove that the houses had not been completed in accordance with the plans and specifications. That they were incomplete in very important particulars. That without the knowledge or assent of the mortgagee, the holder of the judgment note, the plan of construction had been altered so that the houses thus constructed were less valuable. That by reason of the noncompletion of the houses in accordance with the plans and specifications and title insurance policy, the houses themselves would require upwards of $13,000 to complete, and that such expenditure would be required in order to make the construction in accordance with the title insurance contract. That by reason of the incompleteness of the buildings, the mortgage was less valuable than it would have been by about $18,000. That is our offer.
    Objection. Objection sustained. Exception. [1]
    We also offer to prove that at the sale of the mortgage made by the owner of the judgment note there were but two bidders, Mr. Pharaoh, the debtor, who was at the time insolvent and the owner of the judgment note.
    The Court: I assume the insolvency was known to the plaintiff at the time.
    Mr. Johnson: Yes; the insolvency was known to the owner of the judgment note, and that can be shown.
    Objection. Objection sustained. Exception. [2]
    The court gave binding instructions for defendant.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1,2) ruling on evidence, quoting the bill of exceptions; (3) in giving binding instructions' for defendant.
    May 11, 1908:

      John G. Johnson, with him O. Berkeley Taylor, for appellant.
    An indemnity such as the one in the suit where loss is shown is violated, and if the subject guaranteed does not come up to the guarantee, a right of action arises. The mere fact that plaintiff purchased for the amount of her loan properties which had defects not apparent, does not interfere with her right, because when she bought them she bought them together with the guarantee: Driesbach v. Bridge Co., 81* Pa. 177; Holloway v. Jacoby, 120 Pa. 583.
    The above cases determine that where guarantees are given, if the things guaranteed do not come up to the guarantee, a defense may be made to an action for their price, or if that has been paid over an action may be maintained to recover for any loss sustained.
    Besides, in the present case, the offer goes on to show that the only bid against plaintiff at the public sale was that of Pharaoh, who was insolvent and, therefore, in the nature of puffing and not bona fide: Pennock’s Appeal, 14 Pa. 446.

      Francis Shunk Brown and Ira Jewell ’Williams, of Simpson cfe Brown, for appellee.
    Appellant having herself purchased the pledge for a sum sufficient to make her whole, this must be regarded as satisfaction of the debt and she cannot now claim a loss: Wheeler v. Equitable Trust Co.,. 206 Pa. 428; Weightman v. Union Trust Co., 208 Pa. 449.
   Opinion by

Mr. Justice Mestrezat,

A brief statement of the uncontroverted facts in this case will show that the learned trial judge was right in directing a verdict for the defendant.

John I). Pharaoh borrowed $50,000 from the plaintiff, for which he gave his judgment note, dated May 25, 1898. At the same time and as of the same date he executed and delivered to plaintiff, as collateral security for the payment of the principal and interest of the note, a bond and mortgage for $61,500 upon seventeen yearly ground rents, issuing and payable out of seventeen lots of ground in the city of Philadelphia. The note given to secure the indebtedness refers to the bond and mortgage as collateral security for its payment, and authorizes the payee, the plaintiff, “ upon the nonpayment of the semiannual interest for the space of thirty days after the same shall have become due, to sell and transfer (the bond and mortgage) without any previous demand or notice to me and without any public notice, and to apply the net proceeds .... to the payment of this note in full or partially as said proceeds may suffice .... and at any such sale as aforesaid the said Susan Farnum Wheeler, executrix as aforesaid, is expressly empowered to become the purchaser provided she shall be the highest bidder therefor.”

The defendant company on the same day, May 25, 1898, executed a policy of insurance to the plaintiff in which it covenanted to indemnify and keep harmless the plaintiff “ against all loss or damage, not exceeding $50,000, which the said insured shall sustain by reason of defects or unmarketability of the title of the insured to the estate, mortgage or interest ” -in the ground rents included in the mortgage given by Pharaoh to the plaintiff, and therein also guaranteed the completion of seventeen buildings upon the seventeen lots out of which the ground rents issued.

Default was made by Pharaoh in payment of the interest due on the loan, and on January 28, 1899, the plaintiff, by virtue of authority contained in the note, offered the bond and mortgage for sale at public auction, and purchased the same for the sum of $53,000. The handbill or public notice of the sale contained on its face the following: “ Accompanying this mortgage is a title policy of the Equitable Trust Company insuring title and completion of the houses.” Subsequently the plaintiff proceeded to foreclose the mortgage, and purchased the ground rents mentioned therein for $500, and later sued out the ground rents and purchased the properties for $50.00 each, finally becoming the owner of the properties on March 19, 1900.

To March Term, 1901, of the court of common pleas, No. 5, of Philadelphia county, the plaintiff brought an action of assumpsit on the policy of title insurance issued by the defendant company. The breach averred was the failure to complete the houses according to the plans and specifications filed by Pharaoh with the defendant company. The trial court entered a compulsory nonsuit, and the judgment was subsequently reviewed by this court in Wheeler v. Equitable Trust Company, 206 Pa. 428. The action was brought and the right to recover was claimed on the theory that the provision of the policy guaranteeing the completion of the houses was in law a guarantee, and that the plaintiff could recover by proving the loss. The judgment of the court below, however, was affirmed, and it was held that the title policy was a contract of indemnity and not a guarantee ; that the plainly expressed intent was to indemnify against loss from defects or unmarketability of title ; that if any loss should be sustained by the plaintiff by reason of the .noncompletion of the buildings such loss should come under the indemnification covenant of the policy. It was further held (p. 433): As preliminary to a recovery on the stipulation of the note to schedule “ B” (guaranteeing the completion of the houses) plaintiff must show that she has not been indemnified and saved harmless on her collateral mortgage ; that defendant has failed in that particular ; then she can go further and show that the failure to complete the building caused, or tended to cause, the loss.”

On January 28, 1904, the plaintiff brought another action of assumpsit on the same policy to recover the sum of $15,000, with interest from February 25,1899. The statement sets forth the loan and the collateral given to secure it; a copy of the note in the title policy guaranteeing the municipal improvements and the completion of the seventeen buildings ; the proceedings by which the bond, mortgage, ground rents and title to the property were vested in the plaintiff; alleges that the houses had not been completed according to the plans and specifications; that the mortgage was depreciated to the extent of the cost necessary to make the houses conform to the plans and specifications and the cost of opening the street and introducing the water through the same into the houses, and averred that the defendant would not indemnify the plaintiff according to the terms of its policy, whereby she had. lost the sum of $15,000.

On the trial the plaintiff proved certain preliminary facts, and then offered to show that the title of the mortgaged premises was defective because the bed of the street had not been acquired and the houses had not been completed in accordance with, the plans and specifications ; that the plan of construction of the houses had been altered without the knowledge of the mortgagee, so that the houses cost less to construct under the new plan and were less valuable ; that it would cost upwards of $13,000 to complete the houses and make the construction in accordance with the title insurance contract, and that by reason of the incompleteness of the buildings the mortgage was less valuable than it would have been by about $18,000. The plaintiff further offered to prove that at the sale of the mortgage she and' Pharaoh, the debtor, who was insolvent, were the only two bidders. The plaintiff’s counsel admitted that at the time the mortgage was sold by the holder of the note, there was notdne upon the note more than $53,000, the price at which the mortgage was sold. The offers were rejected and a verdict was directed for the defendant.

As suggested above, the statement of the undisputed facts clearly discloses that the plaintiff cannot maintain this action. The facts presented or offered to be shown in the present action are substantially the same as appeared in the former case. The contention there was that note B of the policy was a guarantee, and hence the plaintiff could show the loss sustained by reason of the failure of Pharaoh, to complete the houses and secure certain municipal improvements. When the case was here before we held that the title policy, note B included, was a contract of indemnity against loss on the mortgage, and that, therefore, there could be no recovery for a failure to complete the houses or to secure the municipal improvements, unless the plaintiff prove a loss on the mortgage. In other words, the title policy indemnified the plaintiff to the extent of $50,000 against loss on the mortgage which was given as collateral security for the payment of the loan made by the plaintiff to Pharaoh. Under that interpretation of the title policy, before the plaintiff could recover thereon she was required to show that she had sustained a loss on the mortgage. If no such loss occurred, then it was wholly immaterial whether the municipal improvements had been secured or the houses had been completed, so far as liability on the policy was concerned.

The loan by the plaintiff to Pharaoh was $50,000, for which the note of May 25, 1898, was given. The bond and mortgage were given as collateral security for the payment of the note.As a further security, the plaintiff procured the defendant’s title policy in suit. The liability of the plaintiff in this action rests solely upon that policy. If there has been no breach of it there can be no recovery here. That policy insured the plaintiff against loss on the mortgage. The defendant, therefore, according to our decision in the former case, indemnified the plaintiff against loss to her on the mortgage. That is the only liability which the defendant assumed in the policy. If there is no loss, there is no liability on the policy. The note given to secure the loan authorized, as wb have seen, the plaintiff to sell the mortgage on default of Pharaoh to pay the semiannual interest. The mortgage was given as collateral security for the payment of the principal and interest of the note for $50,000, and the title policy was given to secure plaintiff against loss on the mortgage to the extent of $50,000 by reason of the unmarketability of the insured’s title to the mortgaged estate. The plaintiff proceeded in the manner pointed out in the note to sell the mortgage. This was optional with her. She had the right to use any and all of the collateral securities she held to enforce payment of her loan to Pharaoh. She exercised the privilege and sold the mortgage. The sale was at public auction, and the mortgage was sold for the sum of $53,000. It is admitted by the plaintiff that that sum covered the principal, interest and costs of the note given to secure the loan, and for which the mortgage was given as collateral security. How can it be, therefore, that the plaintiff has sustained any loss upon the mortgage ? If a scire facias had been issued on the mortgage there could only have been a recovery for the debt, interest and cost of the note which the mortgage was given to secure. The sum for which the mortgage sold at public auction, it is conceded, covers fully the note given to secure the loan. How, under the facts, can it affect the defendant’s liability on the title policy, that the houses were not completed or the municipal improvements were not secured \ As we have distinctly ruled, the liability of the defendant is for loss on the mortgage, and the fact must be conceded that there was no loss upon the mortgage. The purchaser of the mortgage at public auction manifestly believed that the property, with the houses incompíete and without the municipal improvements, was fully worth the amount bid and paid for the mortgage. That must be assumed ; but if it were not so, and if the value of the property was less than the mortgage, wherein is the plaintiff, the mortgagee, injured ? Fifty-three thousand dollars, covering the loan and note secured by the mortgage, were realized by the plaintiff from the sale of the mortgage. This is the full amount of indemnity to which the plaintiff was entitled on her title policy. It seems to us that there is no ground whatever, in view of our former interpretation of the contract evidenced by the policy, for the contention that there is any liability resting upon the defendant company by reason of anything contained in the ‘offers of proof by the plaintiff on the trial of the cause.

It is claimed, however, that the liability of the defendant company on the policy is changed or is different by reason of the fact that the plaintiff, and not a stranger, was the purchaser of the mortgage at the sale, and, therefore, that she may show that the mortgaged property was not equal to the amount of the note or claim secured by the mortgage. Hence, it is contended that the mortgage was less valuable than it would have been had the buildings been completed according to the plans and specifications filed with the defendant. But how can the fact that the plaintiff, and not a stranger, was the purchaser of the mortgage affect the question of the defendant’s liability ? It could not be contended that if a third party had purchased the mortgage and paid $53,000 in cash to the plaintiff, there could be any liability on the title policy. That sum, as we have seen, wiped out the entire indebtedness of Pharaoh to the plaintiff and hence satisfied the mortgage given as collateral to secure its payment. That the plaintiff became the purchaser of the mortgage can in no way, as it seems to us, present the matter differently from what it would be if a third party had been the purchaser. She sold the mortgage at auction by authority contained in the note securing the loan. She had control of the sale and she was expressly empowered to become a purchaser of the mortgage at the sale. There was only one condition imposed upon her in becoming a purchaser and that as stipulated in the note, was that she “ be the highest bidder therefor.” The amount of her bid was of course wholly discretionary with her. She was not compelled to bid at all, nor was she required by the terms of her contract or under the law to bid any sum for the mortgage in order to protect her loan. All she was required to do, under the power contained in the note authorizing a sale of the mortgage, was to make the sale according to the terms of the authority conferred upon her. Had she complied with those terms and made a bona fide sale of the mortgage, and a loss had resulted, she could have had recourse to the title policy to indemnify herself. Her bid on the mortgage was simply a matter of her own pleasure, and not required for the protection of her loan. She must, therefore, be regarded the same as any other bidder at the sale and the amount of her bid must, as if made by a third party, be applied on the mortgage which fully satisfies it and the loan secured by it.

We are unable to see that the insolvency of Pharaoh, the other bidder at the sale of the mortgage, affects this case. We cannot go into the question and ascertain whether Pharaoh was bidding for himself or another party who was able to pay the purchase price. It may well be that he had made the necessary arrangements to protect his property by securing another party to purchase the mortgage. In fact, it appears that he tried to secure delay in the sale of the mortgage for that very purpose. Be these facts as they may, the authority to sell and the control of the sale were entirely with the plaintiff. Unless she so desired, no sale could have taken place, and certainly no sale could have been consummated without a bona fide purchaser who could and did pay the purchase price. Under these facts, it must be assumed that the plaintiff made her bid for the mortgage believing it to be worth the price she bid. She, therefore, as purchaser of the mortgage, occupies the position of a stranger, and must account for the $53,000 and apply it to the mortgage. This is conceded to be the full value of the mortgage, and the plaintiff having received that sum she has sustained no loss which imposes a liability on the defendant company by reason of the issuance of its title policy to her.

We are of opinion that the cause was rightly determined by the court below, and, therefore, the assignments of error are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    DuBois v. Walnut, Appellant.

      Deed — Revocation—Life tenant — Power to appoint to new uses — Exercise of power — Will.
    ' A tenant for life under a deed who has the power to revoke the uses declared in the deed, and to appoint to new uses, properly and sufficiently exercises such power when by will she provides, “as to all my estate real and personal, and with intent to execute all powers vested in me I do give, devise and bequeath and appoint as follows.”
    Argued March 27, 1908.
    Appeal, No. 110, Jan. T., 1908, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 2,921, for plaintiff on case stated in suit of Iienry M. DuBois, Executor of the last will and testament of Eliza L. B. Wagner, deceased, v. Charles P. Walnut.
    Before Mitchell, C. J., Brown, Mestbezat, Potter and Elkin, JJ.
    Affirmed.
    Case stated to determine title to real estate.
    Kinsey, J., filed the following opinion.
    This is an amicable action in assumpsit by the plaintiff as executor of Mrs. Eliza L. Burt Wagner and defendant Charles P. Walnut, a proposed purchaser, to determine the marketable title to certain real estate situated at No. 702 Locust street, upon certain facts agreed upon as follows :
    It appears that said premises, by deed of Isaac Hazlehurst, dated June 6, 1817, were conveyed to one Schaffer in trust for life of Mrs. Mary L. Burt, and at her death in undivided equal shares to her two daughters, Clarissa Ash mead and Eliza L. Burt, for life, with cross-remainders, and in case they should die without lawful issue, then to the right heirs of the said Mrs. Burt. Both daughters died without issue. Clarissa Ashmead died first, in 1893, leaving her residuary estate to her sister, Eliza L. Burt Wagner, of whose estate the plaintiff is executor. By the deed creating the said trust it was further provided :
    “ Provided always nevertheless and it is hereby expressly agreed and declared by and between the said parties that notwithstanding anything herein contained, it shall and may be lawful for the said Mrs. Burt at any time hereafter by anjr writing or writings under her hand and seal and attested by two or more credible witnesses to revoke, annul, make void, change and alter all and every use and uses, estate and estates hereinbefore expressly limited and declared of and concerning the premises hereby granted or any part thereof.”
    The said Mary L. Burt died February 7, 1867, leaving a will signed, sealed and attested by two credible witnesses and dated June 16,1860, wherein she provided as .follows:
    “ As to all my estate,- real and personal and with intent to execute all powers vested in me, I do give, devise, bequeath and appoint as follows : One moiety of said estate real and personal to my daughter, Eliza L. Burt, her heirs and assigns.” The question to be decided is, was this provision in the will of Mary L. Burt a valid exercise of the power of revocation as required by the language of the deed of trust of said Hazlehurst ?
    In Pennsylvania, as to whether there has been the exercise of a revocation, the criterion is the intention of the donee of such power.
    This intention is specifically averred in the words of her will. The next question thereupon arises, was this provision a sufficient exercise of the power of revocation granted in the original deeds ?
    We are of opinion that such expression of intention under a will is such a writing as fulfills the requirement of the deed creating the power.
    It is contended by defendant that as testatrix owned .absolutely certain properties and had powers of appointment as to two other properties, to wit: 136 South Eighth street and Morgan street, near Tenth street, she has not defined clearly to what property she refers. The language used is, “ all my estate real and personal,” and “ all the powers vested in me.” It is certainly to be inferred that this language, which is comprehensive, simple and intelligible, should not be deemed applicable to less than all her property and all her powers. Any other view would be to force a construction other than implied by the ordinary meaning of the language used;- ‘
    It has also been argued that by the use of the word “ my ” in her will, in connection with “ my estate,” she intended to restrict her will to her own property as distinct from property over which she had power of appointment. We do not feel such an inference would be justified, save by a violation of the customary understanding of language. . Indeed, the facts show the fallacy of such contention.
    May 11, 1908 :
    Therefore, in accordance with the terms of the case stated, the court directs that judgment be entered in favor of plaintiff and against the defendant in the sum of $10,000, with costs of action.

      Error assigned was in entering judgment for plaintiff.

      T. Henry Walnut, for appellant.

      Henry M. DuBois, with him Thomas A. Gummey, for appellee.
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Mr. Justice Stewart,

text:
    Brindley, Appellant, v. Walker.

      Corporations — Officers—Secretary and treasurer — Ministerial office— Removal — Act of April 29,1874, P. L. 73 —Act of May 14,1891, P. L. 61.
    The general rule with respect to officers in ordinary private corporations, is that all below the grade of directors, and such other officers as are elected by the corporation at large, hold their offices durante bene plácito, and are removable by the directors without cause being assigned.
    The secretary and treasurer of a corporation organized under the Act of April 29, 1874, P. L. 73, are ministerial officers, and are removable by the board of directors without cause being assigned for such removal.
    The provision of the Act of May 14, 1891, P. L. 61, amending the Act of April 29, 1874, P. L. 73, that the business of the corporations chartered thereunder “ shall be managed and conducted by a president, a board of directors or trustees, a secretary or cleric, a treasurer, and such other officers, agents and factors as the corporation authorizes for that purpose,” does not make the secretary and treasurer other than ministerial officers, or protect them from removal by the directors.

      Argued March 30, 1908.
    Appeal, No. 10, Jan. T., 1908, by plaintiff, from judgment of C. P. Erie Co., Nov. T., 1907, No. 125, for defendants on demurrer to answer in mandamus proceedings in case of Zachary T. Brindley v. Edwin Walker, Clarence L. Walker and Erie Specialty Company.
    Before Mitchell, C. J., Mestbezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for mandamus.
    Demurrer to answer.
    The following facts appear from the opinion of the court below:
    The Erie Specialty Company is a business corporation duly chartered in 1902, under the general act of April 29, 1874, and its supplements, and located at Erie, Pa. It has an authorized capital stock of $100,000, divided into 1,000 shares of the par value of $100 each. It has a paid up capital of $70,000, consisting of 700 shares of stock, of which the plaintiff, Zachary T. Brindley, owns 350 shares and defendant Edwin Walker owns 349 shares, and defendant Clarence L. Walker owns one share.
    That said corporation has always been, and still is, managed by a board of three directors, which directors are said stockholders, and have been elected annually at the stockholders’ meeting held in the month of August of each year, and were again re-elected at such meeting held in August, 1907. And the said board of directors thereupon immediately organized by the election of said Edwin Walker as president, and said Zachary T. Brindley as secretary and treasurer, and the said Clarence L. Walker ivas appointed superintendent for the ensuing year. That said Edwin Walker had held the said office of president and the said Zachary T. Brindley had held the said office of secretary and treasurer ever since the organization of said corporation. That about one month after said last annual election the said president of the board of directors requested the secretary to call a meeting of said board in a letter as follows, viz.:
    “ Erie, Pa., Sept. 28, 1907.
    “ Z. T. Brindley, Secretary Erie Specialty Company, Erie, Pa.

      “ Dear Sir: I want you to call a meeting of the board of directors for Monday, at 3 p. m. I have a proposition I desire to present to the board, so please notify Clarence. I am going down to Westfield to see the Welch Grape Juice Company, and may go to Hamburg, so may not be back until Monday noon.
    “Yours, etc.,

      “ Edwin Walker, Pres.”
    Pursuant to which the secretary called a meeting of the board for Monday, September 30, 1907, at which all the directors were present, and at which resolutions as follows were adopted by the votes of said directors, Edwin Walker and Clarence L. Walker :
    “ Resolved, that the president of the Erie Specialty Company is hereby authorized and directed to employ counsel and defend the Erie Specialty Company in the suit brought by Z. T. Brindley v. Erie Specialty Company.
    “ Resolved, that Z. T. Brindley is hereby removed and dismissed from the office of secretary and treasurer of the Erie Specialty Company, to take effect immediately.
    “ Resolved, that Henry L. Morse is hereby elected secretary of the Erie Specialty Company, to take effect immediately.
    “ Resolved, that Clarence L. Walker is hereby elected treasurer of the Erie Specialty Company, and that his salary as treasurer and superintendent shall be two hundred ($200) dollars per month from and after September 30, 1907.”
    ■ And that said director, Zachary T. Brindley, protested and voted against the adoption of each of said resolutions.
    That at such directors’ meeting in August, 1907, the salary of Edwin Walker as president was fixed at $300 a month, and that of Zachary T. Brindley as secretary and treasurer was fixed at $250 a month, and that of Clarence L. Walker as superintendent at $175 a month for the ensuing year. That at a subsequent meeting of said board the action of said board in increasing the salary of said Clarence L. Walker to $200 a month was rescinded. That said plaintiff, by virtue of his said appointment at the August meeting of said board, continued to act as secretary and treasurer of said corporation until said meeting on September 30, 1907, but bad not taken the secretary’s oath as required by law, nor filed a new bond as required by the by-laws of said corporation, but did tender such a bond on October 28, 1907, before bringing this suit. That on said September 30, 1907, after the adoption of said resolutions, the said president of the board gave Mr. Brindley written notice of his removal and directed him to surrender the property which he held as such secretary and treasurer, and to transact no further business as such ; and since which time he has not been permitted to act as such officer. No charges were preferred against Mr. Brindley and no reason given for his removal. He is still a director of said company, and brings this writ of mandamus to be restored to the said office of secretary and treasurer. There is nothing in the bylaws of said corporation fixing the length of the term of any of the officers of said company nor the manner of their removal.
    The court entered judgment for defendants on the demurrer to answer.

      Error assigned was the judgment of the court.

      Frank Gunnison, with him John S. Hilling and Henry E. Fish, for appellant.
    Under the act of assembly under which the Erie Specialty Company was incorporated, the secretary and treasurer are general and not subordinate or ministerial officers.
    It must be conceded that neither the act of assembly nor the by-laws of the corporation, by express written language, fixes the term of the office. They do, however, provide for annual elections. The directors and officers have uniformly, since the organization of the company, been elected annually for the term of one year. The election of the plaintiff in 1907 was for the “ present year.” It is so alleged in the petition for the mandamus and admitted in the answer. The custom of electing for the term of one year, followed in this instance, would seem to have the force of a by-law, and the election for that term to have the effect of a contract: Dunston v. Imperial Gas Light, etc., Co., 3 Barn. & Ad. 125 ; Fairfield County Turnpike Co. v. Thorpe, 13 Conn. 173 ; Langsdale v. Bonton, 12 Ind. 467 ; Lockwood v. Mechanics’ Nat. Bank, 9 R. I. 308; Union Bank v. Ridgely, 1 Harr. & G. (Md.) 324; Reuter v. Tel. Co., 6 El. & Bl. 341; Holly Springs Bank v. Penn, 58 Miss. 421 (38 Am. Repr. 330); McMichael v. Brennan, 31 N. J. Eq. 496 ; Henry v. Jackson, 37 Vt. 431; Sills v. Brown, 9 Car. & P. 601; Chambersburg Insurance Co. v. Smith, 11 Pa. 120; Com. v. Christian, 9 Phila. 556.
    An officer cannot be removed from his office during his term, except after notice and an opportunity to be heard and to defend : Riddell v. Harmony Fire Co., 8 Phila. 310 ; Field v. Com., 32 Pa. 478 ; Com. ex rel. Bowman v. Slifer, 25 Pa. 23; Com. v. Detwiller, 131 Pa. 614; Williams v. Bagot, 3 B. & C. 772; Edinboro Normal School v. Cooper; 150 Pa. 78.
    Even if there is no term fixed by the act of assembly or the by-laws, the offices of secretary and treasurer are managing, and not ministerial, offices, and the occupants of those offices cannot be removed during the term for which they were elected except for cause, after reasonable notice, and an opportunity to be heard in defense : Reid v. Hood, 2 N. & McC. (S. C.) 168 ; Ehrenzeller v. Union Canal Co., 1 Rawle, 181, 188; Coffin v. Reynolds, 37 N. Y. 640.

      T. A. Lcrnib, with him J. O. <& H. M. Sturgeon, for appellees.
    The officers of a joint-stock company, incorporated for private purposes, have no private franchise in their office, but are the mere ministerial agents of the company, to conduct its business for the benefit and under the authority of the company: Burr v. McDonald, 3 Gratt. (Va.) 215; Adamantine Brick Co. v. Woodruff, 4 McArthur (D. C.), 318 ; In re Griffing Iron Co., 63 N. J. Law, 168 ; Neall v. Hill, 16 Cal. 145 ; Bainbridge v. Smith, 60 L. T. Rep. 879.
    When a charter vests a board with the power to manage the concerns of the corporation, the power is exclusive in its character; the corporators have no right to interfere with it, and the court will not, even on the petition of a majority, compel the board to act contrary to its judgment: McCullough v. Moss, 5 Denio, 567; Railway Co. v. Alling, 99 U. S. 463 ; Elkins v. Camden & Atlantic R. R. Co., 36 N. J. Equity, 233 ; Saltmarsh v. Spaulding, 147 Mass. 224 (17 N. E. Repr. 316); Hoyle v. Plattsburg, etc., R. R. Co., 54 N. Y. 314.

      May 11, 1908 :
   Opinión by

Mr. Justice Stewart,

By the action of the board of directors of the defendant corporation the appellant was removed, without cause being assigned, from the office of secretary and treasurer to which he had been elected by the board. He seeks by this proceeding to be reinstated, on the ground that in removing him the directors exceeded their power. The general rule with respect to officers in private corporations such as this is, that all below the grade of directors, and such other officers as are elected by the corporation at large, hold their offices durante bene plácito, and are removable by the directors without cause being assigned. The reason for the rule is as obvious as the distinction made. The supreme authority in every corporation resides in its membership. The expressed will of the majority at a regular shareholders’ meeting governs in all matters within the limits of the charter. Therefore, when action has been taken by the corporation at such a meeting, on any subject pertaining to the affairs of the association, it is beyond the power of any of the agents of the corporation to undo or change what has been done. The directors are the immediate representatives of the corporation charged with the management of its affairs, and are necessarily invested with large discretionary powers; but they can act only where the corporation has not. Ordinarily, the selection of the secretary and treasurer is committed to the board of directors, as was the case here; but when the corporation has itself elected these officers the directors must accept them, and the officers so elected hold on the terms and conditions prescribed by the corporation, and none other. They derive their title to their respective offices from the same source as the directors do theirs, and they can be removed only by the power that appointed them. It is otherwise when the corporation has committed the election to the board of directors. In such case the board stands for the corporation ; the officers selected are its appointees, and its power to remove is necessarily implied. “ The directors and managing agents of a corporation have undoubted authority to revoke the powers of' the inferior agents whom they have appointed. It would be practically impossible to carry on the business of a corporation without this power; it is, therefore, always implied. The power is a •discretionary one, and the rightfulness of its exercise cannot be investigated by the courts. But the directors of a corporation have no implied authority to revoke the power of those agents who are appointed by a vote of the stockholders, or Avhose office is fixed and regulated by the charter : ” Morawetz on Private Corporations, sec. 541.

“The ministerial officers who are not elected by the corporation at large, for stated terms, but who are appointed by the board of directors, and who, therefore, sustain toward the corporation the relation of an employee toward an employer, serving for a compensation, Avhich in general the directors do not receive, have no franchise in their office, and hence are removable at the mere pleasure of the directors, without the assignment of any cause, without the giving of any notice, and Avithout any trial or investigation into the grounds of the removal: ” Thompson on the Law of Corporations, sec. 805.

The secretary and treasurer in corporations such as this are purely ministerial officers. The effort here made to show that under our act of assembly they are something more, is unavailing. The act of 1891, under which this corporation is said to have been chartered, provides that corporations chartered under it “ shall be managed and conducted by a president, a board of directors or trustees, a secretary or clerk, a treasurer, and such other officers, agents and factors as the corporation authorizes for that purpose.” The effect and purpose of this provision is to require of every corporation that it shall have the officers named, viz.: a president, directors, secretary and treasurer, as a necessary part of the equipment of its organization. The act does not attempt to define the powers and duties of any of the officers named, but leaves these to be implied from the established custom and the nature and character of the places filled. The construction that would make the act invest the secretary and treasurer with discretionary poAver — ■ something which a ministerial officer has not — Avould extend that discretionary power to all the agents and factors which .the act allows the corporation to employ. Manifestly nothing of this kind was intended.

From what we have said it folloAvs that in removing the appellant from the office of secretary and treasurer the board of directors was exercising a power which rightfully belonged to it. Whether it was wisely or considerately exercised is not for us to determine.

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


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    Lerner, Appellant, v. City of Philadelphia.

      Negligence — Municipalities—Streets—Defect in street — Duty of pedestrian — Contributory negligence — Nonsuit.
    When one abandons the use of his natural senses for the time being and chooses to walk over a pavement in a public street by faith exclusively, and is injured because of some defect in the pavement, he has only himself to blame.
    When an accident occurs in broad daylight in consequence of an open and exposed defect in a sidewalk, the burden rests upon the party complaining to show conditions outside of himself which prevents him seeing the defect or which would excuse his failure to observe it.
    One is not required in walking along a traveled highway, to keep his eyes fastened upon the ground continually to discover points of possible danger; nor is it necessary that he should in order to avoid exposed pitfalls lying directly in the path before him; but the law does require that he be observant of where and how he is going so as to avoid dangers which ordinary prudence would disclose.
    A woman, who in broad daylight, falls in a depression in a sidewalk caused by the displacement of some bricks, cannot recover from the city for her injuries, where there was nothing to prevent her from seeing the depression, except passing people, and where neither she nor her witnesses testify that the crowd was so great as to prevent her from seeing the defect.
    Argued March 30, 1908.
    Appeal, No. 104, Jan. T., 1908, by plaintiffs, from order of C. P. No. 1, Pbila. Co., June T., 1902, No. 2,885, refusing to take off nonsuit in case of Max Lerner and Sarah Lerner, his wife, v. City of Philadelphia.
    Before Mitchell, C. J., Mestbezat, Potteb, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kinsey, J.
    The facts are stated in the opinion of the Supreme Court.

      May 11, 1908 :
    . The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Eugene Raymond, for appellants.
    The case was for the jury: Becker v. Philadelphia, 212 Pa. 379; McHugh v. Kerr, 208 Pa. 225; Glading v. Philadelphia, 202 Pa. 324; Fitzpatrick v. Riley, 163 Pa. 65.

      Harry T. Kingston, assistant city solicitor, with him J. Howard Qendell, city solicitor, for appellee.
    The present case appears to be ruled by: Robb v. Connellsville Boro., 137 Pa. 42; Stackhouse v. Vendig, 166 Pa. 582; Sickels v. Phila., 209 Pa. 113; Easton v. Phila., 26 Pa. Superior Ct. 517.
   Opinion by

Mr. Justice Stewart,

We have gone very far in holding municipalities liable for injuries received in consequence of defective pavements, but never yet so far as to excuse the pedestrian using the pavements from the duty of exercising ordinary care. When one abandons the use of his natural senses for the time being, and chooses to walk over a pavement by faith exclusively, and is injured because of some defect in the pavement, he has only himself to blame. It is, of course, the duty of municipalities to see that the pavements along its streets are reasonably safe for public use, but they are not insurers of the safety of those using them. It is impracticable, if not impossible, to maintain these pavements in such condition as to make them entirely free at all times from possibility of accident to those using them. Irregularities in grade, unevenness in surface, sharp depressions at crossings, accidental displacement of brick or stone, and many other things which may or may not be defects, but yet sufficient in themselves to cause accident to the unwary, are so common and usual that it is the duty of the pedestrian to be observant of such fact, and not to walk blindly. If through no fault of his he is prevented from seeing the defect, obstruction or whatever it may be, which it was the duty of the municipality to have corrected, and injury results to him, he is entitled to claim compensation. When the accident occurs in broad daylight, in consequence of an open and exposed defect in the sidewalk, the burden rests upon the party complaining to show conditions outside of himself which prevented him seeing the defect, or which would excuse his failure to observe it. If such conditions exist, there is excuse for walking by faith. When they do not exist, the law charges the party with failure to do what was required of him. And that is this case. The accident occurred at half past four o’clock in the afternoon of an April day. The defect in the pavement was the displacement of some bricks. Into the depression caused by this displacement plaintiff stepped, with the result that she fell and injured herself. In bringing her action she assumed the burden of exhibiting a case clear of contributory negligence. Having testified that she stepped into the depression without having observed it, and having shown conditions which should have been sufficient, nothing intervening, to secure one exercising ordinary care from such accident, she would be entitled to recover only as she explained in a way consistent with ordinary care on her part, how and why she failed to see what was directly before her. Failing in this, it could not be said that her injury resulted exclusively from the defendant’s negligence. It was insisted upon by counsel representing her that she was prevented from seeing the depression into which she stepped, by the crowded condition of the pavement at the time. No other explanation is attempted. Unfortunately for the plaintiff this explanation advanced by counsel is without support in the evidence. Neither plaintiff herself, nor any witness called by her, testifies to such crowded condition. Plaintiff’s testimony in chief is most meager on this point. All she says is that at the point where the accident occurred the open way was narrow, sufficient only for two or three people to pass. To the question, “ Were there manv people there at the time ? ” she replied: “ Yes, sir, quite a number there.” On cross-examination she was asked, “ Was there anybody immediately in front of you ? ” To this she replied : “Yes, sir, there were people. We looked forward as much as we could, walking between the people.” The next question was: “Were there people back of you?” Her answer was, “ Yes, sir, walking back of us and front of us.” Twice in the course of the cross-examination — not once in her examination in chief — she was given the opportunity .by direct questioning to say that the crowded condition of the sidewalk prevented her from seeing the defect, and each time the question was avoided by the, reply that she did not see it. The testimony of her sister who was with the plaintiff when she fell, and the only witness called to testify to the circumstances, is still more meager. Here is the whole of it: “ Q. It was on Saturday afternoon, was it not? A. Yes, sir. Q. Was the neighborhood generally crowded at that time, and on that pavement? A. Usually on Saturday afternoons. Q. This Saturday afternoon? A. Yes, sir, there was several. Q. Which way were they going, and how were they going? A. Passing up and down.” Upon such testimony as this how could a jury find that plaintiff was prevented by the crowded condition of the street from seeing what was directly in her path ? The plaintiff herself declined to say that she was so prevented, and her only witness testifies to a state of facts wholly inconsistent with the explanation advanced by the counsel. We are not undervaluing the testimony in the slightest when we say that it gives no support to the explanation advanced. Nor are we holding the plaintiff to a higher degree of care and circumspection than the law in all such cases requires. One is not required in walking along a traveled highway, to keep his eyes fastened upon the ground continually to discover points of possible danger; nor is it necessary that he should in order to avoid exposed pitfalls lying directly in the path before him ; but the law does require that he be observant of where and how he is going so as to avoid dangers which ordinary prudence would disclose. The law governing cases of this character is so fully discussed, and so clearly and explicitly declared, in the opinion of Mr. Justice Mitchell in Robb v. Connellsville Boro., 137 Pa. 42, that reference to other authority is unnecessary. So far as appears from the evidence offered on behalf of the plaintiff, her accident was due to her own want of care. It admits of no other conclusion.

The nonsuit was properly entered and the judgment is affirmed.


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    Commonwealth v. Emmers, Appellant.

      Constitutional law — Federal constitution — Fourteenth amendment— Equal -protection of the laws — Waters—Sewerage Act of April 22, 1905, P. L. 260.
    The Act of April 22, 1905, P. L. 260, entitled “An Act to preserve the purity of the waters of the state for the protection of the public health,” does not in its sections, relating to the discharge of sewerage into the waters of the state, violate the fourteenth amendment of the constitution of the United States.
    The act is not unconstitutional because it permits water from coal mines, or tanneries, and the sewerage from any public sewer system owned and maintained by a municipality, provided such sewer system was in operation, and was discharging sewerage into any of the waters of the state at the time of the passage of the act, to continue to flow into the waters of the state, while forbidding individuals, private corporations and companies to discharge into the water of the state sewerage of the character designated by the act.
    The alleged right of a riparian owner to pollute the waters of a stream which flows over his land, or along the boundary thereof, is not among the privileges and immunities which belong to him as a citizen of the United States, as distinguished from those of a citizen of the state in which the land and the stream are situated; nor is such alleged right a right of property of which he is deprived by the acts of 1905 “without due process of law.” A person aggrieved by the action of the commissioner of health has a right to appeal to the court of common pleas and thus secure the protection of the “ due process of law,” within the constitutional provision.
    The classification of sewerage as different from water flowing from coal mines, and also as different from water flowing from tanneries, is a question for the legislature, and the courts can only inquire whether such classification is founded in substantial distinction having a reasonable relation to the subject-matter of the legislation.
    The classification adopted by the Act of April 22, 1905, P. L. 260, as to the character of the sewerage prohibited and that exempted from the provisions of the act is founded upon substantial and material distinctions, and is one which it is within the discretion of the legislature to make. The distinction drawn by the act between public sewer systems owned and operated by municipalities, and sewers controlled by individuals and private corporations, is equally well founded.
    The power of a state, since the adoption of the fourteenth amendment, to enact a police regulation, for the protection of the public welfare, which, restricts a noisome business or condition to certain districts, and reserves to the state or its representatives, the right to regulate and control such business is not within the' prohibition of the amendment. The privilege of discharging obnoxious sewerage into the waters of the state is a matter of public concern, and it is within the police power of the state to declare that this privilege is one which ought not to be exercised by private individuals, but only by the state or its governmental agents, the municipalities, acting under the direct control of the state.

      Constitutional law — Local or special legislation — Act of April 22, 1905, P. L. 260.
    The Act of April 22,1905, P. L. 260, forbidding the deposit of sewerage in the waters of the commonwealth, does not violate that clause of article III, sec. 7, of the constitution of Pennsylvania which declares that the general assembly shall not pass any local or special law “granting to any corporation, association, or individual any special or exclusive privilege or immunity.” Municipal-corporations do not come within this particular clause of the section, but are within the operation of the clause which relates to them specially and forbids the passing of any local or special law, “Regulating the affairs of counties, cities, townships, wards, boroughs or school districts.”
    Argued March 31, 1908.
    Appeal, No. 158, Jan. T., 1907, by defendant, from judgment of Superior Court, Oct. T., 1906, No. 206, affirming judgment of Q. S. Montgomery Co., June Term, 1906, No. 42, on verdict of guilty in case of Commonwealth v. Edward Emmers.
    Before Mitchell, C. J., Mkstrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    See 33 Pa. Superior Ot. 151.
    Porter, J., filed the following opinion :
    The defendant was indicted and convicted, under the provisions of the Act of April 22, 1905, P. L. 260, entitled “ An act to preserve the purity of the waters of the State, for the protection of the public health,” of the offense of discharging sewerage into the Schuylkill river. The specifications of error raised but two questions. Does the statute under which the defendant was convicted violate the fourteenth amendment of the constitution of the United States, which declares that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any state deprive any person of life, liberty or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the law ” ? Does the statute contravene sec. 7, art. Ill, of the constitution of Pennsylvania, which prohibits the legislature from passing any local or special law, “ granting to any corporation, association or individual any special or exclusive privilege or immunity” ?
    The first section of the statute in question defines the term “ waters of the state,” whenever used in this act, as including “all streams and springs, and all bodies of surface and ground water, whether natural or artificial, within the boundaries of the state.” The second section requires every municipality, private corporation, company and individual, supplying, or authorized to supply, water to the public, within the state, to file with the commissioner of health a certified copy of the plans and surveys of the waterworks, and a description of the source from which the supply of water is derived; and forbids the subsequent use of any additional source of supply, without a written permit from the commissioner of health. The third section forbids any municipal corporation, private corporation, company or individual to construct waterworks for the supply of water to the public, or extend the same, without a written permit to be obtained from the commissioner of health if, in his judgment, the proposed source of supply appears to be not prejudicial to the public health ; this section provides for the filing of an application for the permit, to construct or extend such waterworks, with a description of the source from which it is proposed to derive the supply, and gives to the applicant, in case the commissioner of health shall refuse the permit, the right to appeal, within thirty days, to the court of common pleas of the county, which court shall, after a hearing, make an order approving, setting aside or modifying the decision of the commissioner of health, or fixing the terms upon which said permit shall be granted. The sections of the statute upon which the learned counsel for the appellant bases his argument that the act offends against the constitution of the United States and the constitution of Pennsylvania are as follows: “ Section 4. No person, corporation or municipality shall place, or permit to be placed, or discharge, or permit to flow into any of the waters of the state, any sewerage, except as hereinafter provided. But this act shall not apply to waters pumped or flowing from coal mines or tanneries, nor prevent the discharge of sewerage from any public sewer system, owned and maintained by a municipality, provided such sewer system was in operation and was discharging sewerage into any waters of the state at the time of the passage of this act. But this exception shall not permit the discharge of sewerage from a sewer system which shall be extended subsequent to the passage of this act. For the purposes of this act, sewerage shall be defined as any substance that contains any of the waste products, or excrementótious or other discharges from the bodies of human beings or animals.” “ Section 8. All individuals, private corporations, and companies that, at the time of the passage of this act, are discharging sewerage into any of the waters of the state may continue to. discharge such sewerage, unless in the opinion of the commissioners of health the discharge of such sewerage may become injurious to the public health. If at any time the commissioner of health considers that the discharge of such sewerage into any of the waters of the state may become injurious to the public health, he may order the discharge of such sewerage discontinued.”
    “ Section 9. Every individual, private corporation, or company shall discontinue the discharge of sewerage into any of the waters of the state, within ten days after having been so ordered by the commissioner of health.” The tenth section makes it a misdemeanor, punishable by fine or imprisonment, or both, to discharge sewerage into the waters of the state contrary to the provisions of this act. “ Section 11. Any order or decision, under this act of the commissioner of health, or that of the governor, attorney general and commissioner of health, shall be subject to an appeal to the court of common pleas of the county wherein the outlet of such sewer or sewer system, otherwise prohibited by this act is situated ; ’ and the said court shall have power to hear said appeal, and may affirm or set aside said order or decision, or modify the same, or otherwise fix the terms upon which the permission shall be granted. But- the order or decision appealed from shall not be superseded by the appeal, but shall stand until the order of the court, as above.”
    The defendant is the owner and operator of a hosiery mill, situated on or near the bank of the Schuylkill river, in Montgomery county, where he employs from 150 to 200 men and women. There are in the mill nine water-closets, for the use of these employees, the sewerage from all of which is by a single pipe conducted from the mill and flows into the waters of the Schuylkill river. This condition existed at the time the statute in question became a law, and the commissioner of health, on February 9, 1906, served upon the defendant a notice that this discharge of sewerage was injurious to the public health, and requiring that the same be discontinued within ten days, as provided by the eighth and ninth sections of the statute. The defendants neither abated the nuisance nor appealed from the decision of the commissioner to the court of common pleas, as under the provisions of the statute he had the right to do and, under the provisions of this statute, the discharge of such sewerage into the Schuylkill river became, after the expiration of ten days, unlawful. The only question is whether this statute is a valid exercise of legislative power. The appellant contends that because the statute permits water from coal mines or tanneries and the sewerage from any public sewer system owned and maintained by a municipality, provided such sewer system was in operation and was discharging sewerage into any waters of the state at the time of the passage of the act, to continue to flow into the waters of the state, while forbidding individuals, private corporations and companies to discharge into the waters of the state sewerage of the character designated by the act, the law is obnoxious to the constitutional provisions.
    The only alleged privilege or immunity of the appellant with which the statute in question could possibly interfere, is that of discharging sewerage from his land into a stream which constitutes one of its boundaries. The right of the defendant to navigate the waters of the state remains unabated. His right to use the water to supply the natural wants of those lawfully upon the land, or to consume it for manufacturing purposes, is not affected by this legislation. The alleged right of a riparian owner to pollute the waters of a stream which flows over his land, or along the boundary thereof, is not among the privileges and immunities whiela belong to him as a citizen of the United States, as distinguished from those of a citizen of the state in which the land and the stream are situated. This statute does not, therefore, fall within the prohibition of the first clause of the fourteenth amendment of the constitution of the United States, which declares that “ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States:” Slaughter House Cases, 83 U. S. 36; Brad-well v. Illinois, 83 U. S. 130 ; Giozza v. Tiernan, 148 U. S. 657; Commonwealth v. Finn, 11 Pa. Superior Ct. 620.
    The appellant does not contend that this act violates the second clause of the fourteenth amendment which provides that “ nor shall any state deprive any person of life, liberty, or property, without due process of law,” and it is manifest that such contention could not, if made, be sustained. The ownership of riparian lands does not involve the ownership of the waters which flow over or along the margin of such lands. The owner of the land has a right to use the water for certain lawful purposes, and this right is a natural one, inherent in the ownership of the land, but he can in no sense be said to have an absolute ownership of the water, as such. He has a right to the ordinary use of the water of the stream for the purpose of supplying the natural wants, for such things as are necessary to the preservation of life and health, of those occupying the land, even if such uses result in a substantial diminution of the stream. His right to use the water of the stream for manufacturing or other purposes, having no necessary relation to the use of his land, is limited to so much of the water as will not materially or sensibly diminish its quantity: Haupt’s Appeal, 125 Pa. 211; Lord v. Meadville Water Co., 135 Pa. 122; Railroad Co. v. Pottsville Water Co., 182 Pa. 418 ; Filbert v. Dechert, 22 Pa. Superior Ct. 362. The riparian owner must permit the water to flow, subject to the diminution of its quantity resulting from these reasonable uses, in its natural channel, unpolluted, to lower riparian owners, who take it subject to the same rights and the same restrictions. The erection of anything in the upper part of a stream of water which poisons, corrupts or renders it offensive and unwholesome, is actionable: Howell v. McCoy, 3 Rawle, 256; Wheatley v. Chrisman, 24 Pa. 298; McCallum v. Germantown Water Co., 54 Pa. 40 ; Commonwealth exrel. v. Russell, 172 Pa. 506. When, in the development of the natural resources of the land, the water from a mine must necessarily and unavoidably pass into a stream, and that consequence could only be avoided by an expenditure which would amount to a practical prohibition of the development of the land, the injury to a lower riparian owner resulting from such unavoidable mixture of the water of' the mine with that of the stream is a private injury for which there is no remedy : Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126 ; but whether this extreme exception to the general rule that a riparian owner has no right to pollute the waters of a stream could prevail against the right of the public is an entirely different question: Com. ex rel. v. Russell, 172 Pa. 506. There can, however, be no question in the present case. The pollution caused by the defendant did not result from the development of any natural resources of his land, nor was it unavoidable. He never had a right, recognized by law, to discharge sewerage, of the character shown in this case, into the stream which flowed past his land; he had, it is true, continued the practice for fourteen years, but it was from first to last a wrongful act, and he took the chances of having to answer for its consequences. Had the practice resulted in an injury to a lower riparian owner the wrong would have been a private one, for which the individual or individuals injured might have had redress by action. If the public had a right to take from this stream pure and unpolluted water for drinking purposes, and found in it the germs of disease, coming from this sewer of the defendant, his offense would be a public one, for which he could be indicted and punished at common law: Commonwealth v. Yost, 197 Pa: 171. The defendant was not, prior to the enactment of this statute, possessed of a right of property, in the privilege of discharging this sewerage into the stream, recognized by law. He was not, therefore, deprived of “ liberty or property,” within the meaning of the second clause of the fourteenth amendment. But even if the defendant had a property right in the privilege of discharging.sewerage into the stream, he was not by this statute deprived of that right “ without due process of law.” The statute provided that the defendant, because he had been so discharging sewerage prior to the approval of the act, should be permitted to continue the practice until, “ in the opinion of the commissioner of health, the discharge of such sewerage may become injurious to the public health; ” that upon notice of such decision by the commissioner of health the defendant should discontinue the discharge of sewerage within ten days, and that after that period the discharge of such sewerage should be unlawful. The commissioner of health is a sworn official, and it is presumed that, under his oath of office, his duties as the representative of the commonwealth will be properly performed. The delegation by the legislature to a state officer, of the power to determine some fact or state of things upon which the law makes its own action depend, is not an unwarranted delegation of legislative power: Wilkes-Barre v. Gareabed, 11 Pa. Superior Ct. 355. The law imposes upon the officer in question the duty of enforcing the health laws of the commonwealth, and this statute clothes him with the power and imposes upon him the duty of ascertaining whether any sewer, maintained by an individual, company or private corporation, is discharging into the waters of the commonwealth material which is a menace to the public health. The act does not make the decision of this official final, it gives the defendant the right of an appeal to the court of common pleas, a constitutional tribunal clothed with full law and equity powers, and gives him in that court an opportunity to be heard, upon the question whether or not the sewer so maintained involves danger to the public health. The statute placed at the disposal of the defendant this process of law to have determined in a court of competent jurisdiction the primary question, whether the material which he was discharging into the stream had become a menace to the public health; and before he could be convicted of the offense created by the statute he was entitled to a trial in the court of quarter sessions, a court of record in which all misdemeanors are triable, and the burden was upon the commonwealth to establish that he had discharged sewerage into the stream, after the fact that such discharge involved a menace to the public health had been determined in the manner by the statute provided. The 14th amendment is not to be so construed as to deprive the states of the power to so amend their laws as to make them conform to the wishes of citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land; this power of change is limited by the fundamental principles laid down in the constitution. “ Due process of law, is process due according to the law of the land. This process in the states is regulated by the law of the state: Walker v. Sauvinet, 92 U. S. 90. The statute in question afforded the defendant a full and fair opportunity to have tried in a court of competent jurisdiction every question that arose, at the various stages of the proceedings, leading up to his conviction ; the statute afforded to every individual, private company and corporation the same opportunity for a trial, under like conditions, in every case; and there can in this case be no allegation that the courts have denied any right which the statute conferred. The conviction of the defendant resulted from due process of law: Holden v. Hardy, 169 U. S. 366.
    Does the statute contravene the provisions of the third clause of the 14th amendment, “ No state shall .... deny to any person within its jurisdiction the equal protection of the laws ” % The appellant contends that the act of 1905 conflicts with this provision of the constitution of the [Jnited States, for the reason that it permits “ water pumped or flowing from coal mines or tanneries, and sewerage from any public sewer system, owned and maintained by a municipality, provided such sewer system was in operation and was discharging sewerage into any of the waters of the state at the time of the passage of this act, ” tq continue to be discharged into the waters of the state provided that no such sewer system be extended subsequently to the passage of the act. The statute was passed in the exercise of the police power of the state. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace and safety, of society. All sorts of restrictions and burdens are imposed under this power, and when these are not in conflict with any constitutional prohibition, or fundamental principle, they cannot be successfully assailed in a judicial tribunal. That the preservation of the waters of the state from pollution, involving danger to health, is a proper subject for the exercise of the police power, cannot be seriously questioned. Proceeding to an examination of the subjects excepted out of the operation of the statute, which exceptions the defendant asserts involve a denial of the equal protection of the laws, to those not within the exceptions, we must inquire whether the exceptions are founded upon substantial dis-. tinction, having reasonable relation to the subject-matter of the statute. That there might be no question as to the kind of sewerage that the legislature intended to forbid individuals, companies and private corporations from discharging into the waters of the state, when it had been determined, in the manner provided by the statute, that such discharge had become dangerous to the public health, the statute embodied a specific definition, in these words, “ Sewerage shall be defined as any substance that contains any of the waste products, or excrementitious or other discharges from the bodies of human beings or . animals.” The exception of water flowing from coal mines was unnecessary, such water does not naturally contain any of the ingredients of sewerage as defined by the statute. The water flowing from a coal mine may contain sulphate of iron, sulphate of lime or other chemicals in solution, which would make it unpleasant for drinking purposes, and perhaps injurious to health, but it could not contain the specific germs of those diseases which sometimes abound in sewerage of the character defined by the statute. Should the water from a coal mine be mixed with sewerage of the kind prohibited, the compound would no longer be within the exception, but would come within the prohibition of the statute. The same rule is to be applied to water flowing from tanneries. Such waters would undoubtedly be offensive to both taste and smell, but the only waste products of animals which they would carry would be such as appertained to the hides. Those waste products had been long immersed in and saturated with chemical solutions, which give to them a character essentially different from the waste products of a slaughter house or the excretions of human beings. The waters flowing from the tannery are only within the exception so long as they remain unmixed with other materials. Whether the processes employed in the tanning of hides would, if applied to sewerage of the kind to which this statute applies, result in the destruction of the germ life with which it is asserted by science that the dejecta of human beings sometimes abounds, it is not for us to affirm or deny. One has been subjected to a prolonged process in which powerful chemicals are made use of, and the other has not been subjected to such a process. It is not for the court to determine whether the classification adopted by the legislature was wise or unwise; we are only to inquire whether-it is founded in substantial distinctions having some reasonable relation to the subject-matter of the legislation. “"While the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests: ” Holden v. Hardy, 169 H. S. 366; Lawton v. Steele, 152 U. S. 133. "What is necessary for the protection of the public health is primarily a legislative question. Whether the introduction of sewerage, of the kind prohibited by the statute, into the waters of the various streams of the commonwealth by private individuals, companies or corporations, could be conducted in such a way, or with such secrecy, as to baffle ordinary inspection, or whether it involves such dangers to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the discharge of such sewerage as does not involve danger to the public health, are questions of fact and of public policy, which belong to the legislative department of the government: Powell v. Pennsylvania, 127 U. S. 678. The question in each case is whether the legislature has adopted the the statute in the exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression, or spoliation of a particular class. “ From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits —for supplying water, preventing fires, lighting districts, cleaning streets, opening parks and many other objects. The regulations for these purposes may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground for complaint, if they operate alike upon all persons and property,; under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within- the sphere of its operation it affects alike all persons similarly situated, is not within the amendment:” Barbier v. Connolly, 113 U. S. 27. The exemption of the water discharged from tanneries, which must be construed as including only the liquid resulting from the operation of tanning without the admixture of such sewerage as is prohibited by the statute, involved only a classification of the kind of sewerage with which the legislation dealt. It did not exempt the tanner from liability to answer to any lower riparian owner for any injury which the discharge of the water from the tannery might cause, nor did it exempt him from prosecution under the law as it formerly existed in case the discharge of the waters from this tannery became a public nuisance. The exception was not limited to the then existing tanneries, but this defendant or any other person who hereafter engages in the tanning business is entitled to its protection, to the extent that it is not affected by this statute in any manner whatever.
    The classification adopted by the statute, as to the character of the sewerage prohibited and that exempted from the provisions of the act, was founded upon substantial and material distinctions, and was one which was within the discretion of the legislature to make.
    When we consider all the circumstances involved, the distinction drawn by the statute between public sewer systems, owned and operated by municipalities, and sewers controlled by individuals and private corporations, would seem to be equally well founded. A municipality is a governmental agent, and, although its existence is dependent upon the legislative will, while it exists it represents, within its sphere, the sovereign power of the state. The public sewer systems owned and maintained by the municipalities of the state have been constructed at the public expense and under express legislative authority. The necessity of providing- some system of house drainage and of general sanitation for densely populated cities, and of providing for the inspection, regulation and control of those matters by the state or the municipalities, as the representatives of the state, in the interest of the public health, had imperatively demanded the exercise of the police power of the state, and in the exercise of that power the legislature had authorized the construction of these public sewer systems. Any person whose property suffers an injury because of the discharge of such public sewer systems into the waters of the commonwealth is, under the law of the state, entitled to compensation for such injury: Good v. Altoona, 162 Pa. 493. The statute with which we are now dealing does not deprive the private owner of the right to compensation for injury to his property. These public sewer systems and the house drains which lead into them have by the legislation of the state been made subject to the regulation, inspection and control of the municipalities, and the duty of exercising such supervision has been imposed upon the municipal authorities. Density of population has been recognized as a proper basis for the classification of communities with regard to the necessity for and regulation of house drainage. “ In its nature it is a definition and regulation of the police power on a subject which is one of municipal concern. All the cases agree that such subjects are the principal basis of the legitimate classification of cities. That the control and regulation of cesspools and drainage in general are more important and require different conditions in closely built up neighborhoods from those sufficient for the open country does not need discussion. And for the same reasons the regulations may require to be different in cities of different volume and density of population. . . . The subject being one which is germane to the proper basis of classification its regulation and application to one or more classes are within the legislative discretion: ” Beltz v. Pitts-burg, 26 Pa. Superior Ct. 66 ; s. c., 211 Pa. 561. This necessity for house drainage, under state inspection, regulation and control, in densely populated communities, was one of the elements of the problem which confronted the legislature when in the exercise of its discretion it determined that a necessity had arisen for the exercise of the police power to preserve the purity of the waters of the state, for the protection of the public health. If, as contended by the appellant, the only solution of the problem was to prohibit the discharge of all sewerage, under any conceivable circumstances and conditions, into the waters of the state; then the legislature had no discretion to frame any act which would, without unnecessary oppression of any individual, impose regulations to guard the public health against one source of danger, unless it at the same time deprived the inhabitants of all densely populated communities of reasonable protection against another source of danger to the public health. Such a construction of the fourteenth amendment would deprive the states of all power to make the police regulations necessary to meet the varying needs and dangers of the different districts and communities within their borders. The most densely populated city in the commonwealth could not be permitted to discharge its sewerage into an estuary of the sea, unless at the same time all owners of riparian lands from where the waters of the state have their origin in mountain rivulets to where as rivers they meet the tides of the ocean were permitted, without state inspection, control or regulation, to pollute the waters for their own private profit. This contention of the appellant cannot be sustained. The authority of a state to make police regulations, to provide for the health of those residing in the different districts subject to its jurisdiction and to classify those districts according to the widely varying circumstances and conditions therein prevailing, so long as that classification is based upon conditions having'a substantial and reasonable relation to the general subject-matter of the regulation, cannot be questioned, and such classification is not within the prohibition of the fourteenth amendment of the constitution of the United States. “ The question in each case is whether the legislature has adopted the statute in the exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression, or spoliation of a particular class: ” Holden v. Hardy, 169 U. S. 366; Barbier v. Connolly, 113 U. S. 27. The power of a state, since the adoption of the fourteenth amendment, to enact a police regulation, for the protection of the public Avelfare, which restricts a noisome business or condition to certain districts, and reserves to the state, or its representatives, the right to regulate ■and control said business, is not within the prohibition of the amendment: Slaughter House Cases, 83 U. S. 36.: The priv-' ilege of discharging obnoxious sewerage into the waters of the state is a matter of public concern, and it was within the police power of the state to declare that this privilege was one - which ought not to be exercised by private' individuáis, but only by the state, or its governmental agents, the municipalities, acting under the direct control of the state. That the state reserved to itself a privilege, which it denied to individual citizens, did not deprive this appellant, or any other person, of the equal protection of the laws. This statute required every individual, corporation or municipality supplying the public with water to file in the office of the health department of the state a statement of its source of supply. It requires every municipality which, at the'time of the adoption of the statute, was maintaining a system of sewerage, to file in that department a plan thereof. These provisions necessarily result in making a matter of public record, in the office of the commissioner of health, the sources from which the public, water supply of every community in the state is taken, and a like record of every opening of a public sewer system into the waters of the state. Should an epidemic develop in any community, the health authorities immediately have accurate information as to the source from which the public water supply of that community is derived, and whether any public sewer system is discharged into that water. The state legislation requiring physicians in municipalities to make reports to the health authorities of all cases of diseases, will place at the disposal of the commissioner of health information as to the health conditions existing in the municipalities using the various public sewer systems. The commissioner of health and officers under his control will thus constantly- have a large part of the information necessary to deal with the health conditions of any community.
    The contention that this statute'violates that clause of article III, sec. 7, of the constitution of Pennsylvania, which debelares that the general assembly shall not pass any local or special law, “ granting to any corporation, association, or individual any special or exclusive privilege or immunity,” cannot be sustained. Municipal corporations do not come within this particular clause of the section, but are within the operation of the clause which relates to them specially and forbids the passing of any local or special law, “ Regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” Municipal and quasi-municipal corporations are the agents of the state, authorized to perform such governmental duties as are by the state delegated, and there must be, from the very nature and purpose of their organization, delegated to them governmental powers such as those of taxation and police, which it would be manifestly improper to delegate to an individual or private corporation. This is clearly recognized by this section of the constitution, which places them in a distinct clause and constitutes them a class by themselves. Legislation which confers upon municipalities, powers and privileges, properly relating to municipal affairs, while denying such powers to individual and private corporations, does not violate that provision of the constitution of the state which the appellant seeks to revoke : Com. v. Yrooman, 164 Pa. 306 ; Clark’s Estate, 195 Pa. 520.
    May 11, 1908 :
    The judgment is affirmed, and it is ordered that the defendant appear in the court below to the end that the sentence be carried into execution.
    . Error assigned was the judgment of the Superior Court.

      Henry Freedley, with him E. L. Hallman, for appellant.

      Moses Hampton Todd, attorney general, and Reginald II. Lines, with them Louis J. ■ Palmer and ParTcer S. Williams, for appellee.
   Per Curiam,

, The judgment is affirmed on the opinion of the Superior Court.