author: Per Curiam,

text:
    Hill v. Central Accident Insurance Company, Appellant.

      Insurance—Accident insurance—Death by violent and external means—Evidence—Province of jury.

    In an action upon a policy of accident insurance the evidence was clear that the death of the deceased resulted from the discharge of a pistol when he was alone and rising in the morning. The pistol was offered in evidence. The location of powder mark upon the bolster was proved; and the nature and character of the wound, the position of the body when found, and the fact that deceased was undressed were shown. It also appeared that the deceased kept his revolver under his pillow. The defendant insurance company offered evidence to show that the deceased had heart disease, and that he had his life insured in another company. In reply the plaintiff proved that the deceased was cheerful and happy. Held, that it was for the jury to determine whether the pistol was accidentally or intentionally discharged.
    Argued Oct. 11, 1904.
    Appeal, No. 77, Oct. T., 1904, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1903, No. 132, on verdict for. plaintiff in case of G. M. Hill, Administrator of Alfred T. Seitz, v. Central Accident Insurance Company of Pittsburg.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit on a policy of accident insurance.
    The facts appear by the opinion of Patton, P. J., on a motion for judgment non obstante veredicto, which was as follows :
    On the trial of the case we affirmed all the defendant’s points except that under all the evidence in the case the verdict must be for the defendant, but we reserved the question whether or not there was any evidence in the case to submit to the jury that the death of Alfred J. Seitz was caused by external, violent and accidental means. We instructed the jury that the burden was upon the plaintiff to satisfy the jury, by the preponderance of the testimony, that the deceased came to his death by violent, external and accidental means, and unless they were so satisfied their verdict must be for the defendant.
    Hence it would be profitless to attempt to review or try to reconcile the conflict of authorities in other states, whether or not the burden is on the plaintiff or defendant in a suit upon an accident insurance policy, to prove the death was intentional or accidental.
    If this was a suit upon a life insurance policy, it would seem to us that it has been settled in Pennsylvania that the party alleging suicide must prove it: Continental Insurance Co. v. Delpeuch, 82 Pa. 225 ; Fisher v. Life Assn., 188 Pa. 1; Slatterey v. Maccabees, 19 Pa. Superior Ct. Ill, but the policy sued on in this case does not insure life. If it did, the plaintiff’s intestate would have been compelled to pay a much higher rate. He was insured only and solely from death by violent, external and accidental means.. The plaintiff alleges in his declaration that the deceased came to his death by external, violent or accidental means, and we see no reason why he should not be compelled to prove it. Moreover, we think this question has been set at rest in Pennsylvania by the decision of the Supreme Court in Keefer v. Life Insurance Co., 201 Pa. 448, where the suit was upon a policy similar to the one in suit, and the defense was that the deceased had not come to his death solely by external, violent and accidental causes. The court said : “ The plaintiff’s right to recover was limited under the terms of the policy to death from violent, external and accidental causes. If death was the result of disease, the claim made here was without foundation. The burden of proof was on the plaintiff.”
    However, as before remarked, we need not concern ourselves further about this, because we charged the jury as requested by defendant, and it can now have no ground of complaint.
    This brings us to the crucial point in the case : “Was there any evidence to submit to the jury ? ” Certainly no direct evidence, for no one was present when the fatal shofwas fired; but little if any evidence as to what occurred before the tragedy, for, in our opinion, had the insured lived, and brought suit for an accidental injury, he could not have given his own declaration in evidence, and after his death it seemed to us that his executor, who is only the privy in representation, could not have given the declaration of his intestate in evidence. But witnesses were called to prove all the circumstances surrounding the tragedy. The pistol was offered in evidence. The location of the powder marks upon the bolster was proved. The nature and character of the wound, the position of the body when found, the fact that deceased was undressed and that the shot was fired just at the time that the deceased usually arose from his bed—all these and many more were submitted to the jury for their consideration in determining whether death was occasioned by accident or design. The defendant on the trial seemed to perceive the strength of this testimony, and on its behalf offered evidence to show that the deceased had heart disease, that he had his life insured in another company, and asked, the jury to say from these circumstances that they might infer that the deceased intentionally took his own life. To this the plaintiff replied- by proving by the physician on cross-examination that the deceased was always cheerful and happy.
    Why should not the jury be allowed to pass upon this circumstantial evidence ? They were men all probably familiar with the use of firearms, knew how easily and often unaccountably firearms are accidentally discharged. They were from the same walk of life as the deceased, and probably better able to understand his motions and conduct than any judge. There is no reason why circumstantial evidence should not be considered in a civil case as well as a criminal. It is true we are more often required to apply the rules of circumstantial evidence in criminal cases than in civil, but the only reason is that crimes are usually committed in secret, and hence it is difficult to obtain direct evidence. This is a rule laid down in Greenleaf on Evidence, 15th edition, séc. 13: “ In civil cases it is sufficient, if tire evidence on the whole agrees with and supports the hypothesis which it is adduced to prove, but in criminal cases it must exclude every other hypothesis but that of the guilt of the party. In both cases the verdict may well be founded on circumstances alone, and these often lead to a conclusion more satisfactory than direct evidence.”
    It has been strenuously insisted that the case of Keefer v. Insurance Co., 201 Pa. 448, rules the one before us.
    We do not concur in this and think there is a clear distinction between the two cases. That case was whether or not the insured died by accident or of disease. As well said by Mr. Justice Potter : “ The jury were asked to infer, first, that the plaintiff suffered a fall; second, that the fall was accidental and not the result of disease such as vertigo or cerebral apoplexy; third, that death resulted as a consequence of the fall. All this in the absence of an eyewitness to the fact of external injury, and without direct evidence there was a fall. No one testified how, when or where it occurred. Nowhere in the testimony does there appear any theory more than a conjecture that the death was caused by accident, rather than by disease.”
    But in our case there is no question but that Albert T. Seitz came to his death by violent and external means. Was the fatal shot fired accidently or by' design ? That was the only question for the jury. The theory of the plaintiff was that the deceased kept his revolver under his pillow, that it was his habit to rise at six o’clock in the morning and take his revolver with him. That on the morning of the tragedy in undertaking to do this the weapon was accidentally discharged. To" siistain this theory they proved all the surrounding facts and circumstances, offered the revolver in evidence, submitted it to the inspection of the jury and argued the case on that theory. The defendant offered evidence to show that the defendant had heart disease; that he had his life insured in another company. They, too, exhibited the weapon to the jury, snapped it in their presence, argued from the construction of the weapon that it could not be accidentally discharged by pulling it from under the pillow. Here, then, were conflicting theories, both sustained by circumstantial evidence, both ably argued before an intelligent jury, why should not they be allowed to decide the question of fact. We think this case comes within the -ruling of Yan Eman v. Fidelity & Casualty Co., 201 Pa. 537. That when there is evidence that death resulted from violent and external means, and there are conflicting theories as to how the death occurred it is for the jury to pass upon the facts.
    And now February 3, 1904, the motion to enter judgment in favor of the defendant non obstante veredicto is refused.
    The court entered judgment for plaintiff for $2,300 on the verdict.

      Error assigned among others was in entering judgment on the verdict.

      W. A. Stone, of Stone £ Stone, with him, Rayburn McCain, for appellant, cited:
    Keefer v. Life Ins. Co., 201 Pa. 448.

      Ross Reynolds, with him, James H. McCain and W. J. Christy, for appellee,
    cited: Shank v. United Brethren Mut. Aid Society, 84 Pa. 385; Continental Ins. Co. v. Delpeuch, 82 Pa. 225; Fisher v. Life Assn., 188 Pa. 1; Slatterly v. Maccabees, 19 Pa. Superior Ct. 111; Standard Life & Accident Ins. Co. v. Thornton, 49 L. R. A. 116; Anthony v. Mutual Accident Assn., 26 L. R. A. 406; Travelers Ins. Co. v. McConkey, 127 U. S. 661 (8 Sup. Ct. Repr. 1360) ; Star Accident Co. v. Sibley, 57 Ill. App. 315; Jones v. U. S. Mut. Accident Assn., 92 Iowa 652 (61 N. W. Repr. 485); Mallory v. Travelers Ins. Co., 47 N. Y. 52; Whitlatch v. Fid. & Cas. Co., 71 Hun, 146; (24 N. Y. Supp. 537).
    Nov. 4, 1904:
   Per Curiam,

This judgment is affirmed on the opinion of the court below on the motion to enter .judgment non obstante veredicto.


source: Caselaw Access Project

author: Mb. Justice Bbown,

license: Public Domain

text:
    Mix v. North American Company, Appellant.

      Appeals—Practice, Supreme Court—Assignments of error.

      An assignment of error setting forth that the court erred in refusing a new trial for four specific reasons stated, does not violate rule 29, which provides that each error relied on must be specified particularly and by itself.
    An assignment of error in the following form is not improper. “ The learned court erred in refusing to grant defendant a new trial, notwithstanding the evidence of the corrupt solicitations of certain jurors in behalf of the plaintiff, the misconduct of the jury, and the various irregularities in connection therewith both during the course of the trial and after the jury had retired to deliberate upon their verdict, tending prejudicially to affect their deliberations and judgment, which things were made known to the court either while the trial was in progress or by depositions taken subsequently thereto ; and upon the ground of after-discovered evidence.”

      New trial—Appeals—Discretion of court—Improprieties connected with the jury—Depositions.

    The refusal to grant a new trial for alleged improprieties relating to or affecting the jury, rests, as a rule, in the sound discretion of the lower court, and will not be reviewed by the appellate court ; but when there is an allegation of the court’s abuse of its discretionary power in passing upon an application for a new trial, it is the duty of the appellate court to inquire into the facts, and if, after due consideration of them abused discretion clearly appears, the improper action below must be reversed and the wrong done corrected. In making such an inquiry the appellate court will consider the depositions taken in support of the motion for a new trial.
    On a motion for a new trial in a libel suit against a newspaper, from the depositions taken in support of the motion, it appeared that one of the jurors was called up over the telephone by a man whose name h'e refused to disclose, and who subsequently called upon the juror and urged him to stand out for the plaintiff. The juror resented the attempt to influence him, communicated the matter to his counsel, who in turn communicated it to the trial judge, but the latter did nothing and continued the trial. Another juror was called upon at his own house and asked to give the plaintiff the benefit of the doubt. This was also resented by the juror, but defendant’s counsel had no knowledge of it before the jury were discharged. During the trial a third juror discussed the case in a cigar store, and denounced the newspaper as “ a damned liar.” It also appeared that certain of the jurors started a game of poker after they had retired to deliberate, and that one of them after a period of play sent out for additional money. It also appeared that the officers having the jury in charge and while they were out deliberating, permitted the jurors to separate, talk over the telephone, communicate with their families, and in charge of the officers visit the public offices. Held, that it was an abuse of the discretion of the court, under the circumstances, to refuse a new trial.
    It has been said that the greatest object of civil government is to get twelve honest men in the jury box. If this is true, after they get there they must be kept there, hedged around not only with their own integrity, but with every precaution against evil communication which may corrupt them ; and when they go to their room to deliberate upon an issue in which is involved the life, liberty or property of their fellowman, their conduct in the discharge of such duty must comport with it, else confidence in the system which is the best achievement of civilization will be lost. Per Brown, J.
    Argued Feb. 2, 1902. Re-argued March 22, 1904.
    Appeal, No. 210, Jan. T., 1903, by defendants, from judgment of C. P. No. 5, Phila. Co., March T., 1901, No. 764, on verdict for plaintiff, in case of Lorraine P. Mix v. North American Company, Thomas B. Wanamaker and E.'A. Van Valkenburg.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for libel. Before Martin, P. J.
    At the trial it appeared that the action was based on certain articles published in the North American in October, 1900, and February, 1901, which publications charged plaintiff with the murder of her former husband, Dr. George W. Bull, by poison.
    Verdict and judgment for plaintiff for $25,000. ' Defendant appealed.

      Error assigned among others was (223).
    The learned court erred in refusing to grant defendants a new trial, notwithstanding the evidence of the corrupt solicitar tions of certain of the jurors in behalf of the plaintiff, the misconduct of the jury, and the various irregularities in connection therewith, both during the course of the trial and after the jury had retired to deliberate upon their verdict, tending prejudicially to affect their deliberations and judgment, which things were made known to the court either while the trial was in progress or by depositions taken subsequently thereto; and upon the ground of after-discovered evidence.
    The evidence taken by depositions in support of a motion for a new trial is summarized in the opinion of the Supreme .Court.

      James Gay Gordon and George S. Graham, for appellants.
    Evidence of jurors touching the misconduct of themselves and their fellows was admissible : Mattox v. United States, 146 U. S. 140 (13 Sup. Ct. Repr. 50) ; Ritchie v. Holbrooke, 7 S. & R. 458; Stull v. Stull, 197 Pa. 243.
    The improper influence exerted upon «jurors is ground for a new trial: Owen v. Schmidt, 14 Phila. 183.
    It is improper for any person to talk with jurors as to a case which they are empaneled to try, and where a party, or one in his behalf, does so in such a manner as to justify the assumption that he wishes to influence the jurors, a verdict in his favor will be set aside and a new trial granted : Chahoon v. Hackley, 5 Kulp, 397; Blaine v. Chambers, 1 S. & R. 169; Sohn v. Hershey, 5 Lanc. Law Rev. 301; Com. v. Martin, 16 Pa. C. C. Rep. 597 ; Johnson v. Ry. Co., 8 Del. Co. Rep. 346 ; Francis v. Phila., etc., Ry. Co., 13 Mont. Co. Law Rep. 176 ; Keegan v. McCandless, 7 Phila. 248; Redmond v. Royal Ins. Co., 7 Phila. 167; Boreland v. St. Clair, 4 Pa. C. C. Rep. 541; Elkins v. Gaff, 2 W. N. C. 586 ; Montgomery v. Scott Twp., 26 Pitts. Legal Jour. 198; Harvester Co. v. Hodge, 6 Pa. Dist. Rep. 878; Reins v. People, 30 Ill. 256; Rickard v. State, 74 Ind. 275 ; Com. v. Heden, 162 Mass. 521 (39 N. E. Repr. 181) ; Ritchie v. Holbrooke, 7 S. & R. 458; Owen v. Schmidt, 14 Phila. 183 ; Com. v. Martin, 16 Pa. C. C. Rep. 140.
    It certainly cannot be that gambling can take place in the juryroom, and jurors be subjected to the influence of this vice, and to the probable power which might thereby be acquired by a successful participation in the game over the loser, and that such practice will be passed over without notice. It certainly cannot be that a juror losing money at a game, and requiring more for further gambling, can be permitted to send out and receive money from the outside. The very suggestion of such a matter carries with it its own decision and its own argument. So, too, as to communications over the telephone ; they admit of possibilities of improper influence so subtle and so palpable as not to require discussion.

      Henry J. Scott, with him James Fitzpatrick and Anthony A. Hirst, for appellee.
    The court cannot consider the subject-matter of assignment No. 223, because it violates rule 29 of this court: Irvin v. Kutruff, 152 Pa. 609 ; Saxton’s Estate, 195 Pa. 459.
    The allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed, and the result cannot be made the subject of review by writ of error: Henderson v. Moore, 9 U. S. 11; Newcomb v. Wood, 97 U. S. 581.
    A new trial will not be granted for irregular conduct by a juror, which has done no harm : Com. v. Cressinger, 193 Pa. 326; Heiss v. Lancaster, 18 Lanc. Law Rev. 289; Leitz v. Hohman, 18 Lanc. Law Rev. 217 ; Com. v. Zuern, 24 Pa. C. C. Rep. 264; Megargel v. Waltz, 21 Pa. C. C. Rep. 633; McCausland v. McCausland, 1 Yeates, 372; Shomo v. Zeigler, 10 Phila. 611; Hawley v. Acker, 2 Woodw. 237 ; Com. v. Jongrass, 181 Pa. 172 ; Owen v. Schmidt, 14 Phila. 183 ; Moss v. Com., 107 Pa. 267 ; Kramer v. Kister, 187 Pa. 227; Com. v. Hurd, 177 Pa. 481; Com. v. Painton, 5 York, 140; Scott v. Reyer, 5 Leg. Gaz. 73 ; West Chicago St. R. R. Co. v. Lundahl, 183 Ill. 284 (55 N. E. Repr. 667); State v. Tilghman, 33 N. C. 513; Kennedy v. Com., 2 Va. Cas. 510 ; Masterson v. State, 144 Ind. 240 (43 N. E. Repr. 138); Sanitary Dist. of Chicago v. Cullerton, 147 Ill. 385 (35 N. E. Repr. 723) ; Armleder v. Lieberman, 33 Ohio St. 77 ; Hamburger v. Rinkel, 164 Mo. 389 (64 S. W. Repr. 104) ; Com. v. Cleary, 148 Pa. 26 ; Com. v. Salyards, 158 Pa. 501; Com. v. Morgan, 3 Pa. C. C. Rep. 151; Com. v. Clemmer, 2 Pa. C. C. Rep. 629; Creek v. State, 24 Ind. 151; State v. Wart, 51 Iowa, 587 (2 N. W. Repr. 405); Dozenback v. Raymer, 13 Colo. 451 (22 Pac. Repr. 787) ; Alexander v. Dunn, 5 Ind. 122; Stutsman v. Barringer, 16 Ind. 363; New Albany v. McCulloch, 127 Ind. 500 (26 N. E. Repr. 1074) ; Perkins v. Ermel, 2 Kans. 325; Morrow v. Saline Co., 21 Kans. 484; Smith v. Thompson, 1 Cowen, 221; Ex parte Hill, 3 Cowen, 355 ; Anthony v. Smith, 17 N. Y. Super. Ct. 503 ; Downer v. Baxter, 30 Vt. 467 ; State v. Cottrill, 52 W. Va. 363 (43 S. E. Repr. 244) ; Marzen v. People, 190 Ill. 81 (60 N. E. Repr. 102) ; Gott v. People, 187 Ill. 249 (58 N. E. Repr. 293) ; Moore v. People, 26 Colo. 213 (57 Pac. Repr. 857).
    The depositions are not before this court: France v. Ruddiman, 126 Pa. 257; Com. v. Ramsay, 166 Pa. 642.
    November 4, 1904:
   Opinion by

Mb. Justice Bbown,

At the first session of the present term an opinion was filed in this case in which we held that we could consider only the last assignment of error, because all of the rest related to matters not brought up to us for review. There was no certificate, as required by rule 22, signed in the following form : “ The foregoing notes of testimony, with the exceptions taken by counsel during the trial to the rejection or admission thereof, and the charge with the exceptions thereto, have been examined by me, and are hereby approved and ordered to be filed. -judge; ” and, the said rule having been invoked by counsel for the appellee, there seemed to be no course open to us except to enforce it, for it did not appear that a single exception had been taken under the established form of the common law. Since that opinion was filed counsel for appellants have satisfied us that bills of exception, bringing up the matters to which the dismissed assignments of error related, had been allowed and filed, but were so attached to the record that, though looked for, they naturally escaped our notice, as is frankly admitted by counsel for appellants. Our view, on discovering that exceptions had been properly taken, was that the assignments of error based upon them should be taken up and disposed of; but, as counsel for appellants say they do not now press these assignments, and are willing to allow the reversal of the judgment to rest upon the disposition made of the last assignment, we will not pass upon any other.

We are asked to dismiss the last assignment as being in violation of rule 29, which provides: “ Each error relied on must be specified particularly and by itself. If any specification embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.” The contention of the appellee is that the last assignment contains four distinct specifications of error, but in this we do not concur. While four specific reasons are given why the new trial should have been awarded, the single error alleged by the assignment is the denial of it. The one distinct question raised is the proper exercise of the court’s discretion in passing upon the application for the new trial when asked to award it for the four reasons set forth in the assignment: First, on the ground of the corrupt solicitation of the jurors; second, misconduct of the jurors; third, various irregularities and hm proprieties on the part of the jury after they had retired to deliberate upon their verdict; fourth, for after-discovered evidence. There might have been four specific assignments based upon the four reasons stated, but the four assignments together would have alleged but a single error, brought to our attention by this last assignment, which cannot, therefore, be regarded as violative of the rule referred to.

The refusal to grant a new trial for such reasons as are set forth in the assignment before us rests, as a rule, in the sound discretion of the lower court, and will not be reviewed here; but, when there is an allegation of the court’s abuse of its discretionary power in passing upon an application for a new trial, we have repeatedly held it to be our duty to inquire into the facts, and if, after due consideration of them, abused discretion clearly appears, the improper action below must be reversed and the wrong done corrected: Smith v. Times Publishing Co., 178 Pa. 481.

In this case the alleged abuse of discretion appears from the depositions taken in support of the motion for a new trial, and the learned counsel for the appellee insists we cannot consider them, as they form no part of the record before us. As a rule, this, too, is true of depositions taken in support of a motion for a new trial; but, if it is our duty to review such abuse of discretion as is here alleged, we can do so in no other way than by reviewing that upon which the court below acted. To decline to look at the depositions would be to decline to consider the question which the appellants have thé right to raise and to have decided. Unless we examine the depositions, we can neither review the improper action complained of nor correct the error of the court below, alleged to have resulted from an abuse of its discretion. On the undisputed facts, as gathered from the depositions, the single narrow question for our consideration is, should the verdict have been set aside for the first three reasons stated in the assignment of error? No error was committed in refusing to grant it on the ground óf after-discovered evidence.

After the cause had been on trial for a day or two one of the jurors was called up over the telephone by a man whose name he refused to disclose, and the following, according to the uncontradicted testimony of the juror, took place between them: “ Q. What was said to you? A. Well, first he called me up over the ’phone. He says : ‘You are on the Mix versus The North American case.’ I told him that I was. He said: ‘I want you to do me a favor.’ He says: ‘ I want you to stand out for the plaintiff,’ he says. And I asked him if he knew what he was doing over the ’phone. ‘ Why, my God! ’ I says, ‘you must not say anything of that kind.’” The man then left the telephone and in ten or fifteen minutes appeared at the juror’s place of business, where he said: “ Do you know who is back of this case; if you knew who was back of this case you would be surprised.” The juror resented with reproach this attempt to influence him and drove the man away after he had pleaded that he was drunk. Worried over what had occurred, the juror the next day communicated it to his counsel, a most respected member of the Philadelphia bar, who called upon the trial judge and repeated what had been told to him, declining, however, to give the name of the man who had approached the juror. The trial judge said he would take the matter into consideration, and later in the day informed the juror’s counsel that he had concluded it was not necessary for him to do anything in the matter. This attempt to approach the juror and what followed between his counsel and the court were unknown to the attorneys on either side of the case until the verdict had been rendered. Another juror, while the trial was in progress, was called upon at his own home by a person whose name he did not know, but who professed to know him, and asked whether he could be seen privately. The private interview was refused, and the juror having taken his visitor upstairs and called his wife, the stranger began to talk about the case. He asked that the plaintiff be given the benefit of any doubt, adding that Wanamaker and the North American were always talking about people. This was also resented by the juror, but counsel for the appellants had no knowlfedge of it before the jury were discharged. During the trial a third juror discussed the case in a cigar store, and, in the discussion, denounced the North American as “ a damned bladder” and “ a damned liar.” This, too, seems to have been unknown to the defendants until after the trial was over.

After having been sent out to the jury room to deliberate on their verdict, certain of the jurors started a game of poker, and when one of them, in a short time, had a not unusual experience, he was allowed by the obliging, but recreant, officers having them in charge to send out for and receive another stake, and the game then went on. While they were out deliberating, four of the jurors separated from the rest in charge of an officer and spoke over a telephone in another room to outside parties. At another time one of them, apart from his fellows, and in another room, was permitted to communicate with his family over the telephone. At times, when they were supposed to be discussing the case and what their finding should be,’ they were allowed to separate in charge of officers whose duty it was to keep them together in the place legally provided for them. So separated, they visited the public offices, went to the electrical bureau in the city hall and had its workings explained to them. At this time they were supposed to be together, deliberating upon their verdict, except when taking •needed food or rest, in the custody of the officers of the court, each of whom had sworn, “ I will well and truly keep all juries placed in my custody in the place legally provided for them; I will not permit any person to speak to them, nor speak to them myself in relation to any trial in which they may be or have been empaneled, except to ask them if they have agreed upon their verdict or to return to the court room, or concerning their health, comfort and necessities while in my custody.”

In the opinion discharging the rule for a new trial no notice is taken by the court of the attempts to approach and improperly influence two of the jurors, nor of the gross misconduct of the third, who, in discussing the case in a cigar store while the trial was in progress, spoke in most unseemly terms of the North American, one of the defendants, indicating his utter unfitness to render an honest and impartial verdict.

When the attention of the trial judge was called to the improper communication with the first juror, the trial should have been halted and a searching investigation instituted by the court, of its own motion, sparing no one, to ascertain not only who had attempted to invade the jury box, but at whose instance the attempt had been made. After such investigation the trial could have been renewed or a juror withdrawn and the case continued, as the court, in the proper exercise of its discretion, might have deemed the proper course. In ignorance of what had been attempted against them by some one apparently interested in the plaintiff, the trial against the defendants went on before a jury which they had a right to assume had not been tampered with, and when they learned only after the verdict had been returned that the juror had been improperly approached, their complaint against the integrity of the verdict is not without cause and must receive due consideration, in connection with the other and exceptional irregularities and improprieties brought to our notice by undisputed testimony and urged as reasons why the verdict should be set aside. The same is true of what was attempted with the second juror. As to the third, who was present when the depositions were taken, and failed to deny that, during the trial, he had made the improper remarks attributed to him, it can fairly be said by the defendants that, as to him, the verdict was not a true finding.

As to the separation of the jurors and their misconduct during their deliberation after having retired to their room, the court below was of opinion that no substantial irregularity in arriving at the verdict had been disclosed. (If by this it is meant that the separation and misconduct did not affect the verdict, the learned trial judge may be correct, but it must be remembered that separation of the jury is not allowed in any case after they have retired to deliberate upon their verdict until they have found it, and that in every case, when the duties of the trial judge have ended in his instructions to them, he commits them into the custody of an officer of his own court, who has taken the oath quoted. While it is true that the separation of the jury in a civil case, after the cause has been committed to them and before they have agreed upon a verdict, is not, as a mere matter of law, ground for a new trial, such separation is a deviation from duty and order. Here the deviation was gross; officers were utterly regardless of their oath in allowing the jury to separate, and the jurors themselves were heedless of their duty in doing so; and taking their separation into consideration in connection with their communication with outside parties after they had retired to their room and with the gambling that was continued only after money had been sent for and received from the outside, their misconduct cannot escape judicial condemnation.

It has been said that the greatest object of civil government is to get twelve honest men in the jury box. If this is true, after they get there they must be kept there, hedged around not only with their own integrity, but with every precaution against evil communication which may corrupt them; and when they go to their room to deliberate upon an issue in which is involved the life, liberty or property of their fellowman, their conduct in the discharge of such solemn duty must comport with it, else confidence in the system which is the best achievement of civilization will be lost.

We are not prepared to say that, in itself, any one of the several reasons assigned by the appellants for a new trial, and to which we have called attention ought to have moved the court below to grant it; but all of them taken together manifestly should have done so. We need say no more than that the verdict is not a safe one for judgment on it and must, therefore, be set aside.

Judgment reversed and a venire facias de novo awarded.


author: Per Curiam;,

text:
    Linton, Appellant v. Moorhead.

      Conflict of laws—Presumption—Proof of foreign law—Evidence—Power of attorney—Married women.

    The law of a foreign state if material is a fact to be proved, and in the absence of such proof it is presumed to be the same as the law of this state.
    Where the subject of a letter of attorney is land in Pennsylvania the power to convey and the manner of conveyance depend on the law of this state without regard to the domicile of the owner.
    A married woman, her husband joining, may make a valid power of attorney to convey her lands in this state.

      Principal and agent—Power of attorney—Description of lands.

    A power of attorney to sell and convey “ any or all tracts, lots, pieces or parcels of land, or real estate which have descended to, or have been acquired by the said .... in any of the states .... of the United States of America .... excluding therefrom all lots in the city of Omaha, State of Nebraska,” is sufficient to include lands in Pennsylvania belonging to the principal.
    For the purposes of a valid power of attorney “ id certum est quod certum reddi potest.”
    Argued Oct. 11, 1904.
    Appeal, No. 127, Oct. T., 1904, by plaintiff, from judgment of C. P. Armstrong Co., June T., 1902, No. 167, on verdict for defendant in case of P. R. E. E. Linton v. J. C. Moorhead, Eliza N. Meredith and W. B. Meredith.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Ejectment for land in Manor and Kittanning Townships. Before Patton, P. J.
    At the trial the defendants offered in evidence a power of attorney from P. R. E. E. Linton and A. F. Linton, her husband, dated August 12, 1887, and acknowledged in England. By this power of attorney Mrs. Linton and her husband “ made, constituted and appointed, and by these presents do make, constitute and appoint, John Boreland Finlay of the Commonwealth of Pennsylvania in the United States of America, our true and lawful attorney for us or either of us, and in our or either of our names, places or steads, to grant, bargain and sell, convey, assign, transfer and confirm any or all tracts, lots, pieces or parcels of land or real estate which have descended to or have been acquired by the said Phoebe or either of us, by gift, grant, demise, purchase or otherwise, or which may be so acquired hereafter in any of the states, commonwealths, districts, territories of the said United States of America, whether the same or any part or parts thereof be held now or hereafter in fee simple, severalty, joint tenancy, in common or otherwise, excluding therefrom all lots in the city of Omaha, state of Nebraska.”
    Plaintiff’s counsel objected to the offer for the following reasons:
    1. The power of attorney offered in evidence shows upon its face, and it has been admitted upon the trial of this suit, that at the time the said power of attorney was executed by P. R. E. E. Linton she was a married woman, under coverture and domiciled in Brighton, England, and that she and her husband, A. F. Linton, were both English subjects, and that she was married prior to the married persons’ property act, passed by parliament in 1882, and the evidence being that the land described in the writ belonged to her in her own right. And further, the said P. R. E. E. Linton was for the above reasons under a common-law disability to divest her title to said land by power of attorney, or any other manner except that prescribed by the laws of England and in force at the time of the execution of the said power of attorney, and that the power of attorney offered in evidence'was, from the day of its execution, void for the purposes for which it is offered.
    2. That the power of attorney offered in evidence does not purport to be a conveyance of the land in dispute nor of any part thereof, and for that reason it is incompetent to prove title in the defendant, J. C. Moorhead, or in the defendant, Eliza N. Meredith.
    3. It being admitted on the trial and shown upon the face of the power of attorney offered in evidence that A. F. Linton, the husband of the plaintiff, was a nonresident alien, he therefore had no interest in his wife’s land in Pennsylvania, such as would give validity to a conveyance of it by power of attorney or otherwise by reason of his joining in the execution of such instrument.
    4. It is objected to because the power of attorney is void for want of any description contained therein authorizing the sale of the land described in the writ, the said power of attorney not mentioning the said tract of' land by any sufficient metes or bounds, and not even mentioning the state of Pennsylvania nor the county of Armstrong, nor the townships of Kittanning or Manor, in which said land is situate; for the foregoing reasons and for uncertainty the said power of attorney was and is void.
    The Court: The objection is overruled, the offer received and a bill of exceptions is sealed to the plaintiff. [1]
    The court gave binding instructions for defendants.
    Verdict and judgment for defendants. Plaintiff appealed.

      JErrors assigned were (1) ruling on evidence quoting the bill of exceptions; (10) in giving binding instructions for defendants.

      R. A. McCullough, with him II. A. Heilman, for appellant.
    Where a contract is entered into by a woman in her domicile, the law of that place will control as to her capacity to make a contract, though the contract is to be performed elsewhere: Poison v. Stewart, 167 Mass. 211 (45 N. E. Repr. 737) ; Union Nat. Bank v. Hartwell, 84 Alabama, 379 (4 So. Repr. 156) ; Baer v. Terry, 105 La. 479 (29 So. Repr. 886) ; Kerr v. Urie, 86 Md. 72 (37 Atl. Repr. 789) ; Hill v. Pine River Bank, 45 N. H. 300; Bank v. Howell, 118 N. C. 271 (23 S. E. Repr. 1005) ; Hauck Clothing Co. v. Sharpe, 83 Mo. App. 385.
    The power of attorney is invalid because the land authorized to be sold under it was not sufficiently described to enable it to be identified: Banks v. Ammon, 27 Pa. 172; Stafford v. Lick, 13 Cal. 240 ; Clark v. Graham, 19 U. S. 577; White v. Breen, 32 L. R. A. 127.

      Ross Reynolds, for appellees.
    The subject of sale is real estate in Pennsylvania. The sale of real estate is, without question, governed by the lex loci rei sitae; therefore what may be the law of England or any other country is foreign to the question : Loftus v. Farmers’, etc., Nat. Bank, 133 Pa. 97.
    Married women may jointly with their husbands give a power of attorney to convey lands in Pennsylvania, and if duly acknowledged the conveyance under it would be valid : Fulweiler v. Baugher, 15 S. & R. 45; Dalzell v. Crawford, 1 Clark, 155 ; Roseburgh v. Sterling, 27 Pa. 292.
    The power of attorney is sufficiently specific as to the description of land to be conveyed : Campbell v. Foster Home Assn., 163 Pa. 609 ; Roper v. McFadden, 48 Cal. 346 ; Munger v. Baldridge, 41 Kan. 236 (21 Pac. Repr. 159) ; Valentine v. Hawley, 37 La. Ann. 303; Connell v. Galligher, 36 Neb. 749 (55 N. W. Repr. 229) ; Fay v. Winchester, 45 Mass. 513; Bigelow v. Livingston, 28 Minn. 57 (9 N. W. Repr. 31) ; Benschoter v. Atkins, 25 Neb. 645 (41 N. W. Repr. 639).
    November 4, 1904:
   Per Curiam;,

The objection by the plaintiff to the power of attorney (her own be it observed) is two-fold, first that plaintiff is a married woman domiciled with her husband in England, and secondly that it contains no sufficient description of the land authorized to be conveyed.

As to the first, it would be sufficient to say that the law of England or any other foreign state if material is a fact to be proved, and in the absence of such proof it is presumed to be the same as the law of this state. There was no evidence on the subject in this case.

But even if proved it would have been of no avail here. The subject of the letter of attorney being land in Pennsylvania, the power to convey and the manner of conveyance depend on the law of this state without regard to the domicile of the owner. It has long been settled that a married woman, her husband joining, may make a valid power of attorney to convey her lands in this state : Fulweiler v. Baugher, 15 S. & R. 45 (55).

The second objection is equally unavailing. The power of attorney was properly acknowledged: Stewart v. Linton, 204 Pa. 207. It authorized in express terms the attorney to sell and convey “ any or all tracts, lots, pieces or parcels of land or real estate which have descended to or have been acquired by the said Phoebe (plaintiff) .... in any of the states .... of the United States of America .... excluding therefrom all lots in the city of Omaha, state of Nebraska,” etc. The description though in very general terms is as comprehensive as words can make it. When it is shown that the land is in Pennsylvania it is prima facie within the power, and when more detailed description becomes necessary it may be supplied. For the purposes of a valid power of attorney id certum est quod certum reddi potest.

Judgment affirmed.


author: Black, C. J.

text:
    Pennsylvania Railroad Company versus The Canal Commissioners.
    1. The Supreme Court, at its session in either of its districts, may issue writs of mandamus to any part of the state; and therefore, at its session at Pittsburgh, it may issue a writ of mandamus to the Canal Commissioners, though their chief place of business was at Harrisburg, in the Middle District of the state.
    2. The Pennsylvania Railroad Company by its Act of incorporation has no legal rights upon the state works. The power to_ run cars over the Columbia and Philadelphia Railroad has not been given to it by the Act of 13th March, 1847, which authorizes any Railroad Company to run cars over another road connected with their own, the Pennsylvania Railroad not being so connected with the state road, as the former terminates at Harrisburg.
    3. Though the word “ individuals” in the Act of 15th April, 1834, authorizing individuals to place cars on the Columbia Road, may include corporations, yet as such privilege is withheld by its Act of incorporation, the Pennsylvania Railroad Company is not authorized by that Act to use the said state road.
    4. Nor is such privilege given to it by the Act of 23d April, 1852, authorizing it to purchase and hold certain real estate in the comity of Philadelphia. Corporate powers are not to be created by implication nor extended by construction.
    This was a proceeding had upon petition on the part of the Pennsylvania Railroad Company, by its President, praying for the issuing of a writ of mandamus to the Canal Commissioners. It was addressed to the Supreme Court for the Western District of Pennsylvania, in September, 1852.
    It represented, inter alia, as follows: |

      “ That they are a Company constituted a body politic and corporate, under this title, by an Act passed on the 13th day of April, 1846, entitled, ‘ An Act to incorporate the Pennsylvania Railroad Companyby which enactment and various supplements, they are authorized to construct and use a railway from Harrisburg to Pittsburgh, to own land within and near to the city of Philadelphia, and to exercise such other franchises as may be necessary or convenient for the full benefit of the said railway ; but which said Act and its supplements, the petitioners, for greater certainty, refer to as a part of their present petition.
    “ The railway thus authorized, is now nearly finished, and they have purchased land and built valuable structures, for the various purposes of transportation at West Philadelphia, the eastern terminus of the Philadelphia and Columbia Railroad, known as and commonly called the Columbia Railroad. They have been running cars both by themselves and other persons, for the transportation of passengers, merchandise, and the United States mail, over such parts of their railroad as are finished, and for more than a year over the said Philadelphia and Columbia Railroad, belonging to the state of Pennsylvania, and a railway intervening between the eastern terminus of the railway of the said Pennsylvania Railroad Company, belonging to the Harrisburg, Portsmouth, Mount Joy and Lancaster Railroad Company.
    “ That one of the great objects of the law incorporating the Pennsylvania Railroad Company, was to connect Pittsburgh with Philadelphia, and to enable the latter as an Atlantic city, .to participate more largely in the commerce of the west than she was able to do by means of the main line of the public works of Pennsylvania, and especially than she should do upon the completion of rival railways, in the course of construction by the respective states of Maryland and New York.
    “ In order to enable the Pennsylvania Railroad Company to carry out the great objects of their expensive work, it was necessary that their cars should have the right to run over the said two intervening railroads between Philadelphia and their eastern terminus at Harrisburg. On the 21st day of April, 1849, the petitioners entered into an agreement with the said Harrisburg, Portsmouth, Mountjoy, and Lancaster Railroad Company, for the use of their railroad, for the period of twenty years; (a copy of which agreement was attached.)
    “ That for some years, a large portion of the passenger' business done on the Philadelphia and Columbia Railroad, was performed by a company whose cars were known as the Eagle Line. At the solicitation of a member of the Board of the then acting Canal Commissioners, the petitioners were induced about the month of March, 1851, to purchase from said company all their cars; since which time down to the 15th instant, inclusive, the said cars, and others for the conveyance of passengers and the United States mail, as well as freight, were used and run by the said petitioners,' over the said Philadelphia and Columbia Railroad, with the knowledge, assent, and approbation of the Canal Commissioners, a body constituted by law to superintend the said railroad as one of the public works of the state.
    “ That the petitioners paid to the Canal Commissioners, or their duly constituted agent, from time to time as required, such tolls and other charges, as were imposed by the said Canal Commissioners, both for the conveyance of freight and passengers over said railroad, and in all other respects complied with the rules and regulations of said railroad.
    “ On the 20 th day of May last, the petitioners received notice from the said Canal Commissioners of a resolution adopted by the Board on the previous day, stating that a contract had been formed with Messrs. Bingham & Dock, for the carriage of all passengers and mails over the state road, except passengers carried by the West Chester Railroad Company, and by market cars.
    “ That the contract was to go into effect by its terms on the 1st of July ensuing, a copy of which notice is hereto attached.
    “ Since the date of this notice, a publication has been made, under the apparent authority of the Canal Commissioners, of which a copy of the paper purporting to be a copy of the contract above referred to, forms a part.” They charged that if the said Canal Commissioners made such a contract as is contained in that paper they made it without any public notice inviting proposals for such a contract.
    “ They also annex a copy of a resolution passed by the said Canal Commissioners, on the said 19th of May last, prescribing the terms upon which transporters of passengers were to use the said Philadelphia and Columbia Railroad, including the toll and motive power. ’ The petitioners complied with this resolution by continuing to carry passengers, and paying the rates fixed therein, until stopped by the order of the said Canal Commissioners from using said railroad as hereinafter stated.
    “ The petitioners received a copy of a notice of another resolution, dated Towanda, June 12, 1852, postponing the commencement of the contract with Bingham & Dock, to the 16th day of August.
    “ Various advertisements were printed in several of the newspapers of the city - of Philadelphia, by Bingham & Dock, and the said Canal Commissioners, announcing to the public that the said Bingham & Dock, only (except the West Chester Railroad Com-party and market cars), could carry passengers, on and after the 16th day of August, 1852.
    “ On the 16th day of August last, two passenger cars, a baggage car, and mail car, belonging to petitioners, were taken by petitioners’ agents, from their passenger depot at the south-east corner of Eleventh and High streets, in the city of Philadelphia, at precisely eight o’clock, the usual and proper time for the morning train going west, and arrived on the railroad of the state, at West Philadelphia, at the regular time of attaching the train to the locomotive of the state, for conveyance, that being the place assigned by the said Canal Commissioners for said attachment, and the departure of westward trains, drawn by the motive power. The said cars contained respectively thirty-three passengers, or thereabouts, the baggage of said passengers, and the United States mail. The passengers were bound to various places on the Pennsylvania and Columbia Railway, to Pittsburgh, and to points west of that city.
    “ The agent in charge of the locomotive and train of cars, on behalf of said Canal Commissioners, was then and there requested by an agent of the petitioners, authorized for that purpose, to attach or permit the attachment of the said ears of the petitioners to the train which was to be drawn by the locomotive engines belonging to the state. The said agent acting as he said, and as petitioners aver, for and under the authority of the Canal Commissioners, refused to permit or to make any attachment whatever. The locomotive engine was started on its way to the west by order of the Canal Commissioners, carrying only the train of cars belonging to Bingham & Dock, leaving behind the said cars of the petitioners, which the said agent refused to attach or permit to be attached, and convey or draw or permit to be conveyed and drawn, under the authority aforesaid.
    On the same day, to wit, the 16th day of August last, passenger cars of the petitioners for the two other trains going west and east, both the way and through trains, were also duly offered at the proper times and places by their agents for attachment and conveyance as aforesaid, over the said Philadelphia and Columbia Railroad, and were refused by the agents of the Canal Commissioners such attachment and conveyance, it being alleged by said agents that the orders of the Canal Commissioners were not to take and transport, or permit to be taken or transported, the passenger cars of the petitioners over the said railroad. The petitioners say that the state tolls were duly tendered to the proper officers, by an agent of the petitioners duly authorized for that purpose in two of the aforementioned cases, before the cars were offered for attachment and transportation, and refused as aforesaid. They further say that the said cars offered for attachment to and transportation by the motive power of the state, were in all respects conformable to the rules and regulations of the Board of Canal Commissioners, and that the time and manner of attachment demanded, were also in conformity therewith. They further alleged, that the refusal to permit to he attached and transported, the said cars of the petitioners, was made by the order and authority of John A. Gamble, William T. Morrison, and Seth Clover, the persons who now fill the office of Canal Commissioners.
    The petitioners further represented that since the 16th day of August last, the said persons, Canal Commissioners, have attempted, under color of their said alleged contract with Bingham & Dock, to force, by the exaction of illegal tolls, the through travel from its natural and accustomed channel around by a circuitous route via Columbia.
    It was alleged that these exactions were proposed to compel the petitioners to change their rules and connect with Columbia for said through passengers, a connection which they never made (except for a short time to enable necessary repairs to be made on the main and direct thoroughfare), because they believe it would prove injurious to the whole Pennsylvania line as a route to the west.
    The petitioners insisted that they had the right by law, and are authorized by their Act of incorporation, to transport passengers and tonnage over their own road and the said Philadelphia and Columbia Railroad, and that the refusal to attach or permit the attachment of their cars to the motive power as aforesaid, was without legal authority and contrary to law.
    They charged that the said John A. Gamble, &c., under the pretence of their authority as Canal Commissioners, have, in refusing to carry petitioners’ cars, as aforesaid, occasioned damage to the petitioners, and that great public mischief must ensue therefrom to petitioners, to the public treasury, and to the commerce of the state.
    ‡ ^ ^ ‡ ‡ ^ ‡ ^
    They also charged that said acts of the said Gamble, &c., were without and in violation of the law and the rights of the petitioners.
    They prayed the Court to issue a writ of mandamus to the said John A. Gamble, &c., Canal Commissioners, requiring them to attach the passenger cars of the petitioners to the motive power provided by the Commonwealth for the transportation of passenger cars over the said Philadelphia and Columbia Railroad.
    Signed ■Sworn and subscribed the 4th 1 day of September, 1852. j
    J. Edgar Thompson, President.

    In the agreement between The Harrisburg and Lancaster Railroad Company and the Pennsylvania Railroad Company, it was agreed that the former would transfer to the latter their locomotive cars, machinery, materials and tools on hand, to be paid for at a fair valuation. The Pennsylvania Railroad Company was to have the exclusive use of the roads then or thereafter to be constructed by the other Company. The Pennsylvania Railroad Company was to use exclusively the Harrisburg and Lancaster Railroad for carrying and transporting all passengers and freight carried over their road to and from Philadelphia and Pittsburgh, during the term of the contract, which was to continue in force for twenty years, unless discontinued or altered by the consent of both contracting parties.
    In the contract executed on the 19th May, 1852, between The Canal Commissioners and Bingham & Dock, the latter party agreed to carry all the passengers over the Philadelphia and Columbia Railroad and intermediate points, except such passengers as the West Chester Railroad Company were then permitted to carry, and such market-men as are carried in market cars under regulations then existing. They also agreed to carry the United States mail as often as required by the Post Office Department— to collect the fare on each passenger — to stock the road with first class passenger cars — their compensation to be five mills per mile for each passenger — for emigrant passengers 2J mills per mile, &c. It was also understood that the agreement gave to the party of the second part, the exclusive right of carrying all the passengers over the railroad aforesaid, except those carried by the West Chester Railroad Company and by market cars. The'agreement was to continue in force for four years, commencing on 1st July, 1852.
    In the answer of the Canal Commissioners it was admitted that the Pennsylvania Railroad Company had been running cars for the transportion of passengers, merchandise, and United States mails for more than a year over the state road; but it was said that they had used the road exclusively under and in obedience to the regulations of the Board of Canal Commissioners. It was said that the subject of an arrangement meditated for the transportation of passengers over the state works, to be conducted under the control of the Canal Commissioners, was known to the President and Superintendent of the Pennsylvania Railroad Company not less than two months before the 19th May, 1852, the date of the agreement with Bingham & Dock; and that the Pennsylvania Railroad Company proposed an arrangement at a higher rate than was afterwards agreed to by Bingham & Dock; that under the arrangement made with the latter, there has been so far an increased revenue to the state of above $9000 over the corresponding period of the last year; and that the total gain to the state for transporting the mails and passengers during four years might be $150,000.
    The first Act of Assembly relating to a state railroad, is that of 9th March, 1827. By the 3d section of it, it was provided, That it shall he the duty of the Canal Commissioners to cause examination, survey and estimate to be made of the route for a canal, and also for a railway with locomotive or other stationary power from Philadelphia through Chester and Lancaster counties, so as to connect by the nearest and most eligible route with the Eastern section of the Pennsylvania Canal. By the 5th section of the Act of 24th March, 1828, authority was given to the Canal Commissioners to locate a railroad from Philadelphia to Columbia. By the 9th section of the Act of 6th April, 1830, it was provided “that the Board of Canal Commissioners shall appoint supervisors to take charge of such portions of the canals and railroads as shall be finished, for public use.” It was said on the part of the Pennsylvania Railroad Company, that the words “ public use” in the Acts of Assembly relating to the canal and railroad mean common use, in contradistinction to the use of the state: 6 Wharton 44; 2 Watts 23; 1 Baldwin 205; 2 B. A. 648; Shelford on Railways 67; Wolford on Railways 299.
    By the Act of 11th June, 1832, the Canal Commissioners were authorized to permit cars to he placed on such parts of the Columbia Railroad as are or maybe finished; and the Act of 15th April, 1834, provided that “ individuals shall have the right to place cars on the road, and, under such rules and regulations as may be adopted, attach their cars to the locomotive cars belonging to the Commonwealth, for the purposes of transportation.” This act in its title refers to both the railroads of the state. It was said on the part of the relator that this right is not confined to the transportation o'f merchandise, but embraces cars for the conveyance of passengers. It was also said that no act authorized the Canal Commissioners to purchase cars for either railroad, or boats for use on the canal. That their whole power was to keep those works in repair, to fix the tolls, to adopt rules and regulations concerning them, and to supply motive power for the railroads. That their powers on these subjects are to be found in the Acts of 24th March, 1828; 6th April, 1830; 11th June, 1832; 21st February, 1834; 15fch April, 1834; 8th April, 1834; 28th January, 1836; 16th April, 1838.
    Further: By theJAct of 8th April, 1834, the Canal Commissioners were'authorized to make rules and regulations relative to the railroads of the state, which were “ not inconsistent with the laws of this state.” Another provision of a similar character exists in the 12th section of the Act of 16th April, 1838; and it was contended that that power did- not authorize the purchase of cars or boats at the expense of the state, or the assumption of the carrying business or the exclusion of transporters from its use.
    The Pennsylvania. Railroad Company was incorporated in pursuance of the Act of 13th April, 1846. The 11th section authorized the location and construction of a railroad, beginning at and uniting with the western terminus of the Harrisburg, Portsmouth, Mountjoy and Lancaster Railroad, in the borough of Harrisburg: Provided said Harrisburg, Portsmouth, Mountjoy and Lancaster Railroad Company shall be subject to and consent to the same rate of tax on tonnage for the use of the state, as is provided to be paid in this Act, by the Pennsylvania Railroad Company; and •in case the said H., P., M. & L. Railroad Co. should not agree to comply with these conditions, within three months after the distance of fifteen miles from Harrisburg westward shall bona fide be put under contract, the said Pennsylvania Railroad Company are authorized to connect their road with the Columbia Railroad, at or near the borough of Columbia in Lancaster county, and thence terminating at such point or points in, at, or near the city of Pittsburgh, or other place in the county of Allegheny, with authority to extend the road or a branch to the town or harbor of Erie, as to the said president and managers may seem most advantageous or expedient.
    The Pennsylvania Railroad was never extended eastward beyond Harrisburg.
    An Act was passed on 18th March, 1847, by which it was enacted, That in all cases where two railroads in this Commonwealth are or shall be connected, it shall be lawful for the company owning either of the said railroads (with the consent of the company owning the other of said railroads) to run its cars and locomotive engines upon said other railroad, and to erect water stations and other buildings for the due accommodation of the cars and engines employed thereon, &c.
    If this Act of 1847 was not applicable to the railroads of the Commonwealth, it was said that the Pennsylvania Railroad Company had, by a subsequent Act, the right to pass with cars over the Philadelphia and Columbia Railroad to and from Philadelphia. That the right of the said company to transport passengers and tonnage over the Columbia Railroad, was given or confirmed by the Act of 23d April, 1852. By the second section of that Act, the Pennsylvania Railroad Company were authorized to purchase and hold the title to two several estates, situated in West Philadelphia and county of Philadelphia, and also to purchase the title to any portion of the Powelton estate, “ for the purpose of erecting thereon offices, station-houses, warehouses, shops, car-sheds, sidings, cattle-yards, and for such other objects as appertain to the legitimate business of the company, authorized by their Act of incorporation, of transporting passengers and tonnage over their road and the Columbia Railroad, not exceeding thirty acres of uplands. The boundaries of such quantity of land as said company may deem proper to take, to be determined by the President of the company, and the Governor of the State of Pennsylvania, or the President of the Board of Canal Commissioners; also the right to purchase and hold within the city of Philadelphia, such other property for depots, offices, and sidings as may be necessary or convenient for the transaction of the proper business of said company, authorized by their Act of incorporation.”
    This case was argued in Philadelphia.
    On the part of the Pennsylvania Railroad Company, the case was argued by Meredith and Dallas, with whom were J. R. Tyson and T. S. Bell.

    It was inter alia contended that the Pennsylvania Railroad Company was included in the term individuals, used in the Act of 1834, giving authority to individuals to place cars on the Columbia Railroad, and, under such regulations as may be adopted, attach their cars to the locomotive cars belonging to the Commonwealth, for the purposes of transportation. That the term individuals was used in the sense of persons, and that as an artificial person the company would be entitled to place its cars upon the Columbia Railroad, and by attachment to the motive engine of the state. For the meaning of the term individual, reference was made to Richardson’s Dictionary, and to Kyd on Corporations.

    It was further said, that under the authority of the Act of 13th March, 1847, authorizing the companies of two connecting railroads, with the consent of each other, to run their cars on both roads, and by their contract with the Lancaster and Harrisburg Railroad Company, whose road connected with the state road at Dillersville near Lancaster, the Pennsylvania Railroad became connected with the Philadelphia and Columbia Railroad, and had the right to have its cars pass over the latter road. But that if the Act of 1847 did not apply to the roads of the Commomvealth, that such right existed under the provisions of the Act of 23d April, 1852, before recited. That from the permission to hold land at the eastern terminus of the state road, was to be inferred the understanding of the state that the legitimate business of the Pennsylvania Railroad was to carry freight and passengers over the whole road from Philadelphia to Pittsburgh. That the fact that the ears of the said company were so run at the time of the passage of the Act of 1852, was known to the legislature, and was to be considered in the construction of the Act, it being declared in the Act that the land acquired was to be for such objects “ as may be necessary or convenient for the transaction of the proper business of said company, authorized by their Act of incorporation;” and in the previous part of the section it being declared to be for the erection thereon of offices, &c., and for such other objects “as appertain to the legitimate business of the company, authorized by their Act of incorporation, of transporting passengers and tonnage over their road and the Columbia Railroad.”
    It was further said that a mandamus would not issue where a discretionary existed; but it was contended that there was no discretionary power vested in the Canal Commissioners to make such a contract as the one in question in this case; one made without public notice — for a period beyond their official term — with transporters of merchandise on the public work's (which the other contracting parties were alleged to be); to make the state a common carrier; to exclude individuals or any parties from the public works; to prevent the Pennsylvania Railroad Company from attending to their legitimate business “ of transporting passengers over it.” That the said contract was inconsistent with the policy declared by the legislature in the general Railroad Act of 19th February, 1849, the 18th section of which enacts, that upon the completion of any railroad authorized by the act, it “ shall be esteemed a public highway 'for the conveyance of passengers and the transportation of freight.” That the Canal Commissioners cannot make regulations as to the state railroads which were inconsistent with the laws, and that this ’contract was inconsistent with public law, and was void.
    As to the subject of jurisdiction, it was said that the meetings of the Board of Canal Commissioners need not necessarily be held at Harrisburg; but by the Act of 11th April, 1825, may be held “at such times and .places as shall be determined by their own adjournments, or by a call from their president, and as shall be most conducive to the public good.” Reference made to 2 Pa. Rep. 517, Commonwealth v. Mitchell et al.; Commonwealth v. Clarke, 9 Ser. & R. 59.

      Campbell, Stanton, and Champneys, were on part of the defendants.
    Objection was taken to the presentation of the application to the Court when sitting in the Western District, it being alleged that the office of the Canal Commissioners was located in the Middle district of the Supreme Court. That the practice of the Court had been not to adjudicate in cases of mandamus except in the appropriate district of the Court. Reference was made to 1 Yeates 46; Id. 155; Id. 476; 2 Bin. 262; 3 Id. 363; 4 Bin. 117; l Ser. & R. 882; 8 Id. 211; 11 Id. 73; 4 Watts 154; 1 Whar. 1; 2 Rawle 369; 6 Bin. 5; 9 Ser. ‡ R. 52; 5 Harris 9. That the. only object of the Act of 1852, extending the jurisdiction of the Supreme Court, was to extend its Original jurisdiction in Equity in the cases enumerated in the 13th section of the Act of 1836, -and had no reference to the common law remedy by mandamus.
    It was said that it had hot been shown that the Pennsylvania Railroad Company had by any provision in its charter authority to place passenger cars on the Philadelphia and Columbia Railroad. That on the contrary, they could not run a car on the Harrisburg and Lancaster Railroad without the consent of that company. A corporation has only the powers vested in it by law: 1 jKyd on Corporations 65; 2 Cranch 127; 7 Id. 299; 8 Wheaton 388. It is to be limited to the powers granted to it. 2 Kent 298; 4 Peters 152; 5 Id. 641; 1 Sumner 47; 13 Peters 521; 3 Kelly 31; 25 Maine 493; 6 W. & Ser. 101 ;9 Id. 9; 7 Manning f Cranger 870 ; 6 Paige 223; 20 Vermont, Whitcomb v. Rood. The franchises of a corporation cannot be granted away by its own act. 9 W. f Ser. 27; 22 Pick. 122. It was contended that the company received no power by the Act of 1852, to place cars on the state road. By the Act of 1852, the Act of incorporation is referred to for the powers of the company; no additional authority was conferred, although additional means were given to give such powers more effect. In the conclusion of the 2d section, the enactment is stated to be, for the proper business of the company as authorized by their Act of incorporation. That in the incorporation of the two companies in question, it was contemplated that the connexion authorized to be made with the Philadelphia and Columbia Railroad would entitle those companies to transport passengers in the cars provided for the state road, upon the terms prescribed by the Canal Commissioners. It was said that the Act of 1884, allowing individuals to put cars on the road, was to be subject to the regulations of the Canal Commissioners. Commonwealth ex rel. Leech v. Canal Commissioners, 5 W. & Ser. 388.
    It was said that the term “ individuals,” as used in the Act of 1834, should not be construed to embrace corporations. Also that it was not intended by the state to surrender the control of the carrying trade between the east and west, or to give to the company in question any power over it on the state works. It was also alleged that the contract in question was operating to the advantage of the treasury of the state.
    December 29, 1852,
   The opinion of the Court was delivered at Philadelphia, by

Black, C. J.

— This writ of mandamus was issued at Pittsburgh, and made returnable there to the Supreme Court for the Western District. It is objected that we have no jurisdiction there, because the chief place of business for the Canal Commissioners is at Harrisburg in the Middle District. The objection seems to be taken in obedience to what the respondents deem a public duty, and has been rather faintly urged. Our jurisdiction is over the whole state. It is not the practice to issue writs beyond the district in which they are made returnable, and that is all that was decided in Duffy v. The Hanover and Carlisle Turnpike, (9 Ser. & R. 59.) But no law forbids it. There are cases, and this is one of them, in which the rule of practice ought to be relaxed, though it certainly would not be relaxed if a motion were made to quash the writ in a purely local and private case.

The respondents deny that the relators have any right either hy their charter or by any other law, to carry freight or passengers on the Columbia Railroad. If this be true it ends the present controversy, since whatever may be the duties of the Canal Commissioners, the relators cannot complain unless they have been disturbed in the enjoyment of some lawful right of their own. It would be absurd to order that the railroad company should he permitted by the Canal Commissioners to do that which they cannot do without an illegal usurpation of a privilege which the law has denied them. If we assume that the legislature has not authorized the relators to prosecute the carrying business on the state road between Columbia and Philadelphia, the present proceeding is a demand that we establish, maintain, and protect them in the enjoyment of a privilege which the law forbids them to exercise. This of course is not expected; and therefore the construction of the charter and the other Acts of Assembly hy which it is claimed that their franchises have been extended, must he carefully attended to before it becomes worth while to inquire whether the conduct of the Canal Commissioners has been right or wrong.

In the charter of the Pennsylvania Railroad Company, we find nothing which gives colour to the notion that they have any legal rights whatever upon the state works. On 'the contrary, the proviso in the second section expressly denies them all privileges, except such as are necessary or convenient to the procuring, making, owning, maintaining, regulating and using their own road, and confines their operations after the road is built to the transportation of passengers and things thereon.

A law passed the 13th of March, 184T, authorizes any railroad company to run cars over another road connected with their own; but it is provided that this shall only he done with the consent of the company owning the other road. This Act cannot he made to cover the present case. The road owned by the relators does not connect with the Columbia road. The latter road is not owned by a company, and to say that the state which does own it has consented to such' use of it, is to beg the whole question.

It is said that the right claimed is conferred on them hy the Act of 15th April, 1834, which authorizes the purchase of locomotives by the Canal Commissioners, and provides that individuals shall have the right to place cars on the road. This clause seems intended to establish a system hy which the state should furnish the motive power, and individuals do the carrying under such regulations as the Canal Commissioners might see fit to prescribe. We do not think the word individuals is to be understood in a sense so narrow as that which the respondents would assign to it. It means something more than single persons. It would not exclude a partnership nor an incorporated company, authorized hy its charter to carry goods or passengers on that road. The argument of the relators’ counsel that it means anybody other than the Commonwealth is a fair and just one. But no signification of it can be large enough to include a company from which the privilege is withheld by the law which gives it existence and defines its powers. If one corporation may claim this addition to its franchises, so may all others, and every company incorporated for religious, literary, mining, manufacturing, or banking purposes may demand the right of becoming carriers on the state railroads. This extension of all existing charters was not made by the clause in question. It adds nothing to any of them, and the relators are not helped by it more than others.

By section 11 of the relators’ charter, they are authorized in a certain contingency to connect with the state railroad at or near Columbia. From this as well as from many other things, it is fairly inferrable that the legislature contemplated a continuous line of railroad from Pittsburgh to Philadelphia. This was in fact the very object for which the Pennsylvania Railroad Company was established. It needs no argument to prove that a break over which passengers could only be carried in stage coaches, was neither expected nor desired. But a connection between two roads, does not imply that the company owning one shall have the right to run its cars upon the other. It required the Act of 13th April, 1847, to give that privilege to connected railroads owned by companies, and even under that Act it does not exist except by consent. Besides, the contingency on which this connection was authorized never occurred, and the connexion never was made.

A supplement to the charter of the Pennsylvania Railroad Company was passed on the 23d of April, 1852, by which it was authorized to purchase and hold certain real estate in the county of Philadelphia, “for such objects as appertain to the legitimate business of the company, authorized by their Act of incorporation of transporting passengers and tonnage over their own and the Columbia Railroad.” The simple and manifest object of this supplement was to give the company the power to hold the land for the purposes of the business which the charter authorized it to carry on, and to confine its future operations within the bounds previously afiixed. But in the overflowing redundancy of expression which usually characterizes our statutes, the legitimate busisiness of the company was not described according to the truth. The legislature, or a majority of its members, probably supposed that the charter did authorize the company to engage in the business of transporting passengers and tonnage on the Columbia Railroad, as well as on their own. But an error is not converted into a truth by the mere recital of it in an Act of Assembly. That which has not been law heretofore, must be enacted to make it law hereafter. We obey the will of the legislature when expressed as its will according to the forms of the Constitution, but its opinions are not binding. Such opinions are often entitled to great respect as evidence of the law in doubtful questions ; but when they are manifestly founded in mistake they are to be disregarded, like an erroneous decision of the judiciary.

It may be that the privilege which the relators claim might arise by implication out of their charter, or some other of the acts cited by their counsel, if we were at liberty to give to them the broad construction which we sometimes apply to other laws of a different character. Rut corporate powers can never be created by implication nor extended by construction. Ho privilege is granted unless it be expressed in plain and unequivocal words, testifying the intention of the legislature in a manner too plain to be misunderstood. When the state means to clothe a corporate body with a portion of her own sovereignty, and to disarm herself to that extent of the powers which belong to her, it is so easy to say so that we will never believe it to be meant when it is not said; and words of equivocal import are so easily inserted by mistake or fraud, that every consideration of justice and policy requires that they should be treated as nugatory, 'when they do find their way into the enactments of the legislature. In the construction of a charter, to be in doubt is to be resolved; and every resolution which springs from doubt is against the corporation. This is the rule sustained by all the courts in this country and in England. Ho other has ever received the sanction of any authority to which we owe much deference. This court has asserted it times without number. We have ruled five or six important cases upon it within the last year. We seem not to have made much impression on the professional mind, and we are probably making as little now. But when respectable counsel call on us hereafter (as they doubtless will) to enlarge corporate powers by construction, we can only repeat again and again that our duty imperatively forbids it. The privileges of the Pennsylvania Railroad Company may be too rigidly restricted. If the usefulness of the company would be increased by extending them, let the legislature see to it. -But let it be remembered that nothing but plain English words will do it.

The course of this reasoning necessarily brings us to the conclusion, that the relators, having no rights on the Columbia Railroad, cannot have been injured by the conduct of the Canal Commissioners ; and it matters nothing to them whether that conduct was in accordance with their public duty or not. We give no opinion on the other points of the case. • We have not considered the arguments so eloquently urged by the counsel of both sides, on the consequences of our decision to the revenues of the state, and the commerce of the country. We leave all this to that department of the government whose duty it is to take care of it. Ours is to say that no law has yet been made which authorizes the relators to have cars on the Columbia Railroad, and therefore we cannot order the respondents to attach their cars to the motive power of the Commonwealth.

Judgment for the respondents that the peremptory mandamus be refused, and that respondents have their costs.


text:
    Miller versus Canal Commissioners.
    1. Though the Act of 15th April, 1834, authorizes individuals to place cars on the Columbia and Philadelphia Railroad, yet an individual has no right to run thereon a car which has been condemned and was at the time unfit for service.
    2. The Pennsylvania Railroad Company having no right of itself to run cars on the Philadelphia and Columbia Railroad, cannot do so in connection with an individual.
    3. In the petition for a mandamus it was said that the petitioner and Company, without designating the persons, were the owners of a car which was offered for transit on the Columbia Railroad. In the answer it was asserted that to the best of the defendants’ knowledge and belief, the Pennsylvania Railroad Company, or some of its officers in trust for it, was the principal owner of the car. The answer was demurred to. It was Held, that as the relator had not chosen to state who his partners were, he could not take advantage of the want of a positive statement in the answer, as to the names of his partners. The judgment in the matter ia to be given against him who committed the first error.
    4. But in the petition and writ, the grievance being stated to be the refusal to,attach a car belonging to David Miller individually, it was not incumbent on the respondents to render any reason for not attaching a car belonging to David Miller & Company.
    This was an application to the Supreme Court, when sitting in September, 1852, in the Western district, by David Miller for a mandamus to be issued to the Canal Commissioners, in which it was, inter alia, represented:

      “ That for several years, petitioner has by himself and in conjunction with other persons, carried passengers in cars drawn by the motive power of the state, to and from Columbia and Philadelphia, over the Columbia and Philadelphia Railroad, with the knowledge and approbation of the Canal Commissioners, a body constituted by law to superintend the said railroad as one of the public works of the state.
    “ The petitioner for himself and his copartnerships duly paid to the Canal Commissioners, or their duly constituted agents, from time to time as required, such tolls and other charges as were imposed by the said Canal Commissioners for the conveyance of passengers over said railroad as aforesaid.
    “ On the 20th day of May last the petitioner received notice from the said Canal Commissioners of a resolution adopted by the Board on the previous day, stating that a contract had been formed with Messrs. Bingham & Dock, for the carriage of all persons and mails over the state road, except passengers carried by the West Chester Railroad Company, and by market cars. The contract was to go into effect by its terms on the 1st of July ensuing. A copy of it was attached.
    “ Since the date of this, a publication has been made under the ’ apparent authority of the Canal Commissioners, of which a copy of the paper purporting to be a copy of the contract above referred to, forms a part. (A copy of the said contract, made with Bingham & Dock, was attached.) tie charged that if the Canal Commissioners made such a contract, they made it without any public notice inviting proposals for such a contract.
    “Petitioner annexes hereto.a copy of a resolution passed by the said Canal Commissioners on the said 19th of May last, prescribing the terms upon which transporters of passengers were to usé the Philadelphia and Columbia Railroad, including the toll and mo-, tive power. The petitioner complied with this resolution by continuing to carry passengers and paying the rates fixed therein until stopped by the order of the Canal Commissioners from using said railroad, as hereinafter stated.
    “ On the 23d of June last, petitioner received a copy of a notice of another resolution, dated Towanda, June 12th, 1852, postponing the commencement of the contract with Bingham & Dock to the 16th of August. * * * *
    “The way or accommodation train of cars, as it is ealled, between Philadelphia and Columbia, leaves Philadelphia at 2 o’clock, P.M., and Columbia at 1-|- P. M., every day. It was in connection with this train that petitioner’s cars' were run.
    “ On the 16th day of August last, a passenger ear in petitioner’s own name, and used on his individual account, and another passenger car owned by D. Miller & Company, of which firm petitioner is one, were started by petitioner’s order, in the usual way, from his office, Ho. 272 High street, in the city of Philadelphia, for the purpose of having said cars carried over the Philadelphia and Columbia Railroad by the motive power aforesaid. The two said cars were each nearly filled with passengers who were bound to Columbia and various intermediate points. The said cars arrived on the railroad of the state at the proper- time for the 2 o’clock train of cars, at West Philadelphia, that being the place appointed by the Canal Commissioners for the attachment of cars to the motive power and the departure of westward trains over the said Philadelphia and Columbia Railroad.
    “ The agent for and in behalf of the Canal Commissioners in charge of the motive power and the railroad, was then and there requested by petitioner to attach, or permit to be attached, the said two passenger cars to the motive power of the state for transportation. He refused to make and permit to be made any attachment whatever of said cars to said motive power. Petitioner then went to the collector of tolls office, and demanded a clearance for the said cars, and made a formal tender of the wheel toll in money, which tender was refused by the collector. The pétitioner then demanded of the said agent of the Canal Commissioners, to attach said passenger car, which was in petitioner’s individual name, and used on his own account as aforesaid, to the said motive power, but the said agent refused to make or permit any attachment whatever, by the orders, as he averred, of the Canal Commissioners.
    * * * * * * *
    The petitioner said that each of the said two cars offered for attachment as aforesaid, was in all respects conformable to. the rules and regulations of the Board of Canal Commissioners, and that the time and manner of attachment demanded, were also in conformity therewith.
    The petitioner insisted that he had the right by law, as an individual, to place his said car-on the said railroad, and attach, or have his said car attached, to the locomotive cars belonging to the Commonwealth for the purpose of transportation, and that the refusal to permit his car to be attached, to the motive power aforesaid, was without legal authority, and contrary to law. H® charged that the said John A. Gamble, William T. Morrison, and Seth Clover, under the pretence of their authority as Canal Commissioners, in refusing to transport petitioner’s cars as aforesaid, had occasioned damage to him; and that the refusal aforesaid was in pursuance of a determination to close the said railroad for the carriage of passengers against all other persons but the said Bingham & Dock. He charged that said acts and doings of the said John A. Gamble, William T. Morrison, and Seth Clover, are without and in violation of law, and the rights of the petitioner.
    He prayed the Court to issue a writ of mandamus to the said Canal Commissioners, naming them, requiring them to attach the Said passenger car of the petitioner to the motive power belonging to the Commonwealth, for the transportation of passenger cars over the said Philadelphia and Columbia Railroad.
    The agreement with Bingham & Dock was the one referred to in the case of the Pennsylvania Railroad v. The Canal Commissioners, antea; its date being the 19th May, 1852.
    In the answer of the .Canal Commissioners, in addition to matters alleged in the answer in the case of the Pennsylvania Railroad Company, antea, it-was stated that David Miller, in conjunction with others, for several years pa.st had carried passengers drawn by the motive power of the state, over the Philadelphia and Columbia Railroad; and at the time of the alleged grievance eight or nine tenths of the line of cars claimed by D. Miller & Company, were owned by the Pennsylvania Railroad Company; that he had not at any time any car on the road in his own name individually ; and that the car presented had not been inspected, and had been removed as unsafe.

    A demurrer to the answer was entered on behalf of the petitioner.
    December 29,1852,
   The opinion of the Court was delivered, by

Black, C. J.

— In this case it is asserted in the writ of mandamus, that the relator demanded of the respondent’s agent on the Columbia Railroad, that two cars offered by him and filled with passengers should be attached to the motive power of the Commonwealth, which was refused. In the answer it is alleged as to one of the cars so offered, that it had been previously condemned by the inspector of cars as unfit for service, and according to a rule established by the board of Canal Commissioners, it was not entitled to be replaced on the road until it was again submitted to inspection, and approved by the proper officer; and this it is said was never done. The demurrer admits the answer to be true in point of fact. The refusal to attach a car condemned, according to a rule which no one denies, to be wise and just or made by legal authority, is not a wrong.

The writ avers that the other car was owned by David Miller & Company, of which firm the relator was one, but it does not say who were the other partners. The answer asserts that the Pennsylvania Railroad Company, or some of its officers in trust for it, was the principal owner of the last-mentioned car. If this must be taken for true, it puts an end to the case. The Railroad Company cannot run cars on the state road in partnership with another person, any more than it can do so on its own account without a partner. But a demurrer only admits such facts as are well pleaded, and it is argued that the partnership of the Pennsylvania Railroad Company with David Miller, is not to be taken as true, because the respondents have not alleged it positively but only according to the best of their knowledge and belief. Let the correctness of this argument be conceded, doubtful though it be. We must look at the whole record, and give such judgment as the very right of the cause demands; and since the relator has not chosen to say who his partners were, he cannot have any advantage from the defective manner in which the respondents’ allegation on that point is set out. The familiar rule which requires judgment to be given against the party who has committed the first error, is decisive, This is not merely technical, but a substantial and just objection to the relator’s demand. If a peremptory mandamus were awarded to attach the oars of the relator and his unknown partners, it might have the effect of placing persons on the state road who are excluded from the use of it by the laws of the Commonwealth, or by a regulation of the Canal Commissioners, with which we have no authority to interfere. The probabilities are that such would be the result. There can have, been no reason why the relator should conceal the names of his partners, except a consciousness that the disclosure would be dangerous to his case. There is another reason still more decisive, for disregarding all that is said about the ear owned by the relator in partnership with others. The petition prays for a mandamus requiring the Canal Commissioners to attach not the cars of David Miller & Company, but those of David Miller himself to the motive power, and the writ commands them to do so or show cause to the contrary. They are not required to render any reason whatever against attaching the cars belonging to a partnership of which the relator is a member. The respondents might well and safely have omitted altogether giving an answer to what the writ says on that subject. The relator therefore, by his petition and writ, has put his whole ease on the refusal to attach the. car run on his own account and in his own individual name. By the demurrer he admits that car to have been unworthy and unfit for service, and it was properly refused a place in the train, in pursuance of a regulation which the respondents had full authority to make, and which it would have been a gross neglect of their duty not to make.

Though it is not necessary to give any opinion on the other questions raised and argued by counsel, we will not close without briefly stating our impression upon some of them.

The state is the absolute owner of the public works, and may use them as she pleases for her own profit and advantage, disregarding all considerations arising out of the interests of individuals.

By the organic structure of the government, the power of determining how these works shall be used, is primarily vested in the legislature. That department may exercise the power itself, or delegate it to other agents.

It has been delegated to the Canal Commissioners. On them the legislature has devolved the duty of exercising the proprietary and in some degree the sovereign rights of the state. By the Act of 16th April, 1838, they are authorized to make such rules and regulations not inconsistent with the laws of the Commonwealth, as they may deem reasonable in all matters connected with the use and preservation of the railroads. This commits to them the management of the railroads, with authority to do whatever is not forbidden. When the law is silent, their discretion comes in place of law.

But the rules and regulations made by the Canal Commissioners must not be inconsistent with law. A regulation which denies to individuals the right of attaching cars to-the Commonwealth’s locomotives, is inconsistent with the Act of 16th April, 1834, by which it is provided that individuals shall have that right.

An agreement between the Canal Commissioners and one or more individuals, by which the sole and exclusive use of the state railroad either for all purposes or for a particular purpose, such as the carrying of passengers, is given away during a term of years, is not a regulation according to the Act of 1838; and as a contract it is not binding on the state, but may be repudiated and disowned whenever the legislature thinks proper to do so.

The most doubtful question is whether we have the power to control the respondents in the execution of their duty. Certainly we cannot transform ourselves into a board of canal commissioners, and prescribe how the railroads shall be managed, or on what terms individuals shall be permitted to use them, and a general order that certain persons shall have their cars attached agreeably to the rules and regulations of the Canal Commissioners, would be mere brutum fulmen, which a new regulation could set at nought the next day. For an abuse of their power (says Chief Justice Gibson in Leech v. The Canal Commissioners), they are not answerable to this Court. “ The only possible restraint,” says Mr. Justice Lowrie in Downing v. McFadden, on official discretion consistent with its exercise, is that of responsibility for misdemeanor in office, and the liability to action if the discretion be maliciously exercised.” But there are arguments on the other side, and while we adhere to the whole doctrine of the two cases cited, it cannot be safely asserted that either of them fully covers this point. It is better, therefore, to leave it open until an occasion arises necessarily calling for the decision of it.

Our judgment against the relator is based on the fact that the car he offered was a condemned one, excluded from the road by a rule which the respondents had a right to make. In two weeks more the legislature will be in session, and they have the unquestionable power, if they see fit, to put him and the Pennsylvania Railroad Company both on the state road, with condemned cars as well as sound ones, and to abrogate the contract complained of or affirm it according to their own sense of justice and policy, and no judgment of ours could take this authority from them.

Judgment for the respondents that the peremptory mandamus be refused, and that respondents have their costs.