text:
    Morrow, Appellant, v. The Tunkhannock Ice Company.

      Contract—Saks on commission—Master and servant.

    Where an ice company agrees in writing to give to an individual the right to sell all of its product for the term of five years on a commission of “one dollar per car for ice shipped from the company’s plant” the contract does not establish the relation of master and servant, but constitutes an employment to make sales on commission. If the sales agent thus employed makes no sales and is discharged before the end of his term, he can recover nothing from the corporation.
    Argued March 6, 1905.
    Appeal, No. 271, Jan. T., 1904, by plaintiff, from judgment of C. P. Monroe Co., Feb. T., 1901, No. 23, on verdict for defendant in case of Cyrus C. Morrow v. The Tunkhannock Ice Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit upon a written contract. Before Ferris, P. J.
    The court charged in part as follows :
    The action is grounded upon a written contract bearing date of October 24, 1899, between C. C. Morrow, this plaintiff, and the Tunkhannock Ice Company, this defendant. By that contract the plaintiff agrees to accept the position' of general sales agent of the Tunkhannock Ice Company for the term of five years from January 1, and as such he undertakes to devote his time and ability to the best interests and welfare of the said company. He further agrees that he will solicit trade, negotiate and make sales of the entire capacity of said company, attend to the collection of accounts, which, however, are to be payable to the treasurer of the company directly. He is also to adjust all freight rates, and in general arrange for the sale and delivery of the ice product of the company. But he further agrees that no contract for the sale of ice shall be made without the consent of the executive committee of the company ; and also agrees to report all sales that shall be made by him daily, direct to the office of the company. And he further agrees that he will give preference of sale to the ice of the Tunkhannock Ice Company, until the ice of said company is disposed of. In consideration of the faithful performance of his duties, the ice company agrees to employ him as general sales agent for the said term of five years, and further agrees to pay the plaintiff for his services during said term, if he shall so long remain in the employ of the company, $1.00 per car for ice shipped from the company’s plant, except such water ice as may be sold to Isaac Stauffer under an agreement with him.
    [It is further’ provided in the contract that if the plaintiff fails to attend to the duties of his employment to the injury or detriment of the defendant’s interest, that the agreement may be cancelled at the option of the defendant company, without notice to the plaintiff or payment to him of any compensation or commission for the remainder of the term. That I believe is the contract so far as it is material to this case. The first instruction on that contract which we give you, is, that in order to entitle the plaintiff to recover in this action, he must have shown to you by the preponderance of the evidence in the case, that he. himself did substantially perform the undertakings on his part, which are contained in this agreement. That is to say, he must show substantial performance of this agreement, by devoting his time and ability to the best interests and welfare of the said company. Do you believe from the evidence that he did that or that he did not ? Second, that he will solicit trade and negotiate and make sales of the entire capacity of the said company.] [S] Do you believe that he did that? Do you believe that he did his best endeavor in that regard, fairly, conscientiously; that he did as well as he could? If he did all that he could, and all that could reasonably be expected of him, in order to negotiate and make sales of the capacity of this company, and such sales were not made because the company did not approve of the terms of the sales, or if the making of the sales was prevented by the independent action of the defendant themselves, through other sales agents, or directly disposing of their entire product of ice, then if you also believe that the plaintiff did his duty under this contract, he would nevertheless be entitled to recover compensation for it, even though the sales were not concluded ; and that by reason of a further clause in the contract which provides that no contract for the sale of ice shall be made without the consent of the executive committee of the said company, they reserve to themselves the right to conclude all sales.
    There are three elements, necessary elements in a contract for the sale of personal property. The first is, two parties the seller and a buyer. The second is the thing which is to be sold, and the third is a price. Where there is no delivery of the article at the time of .the contract the price must be agreed upon. Where there is a delivery of the things sold at the time of the sale, the price need not necessarily be agreed upon. In such a case the law will imply the price to be what the thing sold was reasonably worth. An example of the application of that principle is where a man comes into a store and purchases some article of merchandise, nothing being said about the price; it is charged to him and the merchant could recover from him, there being a delivery of the articles, whatever the market price—whatever the thing sold was reasonably worth, according to the market price then ruling.
    Where there is neither a delivery of the article sold, nor an agreement as to the price for it, there is no sale.
    He agrees to report sales daily. From what has been just stated to you as to the law of a sale of personal property, it is evident that in this portion of the contract the use of the word sale, where it is stated that the plaintiff undertakes to make sales, doing that in connection with the whole contract; it is evident that what is intended there is, that he shall make sales so far as under the contract he is authorized to, and that he is to report such sales to the company for their approval or disapproval. That is to say he is to make a sale upon condition that the sale is to be approved by the company, and report what he has done in that regard. It is not a complete legal sale under tins contract until the contract for the sale shall be consented to by the executive committee of the company. Therefore under this contract the plaintiff was not bound to make a complete sale, but an incomplete sale subject to the ratification of the proper officer of the company.
    He is bound to report all sales which shall be made by him daily direct to the office of the company. That raises a question for you to determine under the evidence in the case. Did he substantially perform that undertaking? Did he make daily reports of his performance of his duty in this respect to the office of the company. If he did not do so literally and exactly, did he do so substantially, so that the company were promptly informed of everything which he was doing in their behalf; so that his actions in the carrying out of the contract would properly inure to the benefit of the company which employed him? [Was there a substantial performance by Mr, Morrow of his undertaking under this contract ? If you believe from the evidence that there was, if you believe from the evidence in this case that he did what he agreed to do; then you would be justified in finding a verdict in his behalf for $1.00 per car on the amount of ice sold during the season of 1899 and 1900 by this company, amounting to $1,356 with interest from January 5, 1901.
    In arriving at that, gentlemen, you will remember the testimony as to the total amount of cars of ice which were sold that season, amounting to 1,500, and some exclusive of the Stauffer contract, and you will remember that a portion of it was a sale to the Delaware, Lackawanna and Western Railroad Company as to which Mr. Morrow had already been settled with and paid; so that the amount which I have just given you is the amount remaining, for which Mr. Morrow would be entitled to a verdict at the rate of $1.00 per car, if you believe that he is entitled, under the evidence, to any verdict at all in this case.] [4]
    [So that, gentlemen, the question for you to consider is, the main, the controlling question in the case whether Mr. Morrow, under the evidence which you have heard was faithful to his employers, whether he did or did not substantially do that which he agreed to do. If you believe that he did not then your verdict should be generally for the defendant. If you believe that he was not faithful; that as testified to by one witness, he undertook to do that which would divert the price of sales from the company into his own pocket; if you believe that he failed to make such reports of his work to the company as would keep them thoroughly advised, and would be substantial and continuous and to all intents and purposes a daily report of what he did, and of the sales negotiated or incomplete sales he made ; if you find that he failed to do this to the detriment of the company, and that they were obliged because he failed, notwithstanding notice to him to proceed to get purchasers for the ice ; if you believe that the company itself was obliged to make other arrangements to get their product sold, then he would not be entitled to recover in this case.] [5]
    As already stated to you we do not propose to enter into a detailed discussion of the evidence. The evidence is for your fair and conscientious consideration, and in considering the testimony of the various witnesses in the case, if that testimony is conflicting in any way it is your duty to endeavor to reconcile the conflicting statements. If you are unable to do so, it is for you to say which of the witnesses you will believe and what weight you will give to their statements upon the stand. In passing upon this question of credibility, you may and should take into consideration the interest which any particular witness has in the outcome of the trial, if any such interest appears; any feeling, bias or prejudice displayed by any witness on either side of the case, if such feeling, bias or prejudice appears. You should consider the bearing and demeanor of the witness upon the witness stand; his manner of testifying in the case ; whether he does or does not impress you as one who is desirous of telling the truth and is trying to do so. You may take into account the inherent probability or improbability of the story he tells, his means of knowledge of the truth of that whereof he speaks ; his apparent strength or weakness, as the case may be, of memory, and in general any proved facts or circumstances in the case which tend either to corroborate him or contradict him, or any contradiction which appears either in his own testimony or in the testimony of others.
    [You will remember that in the contract sued upon there is a provision that if the said Morrow fails to attend to the duties of his employment to the injury or detriment of the said company’s interests, then this agreement may be canceled at the option of the Tunkhannock lee Company without notice to the said Morrow or the payment to him of any compensation or commission for the remainder of the said term. I think, gentlemen, that the evidence in this case is undisputed that there was no attempt to discharge Mr. Morrow from his duties as sales agent until the end of the season, and that later in September, a letter was written, embodying what had been done and discharged him from duty, and in that letter there was a statement that the discharge was to date back to the first of February in the year 1900. We instruct you, gentlemen, that that discharge would not date back to any time previous to •the time when Mr. Morrow was notified by the defendant or its officers that he was discharged, which as already stated was at the end of the season, so that so far as the discharge is concerned, it is practically of no relevancy in this case. If Mr. Morrow did his duty, as we have endeavored to explain it to you, and substantially performed his undertaking, he would be entitled to a verdict for the amount which we have stated. If he did not do so the fact that he was not discharged until the end of the season, would not entitle him to recover. Whether discharged or not he could not recover unless he had performed his contract substantially.] [1]
    You may consider from the evidence in the case, whether or not the defendant company waived strict performance by the plaintiff of any of his undertakings, and if they did, if you find from the weight of the evidence that they did waive its performance in any particular, then he would not be required to do those things the doing of which had been so waived.
    [If you believe from the evidence that the plaintiff in this case, C. C. Morrow, has substantially performed and done that which he contracted to do, then he is entitled to the compensation which the defendant company contracted to pay. If you believe that he did not, then he is not so entitled.] [2]

      Errors assigned were (1-5) above instructions, quoting them.

      A. Mitchell Palmer, for appellant.
    The contract established the relation between these parties of master and servant: Jones v. Coal Co., 1 Pa. Superior Ct. 331; Allen v. Colliery Engineers’ Co., 196 Pa. 512.
    The contract in this case is very similar to that in Peniston v. John Y. Huber Company, 196 Pa. 580.
    Where neither the thing to be furnished nor the consideration to be paid was single and indivisible, the plaintiff is entitled to go to the jury on the value of the services actually rendered, measured by the contract price for the service stipulated: U. S. Water Works Co. v. Dubois Boro., 176 Pa. 439.

      The case of Elliott v. Wanamaker, 155 Pa. 67, is similar in some respects to the case at bar.

      Wilton A. JErdman, for appellee.
    The question of substantial compliance with a contract is one for the jury: Shires v. O’Connor, 4 Pa. Superior Ct. 465; Patterson v. Brace, 198 Pa. 107.
    Faithful service is a condition precedent to the right of a servant to his wages: Libhart v. Wood, 1 W. & S. 265; Williams v. Eldridge, 9 Kulp, 566 ; Ulrich v. Hower, 156 Pa. 414.
    Our case is very similar to the case of Columbian Fire Proofing Co. v. Great Northern Paper Co., 207 Pa. 232.
    April 10, 1905 :
   Opinion by

Mb. Justice Potteb,

On October 24, 1899, Cyrus C. Marrow entered into a written agreement with the Tunkhannock lee Company by which he agreed to accept the' position of general sales agent for the company for a term of five years from January 1,1900, “ and as such to devote his time and ability to the best interest and welfare of the said company; ... to solicit trade, negotiate and make sales of the entire capacity of the said company, attend to the collection of the accounts .... adjust all freight rates and in general arrange for the sale and delivery of the ice product of the company,” and make daily reports of all sales direct to the office of the company. The agreement provided that “in consideration of the faithful performance of his duties by said Morrow ” the company would employ him as general sales agent for the term stated, and would pay “ for his services during the said term if he shall so long remain in the employ of the company as 'aforesaid, $1.00 per car for ice shipped from the company’s plant,” with a certain exception; all payments to be made to said Morrow on the fifth of each month for deliveries of ice made the preceding month. The agreement further stipulated that Morrow should give preference of sales to the company’s ice until it was disposed of. And “ if said Morrow fails to attend to the duties of his employment, to the injury or detriment of the said company’s interests, then this agreement may be canceled at the option of the Tunkhannock Ice Company, without notice to said Morrow or the payment to him of any compensation or commission' for the remainder of the term.”

On September 8,1900, the ice company wrote a letter to Morrow in which he was formally notified that by reason of the breach upon his part of the contract of October 24, 1899, “ the same has been considered void and of no effect from February 1, by which time we had ascertained that you were making no effort to place our ice, and in fact did not sell any. We are fully prepared to pay, and inclose herewith our check for $82.00 for D. L. & W. ice sold as per agreement between you and Mr. Daub. During the past season you have failed to attend to your duties under the contract, to the injury and detriment of this company's interests.”

It appears from the evidence of Mr. Daub, the president of the defendant company, that the discharge was given in a conversation between Daub and the plaintiff, and, as he said, “ it was understood that he had performed no duty for us and of course he could expect no compensation.” Afterwards this witness fixed the date of the discharge as March 15, 1900. This testimony does not seem to have been contradicted by plaintiff. On February 7, 1901, Morrow brought this action of assumpsit against the ice company, and in his statement declared upon the written agreement, averred performance on his part, and claimed the stipulated compensation from January 1,1900, to January 5, 1901, at the rate of $1.00 per carload of ice shipped by the company during that time.

The defendant pleaded non assumpsit. On the trial, plaintiff presented evidence to show performance, while defendant sought to prove that plaintiff had not discharged his duties. In addition, a witness, who was one of the managers and treasurer of the Mountain Ice Company, testified that in Februaiy,1900, Morrow called on him and told him that he had from 15,000 to 25,000 tons of summer ice, and wanted to know if the witness’ company could handle it. He said the ice cost him sixty-five cents to seventy cents, and offered to load it on the cars of witness’ company, and charge to them at $1.25; they to sell the ice at the other end and bear the expense of doing so, and the profits to be divided between the company and Morrow. They were to pay the original price (sixty-five cents to seventy cents) to the company that furnished the ice. Morrow did not state what particular pond the ice was taken from, but merely stated that he had it to sell and that it was mountain ice. The sale was not made, as Morrow reported that the ice had been disposed of elsewhere. But if the evidence as to this effort was believed, it showed bad faith on the part of plaintiff, in that instead of trying to secure the highest market price for the defendant’s product, he was endeavoring to make a secret profit for himself, at its expense.

The trial judge left it to the jury to find whether or not the plaintiff had performed substantially his contract; if so, he was entitled to recover. The jury found for the defendant. The plaintiff has appealed, and has here assigned the instructions of the trial court as error. Appellant contends that the agreement established the relation of master and servant between the defendant company and himself, and that even if the jury found the discharge was rightful, he was entitled to the wages of his service as long as that service was rendered to his employer. And that if the discharge was not rightful, he was entitled to receive his entire claim.

The appellee denies that the agreement constituted the relation of master and servant, and contends that in order to recover at all, appellant was bound to first show performance on his part, which he failed to do to the satisfaction of the jury. He contends further that he was not only bound to do this under the law, but also under the pleadings which raise that express issue. It is further urged on behalf of the appellee that, even if it should be conceded that the relation between the parties was that of master and servant, yet the unfaithfulness of the appellant, if found by the jury, was sufficient to prevent recovery of wages and compensation by him.

By the terms of the contract the plaintiff was to sell ice for the defendant. Plaintiff acquiesced in this view and on the trial undertook to prove performance. Upon the other hand, the evidence upon the part of the defendant was to the effect that the plaintiff wholly neglected his duty, and had made no sales at all under the contract. In this situation it was for the jury to decide between the parties as to this disputed question of fact, and this without regard to whether the contract was entire, or severable. We do not regard this as a casein which the relation of master and servant existed, it was an employment to make sales on commission. The situation here is totally different from that which prevails where a servant is employed under the eye or the general observation of the master. The verdict of the jury was against the claim made by the plaintiff, and established the fact, that he had not performed the services called for under the contract. He was not, therefore, wrongfully discharged. Allen v. Engineers’ Co., 196 Pa. 512, can have no application here, for in that case an employee was wrongfully discharged.

In the present case, we have the plain finding that the plaintiff had not performed the service which lie had agreed to render. If this is true, there is no reason why he should be paid anything, for he has earned nothing. It is not necessary, therefore, to consider whether the contract was entire, and whether, if so, the plaintiff was entitled to recover for services rendered up to the time of dismissal.

We think it is clear that the intention of the parties to this contract, was to provide, through the agency of the plaintiff, for the sale of the entire product of the defendant company. Everything else that the plaintiff was to do was incidental to this, which was the main purpose of his employment. It mattered not whether he made the sale in one day, or by efforts extending through many days. The service he was to render was essentially the selling of the defendant’s crop of ice. This he failed to do, not merely in part, but wholly, and by reason of this failure, it may fairly be said that he rendered no service, for which he was under the contract entitled to compensation. He was not to be paid for doing nothing, but for doing something.

The small amount of ice which he did sell and for which he was paid, was under a special agreement and not under the terms of this contract. We see no error in the theory upon which this case was tried nor in the manner of its submission to the jury.

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


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    White v. Keystone Telephone Company.

      Negligence—Telephone company—Obstruction on sidewalk.

    In an action against a telephone company to recover damages for personal injuries sustained by falling after dark over a pile of stones on a sidewalk of a dimly lighted street, the case is for the jury where the testimony for. plaintiff is that a few days before the accident the defendant company secured a permit to lay conduits on the street and had begun work and was occupying the street for that purpose, that on the day of the accident the paving stones had been removed from the cartway and piled on the pavement, the conduits laid and the trench filled with earth; and that on the morning after the accident the same workmen who had removed the stones from the street and piled them on the pavement, placed them back on the street.
    Argued March 20, 1905.
    Appeal, No. 355, Jan. T., 1904, by defendant, from judgment of C. P. No. 2, Pbila. Co., Dec. T., 1901, No. 4084, on verdict for plaintiff in case of Hope Annie White v. Keystone Telephone Company.
    Before Dean, Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Sulzberger, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $5,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Charles S. Wesley, with him Edwin 0. Michener, for appellant.

      Harry A. Maelcey, with him Ellis Sagebeer, for appellee.
    April 10, 1905:
   Per Curiam,

The plaintiff was injured by falling after dark over a pile of paving stones that had been left on the sidewalk of a dimly lighted street. The sidewalk was three feet wide, the pile of stones a foot high, and no means were taken to give notice of the obstruction. The only question raised by the assignments of error is whether the case should have been withdrawn from the jury because of the failure to connect the defendant with the commission of the negligent act. It appeared from the plaintiff’s testimony that a few days before the accident the defendant secured a permit to lay conduits on the street and had begun the work and was occupying the street for that purpose; that on the day of the accident the paving stones had been -removed from the cartway and piled on the pavement, the conduits laid and the trench refilled with earth; that' on the morning after the accident the same ivorkmen who had removed the stones from the street and piled them on the pavement placed them back on the street. While there was no direct proof that the stones were piled on the pavement by the defendant’s workmen, the circumstances shown reasonably led to that conclusion and excluded any other conclusion equally reasonable. There was sufficient evidence to make out a prima facie case.

The judgment is affirmed.


text:
    Kelly, Appellant, v. Union Traction Company.

      Negligence—Street railways—Death—Evidence—Nonsuit.

    In an action against a street railway company to recover damages for the death of plaintiff’s husband, a nonsuit is properly entered where all that is shown is that the deceased was run over by one of defendant’s cars at the middle of a block, after midnight; that the gong was not sounded; that the highest rate of speed testified to did not exceed nine or ten miles an hour; that the car was stopped on a down grade and on a slippery track within sixty feet, and that both the street and the car were well lighted.
    Argued March, 20, 1905.
    Appeal, No. 350, Jan. T., 1904, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1902, No. 1594, refusing to take off nonsuit in case of Maria Kelly v. The Union Traction Company.
    Before Dean, Fell, Bbown, Mestbezat and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    The opinion of Supreme Court states the case.

      Error assigned was order refusing to take off nonsuit.

      Philip N. Goldsmith, with him Gharles L. Brown, for appellant.

      Thomas Learning, with him Thad. L. Vanderslice, for appellee.
    April 10, 1905 :
   Per Curiam,

No one who witnessed the accident and whose testimony would have explained the circumstances connected witli it was called by the plaintiff. All that was shown was that her husband was run over by the defendant’s car at the middle of a block after midnight, and that the gong was not sounded. There was no evidence of undue speed of the car. The highest rate of speed testified to did not exceed nine or ten miles an hour, and the car was stopped on a down grade and a slippery track within sixty feet. Both the street and the car were well lighted. There was nothing in the evidence from which negligence of the motorman could be inferred and a non-suit was properly entered.

The judgment is affirmed.


text:
    Tobin, Appellant, v. Pennsylvania Railroad.

      Negligence—Railroads—Getting on moving train—Contributory negligence —Nonsuit.

    In an action against a railroad company to recover damages for personal injuries, it appeared that plaintiff was injured at a station where the tracks were elevated to avoid a grade crossing. The station platform was thirteen feet wide and 340 feet long, and extended to the side of the street. Across the end of the platform above the street there was a fence three and one half feet high for the protection of passengers. A train reached the station when plaintiff was on the street below, and when he was at the top of the stairs which led from the street to the platform, it was standing, or, if started, was moving so slowly that he did not observe its motion. He walked slowly across the platform and got on the first step of the car which was then in motion. Before he mounted the second step, his back was struck by the end of the fence, which was seven inches from the side of the car and about twenty-two feet frpm the place where he got on the step. Held, that a nonsuit was properly entered.
    Argued March. 21, 1905.
    Appeal, No. 50, Jan. T., 1905, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1901, No. 8995, refusing to take off nonsuit in case of Matthew M. Tobin v. Pennsylvania Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.- Before Ralston, J.
    The opinion of the Supreme Court states the case.

      Ht'ror assigned, was order refusing to take off nonsuit.

      Robert W. Archbald, Jr., with him Simpson Brown, for appellant.

      John Hampton Barnes, for appellee.
    April 10, 1905 :
   Per Curiam,

The plaintiff was injured at a station where the tracks of the defendant’s road were elevated to avoid crossing a city street at grade. The station platform was thirteen feet wide and 340 feet long, and extended to the side of the street. Across the end of the platform above the street there was a fence three and a half feet high for the protection of passengers. A train reached the station when the plaintiff was on the street below, and when he was at the top of the stairs which led from the street to the platform, it was standing or, if started, was moving so slowly that he did not observe its motion. He walked slowly across the platform and got on the first step of the car, which was then in motion. Before he mounted the second step, his back was struck by the end of the fence, which was seven inches from the side of the car and about twenty-two feet from the place where he got on the step.

No conclusion could have been reached from the plaintiff’s testimony that would have relieved him from the imputation of negligence. There was nothing in the circumstances to make the case an exception to the rule that it is negligence per se to step on a moving train. Nor can it be said that the plaintiff escaped the risk which he assumed and was afterwards injured by some negligent act of the railroad company. He was never safely on the train nor in a position in which his body did not extend at least seven inches beyond the side of the car, during the time that he was carried forward twenty-two feet to the fence. No negligence of the company was shown. There was no sudden start or jar of the car as the plaintiff was getting on, and there was nothing of an unusual character in the construction of the station platform or fence.

The judgment is affirmed.


text:
    DeSilver’s Estate.

      Trusts and trustees—Charity—Failure of trustee—Discretionary power— Act of April 26, 1855, P. L. 328.
    Where testator gives discretionary power to his three executors to distribute a large sum of money among charitable institutions, except missionary societies, with a direction that the fund should be divided among as large a number of associations “as my said executors may think best calculated to secure the greatest amount of good from this donation,” and all the executors die without having made any distribution of the fund, the charitable bequest will not -fail, but the court will, under the Act of April 26, 1855, P. L. 328, appoint a trustee to carry it out.
    Argued March 21, 1905.
    Appeals, Nos. 27 and 31, Jan. T., 1905, by the Title Insurance and Trust Company of Los Angeles, substituted trustee under the will of Charles DeSilver, deceased, and G. Plantou Middleton, administrator, c. t. a. of the estate of John Ford DeSilver, deceased, from decree of O. C. Phila. Co., July T., 1879, No. 171, dismissing exceptions to adjudication in Estate of Robert P. DeSilver, deceased.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    Ashman, P. J., filed the following opinion :
    The line upon which these exceptions proceed is a very narrow one. The testator directed that out of his estate, $25,000 should be given by his executors to “ such charitable institutions or associations, excepting all missionary societies, as they, my said executors, may select as suitable recipients of the same; and it is my desire that the same shall be divided between as large a number of said associations as my said executors may think best calculated to secure the greatest amount of good from this donation.” All of the executors named in the will have died. It was objected that the intent of the testator was not helped by the Act of April 26, 1855, P. L. 328, providing that no disposition of property thereafter made “ for any religious, charitable, literary or scientific use, should fail for want of a trustee, or by reason of the objects being indefinite, uncertain or dependent upon the discretion of a last trustee; ” and providing further that the court should supply a trustee and carry into effect the intent of the donor “ so far as the same can be ascertained and carried into effect, consistently with law or equity.” The argument in support of the exceptions was that the testator conferred the discretion on his executors as individuals and not as a class, and gave no indication in his will which would guide the court or its trustee by appointment in the selectioxi of a beneficiary. Neither position is, we think, tenable. The sole ground for the assertion that the choice was confided to the executors individually was the use by the testator of the phrase “ the executors hereinafter named,” and his subsequent references to “my said executors.” Exactly the same designation occurs in countless wills where no duties outside of those which belong to routine are cast upon executors. It may be added that if the testator had intended to intrust the power of choice to individuals, he would have provided for the possible death of one or more of their number, because a power of selection given to three persons by name would not necessarily survive to two or one. The reverse is true of a power committed to executors as a class.
    It cannot be said, as the other branch of the argument would seem to suggest, that the testator left no clue respecting the character of the charities he proposed to benefit. He expressly excluded one class, a large one, from the reach of his executors, but left them otherwise untrammeled. His sole desire apparently was to benefit as many recipients, as in tbe judgment of bis executors could be wisely embraced in the division of the fund, and he placed upon the same footing, as subjects for that judgment, charities of the most dissimilar aims.
    The court entered the following decree:
    There will be retained to await the result of proceedings of the act of 1855, the amount directed by the testator to be distributed among charitable institutions, etc., f25,000.

      Error assigned was the decree of the court.

      J. Martin Rommel, with him Gr. Plantón Middleton and Arthur B. Huey, for appellants,
    cited: Fontain v. Ravenel, 58 U. S. 369; Cole v. Wade, 16 Ves. 27; Witman v. Lex, 17 S. & R. 88; Methodist Church v. Remington, 1 Watts, 219; Philadelphia v. Girard’s Heirs, 45 Pa. 9; Zeisweiss v. James, 63 Pa. 465 ; Woods’s Estate, 209 Pa. 16.

      William Clarke Mason for Medico Chirurgical Hospital, appellee,
    cited: Fontain v. Ravenel, 58 U. S. 369; Methodist Church v. Remington, 1 Watts, 219 ; Frazier v. St. Luke’s Church, 147 Pa. 260 ; Children’s Hospital’s App., 10 W. N. C. 313; Mann v. Mullin, 84 Pa. 297 ; Manners v. Library Co., 93 Pa. 165.

      Henry S. Borneman, with him J. Edward Riclcert for Lizzie DeSilver and Robert P. DeSilver, appellees,
    cited: Murphy’s Est., 184 Pa. 310 ; Kinike’s Est., 155 Pa. 101; Jones v. Renshaw, 130 Pa. 327; Brown’s App., 12 Pa. 333; Jones’s App., 3 Grant, 169; Ebert’s App., 9 Watts, 300; Zeisweiss v. James, 63 Pa. 465; Mann v. Mullin, 84 Pa. 297 ; Trim’s Est., 168 Pa. 395; Daly’s Est., 208 Pa. 58.
    April 10, 1905:
   Per Curiam,

These appeals are from the same'decree and raise the same question, whether the gift to charitable institutions became inoperative by reason of the death of the executors without their having made a selection. The decree is affirmed on the opinion of The learned judge of the orphans’ court.


author: Mb. Justice Mestbezat,

text:
    Lappe, Appellant, v. Gfeller.

      Will—Probate—Issue devisavit vel non—Forgery—Fraud—Evidence.

    On an issue to determine the validity of a will alleged to have been left by testator but destroyed after his death, where the defense is that the paper in question came into existence, if at all, by fraud and forgery, declarations and statements of the decedent are admissible, where it appears that they are inconsistent with the existence and validity of the will, and contradictory of the story of the proponents in regard to the execution of the instrument.

      Practice, C. P.—Trial—Charge—Expression of opinion.

    The trial judge may in his charge express his opinion and make comments on the testimony, witnesses or parties, provided he leaves the jury free to decide the case on the evidence.
    Argued March 27, 1905.
    Appeal, No. 46, Oct. T., 1905, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1904, No. 16, on verdict for plaintiffs in case of Chas. O. Lappe et al. v. Anna M. Gfeller et al.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Issue devisavit vel non. Before Collier, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the following offer was made:
    Defendant’s counsel proposes to show by Mr. Hartmeyer, the present witness, that Mr. Lappe came to his house in the spring of 1901, either in the latter part of March or the beginning of April; that he showed Dr. Hartmeyer a will, which read, “ The last Will and Testament of John Christian Lappe of Allegheny City”; that he wanted Dr. Hartmeyer to read it, and Dr. Hartmeyer did not want to, and finally told him to put it in his pocket and take it away with him; that he said the will was not right, and “ I will not have it,” but finally I told him to put it in his pocket and take it away with him.
    That he came back probably in about two or three days again with Mr. Robitzer; that he made Mr. Robitzer remain outside; that he then said the will was not right; that he would n’t have it, and that the doctor told him he could change the will, or tear it up, or destroy it, it was his will. Pie said, yes, he could do that. The doctor then told him that if he would destroy the will the property would go to his children share and share alike, and he said that was what he wanted, that he was dissatisfied with the will that he had, and that that is what he wanted. .
    Objected to by plaintiffs’ counsel as incompetent and irrelevant, because it is hearsay and an attempt to introduce a declaration of the testator, and that it is not in any way connected nor is it proposed to connect it with the will now in controversy.
    The Court: We will hear the evidence for what it is worth. Exception noted to plaintiffs. [1]
    “ Q. Now, can you tell us what month this was ? A. I think it was in the month of April, 1901. Q. What did he say at that time ? ”
    Plaintiff’s counsel renew their objection that it is incompetent and that it is hearsay, and that the declaration of the testator is not admissible. "N
    The Court: We have ruled that the doctor can testify that he had a will with him, and wanted to show, him a will, and what he said about it. Exception noted to plaintiffs.
    “ Q. Now tell us what took place at that time. A. About what you read there? He came to my office and insisted on my looking at a paper and told me it was not right. Q. What was the paper ? A. It was a will. Q. What did he call it ? A. It was a will. Q. Did you look at the will ? A. Yes. Q. Did you notice anything on the will—any indorsement on the will? A. I saw it was the last will and testament of John C. Lappe of Allegheny City. Q. What did he say at that time ? A. He wanted me to read it. I first refused to read it. T said ‘ It is your will and I have n’t anything to do with it. You better take it away with you.’ He came back and insisted on my reading it. Q. How long afterwards? A. I couldn’t be specific. I would say two or three days, it may have been one day. I couldn’t say for certain. It was some time ago. The drift of the conversation was that he wanted to destroy this will, or in other words he wanted me to destroy it, which I refused to do. I finally persuaded him to take it away, and he worried me -until about some time in May of the same year, 1901, when he finally sent for me one evening and had destroyed this will and I made this explanation to him. Q. What explanation? A. I told him that if he felt that the will was n’t right, he had a right to destroy it. Q. Did he say he had destroyed it ? A. Yes, sir; he had torn it up. I said he could revoke it, or make a new will or could do as he pleased, as he was disposing of his own goods, and it was for him to do as he saw fit. I said, ‘ Do as your conscience tells you.’ I said, ‘ Of course you understand if there is no will the state makes a will; if I understand it correctly it will make a division of your property to your children share and share alike.’ He said, ‘ That is what I want.’ Q. He said that was what he wanted? A. Yes, sir. Q. And that was in May, 1901 ? A. Yes, sir.” 1
    Henry Gerwig, a witness called by defendant, after describing the breaking open of the safe deposit box, in answer to the question if it were broken open, said:
    “ A. Yes, sir, broken open, and he took out this will, he gave it to me, showed it to me, and I said, ‘ Why, Christ, this is your will.’ He said, ‘ l es, it is my will.’ So he looked over it, and he asked me to look -er it, and I looked over it.”
    Plaintiff’s counsel objected to the declaration of anything that was said by Mr. Lappe, as being hearsay and incompetent.
    The Court: We are inclined to think that any declarations he made, by saying, “ This is my will,” are all right, but he cannot give the contents of that will.
    Mr. Marshall: I wish to show that he said that the will did not suit him, that particular will that he was then speaking about.
    The Court: We will hear it. Exception noted to plaintiff.

    Mr. Marshall: “ Q. Go ahead. A. We then put on a new lock. Now, says I, ‘You want to put this will back again?’ He says, ‘No, I want to take it along.’ He put it in his inside coat pocket and we went over to the house. Then he took me upstairs and he locked the door. Then he gave me the will to look over, told me to look it over, and I asked him whether it was not right, whether it was n’t what he wanted. He said no, he didn’t want it, it was n’t right, and he then asked me what he could do.”
    Mrs. Anna Bernhart was asked these questions.
    “ Q. Did you hear him speak about a will at any time in the spring of 1901 ? ”

      Objected to by plaintiff’s counsel as incompetent and irrelevant.
    Defendant’s counsel proposes to prove by the witness that she visited Mr. Lappe on Decoration Day. He wanted her to take his will and a deed of a cemetery lot up to Mr. Eichenlaub for him to keep for safe-keeping ; that he expressed himself as being afraid that some one would get hold of the papers. That was to show that he wanted her to take his will, and put it in her hands ; that she did n’t want to take it, and finally did not take it but that he mentioned it was his will and also this deed for the cemetery lot.
    Objected to as incompetent and irrelevant.
    The Court: The objection is overruled. Exception noted to plaintiff. [3]
    “ Q. Did you hear him speak about a will at any time in the spring of 1901? A. Yes, sir. Q. £,late the circumstances, date, and how you remember it. A. Well, he sent word out for me to come in; he always gave ..pe money to get flowers for my daughter’s grave. I went in that day and went in through the kitchen, and he was in there, and when I went in he said that I should come upstairs, he had something to give me to take to Uncle Ed., that is Mr. Eichenlaub, my brother-in-law.
    “When we got into the hall he gave me a dollar bill to get the flowers. When we got up stairs, I didn’t go into the room, but just stood between like, and he came from the dresser and he had some papers wrapped up in a newspaper, with a string tied about it, and two pocket-books. He says, 4 This is my will and my testimony,’ that is will in English, and a deed of a lot in. Homewood cemetery.’ He says; 4 Take them home to Uncle Ed.’ ”
    Charles Eichenlaub, a witness called by the defendant, testified as follows:
    “ Uncle, here is a paper—is that what-you are looking for ? ” He says, ‘Do you want to see that?’ and I said, ‘No, Uncle, what is in it?’ . He-says, ‘That is my will.’ That is all he said to me.”
    “Q. What was the paper like? A. It was a-newspaper, I judge about that long (indicating), wrapped up with a string. I laid the shirts back on it, and said, ‘ Uncle, I do not think it is any of my business to see what is in it.’ He said, ‘ That is my will.’ Q. How was it in respect to size, as to the size of an ordinary large envelope? A. If you take just a few papers and bundle them up as you would in a large envelope. Q. Wrapped in newspaper? A. Yes, sir. Q. And a white string around it ? A. Yes, sir.”
    Mr. Jackson: I want to ask the court whether or not this is taken subject to our objection already on the record.
    The Court: We sustain the objection. He said he “ opened the drawer and found a paper and he said it was his will.”
    We will strike out the balance of the testimony, except that “ he said it was his will ” under the same objection as to the competency.
    Exception noted to plaintiffs. [4]
    Mrs. Sarah Lappe, a witness for defendant was asked :
    “ Q. When did he talk to you about the will, or anything about the will; when was it and what was it ? A. Along about a few weeks before he took sick, he said he was dissatisfied about the home. I asked him what was the matter, why he was dissatisfied. He said he did n’t want to stay there any more, that he wanted to go away. I said, ‘ Why, pap, this is your home; what do you want to go away for ? ’ He said, ‘ Well, this is not—’ ”
    Objected to as incompetent and irrelevant.
    The Court: Objection overruled and exception to plaintiff.

    “ Q. Go ahead. A. He said that he was going to give it to -. He said Mrs. Wettach was going to get the house and she might as well have it now, a few weeks sooner as a few weeks later. He said, ‘ She was going to get the house anyway.’ ”
    Anna Gfeller, a witness for the defendant, was asked :
    “ Q. Within a few months of the time that this so-called will of December 20, 1900, was made, did you hear Mr. Lappe say anything about Emma Robitzer or John Robitzer, her father? A. Yes, sir. Q. When was it? A. About six weeks before he died.”
    “ Q. What did he say ? ”
    Objected to by plaintiff as incompetent and irrelevant, and because it is too remote from the time of the making of the will, and is hearsay, and as otherwise incompetent.

      The Court: Objection is overruled. Exception noted to plaintiff. [6]
    “■Q. What did he say ? A. He said, ‘ I do not trust Emma or Uncle J ohn.’ ”
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were (1-6) rulings on evidence, quoting the bill of exceptions-; (7) that the charge was inadequate and misleading.

      S. W. Childs, of White, Childs Scott, with him B. H. Jachson, for appellant.

      J. M. Stoner, for appellees.
    April 10, 1905.
   Opinion by

Mb. Justice Mestbezat,

John Christian Lappe, age eighty-five years, died at his home in Allegheny city on July 25, 1901, and was buried two days thereafter. He left to survive him children of a first and second marriage, grandchildren who were children of two deceased daughters of the first marriage, and a stepdaughter. On the day of the funeral a fruitless search for a will was made at his residence when all the parties interested in the estate were present. In about ten days thereafter, with the consent of all the interested parties, letters of administration on his estate were granted to the Fidelity Title & Trust Company of Pittsburg. Some months later Anna M. Gfeller, his stepdaughter, offered for probate to the register of wills of Allegheny county a will of the deceased dated August 10, 1900. The validity of this will was denied and its probate resisted. An issue was certified by the register to the court of common pleas No. 2 of Allegheny county, in which Anna M. Gfeller was made the plaintiff and Emma Morgenroth and the other plaintiffs in the present action, with possibly one or two exceptions, were made the defendants. The verdict of the jury sustained the validity of the will, and the judgment entered on the verdict was affirmed by this court January 4, 1904. (208 Pa. 48). Miss Gfeller, the proponent of the will, again presented it for probate to the register of wills on' January 29, 1904. The plantiffs in this issue objected to the probate on the ground that a later will of the testator, dated December 20, 1900, had been discovered in the possession of Emma Morgenroth and her husband. The register thereupon issued a precept commanding the court of common pleas No. 1 of Allegheny county to form and try an issue whether the deceased did, on or about December 20, 1900, sign the paper writing of that date “ as and for his last will and testament.” The trial in the common pleas resulted in a verdict against the validity of the proposed will and in favor of the defendants. From the judgment entered on that verdict we have this appeal.

The genuineness and validity of the alleged will of December 20,1900, are supported principally by the testimony of Emma Morgenroth, nee Robitzer, and her husband, Ed. R. Morgenroth. Mrs. Morgenroth is a daughter of Rosanna Robitzer, who was a daughter of John Christian Lappe by his first marriage. The testimony of Mrs. Morgenroth and her husband is substantially as follows: Emma Robitzer lived with the deceased in Allegheny city, and on the evening of December 20,1900, her fiance, Ed. R. Morgenroth, called to see her. Sometime after he had arrived at the residence of Mr. Lappe, the latter came down stairs and requested them to come up to his room. After the three had entered his room, Mr. Lappe closed the door and told Miss Robitzer and Mr. Morgenroth that he had something he wanted to tell them and enjoined the utmost secrecy upon them in regard to it. Mr. Lappe then drew an envelope from his pocket and took a paper from it which he called his “ testament.” It was a typewritten paper of three pages, fastened at the top and dated with the month and the year. Miss Robitzer procuring a pen and ink, Mr. Morgenroth filled in the day of the month, and Mr. Lappe then signed the paper and the other parties witnessed it. He put the executed will in the envelope which he replaced in his pocket. Miss Robitzer and Morgenroth then returned to the sitting room. The next time Miss Robitzer saw the paper was the first week of the following March (1901), when the deceased brought it to her room. He said he was afraid his boys might find it and he handed it to her with instructions to take care of it. On being told by her that it would not be more secure from the boys than if he had it, he told her to give it to Morgenroth. Subsequently she gave it to Morgenroth in a Wood street cafe, where they both read it. She next saw the paper July 25, 1901, the day her grandfather died, at the shop where Morgenroth was employed. She was then advised by her uncle, Dr. Lappe, and subsequently by two other uncles, that the paper was not a valid will because she was a beneficiary and had witnessed it. She and Morgenroth were married July 27, the day her grandfather was buried. Being persuaded that the will was invalid, Mrs. Morgenroth destroyed it, prior to which, however, her husband, with her assistance, had made a copy of it in an old memorandum book. This was just before the Morgenroths removed from Pittsburg to Denver in September, 1901. They have since resided in the far west. In February, 1904, on request of appellant’s counsel, the copy of the will made by Morgenroth was sent to Pittsburg to be used as evidence in the trial of this issue. Neither Mrs. Morgenroth nor her husband spoke of the alleged will of December 20, 1900, or made any reference to it when they assisted the other interested parties in a search of Mr. Lappe’s residence for a will of the deceased, or when, ten days later, they conferred in regard to the appointment of an administrator of his estate, or during the litigation over the will of August 10, 1900, in which Mrs. Morgenroth was a party defendant.

Such in brief is the story told by Mrs. Morgenroth and her husband as to the execution, custody and destruction of the alleged will of December 20,1900. Charles O. Lappe and Martin Lappe, children of the first marriage, testified that they were shown this will by Mrs. Morgenroth and that their father’s signature to it was genuine. The defendants deny the validity of the will and attack it on the grounds of fraud and forgery. For the purpose of contradiction, the defendants, in addition to other evidence, proved the acts and declarations of the decedent during the three or four months immediately prior to his death. This was after the alleged will of December 20 had been delivered to Mrs. Morgenroth and while she and her husband had the custody of it. The admission of this testimony, showing the acts and declarations of the decedent, is the subject of several assignments of error. We do not think the testimony should have been excluded. It was not introduced for the purpose of proving the facts stated in the declarations, but that the decedent made declarations or statements which were inconsistent with the existence and validity of the alleged will, and hence contradictory of the Morgenroth story in regard to that instrument. The statements proved are not declarations by the decedent that he did not execute the alleged will, but were such that if made by him were wholly inconsistent with its existence at the time of his death. The allegation of the defense is that the paper of December 20 came into existence through fraud and forgery and hence the largest latitude in the proof was permissible. The paper itself, having been destroyed by Mrs. Morgenroth, was not produced at the trial and hence there was no opportunity to attack by direct testimony the genuineness of the decedent’s signature. It therefore became necessary for those denying the legality of the paper, and in fact the only proof against its validity they could produce was, to show the circumstances, acts and declarations of the interested parties bearing on its validity and genuineness. For this purpose such matters were competent testimony as throwing some light on the question of the fraud and forgery alleged to have been committed in connection with the execution of the instrument. In Gardner’s Estate, 164 Pa. 420, Mr. Chief Justice Sterrett, delivering the opinion, says: “ The burden having been on the proponents in this case to overcome the presumption of revocation which sprang out of the fact that the will, which Lot Gardner admittedly executed, could not be found at his death, made not only testator’s character, condition, acts and declarations, but the conduct and interests of those who were around him, from and after the date of his will, legitimate subjects of inquiry. Each of these lines of proof was important in strengthening the other, and both together seem necessary to constitute full proof.” When these parties were here before on the appeal from the judgment sustaining the validity of the will of August 10, 1900 (Gfeller v. Lappe, 208 Pa. 48), Mr. Justice Fell, delivering the opinion of the court, said: “ The testimony took a wide range, but necessarily so, since the allegation was that of fraud, and in the issues tried the decedent’s acts and declarations, and the conduct of the interested persons around him were legitimate subjects of inquiry.” Youndt v. Youndt, 8 Gr. 140, was an issue to determine the validity of a will made in 1850. It was claimed to have been revoked by a subsequent will made m 1859, but which could not be found and was alleged to have been destroyed by a beneficiary under the earlier will. “ This (destruction of the second will), therefore,” says Mr. Justice Shabswood, in delivering the opinion, “ became the principal fact in dispute before the jury. Thus it became necessary to show that the testator himself did not destroy the will of 1859, and for this purpose his conduct and declarations concerning it, up to near the day of his death, were direct evidence in establishing the negative. And the positive allegations of who did destroy it were very properly made out by the evidence of the acts and declarations of the parties charged with the deed. . . . What became of the second will has become the principal question of the cause, and it is because the declarations objected to help to answer this question, that they are proper evidence.” Burkholder v. Plank, 69 Pa. 225, was an action on a bond given by the decedent to his son-in-law, the plaintiff. The defense was that the execution of the bond had been procured by fraud on the obligor. The plaintiff showed that he had rendered services to the decedent and also declarations of kind and grateful feelings of the decedent toward him. The defendant then showed certain facts to sustain the defense of fraud and it was held by this court, reversing the trial court, that he should also have been permitted to give evidence of declarations of the decedent whilst the services were being rendered that he was not well treated and was not friendly with the plaintiff, although not made in plaintiff’s presence, as tending to show that the decedent did not intend to make a gift to the plaintiff. Mr. Justice SharsWOOD, in the opinion of the court, says: “ But, regarding it as a question of fraud in the plaintiff in obtaining Burkholder’s signature to the note in suit, everything which threw light upon the relation between the parties ought to have been admitted and gone to the jury.”

The admission of proof of Lappe’s declarations do not conflict with the rule announced in Herster v. Herster, 122 Pa. 239, and Swope v. Donnelly, 190 Pa. 417. In the former case the declarations of the decedent were excluded because they were made several years after the execution of the will and were offered to prove the fact of am due influence but were of such trivial character as to be wholly insufficient for the purpose. In the opinion it is said : “ At the best, however, they (declarations) have little, if any force in establishing fraud or undue influence in the procurement of this will or of the codicils. And especially is this true in view of the fact, that the alleged declarations were not only made after the will was executed, but several years after.” The character of the declarations rejected in the Swope case is shown by the following excerpt from the opinion: “ The assignments of error are to the admission of declarations of the deceased made to witnesses before the execution of the writing as to the disposition which she intended to make of her property. There was not the slightest limit as to the time when the declarations were made, and under general offers the witnesses were allowed to testify to conversations had at any time during the life of the deceased. This led to the introduction of testimony which was clearly irrelevant.”

The remaining assignments raise the question of the adequacy of the charge, and suggest that the case was presented “ in the strongest possible light for defendants, without any fair presentation of plaintiffs’ proof.” But it is the practice, and we have held that the trial judge may in his charge express his opinion and make comments on the testimony, witnesses or parties, provided he leave the jury free to decide the case on the evidence. In cases of this character, consuming much time in the trial, the court may in his charge sometimes inadvertently overlook some parts of the evidence or some questions of law, and hence if counsel apprehend insufficiency in the charge in either respect they should present proper requests for instructions, which will direct the court’s attention to the matter. We are not convinced that the learned trial judge in this case committed reversible error in his charge. In submitting the case he said: “ While it takes a week to try it, the principles are plain and simple, but the evidence is mighty hard to handle. That is for you and you will have that trouble. ... You will examine all the evidence, little and big, and I am not going over it. After a week, if I were to go over it, I would probably make mistakes, forget some things, and probably misapprehend others, and might do more harm than good. You have listened to it, and it is your duty to weigh it, and I know you will do your full duty. You have listened to both sides carefully, without taking part one way or the other, until you get it all before you. . . . Now, do not understand me to suggest any way for you to find. That is for you. ... If, after weighing the evidence, you are satisfied, notwithstanding all that, that it is honest, clear and satisfactory, then you find for the plaintiff, and we will give you the form.”

We think the charge taken as a whole submitted the questions of fact fairly to the determination of the jury. The assignments of error are overruled and the judgment is affirmed.


author: Mb. Justice Bbown,

text:
    Wallace, Appellant, v. United Electric Company et al.

      Equity—Foreign defendant—Service of process—Jurisdiction—Parties— Act of April 6, 1859, P. L. 387.
    Where a bill in equity for discovery and account against a domestic and a foreign corporation is served on the foreign corporation in the state of its domicile by virtue of an order of court made under the provisions of the Act of April 6, 1859, P. L. 387, the service on the foreign corporation will be set aside. The act is ineffectual to render valid such extraterritorial service of process in proceedings in personam.
    Argued Jan. 4, 1905.
    Appeal, No. 91, Jan. T., 1904, by plaintiff, from decree of C. P. No. 1, Phila., Sept. T., 1903, No. 1238, setting aside service of bill in equity in case of Allan B. Wallace v. United Electric Company of New Jersey and United Gas Improvement Company.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for discovery and an accounting.
    Motion to set aside service of the bill.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order setting aside the service of the bill.

      Max Herzbery, for appellant.
    The service of process upon the United Electric Company of New Jersey was in conformity with the provisions of the act of assembly, Pennsylvania, of April 6, 1859, section 1, and was proper: Eby’s App., 70 Pa. 311; Coleman’s App., 75 Pa. 441; Huntzinger v. Phila. Coal Co., 11 Phila. 609; B. & L. Assn. v. Mayer, 20 Phila. 413; Vail v. Osburn, 174 Pa. 580; Martin’s App., 13 W. N. C. 167; Hirst v. R. R. Co., 6 Phila. 93; Eshbach v. Slonaker, 1 Pa. Dist. Rep. 32; York v. Texas, 137 U. S. 15 (11 Sup. Ct. Repr. 9); Kauffman v. Wootters, 138 U. S. 285 (11 Sup. Ct. Repr. 298); Pennroyer v. Neff, 95 U. S. 714; Harkness v. Hyde, 98 U. S. 476; Parrott v. Insurance Co., 5 Fed. Repr. 391; McHenry v. R. R. Co., 25 Fed. Repr. 65; Wilson v. Seligman, 36 Fed. Repr. 154; Improvement Co. v. Stevenson, 66 Fed. Repr. 633; Scott v. Noble, 72 Pa. 115; Noble v. Thompson Oil Co., 79 Pa. 354.

      JR. Stuart Smith, for appellee.
    No sovereignty can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions : Steel v. Smith, 7 W. & S. 447; Scott v. Noble, 72 Pa. 115; Noble v. Thompson Oil Co., 79 Pa. 354; Pennoyer v. Neff, 95 U. S. 714; Ralston’s Appeal, 93 Pa. 133; Story on the Conflict of Laws (7th ed.), chapter 14, sections 539 et seq.
    If, therefore, the correct interpretation of the act of 1859 is that it aims to authorize the service of process outside of the state of Pennsylvania upon a nonresident defendant in an action in personam, the act is, to that extent, ineffectual: McHenry v. R. R. Co., 25 Fed. Repr. 65 ; B. & L. Assn. v. Mayer, 20 Phila. 413.
    The correct interpretation of the act of .1859 is that it authorizes services of process outside of the state on nonresident defendants, only in actions in rem or quasi in rem: Eby’s App., 70 Pa. 311; Coleman’s App., 75 Pa. 441; Martin’s App., 13 W. N. C. 167.
    The case at bar is not a proceeding in rem or quasi in rem; and the order of the court below, setting aside the service of the bill upon the defendant in New Jersey, should be affirmed: Coleman’s App., 75 Pa. 441.
    April 17, 1905:
   Opinion by

Mb. Justice Bbown,

The first prayer of appellant’s bill is for full discovery. Upon it he relies for the relief asked for in the second. In praying for this discovery he asks that the United Electric Company of New Jersey “ be required to set forth and discover particularly, the truth of all the matters set out in the said bill, paragraph by paragraph,” as if it had been particularly interrogated thereto. The preliminary decree asked for, and the one first to be made and enforced, if the appellant is entitled to relief, is discovery of the matters alleged to be within the knowledge of the two defendants named in the bill. He asks for discovery because he needs it; and prays for it, not only from the United. Gas Improvement Company, which he alleges is the principal defendant, but from the appellee as well.

A decree for discovery is a personal one to be enforced against the person decreed to make it; and, if the appellee was properly brought within the jurisdiction of the court below personally, a decree that it make discovery could be enforced against it personally by the appellant as his first move to obtain the ultimate relief asked for. In view of this, the proceeding must, as was held by the learned judge below, be regarded as in personam as to the appellee; and the question whether the Act of April 6, 1859, P. L., 387, even if it does authorize extra-territorial service of process from a court of this state, is effectual to acquire jurisdiction over the person of a defendant residing and served in another state, is not an open one.

Before the passage of that act, Chief Justice Gibs on, in discussing the attempt to acquire jurisdiction over the person of the defendant by the extra-territorial service of process, said in Steel v. Smith 7 W. & S. 447: “ Jurisdiction of the person or property of an alien is founded on its presence or situs within the territory. Without this presence or situs, an exercise of jurisdiction is an act of usurpation. An owner of property who sends it abroad subjects it to the regulations in force at the place as he would subject his person by going there. The jurisdiction of either springs from tire voluntary performance of an act, of whose consequences he is bound to take notice. But a foreigner may choose to subject his property, reserving his person; and it is clear that jurisdiction of property does not draw after it jurisdiction of the owner’s person; consequently, there can be no rightful action by the tribunals on the foundation of jurisdiction acquired by the attachment of property, which reaches beyond the property itself. . . . What, then, is the right of a state to exercise authority over the persons of those who belong to another jurisdiction, and who have, perhaps, not been out of the boundaries of it ? ‘ The sovereignty united to domain,’ says Vattel, ‘ establishes the jurisdiction of the nation over its territories or the countries which belong to it. It is its province, or that of its sovereign, to exercise justice in all places under its jurisdiction, or the country which belongs to it; to take cognizance of the crimes committed and the differences that arise in the country.’ ‘ On the other hand,’ adds Mr. Justice Story (Confl. ch. 14, § 589), no sovereignty can extend its process beyond its own territorial limits, to subject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals.’ And for this he cites Picquet v. Swan ( 5 Mason, 35-42 ). Not to multiply authorities on a point so plain, it will be sufficient to add the name of Mr. Burge (1 Confl. 1), who says it is a fundamental principle, essential to the sovereignty of every independent state, that no municipal law, whatever its nature or object, should, proprio vigore, extend beyond the territory of the state by'which it has been established.’ And again ( 3 Burge Confl. 1044 ), ‘ that the authority of every judicial tribunal, and the obligation to obey it, are circumscribed by the limits of the territory in which it is established.’ Such is the familiar, reasonable and just principle of the law of nations; and it is scarce supposable that the framers of the constitution designed to abrogate it between states which were to remain as independent of each other, for all but national purposes, as they were before the revolution. Certainly it was not Í2itended to legiti2nate an assumption of extra-territorial jurisdiction which would confound all distinctive principles of separate sovereignty •, and there evide2itly was such an assumption in the proceedings under considei’ation.” Speaki2ig of the Act of 1859, under which the court made the order for the extra-territorial service of process upon the appellee, Sharswood, J. in Cole2na2i’s Appeal, 75 Pa. 441, in stating that it has not bee2r the policy of our jurisprude22ce to biing nonreside2its within tbe jurisdiction of our courts, unless in very special cases, said: “ In proceeding against them for torts, even property belonging to them cannot be reached by process, and in cases of contract nothing but the property can be affected unless the defendant voluntarily appear and submit to the jurisdiction. We may congratulate ourselves that such has been the policy, for nothing can be more unjust than to drag a man thousands of miles, perhaps from a distant state, and in effect compel him to appear and defend under the penalty of-a judgment or decree against him pro confesso. The act of 1859 ought, therefore, to receive a construction in harmony -with this policy. There exists no good reason why courts of equity should be invested with a more enlarged jurisdiction against nonresidents than courts of law.” This was followed by the case of Scott v. Noble, 72 Pa. 115, in which we held that Noble was not bound by process directed to be served upon him by the supreme judicial court of Massachusetts outside the state, though he had accepted service of the writ in the state of Pennsylvania. By the Act of March 13, 1815, P. L. 150 regulating proceedings in divorce, the act provides for service upon the respondent “ wherever found,” but in Ralston’s Appeal, 93 Pa. 133, we said of that act: “It declares ‘upon due proof at the return of the said subpoena that the same shall have been served personally on the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the same,’ a divorce majr be decreed. It is contended in case the libellee in divorce is not found within the bailiwiclc of the sheriff, the latter may, under this act, depute some person to make the service in another state. If a legal service could thus be made in Delaware it can be in California. Such cannot be a true construction of the statute. The language ‘ wherever found ’ cannot be so construed as to give to a court of this state extra-territorial power to bring within its jurisdiction the person of a citizen and resident of another state. The property found within this state of a non-resident may be reached and charged and sold in the enforcement of a debt resting on a contract without any personal service on the debtor. In the case of an ordinary debt, the person of a nonresident defendant not found within the state cannot be reached by any process issued by a court of common law. In cases where the language of the statute would seem to give extra-territorial power this court has denied its exercise. Thus the 16th section of the Act of 13th June, 1836, relating to the removal of paupers, authorizes them to be removed ‘ at the expense of the district to the city, district or place where •he was last legally settled, whether in or out of Pennsylvania.’ It has, however, been held the provision for a removal into another state is of no force or effect: Overseers of Limestone v. Overseers of Chillisquaque, 6 Norris 294. The first section of the Act of 6th April, 1859, authorizes any court of this commonwealth having equity jurisdiction, in any suit in equity instituted therein concerning property within the jurisdiction of the said court, to order and direct that any subpoena or other process to be had in such suit be served on any defendant therein ‘ then residing or being out of the jurisdiction of said court wherever he, she or they may reside or be found.’ It further provides for the proof of service both within and without the limits of the United States. It was held in Coleman’s Appeal, 75 Pa. 41, that process thus issued in this state and served in another state on a resident thereof could not give jurisdiction of the person thus served.” In the federal courts the same view is entertained. By a statute of the state of Oregon provision was made for service upon a non-resident by publication. In Pennoyer v. Neff, 95 U. S. 714, it appeared that judgment had been entered against Neff on process which the plaintiff undertook to have served upon him extra-territorially, by publication, in conformity to the statute. Judgment was entered in the proceeding against him, and, in holding that he was not bound by it, through Mr. Justice Field, it was said: “Where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them.” In the circuit court of the United States, for the western district of this state, in the case of McHenry v. New York P. & O. R. R. Co., 25 Fed. Repr. 65, the court of common pleas of Westmoreland county had made an order of service on aliens in pursuance of the act of 1859, but it was said by the circuit court: “ It is, indeed, true that pursuant to an order of the court of common pleas, claimed to be authorized by the Pennsylvania Act of April 6, 1859, P. L. 387, process has been served on those defendants in England, where they reside, but, clearly, such extra-territorial service was ineffectual to bring them within the jurisdiction of the court or make them parties to the suit: Pennoyer v. Neff, 95 U. S. 714.”

The service upon the appellee was ineffectual to bring it into this jurisdiction, and the order of the court below setting it aside was properly made. That order is now affirmed and this appeal dismissed at the costs of appellant.


author: Mr. Justice Brown,

text:
    Pittsburgh Railways Company v. Pittsburgh, Appellant.

      Taxation—Street railways—Property tax—Lácense tax—Act of March 7, 1901, P. L. 20, sec. 3, Art. 19, Pars. 4 and 22.
    A tax imposed by a city of the second class of twenty-five cents per foot “for each lineal foot of track laid, maintained or operated” by a street railway within the city, exclusive of such tracks as may be in its yards or buildings, is a property tax, and cannot be maintained as a license tax or fee within the meaning of article 19, sec. 3, paragraphs 4 and 22 of the Act of March 7, 1901, P. L. 20, although the tax in the ordinance is designated as a license tax.
    Argued Jan. 9, 1905.
    Appeal, No. 12, Oct. T., 1905, by defendants, from decree of 'C. P. No. 2, Allegheny Co., JulyT., 1904, No. 153, on bill in equity in case of Pittsburgh Railways Company v. City of Pittsburgh and John F. Steel, treasurer of city of Pittsburg.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity to enjoin the collection of a tax.
    Frazer, P. J., filed the following opinion:
    The purpose of the bill in this case was to restrain defendants from collecting from plaintiff a “ license tax ” imposed under an ordinance of the city of Pittsburg, approved October 20, 1903, and. February 27, 1904. From the bill, answer and proofs we find the following facts:
    FINDINGS OF FACT.
    1. Plaintiff is a corporation created under the laws of the commonwealth of Pennsylvania for the purpose, among other things, of contracting “ with any person or persons, firms, corporations, or any other party howsoever formed, existing or that may hereafter exist in any way ; that said parties or any of them may have1 authority to do, build, construct, maintain or manage any work or works, public or private, which may tend, or be designed to make, increase, facilitate, or develop trade, travel or the transportation and conveyance of freight, live stock, passengers, and any other traffic by land or water from or to any part of the United States, or the territories thereof, and the said company shall also have power and authority to supply or furnish all needful materials, labor, implements, instruments and fixtures of any kind and every kind whatsoever on such terms and conditions as may be agreed upon between the parties respectively, and also to purchase, erect, construct and maintain or conduct in its own name and for its own benefit or otherwise, any such work, public or private as they may bjr law be authorized to do, including also herein lines for telegraphic communication and to aid, cooperate and unite with any other company, person or firm in so doing ” and that by virtue of its charter is now and has been for some time past, under proper authority, operating a system of street railways in the cities of Pittsburg and Allegheny and adjacent boroughs and townships.
    2. The city of Pittsburg is a municipal corporation and a city of the second class under the laws of this commonwealth, and Edward J. Frauenlieim, the other defendant, is the duly, elected and acting treasurer of the co-defendant city.
    3. Councils of the city of Pittsburg passed an ordinance entitled “An Ordinance establishing and levying, license taxes for general revenue purposes upon street railways, telephone, telegraph, electric light or power, water, gas and heat companies or corporations doing business in the City of Pittsburg regulating the collection of the same and imposing penalties for default in payment,” which ordinance was duly approved by tbe mayor of the city on October 20, 1903. Subsequently, another ordinance entitled “ An Ordinance levying? taxes and assessing water rents for the fiscal year beginning February 1st, 1904,” was passed by the city councils and approved by the mayor of the city on February 27, 1904.
    4. Each of the ordinances above referred to contains, inter alia, the following provision: “ Upon each and every street railway company or corporation the sum of 25 cents per foot for each lineal foot of track laid, maintained or operated by such Company or corporation within the limits of the City of Pittsburg, exclusive of such track as may be in the yards or buildings of such Company or corporation.” The ordinance of October 20, 1903, requires the proper officers of the corporations named therein and made taxable thereunder to submit to the treasurer of the city on or before the first day of February of the year 1904, a report showing “ the length of track, wire, or pipe as the case may be, laid, erected, maintained or operated as aforesaid by such company or corporation,” and thereupon it is made the duty of the city treasurer to fix the license taxes for the year, basing the same upon the report or reports so returned.
    5. In pursuance of the ordinance above referred to, Edward J. Frauenheim as treasurer of the city of Pittsburg, fixed the license tax against the plaintiff for the year 1904 at the sum of $219,265.25, basing the same upon a report made by plaintiff company to him, in which the aggregate length of its tracks within the city of Pittsburg was shown to be 877,061 lineal feet, which tax defendant city has threatened to collect through its proper officers by process of law if not paid at once.
    6. Plaintiff’s railway tracks are laid in many of the streets of the city of Pittsburg, and also extend into and through the cities of Allegheny and McKeesport, and adjacent boroughs and townships, and are indispensable in carrying on its business, and are used by plaintiff in operating its cars and carrying passengers in conducting the business of street railway company.
    7. Plaintiff, as a corporation of this commonwealth, pays tax to the commonwealth of Pennsylvania upon its capital stock and gross receipts in accordance with the general revenue laws of the state, and also, under the Act of 1859, upon its real estate within the city of Pittsburg for city purposes. Its state and local taxes for the year 1903 amounted to $422,325.11.
    CONCLUSIONS ON LAW.
    The city founds its right to assess and collect the “ license tax ” provided for in the ordinance of October 20, 1903, and February 27, 1904, on paragraphs 4 and 22 of section 3 of the act of March 7, 1901, entitled “ An Act for the government of cities of the second class.” These paragraphs read as follows: “ IY. Every city of the second class shall have the power for general revenue purposes to levy and collect a license tax to be fixed by ordinance upon street railways, hack drivers, auctioneers, and all and every corporation, company or individual doing business in said city, payable annually and to regulate the collection of the same.”
    “XXII. And every city of the second class shall have power for general revenue purposes to levy and collect license taxes or fees to be fixed by Ordinance upon street railways, hack drivers, auctioneers, bill posters, public halls or dances, night soilers, garbage collectors, railroad switches, pawn brokers, peddlers, vendors of any kind of merchandise whatever using the streets, lanes, highways, wharves, or public squares or grounds for the purpose of vending the same; all theatrical exhibitions whether permanent or transient (including circuses) vehicles, bicycles, tricycles, automobiles, dogs, ball games, or ball parks, and all other matters and things of a like nature, and to regulate the collection of the same and to provide penalties for default therein.”
    In this connection perhaps we had better also quote paragraph one of section three of the same act, which is as follows:
    “ I. To levy and collect taxes for general revenue purposes not to exceed 10 mills on the dollar in any year on all persons’ real, personal and mixed property within the limits of said city, taxable according to the laws of the state of Pennsylvania for county purposes, the valuation of such property to be assessed as hereinafter provided.”
    It is well settled that municipal corporations possess no powers except those conferred by law. “ They have no inherent jurisdictions to make laws or adopt governmental regulations, nor can they exercise any other powers in that regard than such as are expressly or impliedly derived from their charters or other statutes of the stateLaramie County v. Albany County, 92 U. S. 807.
    While the commonwealth may either tax the corporation or its property, and may delegate that power to a municipality, in the event of a delegation the statute conferring the same should be strictly construed.
    The fourth and twenty-second paragraphs of the act, so far as applicable to street railway companies, are identical in language. While paragraph twenty-two is the more comprehensive and includes additional subjects, it is no more definite in its relation to street railway companies than is the fourth paragraph. We can, therefore, consider them as one enactment in applying their provisions to these proceedings.
    Does the language of these paragraphs authorize a license or a tax? A license is a “ price paid for a privilege.”
    A tax is “ an enforced proportional contribution levied upon persons, property or income for governmental needs.” While license fees are not imposed to provide revenue they may be exacted for such purpose, if proper authority exists therefor. If imposed for revenue they must be uniform upon the same class of subjects, and if imposed merely for regulation they must be reasonable: Taylor Boro. v. Tel. Co., 202 Pa. 583, and the cases therein cited.
    If the charge in this case is a “ license fee,” is it reasonable ? The reasonableness of the fee rests in the first instance with the city councils, and unless the charge is obviously unreasonable courts will not interfere. In cases of this class the reasonableness of the fee must not be measured by the length or value of the company’s track or electric system, nor by the volume of its business. The elements to be considered are the expense incident to the issuing of a license and the probable expense to the municipal authorities in regulating, inspecting and affording police surveillance of the maintenance and operation of the corporation’s lines. It being the duty of the municipality to protect its citizens by seeing that the works of quasi public corporations are properly maintained, the license fee usually exacted from such corporations is intended to meet that expense and is not imposed for revenue purposes. The amount of the assessment imposed under the ordinances of October 20, 1903, and February 27, 1904, is $219,265.25, which, in our opinion, is largely in excess of any annual expense the city may reasonably incur in regulating and inspecting the tracks and transportation facilities of plaintiff. That amount is sufficient to employ for one year more than 200 competent men. That such a sum of money is necessary, or that so large an army of men will be required for that purpose does not appear from the pleadings or the testimony. If this charge is a license fee we are clearly of the opinion that it is so obviously excessive as to be clearly unreasonable and therefore invalid.
    The charge is objectionable as a license fee, also, because the fee is not uniform upon all street railways. While possibly license fees need not in all cases be uniform, yet when such intention can fairly be inferred from the statute allowing such fees they should be made uniform. That such appears to have been the legislature’s intention in this case may be inferred from the fact that by paragraphs four and twenty-two of the act of 1901, street railway companies are classified with auctioneers, bill posters, pawnbrokers, peddlers, etc., and that by ordinances of the city councils based upon that act or similar statutes, all bill posters are required to pay annually a uniform license fee, also all pawnbrokers, and all peddlers, etc. Operas and circuses are also charged a uniform fee, all of these fees being fixed in the ordinance without regard to the amount of property used, or volume of business done. If the city'- councils interpreted the legislative intent to be that all other objects mentioned in these paragraphs and made subject to the payment of a license tax should be uniform why provide an irregular and fluctuating fee from railway companies ? It seems reasonable that the paragraphs should apply in the same manner to all subjects mentioned therein.
    If this charge is not a license fee it must necessarily be a tax and have legislative warrant for its imposition. It cannot be imposed under the first clause of section three above quoted, because neither the real nor personal property of street railway companies is taxable for county purposes. The authority of the city to assess as a tax, if it exists at all, must therefore be found in the fourth and twenty-second clauses of section 3 of the act of 1901. The act provides that the charge shall be levied for general revenue purposes, shall be fixed by ordinance, and shall be upon “ street railways, hack drivers, auctioneers and all and every corporation, company or individual doing business in said city.” As an authority delegated by the state to impose and collect a tax, the clause is quite indefinite.
    Surely, it will not be contended that the real éstate of a corporation or individual is liable to tax thereunder. If not, how can it be said to authorize a tax upon either the personal property of an individual or upon the tracks of other tangible property of a street railway company ? . If the clause authorizes a tax at all, it is more likely a tax on business than on property. It has been the law in this state for many years that property necessary to carry out the purposes of a quasi public corporation is not taxable for local purposes where such property is included in the capital stock which pays a state tax. In the city of Pittsburg, however, by the act of June 4, 1859, the real estate of railway companies is made subject to taxation for city purposes the same as other real estate, but nowhere do we find any law directly subjecting their tracks to assessment. The act of 1901 authorizes a “license tax” upon street railways “ doing business ” in the city; that language, it seems to us, if it authorizes a tax at all, authorizes it either upon the company itself or upon its business, and does not empower an assessment upon a portion only of the corporation’s property. Therefore, if the ordinances impose the charge upon the tracks, and the language used, viz., “ 25 cents per foot for each lineal foot of track, laid, maintained or operated,” seem to us to do so, the assessment is not authorized by any law and is accordingly void. The fact that the corporation must pay the assessment does not change its nature. That it is a tax is strengthened by the fact that the money realized from the corporation is paid into the city treasury and becomes part of the general fund of the municipality and is applicable to all its expenses. While we have not been referred to any case in which our appellate courts have passed upon the nature of an assessment similar to the one involved here, the Supreme Court of Ohio in Railway Co. v. The State, 49 Ohio, 189 (30 N. E. Repr. 435), held that a statute requiring “ every corporation or company operating a railroad or any part of a railroad within this state to paj»- a fee of one dollar per mile for each mile of track ” operated within the State imposed a tax upon property, and in State v. Railroad Corporations, 4 South Carolina 376, the Supreme Court of that state in passing upon a statute enacting “ a general license law,” which provided, inter alia, that every railroad company or corporation, the length of whose main track and branches together is gieater than 250 miles, shall pay a license fee of $1,250, held, that the statute imposed a tax upon property.
    In any light we look at the assessment against plaintiff it cannot be sustained. If it is a license fee it is invalid because of unreasonableness and want of uniformity; if it is a tax it is a tax upon property, and therefore void for want of authority of law to impose it. An injunction should be issued as prayed for. Let a decree be drawn accordingly.

      Error assigned was decree enjoining the collection of the tax.

      W B. Rodgers, with him T. B. Qarnahan, for appellant.
    The tax was proper as a license tax: Allegheny City v. Ry. Co., 159 Pa. 411; Com. v. Standard Oil Co., 101 Pa. 119; Phila. Contributionship, etc., v. Com., 98 Pa. 48; Kittanning Coal Co. v. Com., 79 Pa. 100; People ex rel. v. Knight, 174 N. Y. 475 (67 N. E. Repr. 65) ; Homes Ins. Co. v. New York, 134 U. S. 594 (10 Sup. Ct. Repr. 593).

      John 67. Johnson, with him Edwin H. Stowe and Reed, Smith, Shaw $ Beal, for appellees.
    The tax levied by the ordinance is undoubtedly a property tax : Kittanning Coal Co. v. Com., 79 Pa. 100; Ry. Co. v. State of Ohio, 49 Ohio, 189 (30 N. E. Repr. 435) ; Brookfield v. Tooey, 141 Mo. 619 (43 S. W. Repr. 387); State v. R. R. Corps., 4 S. Car. 376.
    If this is a property tax as levied it is invalid : Com. v. Standard Oil Co., 101 Pa. 119; Palace Car Co. v. Com., 107 Pa. 156; Lehigh Coal & Nav. Co. v. Northampton County, 8 W. & S. 334; R. R. Co. v. Berks County, 6 Pa. 70; Schuylkill Nav. Co. v. Berks County, 11 Pa. 202; St. Mary’s Gas Co. v. Elk County, 168 Pa. 401; West Chester Gas Co. v. Chester County, 30 Pa. 232.

      April 17, 1905:
   Opinion by

Mr. Justice Brown,

Tlie decree in this case might well be affirmed on the opinion of the learned president judge of the court below. We shall not, therefore, attempt to add anything to what he has said, but very briefly emphasize his view that the city of Pittsburgh is attempting to levy and collect a property tax from the appellee without statutory authority to do so.

The ordinances under which the city has imposed the tax provide that there shall be established and levied as an annual “ license ” tax “ upon each and every street railway company or corporation the sum of twenty-five (25) cents per foot for each lineal foot of track laid, maintained or operated by such company or corporation within the limits of the city of Pittsburgh, exclusive of such track as may be in the yards or buildings of such company or corporation.” As authority for the passage of these ordinances and the collection of the tax imposed by them, the city relies upon paragraphs IY and XXII of the third section of art. 19 of the Act of March 7, 1901, P. L. 20. Those paragraphs are: “IV. Every city of the second class shall have power, for general revenue purposes, to levy and collect a license tax, to be fixed by ordinance, upon street railways, hack drivers, auctioneers, and all and every corporation, company or individual doing business in said city, payable annually, and to regulate the collection of the same.” “ XXII. And every city of the second class shall have power, for general revenue purposes, to levy and collect license taxes or fees, to be fixed by. ordinance, upon street railways, hack drivers, auctioneers, bill posters, public balls or dances, night soilers, garbage collectors, railroad switches, pawn brokers, peddlers; venders of any kind of merchandise whatever, using the streets, lanes, highways, wharves, or public squares or grounds, for the purposes of vending the same; all theatrical exhibitions, whether permanent or transient (including circuses), vehicles, bicydes, tricycles, automobiles, dogs, ball games or ball parks, and all other matters and things of a like nature, and to regulate the collection of the same and to provide penalties for default therein.”

What the act of assembly authorizes the city to levy and collect is a license tax or fee, and the ordinances are so worded. They term the tax assessed against the appellee a “ license ” tax; but no matter what the municipal authorities call it, the question is, what is it ? The tax is twenty-five cents per foot “ for each lineal foot of track laid, maintained or operated ” by the appellee within the city of Pittsburgh, exclusive of such tracks as may be in its yards or buildings. The tracks of a street railway company are as much its property as are its power houses, car barns or repair shops; and, if so, could it be seriously argued that an annual tax of twenty-five cents per lineal foot on a car barn would not be a tax on the property, no matter by what name called, especially if to be collected for the general revenue purposes of the municipality ? Manifestly it would be such a tax, and such is the character of the tax which the appellant would impose on the tracks of the appellee. We are told that this question has not been decided in this state. We can recall no case in which it was raised, but in other jurisdictions the view just expressed lias been entertained. By a statute of the state of Ohio $1.00 per annum was imposed upon each mile of railroad track within the state, the statute calling it a fee. Of it the supreme court of that state said, in Railway Co. v. State of Ohio, 49 Ohio, 189: “ Its nature is not affected by the name that may be assigned to it. It is an exaction levied upon railroad tracks and railroad tracks are property. It does not differ in principle from a fixed sum levied upon all farmers of the state for each acre of land of which they may be seized, or each head of horses or other live stock that they may own. In both instances the tax is levied upon property.” In State v. South Carolina Railroad Co., 4 So. Car. 376, it was held that a sum of money which an act of' the legislature required to be paid to the state treasurer for the use of the state by every railroad company, to be determined by the length of its road, was a tax upon property.

The authority conferred on the city of Pittsburgh by the paragraphs quoted from section 3, art. 19, of the act of 1901, is to levy and collect a license tax or fee. The attempt is to collect a property tax which is not authorized by either of the paragraphs and the decree is affirmed at appellant’s costs.

       Also reported 30 N. E. Repr. 435. Reporter.


text:
    Consolidated Gas Company v. Pittsburgh, Appellant.
    Argued Jan. 9, 1905.
    Appeal, No. 11, Oct. T., 1905, by-defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1904, No. 152, on bill in equity in case of Consolidated Gas Company of the City of Pittsburg v. City of Pittsburgh and John F. Steel, Treasurer of the City of Pittsburg.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    The tax on this case was three cents per foot for each lineal foot of pipe laid.
    April 17, 1905 :
   Opinion by

Mr. Justice Brown,

The tax which the city of Pittsburgh would collect from this appellee is an unauthorized property tax, and, for the reason given in the opinion in Pittsburgh Railways Company v. City of Pittsburgh et al., No. 12, October Term, 1905, this day filed, the decree is affirmed and the appeal dismissed at appellant’s costs.