text:
    Norris, Appellant, v. Delaware, Lackawanna & Western Railroad Company.

      Tax sales — Collector’s return — Assessments—Notice—Identification of property.

    In order to give a purchaser at a tax sale a good title the provisions of the statutory law regulating the subject must be complied with. The right to make a sale of real estate for unpaid taxes is wholly statutory and hence the necessity in order to give validity'to the sale that the provisions of the statute be observed. The several steps resulting in the sale are the assessment of the property, a return by the collector to the county commissioners when the taxes are not paid, and an advertisement and sale by the treasurer. These several steps must be taken and in the manner pointed out in the statute, if the title of the real owner is to be divested and vested in the purchaser by a tax sale. The assessment, the return by the collector, and the conveyance by the treasurer should sufficiently identify the property so that the record will identify and disclose the property taxed and sold.

      The description of the land in the return of the collector should also be definite; and sufficiently so to enable the owner and also the officer and the public to identify and determine from the return the exact property which is delinquent and hable to sale. The owner should have an opportunity to pay the taxes or redeem the land after it has been sold within the time permitted by the statute, but this right will be denied him if by reason of an insufficient description the return fails to disclose the location of the property an'd hence its ownership. It is not the intention of the law, even in cases of tax sales, that an owner shall be deprived of his property by failure to perform a duty imposed by that law, unless he has notice of an opportunity to discharge the duty.
    Argued April 16, 1907.
    Appeal, No. 112, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Oo., May T., 1905, No. 347, on verdict for defendant in case of James M. Norris and Grizzie G. Norris, his wife, v. Delaware, Lackawanna & Western Railroad Company and Charles D. Foster.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in Plymouth township. Before Ferris, J.
    At the trial the jury returned a verdict for defendants under binding instructions.
    On a rule for a new trial Ferris, J., filed the following opinion:
    On and before February 2, 1882, Sarah Horton was the owner in fee of fourteen acres of land in the said township, being part of a larger body of land lying between the hills forming the northwesterly boundary of the Wyoming Talley and the Susquehanna river, and commonly known as “ the Kingston Flats” — or simply as the “ Flats.” By a written instrument of that date, termed a coal lease, she granted to the Delaware, Lackawanna and Western Railroad Company, defendant, all the coal underlying the said tract, with the right to mine and remove the same. The lease was duly recorded in the office of the recorder of deeds on February 10, 1882. Upon the execution of this instrument a severance was effected between the surface land and the subjacent strata; Mrs. Horton.remaining liable for the taxes on the former, and the defendant company becoming primarily responsible for taxes on the latter (Sanderson v. Scranton, 105 Pa. 469), although by terms of the coal lease, as between the parties thereto, the lessors assumed the payment of taxes on the coal in place.
    Mrs. Horton died intestate July 18, 1888, leaving to survive her six children, who, by their deed dated May 26, 1892, conveyed the surface estate in the said fourteen acres to Uriah Beacham.
    By indenture of assignment, dated June 13, 1894, Julian G-. Horton, one of the six heirs of Sarah Horton, deceased, assigned to C. D. Foster (defendant) all the former’s right, title and interest in and to the coal lease above mentioned.
    For the years 1897 and 1898, Mr. Beacham was assessed for, and paid to the proper collector, taxes on his fourteen acres of surface land in Plymouth township. The description in the original assessment for each year is, as to location, “ Kingston Flats,” and as to quantity, etc. (under the heading “acres — No. of acres of cleared land”), the figures “14.”
    The assessment boohs for Plymouth township for these same years also show the following :
    1. For the year 1897. — Under the heading “Names of taxables,” etc., is the name “Mrs. Sarah Horton;” under the heading “Description of real estate .... street, adjoining owner ” is the word “ Flats; ’’ and under the heading “ Seated lands improved and unimproved — Number of acres of coal only —acres ” are the figures “ 14.” No other description of the coal estate sought to be assessed is given.
    The tax collector’s return, filed December 31, 1897, contains the fofiowing: In column with word “ owner ” is the name “ Mrs. Sarah Horton Estate; ” in column headed “ Quantity and description of property, boundary by warrantee name, number of lot, street or adjoining property” appear the words “ Kingston Flats cannot find.”
    2. For the year 1898. — The assessment book for Plymouth township contains the following:
    In the column headed “name of owner,” etc., is the name “Mrs. Sarah Horton, C. H. WeEes, 5/6, Scranton;” in the column headed “ Description of i’eal estate,” etc., is. the single word “ Flats;” in the column headed “ Real Estate ” — subdivision “coal only, acres” are the figures “14.” No othe); description or identification of the coal sought to be assessed is given.

      . The tax collector’s return, filed December 31,1898, contains the following: In the column with the word “ owner ” appears the name “ Sarah Horton,” and opposite her name and in the column headed “ Quantity and description of property,” etc., is the single word “ Flats.” No other description or identification of the land returned is given.
    In each return the collector certified that the owners had neglected or refused to pay the tax assessed on the land mentioned, and that after a proper effort at the proper time he could not find sufficient personal property by a legal sale of which the taxes specified in the return could have been collected. The tax collector for 1897 and 1898 was sworn oh the trial and testified that he made no demand on the owners of the coal estate for the taxes assessed as above stated; that he went to Mrs. Horton’s late residence for that purpose, but was told that the heirs had sold the property; that he made no inquiry as to whom it had been sold, nor did he examine the records to ascertain that fact; but that he then made the return marked with “ cannot find.” (Page 24 of testimony.)
    ' It will be observed that no “ coal only” or land described in any way as coal land was returned as delinquent. The return of fourteen acres of land as “ Flats ” or as “ Kingston Flats ” contained nothing to indicate what particular piece of land embracing fourteen acres located on what is known as the “ Flats ” was intended, except in so far as the name “ Sarah Horton ” or “ Sarah Horton Estate ” might tend to identify it. Let it be assumed that Sarah Horton owned no other tract of fourteen acres on these flats. There is still absolutely nothing to show the owner of the coal that this property had been returned for sale for unpaid taxes. Upon examination he might discover that a tract containing fourteen acres of “ Flats ” had been so returned in 1897 and 1898 for taxes assessed for those years against “ Sarah Horton” and “ Mrs. Sarah Horton Estate.” He could not know from these returns that his coal was intended rather than the surface sold by the Horton heirs to Beaeham. Indeed, the only descriptive words used, “ Flats ” in the one case, and “ Kingston Flats cannot find ” in the other, might well be taken to mean surface land as opposed to “ coal only.” where there had been a severance, of which latter fact the coal owner must have been aware. We were of opinion at the trial, and that opinion remains unchanged, that a return and sale for taxes by the treasurer and commissioners of fourteen acres of land designated as “ Plats ” is not a return and sale of a like quantity of other land whose sole distinctive description is that it is “ coal only ; ” and that the collector’s return was insufficient to operate as notice to the coal owner that his estate was liable to be divested. That the tax collector not only failed to make a demand for the taxes on the owner, but also failed to use due diligence to that end, is clear from his own evidence. Neither was there anj^thing in the published advertisement of the tax sale to notify the owner of the coal estate that his property wa^ liable to be sold .for taxes.
    “Coal only” was assessed. No coal was returned. No coal was sold. The conclusion would seem to follow that no coal can be recovered by the plaintiff in this action.
    As was said by the present Chief Justice in Kean v. Kinnear, 171 Pa. 639, and by Mr. Justice Dean in the recent case of Davis v. Beers, 201 Pa. 288, so it may with equal propriety be said here — “ that (in cases of seated lands) the law has established the order for liability for taxes to be, first, the personal property on the premises ; second, demand on the owner individually, and lastly, the land itself, and it is only the failure to collect by the first two methods that resort can be had to the third and the land be legally sold or returned for sale.”
    The contention that the owner of coal in place may have his property swept away by a deed for “ land ” based on a return of land called “ Plats ” for nonpayment of taxes assessed on “ coal only,” where he had covenanted with his lessor that such taxes should be paid by the latter, where no demand had been made on the owner for their payment nor any notice given him by advertisement or otherwise, that the taxes on the coal remained unpaid — such a contention might with some show of reason be held to be open to the criticism expressed by Mr. Justice Mestkezat in Simpson v. Meyers, 197 Pa. 522 (527), quoting from the syllabus to Jenks v. Wright, 61 Pa. 110 : “ The acts authorizing sales of land by the Commissioners or Treasurer are laws for collection of taxes ; not to sacrifice individual property as a forfeiture.”
    Counsel for the plaintiff urge, as the fourth reason for a new trial, that “ the court erred in admitting in evidence the papers (newspapers) offered by the defendants to show how the property in controversy had been advertised,” and argue, in support of this reason, that the advertisements were admitted without prior proof that they were official and were authorized to be published in the newspapers in question by the county commissioners. This might have been a good objection if it had been made at the trial. But it was not, and therefore is to be treated as waived. But it is difficult to see how the admission of this evidence, even if it was error, could prejudice the plaintiff’s case, since the advertisements are in substantial conformity with the recital in the commissioners’ deed to Mrs. Norris “ that a public sale of the said described lot or tract of land” had been duly advertised, etc.; “the said described lot being a certain lot, piece or parcel of land situate in the Township of Plymouth, in the County of Luzerne and Commonwealth of Pennsylvania, containing one-sixth interest in 14 acres on which is--and which was assessed in the year of our Lord one thousand eight--, in the name of Mrs. Sarah Horton, and adjoining property of-,” etc. The declared purpose of the offer was to show that there was no mention made in the advertisement of the fact that any coal property was delinquent for the nonpayment of taxes. The objection which was made is as follows: “ Plaintiff objects to the offer for the purpose stated inasmuch as there is nothing in the act of assembly prescribing the form of advertisement to the effect that coal only should be advertised as coal.” If the newspapers had been excluded it would be presumed from the recital in the deed that an advertisement of the sale of “ the said described lot ” had been duly published. Either the advertised description of the lot was as contained in the deed or it was not. If it was, then it (like the deed)' did not follow the assessment. If it was not, then the deed did not follow the advertisement.
    The first, second and third reasons assigned for new trial relate to the rejection of testimony. ¥e are not satisfied that there was error in the rulings complained of.
    The fifth, sixth, seventh, eighth and ninth reasons allege error in the court’s remarks to the jury and answers to points for charge. As binding instructions were given, what was said to the jury or by way of answers to points was immaterial except the affirmance of defendants’ fifth point, which asked for binding instructions: Trust and Safe Deposit Co. v. White, 206 Pa. 611.

      Error assigned among others was in giving binding instructions for defendant.

      W. Alfred Valentine, with him A. L. Williams and Henry W. Dunning, for appellants.
    Certainly the identification of the coal land sold was a question for the jury : Woodside v. Wilson, 32 Pa. 52; Russel v. Werntz, 24 Pa. 337; McClements’ App., 2 Pa. Superior Ct. 443; Phila. v. Miller, 49 Pa. 440.
    Where after severance of the surface and coal, the taxes against both are assessed as to the entire estate as unseated lands, the purchaser at the tax sale acquires a good title to the minerals: Hutchinson v. Kline, 199 Pa. 564; Huss v. Jacobs, 210 Pa. 145; City of Philadelphia v. Miller, 49. Pa. 440; Brundred v. Egbert, 164 Pa. 615.

      Arthur Hillman and A. H. MeClmtoeh, for D., L. & W. R. R. Co., appellees.

      John MeQ-ahren, with him P. A. O’Boyle, for Charles D. Poster, appellee.
    May 6, 1907:
   Opinion by

Mr. Justice Mestrezat,

This is an action of ejectment to recover the undivided one-sixth interest in fourteen acres of coal land in Plymouth township, Luzerne county. Mrs. Norris, one of the plaintiffs, claims title to the land by virtue of a commissioners’ sale for unpaid taxes. In his opinion refusing the motion for a new trial, the learned judge has found and stated at length the facts of the case and they need not be repeated here. His instruction to the jury to find a verdict for the defendants was warranted by the evidence.

1. It is well settled in this state that in order to give a purchaser at a tax sale a good title, the provisions of the statutory law regulating the subject must be complied with. The right to make a sale of real estate for unpaid taxes is wholly statutory and hence the necessity in order to give validity to the sale that the provisions of the statute be observed. The several steps resulting in the sale are the assessment of the property, a return by the collector to the county commissioners when the taxes are not paid, and an advertisement and sale by the treasurer. These several steps must be taken and in the manner pointed out in the statute, if the title of the real owner is to be divested and vested in the purchaser by a tax sale. The assessment, the return by the collector, and the conveyance by the treasurer should sufficiently describe the property so that the record will identify and disclose the property taxed and sold. Says Agnew, J., in Philadelphia v. Miller, 49 Pa. 440 : “ The evidence of identity is the record which contains the description and fixes the duty. Assessment is, from its legal requirement, and the necessity of preserving its evidence, a written entry, and must depend upon the records of the commissioners’ office, and not upon parol testimony, or the private duplicate of the assessor. ... It is the assessment which confers the power to sell, in the same manner as a judgment on which an execution is issued. It is the assessment, therefore, which must contain the means of identification of the ownership in order that the proprietor may pay his tax, or redeem if he fails to pay in time. . . . The result of the whole is, that where the assessment 'wholly fails to lead to identification, so that neither the owner nor the officer can tell that his land is taxed, the duty of payment cannot be performed, and the assessment is void.”

The description of the land in the return of the collector should also be definite; and sufficiently so to enable the owner and also the officer and the public to identify and determine from the return the exact property which is delinquent and liable to sale: Vandermark v. Phillips, 116 Pa. 199. The owner should have an opportunity to pay the taxes or redeem the land after it has been sold within the time permitted by the statute, but this right will be denied him if by reason of an insufficient description the return fails to disclose the location of the property and hence its ownership. It is not the intention of the law, even in cases of tax sales, that an owner shall be deprived of his property by failure to perform a duty imposed by that law, unless he has notice or an opportunity to discharge the duty. As said by Agnew, J., in Philadelphia v. Miller, 49 Pa. 440 (p. 448): “ Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property.” If the owner is expected to perform his duty and pay the taxes, the least that can be expected of the taxing officers is that they will give him an opportunity to do so. In Vandermark v. Phillips, 116 Pa. 199, it is said (p. 203): “ The owner of the property has the right to know at once from the collector’s return of delinquent properties which of his properties it is claimed is delinquent and liable to be sold; and he is entitled to this knowledge while everything is still fresh in his mind, and it is in his power to have any mistake of the collector remedied.” And in Lyman v. Philadelphia, 56 Pa. 488, Agnew, J., after saying that the fact that the return constitutes the evidence of the assessment is conclusive against the argument that by act of 1815 no alleged irregularity in the assessment or process shall be construed to affect the purchaser’s title, proceeds as follows (p. 502): “ Affect his title to what? If nothing capable of identification be returned, what is to be affected (by the sale) ? If no discoverable thing be returned, how can anything be sold ? It is not irregularity, but the absence of anything to be sold. And if this subject can be supplied by evidence wholly dehors the assessment, what is to prevent fraud or perjury from applying it to my land or his, as well as to the particular tract for which a suit is brought ? The guess can be made in one direction as well as in another.”

In 1882, Sarah Horton was the owner in fee of fourteen acres of land in Plymouth township, Luzerne county. In that year, by a lease duly recorded, she granted all the coal underlying the tract, with the right to mine and remove the same, to the defendant, the Delaware, Lackawanna & Western Railroad Company. Uriah Beacham became, and is now, the owner of the surface. As said in Powell v. Lantzy, 173 Pa. 543, after the severance, the two “estates were distinct and the division was as complete as if it had been made by lines on the surface. They were separately the subjects of possession, enjoyment, incumbrance and taxation. There was no community of interest between the owners.” After the lease the taxing authorities were required to levy their taxes according to the ownership and value of the surface and coal respectively, and Mrs. Horton was liable for the taxes on the surface and the defendant company was primarily liable for the taxes oh the coal: Sanderson v. Scranton, 105 Pa. 469. In 1897 and 1898 the surface was assessed to Beacham, and he paid the taxes on it for those years. In the year 1897 there are contained in the assessor’s book of Plymouth township the following entries: Under the heading “Names of taxables,” etc., is the name “ Mrs. Sarah Horton ; ” under the heading “ Description of real estate .... street, adjoining owner,” is the word “Flats;” and under the heading, “ Seated lands improved and unimproved — Number of acres of coal only — acres” are the figures “ 14.” No other or further description is given in the assessment. The assessor’s book for 1898 contains substantially the same entries. Mrs. Horton had been dead more than nine years and, as will be observed, a severance of the surface and the mineral estate had taken place fifteen years prior to that time. During that period the title to the coal under the fourteen acres was in the Delaware, Lackawanna & Western Railroad Company. The insufficiency of the description of the premises assessed is shown by the return of the collector who, although presumably familiar with the real estate of the township, certifies under oath that he could not find the property assessed.

In the tax collector’s return for 1897 there appear in the column headed “ owner ” the name “ Mrs. Sarah Horton Estate,” and in the column headed “ Quantity and description of the property,” etc., the words, “ Kingston Flats cannot find.” In the collector’s return for 1898 the name “Sarah Horton” appears under the word “owner,” and the word “Flats” appears under the head of quantity and description of property. Pursuant to these returns, the property therein returned was sold by the treasurer to the commissioners of Luzerne county as “a tract of seated land containing one-sixth of fourteen acres, situated in the township of Plymouth, county of Luzerne, assessed to Mrs. Sarah Horton.” The property was subsequently sold by the commissioners to Mrs. Norris under the description of “ a certain lot, piece or parcel of land, situated in the township of Plymouth, in the county of Luzerne, and commonwealth of Pennsylvania, containing one-sixth interest in fourteen acres.” It is under this tax title that the plaintiffs claim to recover in this action “ an undivided one-sixth of all the coal and other minerals in, upon, and underlying all that certain piece or parcel of land situate in the township of Plymouth, county of Luzerne .... containing fourteen acres, one hundred and nine and five-tenth perches.”

The record as thus given shows that the coal assessed to Mrs. Horton was not returned or sold under these tax proceedings. It may be assumed that the collector intended to return the coal which was assessed for the nonpayment of the taxes, but he failed entirely to do so. The property returned by the collector was for the year 1897, “ Kingston Flats cannot find; ” and for the year 1898 the “ Flats.” These descriptions cannot be construed in any way so as to include “ coal only ” which was assessed and which it has been assumed was returned by reason of the nonpayment of taxes. It appears by the opinion of the learned trial judge that in the Wyoming Yalley there is a large body of land known as the “ Kingston Flats,” or simply as the “ Flats.” If we assume that the property returned is a part of this large body of land, what part of it and where is it located ? Do the names given in the returns describe the tract in fee, the surface, or the coal ? They might mean the first or the second, but certainly could not mean “ coal only.” From this return, therefore, it is apparent that neither the owner, the collector, nor the public could determine what property was intended to be returned for the payment of taxes. The description would apply more nearly to the surface owned by Mr. Beacham which was severed from the coal fifteen years prior thereto than it would to the coal. It could reasonably be applied to mean the surface as distinguished from “coal only” in view of the fact, known to the owner of the coal, of the prior severance of the two estates. We are of opinion that the returns of the property by the collector for the years 1897 and 1898 on which the sale in this case was made to the plaintiff were wholly insufficient and inadequate as a description of “ coal only ” which was assessed for the years 1897 and 1898, and for that reason that the sale to the plaintiff conveyed no title to the coal for which this action was brought.

On the trial of the cause the collector was called as a witness and lie testified that he went to Mrs. Horton’s late residence and was told that the heirs had sold the coal, that he made no inquiry to ascertain the name of the owner, and that he made no demand on the owners of the coal for the taxes. By the proviso to section 41 of the Act of April 29,1844, P. L. 486, 2 Purd., 12th ed., 1994, it is enacted “ that no sale shall be made of such lands .... until the owners .... shall have refused or neglected to pay the taxes aforesaid for the space of two years.” It is, therefore, a statutory prerequisite to the validity of a tax sale of seated land that there be a prior demand by the collector for the payment of the taxes. This we have distinctly ruled, and that the collector proceeding against the land without such demand is a trespasser: Kean v. Kinnear, 171 Pa. 639. Here, the collector totally disregarded his duty in not ascertaining the owner of the coal and demanding of him the payment of the taxes. The defendant company, as we have seen, had for fifteen years been the owner of this coal. During the same time the title to the surface was in another party. Prom the fact that “ coal only ” was assessed it is obvious that the assessor knew there had been a severance of the estates and that the title to the coal was in another than the owner of the surface. It is to be inferred, therefore, that a simple inquiry by the collector from almost any person in the community, familiar with the premises, would have given him the name of the real owner of the coal. A single response from an unknown woman at the house on the premises that she did not own the coal seemed to satisfy the collector, and, disregarding his duty, he made no further inquiry. The effect of this improper conduct on the part of the collector resulted in the return by him of the coal in the name of a party who he knew was not the owner, a subsequent sale for a trifling sum, and this action of ejectment. The necessity for and importance of a demand for payment of the taxes upon the owner is well illustrated in this case. It is manifest that it would have resulted in the payment of the taxes, and prevented the subsequent expense as well as trouble to the parties concerned. At all events, the statute required this duty of the collector, and as a compliance with the statute in this respect was necessary to give validity to the sale of the property assessed, it follows that even if the other requirements of the statute had been observed the sale must lor this reason be declared invalid. The plaintiffs, therefore, cannot maintain this action.

We need not notice specially the several assignments of error. Any testimony that might have been given on the offers made could not have changed the result of the trial and established a good title in the plaintiff. It was the duty of the court below, even if it had admitted the testimony offered, to have directed a verdict for the defendants.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Louchheim, Appellant, v. Philadelphia.

      Municipalities — Municipal contracts — Competitive bidding — Act of May 23, 1874, P. L. 230.
    Private negotiations between municipal authorities and a successful bidder for a city contract, through which the terms and conditions of the competitive bids are so modified and changed that the successful bidder becomes in fact the lowest bidder, are not within the spirit and purpose of the Act of May 23, 1874, P. L. 230. The proper method for the municipal authorities to pursue, if convinced that the best interests of the city demand it, is to set aside all of the bids, re-advertise and secure another open competitive bidding, when all of the bidders will be on an exact equality.
    Argued Jan. 21, 1907.
    Appeal, No. 188, Jan. T., 1906, by plaintiffs, from decree of C. P. No. 2, Phila. Co., March T., 1906, No. 1,941, dissolving special injunction in case of Jerome H. Louehheim and Walter O. Louehheim v. City of Philadelphia, John Weaver, Mayor of the said city, Thomas L. Hicks, Director of Public Works, S. B. Norcross and N. Perry Edmund, copartners, trading as Norcross & Edmunds.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Sulzberger, P. J.
    The facts' are stated in the opinion of the Supreme Court.

      Error assigned was decree dissolving special injunction.

      M. Hampton Todd, with him Samuel K. Louohheim, for appellants.
    The award was not made in accordance with the act: Mazet v. City of Pittsburg, 137 Pa. 548; Ryan v. Ashbridge et al., 10 Pa. Dist. Rep. 153.

      Ernest Lowengrund, with him James Aloorn, assistant city solicitor, and John L. Kinsey, city solicitor, for appellee.
    The director of public works, without fraud and in the ex-excise of a sound discretion, having awarded the contract to the bidder deemed the lowest responsible one, the execution of the contract should not be enjoined: Findley v. Pittsburg, 82 Pa. 351; Douglass v. Com., 108 Pa. 559; Com. v. Mitchell, 82 Pa. 343; Carrol v. Phila., 183 Pa. 55; Paving Co. v. Phila., 164 Pa. 477; Schuck v. Reading, 186 Pa. 248; American Pavement Co. v. Wagner, 139 Pa. 623.
    May 6, 1907:
   Opinion by

Mr. Justice Elkin,

The appellants seek to restrain the appellees by injunction from executing and delivering a contract for filter materials and collectors for the Torresdale filters, to the firm of Nor-cross & Edmunds. While the appeal raises several questions of a collateral nature, on which we express no opinion, the decisive question involved is one of law, and within narrow limits.

In 1905 the then director of public works advertised for bids for the furnishing of filtering materials and collectors for the Torresdale filters, and on September 6 of that year bids were received from seven different bidders. They were opened by the director in the presence of the bidders and scheduled according to the usual method of the department. It was determined that the three lowest bidders, calculated upon the estimate of the materials to be furnished, were as follows: Pepper & Bowie, $310,996.05; Jerome H. Louchheim, $328,194.48; Norcross & Edmunds, $336,589.42. In the formal notice to bidders it was suggested that bids by letter, or on detached sheets not forming part of the printed proposal and specifications, would not be considered formal, and that incomplete, conditional or obscure proposals could be rejected. The evident purpose of the notice was to put all bidders on an equality so that open and honest competition should obtain in the awarding of the contract. On December 9, 1905, Pepper & Bowie, with the consent of the city, withdrew their bid, and were no longer considered competitors. All of the other bidders, with the exception of Nor-cross & Edmunds and Louchheim, had their respective certified checks returned to them and retired from the competition. Louchheim was the lowest bidder, and as the testimony shows frequently requested the director to take action on the bids submitted and award the contract. The director who had advertised for and received the bids resigned on March 6, 1906, and his successor in office then took up the question of awarding the contract. After some negotiations between the director and the firm to which the contract was awarded, the original bid submitted in September, 1905, was modified, and the contract was awarded to them for. a sum amounting on the estimate of materials to be furnished to $302,936.33. The bid when thus reduced was lower than that of Louchheim.

The learned counsel for appellants contend that under these facts there was no such open competitive bidding when the award was made as is required by the act of assembly, and the municipal ordinances. The Act of May 23,1874, P. L. 230, provides that all work and materials required by the city shall be furnished under contract to be given to the lowest responsible bidder under such regulations as shall be prescribed by ordinance. The city councils, in order to make effective the legislative requirement, passed the ordinances of May 10, 1876, July 5, 1877 and December 26,1882, in which it was ordained, in substance, that when work, materials and supplies, are required for the city, bids shall be asked for by advertisement, and when received they shall be opened and the contract awarded to the lowest responsible bidder in the presence of the head of the department. It is perfectly clear that the legislative and municipal intent in the awarding of such contracts was that there should be open and honest competition in order that fair prices should be secured and the city protected from collusive bidding as well as favorite bidders. This rule was announced in Mazet v. Pittsburg, 137 Pa. 548, in which Mr. Justice Sterrett, who delivered the opinion of the court, said : “ It cannot be doubted that the true intent of the act of 1874, and the ordinances passed in pursuance thereof, regulating the awarding of public contracts, is to secure to the city the benefit and advantage of fair and just competition between bidders, and at the same time close, as far as possible, every avenue to favoritism and fraud in its varied forms.” This is a wise and wholesome rule which should always prevail in the letting of such contracts. In the present case the contract, it is true, was awarded at a sum below the lowest bidder in the open competition, but it was so clearly the result of private negotiations between the director and the successful contracting firm, without regard to the conditions of the open competitive bidding and the requirements of the act of assembly and the municipal ordinances, that the award cannot be sustained without striking down all those safeguards which the legislature, the courts and the city have thrown around the letting of these contracts. If the director had the power to enter into private negotiations with a contracting firm for the purpose of reducing its original bid submitted at the time of the open competition, it would necessarily follow that he would have the same power to allow the bidder to increase the amount of his bid submitted at the public letting. If such a rule is to be established it must be held to work both ways, and this would lead to favoritism and fraud in its varied forms which the courts have said must not be allowed. It is obvious that such a rule would lead to a disregard of those wholesome limitations which the legislature and the courts have imposed on the awarding of contracts under the act of 1874, and would submit this whole question to the discretion of the director. Ve do not doubt that the director in this instance acted in entire good faith, and did what he believed to be for the best interests of the city, but the question involved is not one of good faith on the part of the head of the department, but of power in that official in the exercise of his discretion to disregard the plain mandate of the law. There was only one safe rule to follow in this case, and that was to observe the requirements of the statutes and the ordinances regulating the awarding of the contract. Private negotiations between a director and a successful bidder through which the terms and conditions of the competitive bids are modified or changed, resulting either to the advantage or disadvantage of the city, are not within the spirit and purpose of the law. The proper method, for the director to have pursued, if convinced that the best interests of the city demanded it, was to set aside all of the bids, readvertise and secure another open competitive bidding when all of the bidders would have been on an exact equality. We, therefore, hold that the contract was not awarded according to law and sustain this bill for that reason.

In deciding that the contract was improvidently awarded, it must not be understood to indicate that it should have been awarded to any other bidder, for clearly, the director had the power, if the facts warranted it, to set aside all bids, but this question is not before us, and we express no opinion on it.

This view of the law being conclusive of the controlling question raised by this appeal, it is unnecessary to discuss other assignments of error.

Decree reversed and record remitted to the court below with instructions to make the injunction permanent as prayed for, unless cause be there shown why such decree should not be made.


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    Mint Realty Company v. Philadelphia, Appellant.

      Taxation — Municipal taxation — Real estate — Title in the United States government — Sale—Articles of agreement — Equitable title.

    Where the United States government has sold real estate under articles of agreement reserving the legal title to itself until all payments are made and conditions performed, such real estate is not taxable by municipal authorities until the vendee has made all the payments and performed all the conditions of the articles of agreement.
    Mestrezat and Potter, JJ., dissent.
    Argued Jan. 21, 1907.
    Reargued April 2, 1907.
    Appeal, No. 277, Jan. T., 1906, by defendants, from decree of C. P. No. 5, Phila. Co., March T., 1904, No. 4,000, on bill in equity in case of The Mint Realty Company v. The City of Philadelphia and Charles L. Riddell, Deputy Tax Collector.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for an injunction.
    Martin, P. J., found the facts to be as follows:
    The United States of America, being the owner of the property known as the “ Mint Site,” at the northwest corner of Chestnut and Juniper streets, in the city of Philadelphia, the secretary of the treasury, on March 22, 1902, executed and delivered to Pelix Isman an option, agreeing to accept him as the purchaser for the property at the price of $2,000,000, to be paid within sixty days, of which sum $25,000 was paid in cash upon the execution of the option, $25,000 more was to be paid within thirty days afterward, and the balance of $1,950,000 within six months. Isman assigned his option to the Mint Realty Company, the complainants in this case. On May 28, 1902, a contract for the sale of the property to the Mint Realty Company was executed by the secretary of the treasury, in which the United States agreed to deliver to the Mint Realty Company, upon payment in full of the purchase money, a deed for the property. It was stipulated in this agreement that the balance of the consideration money, $25,000 should be paid within thirty days, and $1,950,000 on or before September 22, 1902. Possession of the premises was to be given at the time of final payment. There was a provision of forfeiture of the contract in the event of default in payment of the consideration money, and the United States reserved the right to resell the property and to hold the Mint Realty Company responsible in the event of loss.
    The Mint Realty Company having paid an additional sum of $25,000 on account of the purchase money, on August 21, 1902, a further sum of $200,000 was paid to the United States and it was agreed that the period for the payment of the balance of $1,750,000 should be extended for eighteen months from the time stipulated in the former agreement, with the right on the part of the company to pay the entire balance at any time. This contract provided that:

      “ The United States Government, acting as aforesaid hereby agrees and does deliver possession to the Mint Realty Company of the Old United States Mint Property in Philadelphia, situate at the northwest corner of Juniper and Chestnut streets, with the express understanding that the said company may make such alterations, additions and improvements or construct such new building or buildings as it may deem fit, with the further express understanding, however, that in the event of the default for a further period than thirty (30) days after the 22d day of March, One thousand nine hundred and four (1904) the said United States Government shall have the right to enter the premises, eject and expel said Mint Realty Company and all others claiming under it, therefrom, and this agreement shall cease and. absolutely determine and the said Mint Realty Company shall forfeit, which it hereby agrees to do, all sums of money heretofore paid by it on account of the said Old United States Mint Property at Philadelphia as aforesaid, as well as such building which the said Mint Realty Company may have constructed, altered or improved, and in the event of such default, the United States Government is hereby empowered to enter in any competent court an amicable action in ejectment against the said Mint Realty Company and all persons claiming under it, for recovery of possession of the Old United States Mint Property, situate at Philadelphia and for which this agreement shall be a sufficient warrant.”
    In July or August of 1903, complainants entered into actual possession of the property, removed the old structure and proceeded to erect the building now on the premises.
    On December 14, 1903, $50,000 having already been paid on account of the purchase money, the sum of $250,000 additional was paid by the complainants to the United States, and a contract was made extending the time for the payment of the balance of the consideration money, viz.: $1,700,000, and providing that of this sum $100,000 should be paid March 22, 1904, $100,000 December 22, 1904, and $1,500,000 on February 21, 1905 ; and extending to complainants the privilege of paying the amount in full at any time.
    Upon completion of the building it was rented by complainants to various tenants.
    Assuming the complainants to be the owner of the property by virtue of the contract of sale, the city of Philadelphia caused an assessment for taxes to be made from the date of November 1, of the year 1902, and for the entire year of 1903. These taxes remaining unpaid, a levy was made on the tenants, pursuant to the terms of the Act of April 19, 1883, P. L. 9.
    Application was made on behalf of complainants for an injunction to restrain the collection of the taxes on the ground that the title to the property is vested in the United States of America, and so remains until the final payment of the entire consideration money.
    The contract of sale between the United States and the Mint Realty Company not having been presented at the registry bureau of the city of Philadelphia, the tax was assessed in the name of the United States of America, the last registered owner, but was levied on the tenants of complainants. It was argued on behalf of the city that upon the execution of the agreement of sale, which vested in the vendee the right to possession under the terms of the contract of August 21,1902, the Mint Realty Company became the owner of the property, and the United States retained only a vendor’s lien for the unpaid purchase money, to enforce which, provision- was made in the agreements for forfeiture of complainants’ title and the entry of an amicable judgment in ejectment, and that as the real owner complainants are liable for taxes, although assessed in the name of another; that if complainants’ title is hereafter forfeited to the government, the rents accrued belong to complainants, and the rights of the government are not affected by the pending levy upon the tenants of complainants.
    The tax is assessed upon the land itself.
    The entry ujpon the assessor’s book for 1902 is as follows:
    “ Chestnut street, north side, west of Thirteenth street, northwest corner of Juniper street, United States of North America, 2 sty. marble Mint building, with mansard roof. Lot 152x204. Exempt $1,250,000.
    “Taxable as of November 1, 1902. Yaluation $208,333, added by certificate 11/8/02; ” and for 1903 :
    “Chestnut street, north-side, west of Thirteenth street. N. W. cor. Juniper street, United States of North America, lot 152x204, valuation $1,250,000.”
    It appears by the testimony that the property was considered by those interested in it to be of much greater value than the figure at which it was assessed, but no evidence was presented which indicated that the assessment was made upon any less interest than the entire property.
    The court entered a decree in accordance with the prayer of the bill.

      Error assigned was the decree of the court.

      J. Howard Gendall, with him Mayne JR. Longstreth, James Alcorn and John L. Kinsey, for appellants.
    The city may tax different estates in land to the different parties thereto, and sell only the interest of the part}r making default. It may also tax a taxable interest in real estate and exempt one not taxable in the same property. This is true even though the exempt interest in the real estate may be owned by the United States: Baltimore Shipbuilding & Dry Dock Co. v. Baltimore, 195 U. S. 375 (25 Sup. Ct. Repr. 50).
    The interest of the Mint Realty Company is taxable as a vendee in possession: 1 Cooley on Taxation, 3d ed., 135; Hodgdon v. Burleigh, 4 Fed. Repr. 111; Oswalt v. Hallowell, 15 Kan. 154; State v. Tucker, 38 Neb. 56 (56 N. W. Repr. 718); Crocker v. Donovan, 1 Old. 165 (30 Pac. Repr. 374); Territory v. Clark, 2 Okl. 82 (35 Pac. Repr. 882).
    A vendee, in possession under executory articles of sale, is the owner of the equitable title, and is obliged to pay taxes accruing after his purchase: Bradford v. Union Bank, 54 U. S. 57; Glancy v. Elliott, 14 Ill. 456; Cole v. Wright, 70 Ind. 179; Miller v. Corey, 15 Iowa, 166; Pringle v. Wagnoer, 110 Mich. 612 (68 N. W. Repr. 423); Farber v. Purdy, 69 Mo. 601; Williamson v. Neeves, 94 Wis. 656 (69 N. W. Repr. 806).
    The five-story office building was the property of the Mint Realty Company and taxable as such: People v. Black Diamond Coal Mining Co., 37 Cal. 54; People v. Shearer, 30 Cal. 645; State v. Moore, 12 Cal. 56; Forbes v. Gracey, 94 U. S. 762.
    The city of Philadelphia has power to tax an interest in real estate : Young Men’s Christian Assn. v. Donolaugh, 7 W. N. C. 208; Philadelphia v. Barber, 160 Pa. 123; Mercantile Library Co. v. Philadelphia, 161 Pa. 155; American Sunday School Union v. Philadelphia, 161 Pa. 307; Moore v. Taylor, 147 Pa. 481.
    The appellee has no standing for equitable relief : Philadelphia v. Penna. Institution, 28 Pa. Superior Ct. 421; Philadelphia v. Penna. Co., 214 Pa. 138.
    Exemption is a personal privilege and does not pass to a purchaser of the property : Picard v. R. R. Co., 130 U. S. 637 (9 Sup. Ct. Repr. 640); Louisville, etc., R. R. Co. v. Palmes, 109 U. S. 244 (3 Sup. Ct. Repr. 193); New Haven v. Sheffield, 30 Conn. 160; Revoir v. State, 137 Ind. 332 (36 N. E. Repr. 1109); Laird v. Wilson, 2 N. J. L. 281; Armstrong v. Treasurer of Athens County, 10 Ohio, 235; Sandford v. Decamp, 8 Watts, 542.

      John G. Johnson, for appellee.
    There is no power in the city of Philadelphia to tax an interest in real estate. The property is only taxable as a whole.
    The tax was assessed for the last two months of the year 1902, and for the whole of the year 1903, against the Mint site as a whole, and the effort to make it appear that the taxation was only upon an alleged equitable interest therein held by the Mint Realty Company was made in June, 1904, after the bill had been filed and an injunction had been asked for.
    Whilst the alteration in the assessment books was under the pretext that the equitable interest only was taxed, the valuation was really that which had been put upon the property as a whole.
    The property attempted to be taxed belonged to the United States and was not subject to taxation: Railway Co. v. McShane, 89 U. S. 444; Hefner v. Northwestern Mut. Life Ins. Co., 123 U. S. 747 (8 Sup. Ct. Repr. 337); Railway Co. v. Prescott, 83 U. S. 603; Wisconsin Cent. R. R. Co. v. Price County, 133 U. S. 496 (10 Sup. Ct. Repr. 341); Central Pacific R. R. Co. v. Nevada, 162 U. S. 512 (16 Sup. Ct. Repr. 885); Northern Pacific R. R. Co. v. Meyers, 172 U. S. 589 (19 Sup. Ct. Repr. 276); Northern Pacific R. R. Co. v. Traill County, 115 U. S. 600 (6 Sup. Ct. Repr. 201); United States v. City of Milwaukee, 100 Fed. Repr. 828.
    May 6, 1907:
   Opinion by

Mr. Justice Elkin,

This is a proceeding in equity to restrain the city of Philadelphia from the collection of taxes levied against the appellee company for the years 1902 and 1903. The-appellee is a private corporation and has entered into an article of agreement for the purchase of the old Mint site from the United States government. The legal title to the property is in the United States, and will remain there until the final' payments are made and all the precedent conditions are performed. The general rule is that real estate, the title to which is in the United States, is not subject to taxation for state and local purposes. It is familiar law that in dealing with the taxation of real estate belonging to the United States, the decisions of the federal courts are final and conclusive in all jurisdictions. Starting, then, with the conceded fact that the title to the property attempted to be taxed in this case is in the United States, and therefore ordinarily not subject to municipal taxation, the appellants must show that they come within some exception to the general rule in order to give them any standing to assert a claim for taxes against the appellee company. The attempt is made to take this case out of the general rule by showing that the United States, by article of agreement, had sold and agreed to convey the property to the appellee, and this company being in possession, receiving rents and exercising all rights of ownership, has such an equitable title as to subject the property to taxation in its name. This contention would be perfectly sound if the rule of taxation applicable thereto could be determined by Pennsylvania law. The difficulty, however, is that in the present case our state law has no application, and it becomes necessary to look to the decisions of the federal courts in order to determine the rights of the parties.

The rule which denies the right of a state or municipality to tax the property of the United States is founded on the principle which inheres in every independent government, that it must be free from any such interference of another government as may tend to destroy its powers or impair their efficiency: Wisconsin Central Railroad Company v. Price County, 133 U. S. 496. The power to tax implies the power to divest the title by a tax sale when there is default in the payment of the taxes levied. Hence the federal government has most carefully guarded its property from the vigilance of the local tax gatherer. There is, however, an exception to the general rule recognized by the federal courts, and that is, where congress has prescribed the conditions upon which portions of the public domain may be alienated, and provided that upon the performance of the conditions, a patent of the United States shall issue to the purchaser, and all such conditions have been complied with, the land alienated being distinctly defined, it only remaining for the government to issue its patent, and until such issue holding the legal title in trust for the vendee, who has gone into possession and is exercising the-rights of ownership therein, the purchaser will be treated as the beneficial owner of the land, and the same may be subjected to taxation for local purposes. The appellants rely upon this exception to the general rule to support their contention in the present case. It must not be overlooked, however, that this exception is only recognized where congress has prescribed the conditions upon which portions of the public domain may be alienated, and directed that upon the performance of these conditions a patent shall issue. In these exceptional cases, the federal courts have distinctly held that all of the precedent conditions must have been complied with so that nothing remains on the part of the purchaser to be done before he is entitled to the legal title in order to subject the property to local taxation : Railway Company v. Prescott, 83 U. S. 603; Central Pacific Railroad Co. v. Nevada, 162 U. S. 512; Northern Pacific Railroad Co. v. Myers, 172 U. S. 589. In other words, even in these exceptional cases, it has been uniformly held, that if any part of the purchase money remains unpaid, or anything remains to be done by the purchaser, or any precedent condition has not been performed, the right to subject the property to local taxation does not exist.

Let us see, then, whether the case at bar comes within the exception to the general rule as defined by the federal courts. The purchaser, the vendee company here, has agreed to pay the United States for the property the sum of $2,000,000, on which it had only paid at the time of the filing of this bill $250,000, leaving a balance unpaid of $1,750,000, so that all of the money has not yet been paid. Then, again, under the terms of the agreement the government expressly reserved the right to declare a forfeiture of the contract as well as of all moneys paid on account thereof, if all of the conditions contained were not performed by the purchaser, so that if the balance of the purchase money is not paid, or if any of the conditions are not performed, the purchaser will forfeit his equitable interest in the property. Clearly, therefore, the facts of this case do not bring it within the exception to the general rule.

The appellants, however, rely upon one of the latest decisions of the supreme court of the United States to support their contention that the rule of the earlier cases hereinbefore cited has been modified or changed. In Baltimore Shipbuilding, etc., Company v. Baltimore, 195 U. S. 315, it was held that the real estate of the shipbuilding company was subject to taxation by the city of Baltimore. After a careful consideration of that case we have failed to discover that the rule of the earlier cases has been changed, either in express terms or by necessary implication. In that case, however, it must not be overlooked that the title to the property was not in the United States, but in the shipbuilding company. There was a duty on the part of the company to allow government vessels to put into dry dock for repairs, and there was a condition subsequent of defeasance, and these were the distinguishing features of that case clearly pointed out by the court in rendering the decision. The legal title was in the shipbuilding company, and therefore under the law of the state it would be subject to local taxation just like the property of any other private corporation or individual unless entitled to exemption for some sufficient reason. It undertook to evade the payment of local taxes on the ground that the United States had an equitable interest in the title to the property, and therefore claimed that the case came within the general rule of taxation of property belonging to the federal government. The court very properly held that under such circumstances the shipbuilding company could not be permitted to avoid its share of the burdens of local taxation because it had entered into an agreement with the United States providing that if the conditions thereof were not kept and performed a defeasance would result. Another ground upon which the right to impose the tax in that case was predicated was that under the laws of the state of Maryland even an equitable interest in the title to real estate may be taxed, and in default of payment thereof a tax sale would only divest the equitable interest against which the tax was assessed. The answer to this position is that in Pennsylvania this is not now, and never was, the law. In this state the rem is taxed, and if a tax sale results from default in the payment of the taxes levied, the title to the rem is sold. It is true that in our state a vendee of land purchased by article of agreement may be assessed for the full taxable value of the land, although he has only paid a portion of the purchase price. Indeed, this very frequently happens, but the right to do so is founded on the principle that the tax is against the rem, and it is a matter of no importance whether the tax is assessed in the name of the legal or equitable owner, so long as it is assessed against the whole title to the land. Some confusion about this matter may have arisen because our courts have always recognized the right to impose a tax upon the holder of the legal title to different strata within the boundaries of a particular tract of land. As, for instance, it frequently happens that the legal title to the surface is in one owner, the title to the coal in another, and the title to the ores in still another. In such a case, the surface is taxed to its owner, the coal to its owner, and the ores to their owners, but.this is because there has been a severance of the legal title to the different strata, and each stratum is subject to taxation in the name of its owner just as much as if it represented a distinct and separate acreage. In the taxation of the coal, for instance, in such a case, the legal title might be in one owner and the equitable title in another, but the tax would be levied and assessed against the rem, that is, all the coal, and if a tax sale resulted from default in the payment of these taxes, the whole title to the coal would pass.

Another answer to the contention made by the appellants in this respect is that the learned court below has found as a fact that there was no assessment or attempt to assess the property otherwise than as a whole in the name of the United States until after the filing of the present bill. Of course, the rights of the parties to this controversy must be determined upon the facts as they stood at the time the '‘bill was filed. On this ground, as well as for the other reasons set out in this opinion, we are compelled to hold that the property was not subject to taxation for municipal purposes, and that the decree entered by the court below must be sustained.

Decree affirmed.

Mestrezat and Potter, JJ., dissent.


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    Palmer v. Philadelphia, Baltimore & Washington Railroad Company, Appellant.

      Negligence — Death—Damages—Exemplary damages.

    Examplary damages cannot be recovered for injuries resulting in death when the action is brought by surviving parents.
    Argued Feb. 11, 1907.
    Appeal, No. 41, Jan. T., 1906, by defendant, from judgment of C. P. Chester Co., April T., 1905, No. 38, on verdict for plaintiff in case of J. Monroe Palmer and Alice M. Palmer, his wife, v. Philadelphia, Baltimore & Washington Railroad Company.
    Before Mitchell, C. J., Fell, Mestkezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s son. Before Butler, J.
    At the trial it appeared that J. William Palmer, the son of the plaintiffs, was killed on November 14, 1904, while riding as a passenger in one of defendant’s trains. The death resulted from a collision between a freight train and the passenger train in which the deceased was riding.
    The court charged in part as follows :
    Punitive damages are allowed where the wrongdoer is guilty of gross negligence, of manifest recklessness, absence, practically, of all real care, conduct indicating a total disregard, in this case, for the safety of the company’s passengers. [And we say to you'thafc if the evidence satisfies you that either this engineer of his own motion or under orders from a superior of this company, was guilty of conduct indicating a total disregard for the safety of the passengers of train forty-three, then this company is liable in punitive damages.] [1] Now, in that connection, you will recall the testimony of the engineer. It is for you to remember it. If I misstate it, you will correct me by your recollection of it; but in substance I think the situation was this : he arrived with his freight train, which consisted of twenty-one cars, and which he said were quite heavily laden, and stopped with it on a descending track that would, of necessity, as the tracks there existed at the time, project by gravity that train down along the track that was soon to be occupied by train forty-three, and that he knew, and that this company knew, was about to be occupied b_y train forty-three; that there was this heavily laden freight pointed at the place that would be occupied in some twenty-four or twenty-six minutes later by train forty-three, and the freight, there being such a heavy grade, certain to undertake by gravity to occupy the same position that forty-three would be occupying in some twenty-six minutes, if not restrained. [Now, that being the situation eighteen minutes before train forty-three arrived — because nothing was done for some five or six minutes after the freight took the position I have referred to — eighteen minutes before train forty-three arrived in front of the station the engineer, admitting that if his engine had remained attached to the freight, the freight must have held its position and this collision could not have occurred, in the way it did, this engineer, either of his own motion, or under orders of a superior employee of this company, uncoupled his locomotive, left this train to depend on the restraint afforded by nothing but its air brakes, and went away with his locomotive- to the southernmost siding track, to stay there for at least eighteen minutes, in other words, to stay there until train forty-three should arrive at the station and should pass on between the freight and the locomotive to the south.] [2] And he tells you that that freight, left as it was, could not be depended upon to wait more than ten of the eighteen minutes that would elapse before the arrival of train forty-three; it might wait ten minutes, it might wait fifteen minutes, possibly it might wait eighteen, but it could not be depended upon to wait more than ten of the eighteen minutes that would elapse before the arrival of train forty-three, in a position, such that if the freight did start nothing apparently could avoid a collision. [We say to you that if those facts are true, if you find that this engineer of his own motion, or under orders of a superior, left that freight in the position described, not intending to return until after forty-three should pass — which it would not do for eighteen minutes, at least — and at the time it was apparent that that freight could not be at all depended upon to maintain its position until after forty-three should have passed, but on the other hand, was manifestly likely to endanger forty-three, just as the sequel showed it did, then you would, in the judgment of the court, be clearly warranted in imposing punitive damages upon this defendant, because, if those circumstances are true, then the engineer, of his own motion, or under orders, was guilty, it seems to the court — though that is a matter for you — of conduct indicating a total disregard for the safety of passengers on train forty-three.] [3]
    We submit this question entirely to you. Unless you are satisfied by a fair preponderance of the evidence or by the evidence that there was on the part of this engineer, of his own motion or under orders, conduct indicating a total disregard for the safety of the passengers of train forty-three — unless you are satisfied of that clearly and reasonably you will not find punitive damages for the plaintiffs. [But if you are satisfied that the engineer of this freight train, either of his own motion or under orders, was guilty of conduct indicating a total disregard for the safety of passengers of train forty-three, then you would be warranted, and, in the opinion of the court, you ought to impose punitive damages on this defendant, because, in that case, you would have found that he willfully, with recklessness, left a heavy train ready to charge down on a passenger train, and likely to do so, and all of that without any necessity or excuse whatever — if you find the facts I have suggested to you.] [4]
    Yerdict and judgment for plaintiffs in the sum of $5,000 punitive damages, and in the sum of $1,540 compensatory damages. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      John J. Pinlcerton, with him J. Franh F. Pause, for appellant.
    The right to recover damages for any injury causing death was given to the parents of the deceased by the Act of April 26, 1855, P. L. 309.
    Under that act, nothing can be recovered, beyond the pecuniary loss suffered by the parents, without any solatium for pain to the deceased, or anguish to the survivor, or for exemplary damages: Pennsylvania R. R. Co. v. Kelly, 31 Pa. 372; Pennsylvania R. R. Co. v. Zebe, 33 Pa. 318; Pennsylvania R. R. Co. v. Henderson, 51 Pa. 315; Caldwell v. Brown, 53 Pa. 453; Pennsylvania Railroad Co. v. Vandever, 36 Pa. 298; Pennsylvania Co. v. James, 81 * Pa. 194; Esher v. Mineral Railroad & Mining Co., 28 Pa. Superior Ct. 393; Hoon v. Traction Co., 204 Pa. 269.
    The Act of April 4, 1868, P. L. 58, provides that in such an action as the present, “ only such compensation for loss and damage shall be recovered as the evidence shall clearly prove to have been pecuniarly suffered or sustained,” and, in construing it, this court has distinctly said, on more than two occasions, that in actions resulting in death, exemplary damages cannot be recovered: Pennsylvania R. R. Co. v. Keller, 67 Pa. 300 ; Cleveland & Pittsburg R. R. Co. v. Rowan, 66 Pa. 393; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185.
    There is not a syllable of testimony, in this case, going to establish the fact that the engineer of the defendant’s freight train was guilty of wantonness or willful misconduct, or that the injury complained of was inflicted maliciously. Nor does the testimony show that he was guilty of recklessness of a criminal nature, or of an intentional indifference to the rights of others: Milwaukee & St. Paul Ry. Co. v. Arms, 91 U. S. 489; Philadelphia, etc., R. R. Co. v. Quigley, 62 U. S. 202; Cleghorn v. N. Y. Cent., etc., R. R. Co., 56 N. Y. 44; Pennsylvania R. R. Co. v. Books, 57 Pa. 339; Phila. Traction Co. v. Orbann, 119 Pa. 37; Keil v. Chartiers Valley Gas Co., 131 Pa. 466; McNeil & Bro. Co. v. Crucible Steel Co., 207 Pa. 493.
    A. M. Holding, with him John J. Gheen, for appellees.—
    The liability of railway and other corporations to exemplary damages for gross negligence is well settled: Railway Co. v. Rosenzweig, 113 Pa. 519; Phila. Traction Co. v. Orbann, 119 Pa. 37; Railway Co. v. Lyon, 123 Pa. 140; Artherholt v. Motor Co., 27 Pa. Superior Ct. 141; Railroad Co. v. Bowers, 124 Pa. 183.
    Exemplary damages may be recovered in Pennsylvania for injuries resulting in death: Pennsylvania R. R. Co. v. Henderson, 51 Pa. 315; Pittsburg, etc., Ry. Co. v. Lyon, 123 Pa. 140; Birch v. Ry. Co., 165 Pa. 339; Penna. R. R. Co. v. Zebe, 33 Pa. 318; R. R. Co. v. Ogier, 35 Pa. 60; R. R. Co. v. Rowan, 66 Pa. 393; R. R. Co. v. Keller, 67 Pa. 300; Penna. R. R. Co. v. Bowers, 124 Pa. 183; Ry. Co. v. Rosenzweig, 113 Pa. 519; Phila. Traction Co. v. Orbann, 119 Pa. 37; Artherholt y. Motor Co., 27 Pa. Superior Ct. 141.
    May 6, 1907:
   Opinion by

Mr. Justice Elkin,

Two questions are raised by this appeal. First, was there sufficient evidence to submit to the jury to find that the act complained of had been committed under circumstances of violence, oppression, outrage or wanton recklessness, upon which to warrant a verdict for exemplary damages; and, second, whether exemplary damages can be recovered in this or any other case for injuries resulting in death when the action is brought by surviving parents? We will discuss the last question first.

While the general rule in negligence cases is that only compensatory damages can be allowed, yet it has been frequently held that juries may go further and allow exemplary damages where the injuries complained of were the result of such a reckless indifference to the rights of others as to be equivalent to a violation of them. In such cases the evidence must show such willful misconduct or entire want of care as to raise a presumption of conscious indifference to consequences : Railway Company v. Rosenzweig, 113 Pa. 519; Philadelphia Traction Company v. Orbann, 119 Pa. 37. It has also been held that where the negligence has been committed willfully, maliciously or so negligently as to indicate a wanton disregard of the rights of others, the jury are not restricted to compensatory damages only: Railway Company v. Lyon, 123 Pa. 140; Artherholt v. Motor Company, 27 Pa. Superior Ct. 141. It must be observed, however, that in all of the cases in which the right to recover exemplary damages has been sustained the action was for damages resulting from personal injuries, and the suit was instituted by the person receiving the injuries, or, in case of a minor, by the parent. The rule in such cases in our state is predicated on the theory that when injuries are inflicted willfully, maliciously, wantonly, oppressively or recklessly, the party inflicting such injuries is liable for exemplary damages to the party receiving them in the nature of a punishment for the willful and malicious acts.

It is perfectly clear that prior to the act of 1855 parents had no right of action in a case like the one at bar. There is no common-law right of action in such a case, and the right to recover here depends solely on that act. There is nothing in the provisions of that act which expressly gives the right to recover exemplary damages, and, although in force for more than half a century, there is no reported case in which exemplary damages have been allowed parents for injuries resulting in the death of a child. It may be, as argued by the learned counsel for appellees, that the exact question has not been raised and decided in our cases, but, it must be conceded, that the whole trend of judicial interpretation bearing on this question has been to indicate that only damages of a compensatory character can be recovered in cases where the injuries resulted in death and the suit was instituted by surviving parents or other parties having the right to institute the action under the act of 1855.

One of the earliest cases in which this question was discussed is Railroad Company v. Kelly, 31 Pa. 372. This case did not turn on the question of exemplary damages, but was reversed because in affirming the seventh point the trial judge instructed the jury that there is no definite measure or standard of damages. Then, again, in that case the action was by the father to recover damages for the maiming of his minor son, whose injuries did not result in death. In that case, however, it was held that the father was only entitled to compensation for the pecuniary loss he sustained.

The next case decided was Railroad Company v. Zebe, 33 Pa. 318, wherein it was held that under the act of 1855 the damages to be recovered by surviving relatives for an injury resulting in death are confined to such as are capable of pecuniary estimate. Nothing is to be allowed for the mental suffering of the survivors or the corporal sufferings of the injured party. In that case, Mr. Justice Thompson, who delivered the opinion of the court, in discussing the proper measure of damages allowable to parents for injuries resulting in the death of a child, said : “ This is the only pecuniary damage done to them, and this the law allows them to recover if entitled on the facts to recover at all. This excludes damages for the suffering to the deceased, which was personal to himself, and did not survive, as well as for solace, which, are incapable of appreciation so as to be compensated.”

In Railroad Company v. Vendever, 36 Pa. 298, a widow brought an action against a railroad company for injuries resulting in the death of her husband, and it was held that the measure of damages in Pennsylvania was confined to pecuniary loss, and did not include solatium for wounded feelings or vindictive damages.

In Railroad Company v. Henderson, 51 Pa. 315, it was decided that the right of action which a wife has for the death of her husband caused by negligence is different from that which would have accrued to him had he survived the injury, and excludes all questions of exemplary damages, the damages being simply compensatory for the loss sustained by the surviving family.

Clearly, therefore, the damages to be recovered by surviving parents, as in the present case, must be measured by this rule, because both rights accrue under the same act. Our attention has not been called to any case in. which the doctrine therein laid down has been overruled, and if that case is to be regarded as authority it would seem to be conclusive of the question raised by this appeal.

Caldwell v. Brown, 53 Pa. 453, held that in an action by parents for the death of a minor child they can recover only the pecuniary value of his services during minority, and cannot be allowed damages for the agonized feelings of parents nor the loss of the society of the child.

It will be observed that in all of these cases the rule of compensatory damages was adhered to when the action was brought under the Act of April 26, 1855, P. L. 300, for injuries resulting in death. These decisions were rendered prior to the passage of the Act of April 4, 1868, P. L. 58, which limited the amount to be recovered by providing that, “ only such compensation for loss and damages shall be recovered as the evidence shall clearly prove to have been pecuniarily suffered or sustained, not exceeding in the case of personal injuries the sum of three thousand dollars, nor in the case of loss of life the sum of five thousand dollars.”

In Railroad Company v. Rowan, 66 Pa. 393, decided in 1870, it was again held that exemplary damages could not be recovered in an action by a parent for the death of a child. In the discussion of the principle involved, the learned chief justice who wrote the opinion in that case pointed out that prior to the act of 1868 the weight of authority, as shown by the reasoning of all the cases, adhered to this rule, although the dicta in some instances might indicate a different view. It is perfectly clear the court, even at that time, considered the rule settled that exemplary damages could not be recovered for injuries resulting in death, and that it had been recognized and followed before the act of 1868.

In Railroad Company v. Keller, 67 Pa. 300 (1871), it was said that the act of 1868 was declaratory of the rule previously established, that is to say, only compensatory damages can.be recovered by the parties authorized to institute suit under the act of 1855, for injuries resulting in death.

In Mansfield Coal and Coke Company v. McEnery, 91 Pa. 185 (1879), the same rule was again asserted. Mr. Justice Paxson, in discussing the question, said: “ It was early held that in such an action exemplary damages could not be recovered, but that they must be compensatory only.”

It is contended for appellees that the act of 1868 is unconstitutional, and Penna. Railroad Company v. Bowers, 121 Pa. 183, is cited in support of this contention. It is true this court held in that case that section two of the act of 1868, limiting the liability of railroad companies and common carriers for personal injuries, was avoided by section 21, article III of the constitution of 1871. A careful examination of that case shows that the portion of the act of 1868 which was obnoxious to the constitutional mandate was that which limited the amount to be recovered for personal injuries to $3,000, and for death $5,000. The language of the act of 1868, restricting damages to such loss as may have been pecuniarily suffered, was not commented upon nor considered in the decision of that case, nor do we consider the determination of that question vital in the disposition of the present case. For even if it should be finally determined, which it has not been, that the act of 1868 was avoided in all of its parts by the constitution of 1871, there would be no reason for disturbing the rule which prior to that time had been so well established, and it would remain in force just as it was before the act became a law. It is true that some of our oases decided after the passage of the act of 1868 referred to the statutory rule therein contained as a denial of the right to recover exemplary damages, but in no case was this question expressly raised and decided. Even in the cases referred to, the opinions clearly indicate that the rule established by the courts prior to the act of 1868 was that exemplary damages could not be recovered for injuries resulting in death. It must be conceded that there is confusion in the cases on the question of exemplary damages. This results from the dicta in some of the cases rather than from the questions actually decided. In not a single case, however, has it ever been decided that exemplary damages could be recovered by the surviving parties for injuries resulting in death. We believe this to be the correct rule, supported by reason and authority, and so hold in this case.

This view of the law disposes of the present case, and makes it unnecessary to discuss at length the other question raised by this appeal. However, after a careful examination of the testimony produced at the trial it does not appear that the injuries to the minor son, resulting in death, were occasioned by any such violent, or oppressive, or wanton, or reckless act on the part of the employees of the appellant company as to make it liable for exemplary damages, even if, under the law, appellees were entitled to recover such damages.

The jury under the instructions of the learned trial judge,, having returned a verdict fixing the exact amount of compensatory damages found, and also the amount of punitive damages allowed, judgment having been entered for the whole amount, and this appeal only raising the question of the right to recover punitive damages, the assignments of error relating thereto are sustained, and the record is remitted to the court below with instructions to enter final judgment in accordance with this opinion.

Judgment reversed.


author: Mr. Justice Stewart,

text:
    Brehony v. Pottsville Union Traction Company, Appellant.

      Negligence — Street railways — Passenger—Intoxicated passenger.

    In an action by a woman passenger against a street railway company to recover damages for personal injuries sustained as the result of a kick of an intoxicated passenger, where the only negligence alleged was the action of the conductor in admitting into the car the man who inflicted the injuries, when visibly intoxicated, it is reversible error to submit the ease to the jury where the evidence shows that there was nothing in the appearance or the conduct of the man as he entered the car to attract attention, or excite suspicion, and that he did not become violent until an altercation arose between him and the conductor as to the fare.
    Argued Feb. 18, 1907.
    Appeal, No. 344, Jan. T., 1906, by defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1904, No. 74, on verdict for plaintiffs in case of William Brehony and Delia Brehony, his wife, v. Pottsville Union Traction Company.
    Before Mitchell, C. J., Pell, Brown, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Bechtel, P. J.
    The opinion of the Supreme Court states the case.
    Yerdict for Delia Brehony for $1,800 and for William Brehony for $400. Defendant appealed.

      Error assigned among others was in submitting the case to the jury.

      B. H. Koch, for appellant.
    An intoxicated person has as much right in a passenger car as a sober one, so long as he properly conducts himself: Sullivan v. Jefferson Arc. Railway Co., 133 Mo. 1 (34 S. W. Repr. 556); Spohn v. Missouri Pacific Ry. Co., 87 Mo. 74; Thompson v. Manhattan Ry. Co., 27 N. Y. Supp. 608; Meier v. Penna. R. R. Co., 64 Pa. 225.

      George M. Boads, with him M. A. Killcer, for appellees.—
    The defendant owed the plaintiff the duty of protection: Pitts-burg & Connellsville R. R. Co. v. Pillow, 76 Pa. 510; Rommel v. Schambacher, 120 Pa. 579; Duggan v. B. & O. R. R. Co., 159 Pa. 248; Artherholt v. Erie Electric Motor Co., 27 Pa. Superior Ct. 141.
    May 6, 1907 :
   Opinion by

Mr. Justice Stewart,

A passenger, more or less under the influence of drink, who had refused to pay his fare when demanded, and thereupon became disorderly in resisting the conductor who was attempting to eject him, gave a violent kick directed at the conductor but which struck the plaintiff, Mrs. Brehony, a married woman occupying a seat opposite in the car, and seriously injured her. The action was brought by the injured woman and her husband, William Brehony, against the traction company to recover damages for the injuries sustained, on the ground that the company unlawfully and negligently permitted the person who inflicted the injury to get on the car and ride therein while visibly intoxicated. This is the only negligence charged in the statement filed. We must assume, therefore, that in ejecting the unruly passenger, the conductor was strictly in the line of his duty, and that he used no greater violence and created no greater disturbance than the circumstances made necessary. We have the single question presented — whether it was negligence in the conductor to admit to the car the passenger who afterwards inflicted the injury. The averment in the statement of cause of action is, that this person was visibly and plainly intoxicated. The evidence supported the averment. Several of the witnesses say he was drunk; others say he was visibly intoxicated, and others that they thought he was somewhat intoxicated, but not to a serious degree. All spoke from what they saw of his behavior after he was on the car, and all but one or two derived their opinion from his behavior while in altercation with the conductor. None spoke of his conduct while approaching the car or entering it, and all say that while seated, and up until the altercation arose, he was conducting himself properly, giving no offense to any. It is impossible from the evidence to determine the decree of the man’s intoxication. We have simply the case of a man intoxicated by liquor. As that expression is commonly used, it indicates nothing as to the degree; it may mean much, or may mean very little. One thing is clear, the man was not so intoxicated as to require help. He entered the car unaided, and in a way that attracted no attention and excited no comment. The same is true of his conduct in the car until the controversy began. One of plaintiffs’ witnesses says that she saw him running to the crossing in order to take the car. The case was submitted to the jury in a charge which did not with sufficient clearness confine the inquiry to the point really in issue ; and, in view of the great latitude allowed them, it is impossible to know certainly what the jury found with respect to the intoxication, if anything. In the view we take of the case, it is not material that we should know. The case did not call for a submission. It is the duty of a conductor to exercise a watchful care for the safety of his passengers; and this duty may require him under certain conditions to refuse to admit into his car a person applying. The measure of care he is bound to exercise in doing so, we are not now called upon to consider. If one applying for admission bears upon his person signs convincing to the ordinary mind that he is afflicted with a dangerous and contagious malady, it is manifestly the duty of the conductor to exclude him. If one evidently a maniac applies, the duty to reject is quite as manifest. If it be said these are extreme cases, the answer is that only in extreme and exceptional cases does the duty arise. In the cases we have mentioned, common prudence should inform the conductor that the admission of either would be attended with danger to the other passengers, and it would be negligence in him to allow it. But such danger cannot be affirmed of admitting a person who is simply intoxicated. Intoxication is not infectious ; nor does it so ordinarily express itself in violence, that disturbance of the peace of the car is to be reasonably apprehended when an intoxicated person is admitted. There may be, and doubtless are, exceptional cases where the intoxication is so gross, the conditions resulting therefrom so offensive, the conduct of the individual so unbecoming and violent, as to justify, and indeed require, his exclusion. If this was the condition of the offending passenger here, so obvious that the conductor should have observed it, such facts should have been made to appear as part of the plaintiffs’ case. It was essential to a recovery. The case went to the jury to determine the question of the conductor’s negligence from the- testimony of witnesses, none of whom saw anything in the appearance or conduct of the man as he entered the car to attract attention or excite suspicion. These witnesses agree in saying that he subsequently gave unmistakable evidence of being intoxicated ; but their evidence is in entire accord that up to the time the altercation with the conductor arose, he was conducting himself peaceably and inoffensively. That the jury rendered a verdict for the plaintiffs can only be explained on the theory that under the latitude allowed by the court in the charge they rested the conductor’s negligence upon something not charged, and, therefore, outside the case. The only question was whether it was negligence to admit this passenger. Defendant’s ninth point was : Under all the evidence in the case the verdict of the jury must be for the defendant.” Its refusal is made the subject of the fifth assignment of error. This assignment is sustained.

Judgment reversed.


text:
    Kolb, Appellant, v. Tamaqua Borough.

      Boroughs — Ordinance — Resolution — Contract — Equity — Municipalities.

    On a taxpayers’ bill to set aside a borough contract as illegal because the resolution awarding the contract had not been submitted to the chief burgess, the burden is upon the complainants to show that there was no valid ordinance authorizing the contract, and if they fail to show this the bill will be dismissed.
    If the resolution awarding the contract was in pursuance of an ordinance regularly adopted, it did not require any action .on the part of the chief burgess to make it valid.
    An enactment by council, no matter what it is called in the minutes and elsewhere, whether ordinance, resolution or motion, which provides for the permanent regulation by the government of the borough, or the creation of liability by contract, and which is approved by the chief burgess and otherwise regular, is legislative.
    Argued Feb. 19, 1907.
    Appeal, No. 381, Jan. T., 1906, by plaintiffs, from decree of C, P. Schuylkill Co., Jan. T., 1906, No. 2, dismissing bill in equity in case of George Kolb and William Williams v. Burgess and Town Council of the Borough of Tamaqua et al.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity to declare invalid a borough contract, and for an injunction.
    Bechtel, P. J., filed the following opinion:
    •In substance the bill charged that the council, by resolution of December 6, 1904, instructed the president and secretary to advertise for proposals for street lighting, and that said resolution was not signed by the chief burgess of the borough. That proposals were invited, and council accepted the bid of Shepp and McGinty at $60.00 for open arc lights, by resolution, and by resolution ordered a contract to be drawn, and that these resolutions were never presented to the chief burgess for his approval. That by resolution the president and secretary were instructed to execute a contract with Shepp and McGinty, that said contract, but not the resolution directing the execution, was presented to the burgess for approval. That at the same meeting, January 3, 1905, an ordinance was adopted which was approved by the burgess, giving said parties power to erect poles and appliances necessary to furnish electricity. That on July 4, Shepp and McGinty reported that the Edison company was agent in Tamaqua for the open arc light and it was impossible for them to furnish them; the council, by resolution, agreed to accept inclosed arc lights at a reduction of $1.00 a lamp. That said resolution was not signed by the burgess or submitted to him. That by special meeting of council it approved of the bond of the contractors and of the contract, and said resolution was not presented to the burgess for approval. That the burgess returned the contract and bond on July 11, 1905, stating it was no part of his duty to approve thereof. That the contract is not legal, not being signed by the burgess. That the contract is an improvident one, being for ten years. That a corrupt arrangement or agreement existed to obtain the vote of one of the councilmen in favor of said contract.
    The answer covered the charges of the bill, it denied the passages of the resolutions mentioned above, and asserted they were mere motions and mere ministerial acts, and needed no approval of the burgess, that an ordinance and contract were regularly passed and approved and advertised and recorded and denied all allegations of fraud or corrupt arrangements or agreement with anyone or anybody.
    The court entered a decree dismissing the bill.

      Error assigned was decree dismissing the bill.

      B. II. Koch and Cyrus Q. Derr, with them F. P. Krebs and F. O. Farquhar, for appellants,
    cited: Jones v. Schuylkill Light, Heat & Power Co., 202 Pa. 164; Seitzinger v. Electric Illuminating Co., 187 Pa. 539; Lansdowne v. Citizens’ Elec. Light & Power Co., 206 Pa. 188.

      J. O. Ulrich, with him A. W. Schalclc, for appellees,
    cited: Com. v. Diamond Nat. Bank, 9 Pa. Superior Ct. 118.
    May 6, 1907:
   Opinion by

Mr. Justice Stewart,

Since nothing appears in the evidence to the contrary, we must assume that the action of the borough council in accepting the bid for lighting the public streets, awarding the contract for the same, and directing its execution, was preceded and based upon an ordinance regularly adopted establishing a permanent system of public lighting. The bill contains no averment that such ordinance had not been adopted; nor is there any admission in the answer, even impliedly, of an omission in this regard, except that the defense set up is reliance upon the regularity and sufficiency of the resolutions attacked. Judicial action should rest on facts definitely ascertained. The learned judge in dismissing the bill in the court below said: “ Even if objection is made that the resolution accepting the bid was invalid because there was no ordinance authorizing the contract, the burden is upon the person making the objection to prove the nonexistence of the ordinance.” The answer made by appellants to this, as we find it in their brief of argument, is: “ This we consider to be good law, but not applicable to this case, in which there was no allegation that the contract was invalid, because there was no ordinance authorizing its execution, the allegation being that it was attempted to justify a contract based upon legislative resolution, which had not been presented to or acted upon by the chief burgess.” Here we have a direct admission that failure to enact an authorizing ordinance was not a fact established in the case. The law as stated by the learned judge being admittedly correct, it only remains to inquire as to its applicability. This is denied by the appellants, for the reason that the attempt on part of the defendants was “ to justify the contract based upon a legislative resolution which had not been acted upon by the chief burgess.” But this shows a clear misconception óf the burden resting upon the respective parties to the litigation. It was not for the borough authorities to justify their contract, until something had been shown by the other side which would have warranted the court in holding the resolution invalid. The resolution adopted is spoken of as a legislative resolution; but what difference can it make whether the resolution awarding the contract be denominated legislative or ministerial or executive ? Its real character is to be determined by what it was intended to accomplish, and not by what it is called. If in point of fact it was preceded by an ordinance or resolution regularly enacted authorizing the awarding of a contract, such earlier ordinance or resolution was legislative in character, and what followed was ministerial or executive. That the Act of May 23, 1893, P. L. 113, requiring every ordinance and resolution passed by council to be presented to the chief burgess for approval, does not apply to the latter, has been clearly decided: Jones v. Light, Heat & Power Co., 202 Pa. 161; Lansdowne v. Citizens’ Elec. & Power Co., 206 Pa. 188. "Whether the resolution the sufficiency of which is here questioned was legislative or ministerial, depends upon what preceded. Without attempting to decide anything but what is before us, this much is clear, that if the resolution awarding the contract was in pursuance of an ordinance regularly adopted, it did not require any action on the part of the chief burgess to make it valid. If there was no such earlier ordinance, it -was the business of the plaintiff in the proceeding to establish its nonexistence : Lansdowne v. Citizens’ Elec. Light & Power Co., 206 Pa. 188. Counsel for appellants in their argument have misapprehended the ruling of the case last cited, and the case of Seitzinger v. Electric Illuminating Co., 187 Pa. 539, as well. In their brief of argument submitted this occurs: “ The Landsdowne case and the Seitzinger case are identical in this, that in both the allegation was made (that is, the contention before the court was) that a borough contract for street lighting could not be valid unless there was an ordinance authorizing it. The Supreme Court in both cases answer: That a resolution presented to or acted upon by the chief burgess was sufficient and that no ordinance was required.” All that we have said is strictly in line with the doctrine of these two cases. While it is true that both held that a resolution awarding a contract, presented to and acted upon by the chief burgess is sufficient, there is nothing in either to warrant the inference that no ordinance is required. The misapprehension in this particular results from failure to observe the true distinction between legislative and executive ordinances and resolutions. An enactment by council, no matter what it is called in the minutes or elsewhere, whether ordinance, resolution or motion, which provides for the permanent regulation by the government of the borough, or the creation of liability by contract, and which is approved by the chief burgess and otherwise regular, is legislative. The cases referred to both so declare; and to these we may add Jones v. Light, Heat & Power Co., 202 Pa. 164. They do not hold that an ordinance is not required; but they do hold that such an enactment as Ave have described is an ordinance, hoAvever it may be otherwise designated. Resolution and ordinance are convertible terms when alike in their scope, and formalities observed. This is the plain meaning of both cases. It might be urged that upon their facts they warrant the conclusion that separate enactments, one authorizing the creation of liability by contract, and a later one directing the aAvard and the execution of the contract, are not necessarily required, but that the ministerial or executive may be combined with the legislative, and one enactment suffice; but neither expressly nor by inference do they assert that an ordinance, understanding by that legislative action, is not required.

The appeal is dismissed.