source: Caselaw Access Project

author: Black, C. J.

license: Public Domain

text:
    Moers, &c., versus The City of Reading.
    1. An Act of the legislature authorizing a city corporation to subscribe to the stock of a railroad company is constitutional.
    2. Article 1, section 25, of the constitution of 1838, viz., provides that “ no corporate body shall be hereafter created, renewed, or extended, with banking or discounting privileges, without six months previous public notice of the intended application for the same in such manner as shall be prescribed by law,” &c. “No law hereafter enacted shall create, renew or extend the charter of more than one corporation:”
    Whether these provisions are applicable to other private corporations than banks not decided — but it was Held, that the same is not applicable to public political corporations, and therefore does not apply to an Act which increased the stock of the Lebanon Yalley Railroad Company, authorized its officers to borrow money to construct a branch railroad, and also authorized the corporate authorities of the city of Reading, the county of Lebanon, and the borough of Lebanon to subscribe to the stock of the said, company.
    3. The constitution, like other instruments, is entitled to a construction as nearly as may be in accordance with the intent of its makers.
    4. Increasing the privileges of municipal corporations, or assigning to them new duties, is not an extension of their charters within the meaning of the constitution.
    5. The uniform construction given to a provision of the constitution by the legislature, with the silent acquiescence of the people, including the legal profession and the judiciary, and the injurious results which would ensue from a contrary interpretation, are proper elements of a legal judgment on the subject.

      • 6. The Act of Assembly of 5th April, 1853, provided that in case the “corporate,: authorities of the city of Beading shall propose to subscribe to the stock of the Lebanon Valley Bailroad Company, it shall be their duty to fix upon a time for holding the election hereby authorized,” giving public notice as provided, the notice to state the number of shares proposed to be subscribed; and the qualified voters shall vote, &c., .and if at such election a majority of the votes polled are in favor of the subscription aforesaid, then and in that case the same shall be made; but if the majority of the votes polled shall be against the subscription, then the same shall not be madeHeld, that this was an exertion of legislative power, and not a mere delegation of it to the citizens of Beading.
    7. Besides, the legislature in the Act incorporating the city of Beading had the right to prescribe how its municipal affairs should be administered; and though they provided that it should be done by select and common councils, they had the right, by a subsequent Act, to alter the charter by diminishing the power of the councils and increasing that of the people; and this is the effect of the legislation in question.
    8. It was not the duty of the select and common councils of the city of Beading to meet separately and deliberate upon and decide the question of such subscription, before ordering an election.
    This was a bill in equity presented and filed in the Supreme Court at Harrisburg, in June, 1853, at the instance of John F. Moers, Lewis Briner, and others, who were represented to be owners of real and personal estate within the limits of the city of Reading, in the county of Berks, Pennsylvania, and tax-payers and citizens of said city, acting on behalf of themselves, and all other citizens and tax-payers of said city who shall come in and contribute to the expenses of the suit, against the Mayor, Alder-men, and Citizens of Reading; Isaac Eckert and other citizens of Reading; and the Lebanon Valley Railroad Company.
    Complaint was made against a subscription proposed to be made on the part of the city of Reading to the stock of the Lebanon Valley Railroad Company. The subscription was proposed to be made under the authority of an Act of Assembly of 5th April, 1853, which was a supplement to an Act to incorporate the Lebanon Valley Railroad Company, which was approved on 1st April, 1836.
    The jfirst section of the Act of 5th April, 1853, provides, “ That the capital stock of the Lebanon Valley Railroad Company be increased to thirty thousand shares of the par value of fifty dollars” —and authorizes the directors to borrow money not exceeding one million of dollars, and to issue bonds therefor, secured by mortgage upon the road.
    In the second section it was provided, “ That it shall be lawful for the corporate authorities of the city of Reading, the county of Lebanon, and the borough of Lebanon, to subscribe for shares in the capital stock of the Lebanon Valley Railroad Company, not exceeding' six thousand shares for the city of Reading, and four thousand for the county of Lebanon, and two thousand shares for the borough of Lebanon; to borrow money to pay therefor, and to make provision for the payment of the principal and interest of the money so borrowed; the certificates of loan or bonds which may be issued by the said corporation bearing an interest of six per cent, per annum, payable half-yearly, may be received as cash by the said Lebanon Valley Railroad Company in payment of any part or the whole amount of the shares subscribed by the corporation issuing said certificates or bonds.”
    By the third section of the same Act of Assembly it was further enacted, “ That in case the constituted or corporate authorities of the city of Reading, the county of Lebanon, or the borough of Lebanon, shall propose to subscribe to the capital stock of the Lebanon Valley Railroad Company, as aforesaid, it shall be their duty to fix upon a time for holding the election hereby authorized, giving at least four weeks’ public notice thereof, in two or more newspapers published in the limits of the district in which it is proposed to make such subscription, which notice shall also state the number of shares proposed to be subscribed; and the qualified voters at such election shall vote a written or printed ticket, containing the words, ‘For the subscription,’ or ‘Against the subscription,’ and if upon counting the votes it shall appear that a majority of the votes polled are in favor of the subscription aforesaid, then and in that case the same shall be made, and shall be valid and binding upon the proper district; but if the majority of the votes polled shall be against the subscription, then the same shall not be made.’’’
    By the ninth and last section it was provided, That it shall be lawful for the said Lebanon Valley Railroad Company to construct and use a branch railroad from the borough of Lebanon to a point at or near Cornwall in the county of Lebanon.
    In the bill it was, inter alia, represented, That by an Act of Assembly passed the 16th day of March, 1847, entitled “An Act to incorporate the borough of Reading, Berks county, into a city,” it was enacted “That the-inhabitants of the borough of Reading, in the county of Berks, as the same extends and is now incorporated, are hereby constituted a corporation and body politic, by the name and style of ‘ The Mayor, Aldermen, and Citizens of Reading,” &c.
    By the sixth section of the said Act it was provided, That the freemen of the city of Reading should meet in their several wards and elect by ballot for their several wards so many persons as the said wards severally might be entitled to, to be members of the common council for the said city, and also one person of eaoh ward to be a member of the select council for the said city.
    And by the tenth section of the same Act it was enacted, That the said select and common councils, in common council assem bled, shall have power to borrow, for the use of the said city, any sum or sums of money which they shall deem necessary, and to issue certificates of loan for the amount so borrowed, to the persons respectively lending the same; and the said certificates, signed by the Mayor of the said city, and attested by the presidents of the select and common councils, shall be binding and obligatory on the said corporation: Provided, That the sums of money so borrowed shall not in the whole, including the sums heretofore borrowed for the use of the borough of Reading, for the re-payment of which the faith of the said borough is now pledged, exceed the sum of seventy thousand dollars; and the said councils, in common council assembled, shall have power to lay and collect taxes within the limits of the said city, for the purpose of carrying into effect the by-laws, rules, and ordinances of the said city, and for the re-payment of all loans with the interest thereon, heretofore made for the use of the borough of Reading, for the re-payment of which the faith of the said borough is now pledged; and for the re-payment of all loans, with the interest thereon, hereafter to be made for the use of the said city, for the re-payment of which the faith of the said city shall hereafter be pledged: Provided, That the assessment of such taxes upon real or personal property, shall be made upon the valuation of property taken for the purposes of county rates and levies: And provided, That the taxes levied any one year shall not exceed one per cent, upon such valuation,” &c.
    Also, that on the 10th day of May, 1853, the select and common councils of the city of Reading, at a joint session of said councils, passed the following resolution :

      Resolved, That an election to decide for or against a municipal subscription of two hundred thousand dollars, or four thousand shares, in the stock of the Lebanon Valley Railroad Company, be held in the city of Reading on Wednesday, June 15, 1853, as directed by the Act of Assembly, and that notice of the same be given by the clerk in one English and one German paper, published in the city of Reading on Tuesday next.
    It further appeared that an election was held on the 15th June, 1853, and resulted in 1658 votes for the subscription, and 682 against it. In the bill the belief was averred that the corporate authorities intended to subscribe for 4000 shares of the said stock, and to borrow money and issue certificates of loan or bonds therefor. It was averred that the Act of April 5,1853, was unconstitutional, inasmuch as it delegates to the people of Reading the power to bind the city for the payment of fifty dollars for each share of stock subscribed not exceeding 6000 shares. It was further represented that the Act of 5th April, 1853, contemplated that the corporate authorities of the city of Reading should assume the responsibility of proposing to subscribe to ■ the stock of the said company; but that they had made no proposition on the subject, though the select and common councils at a joint meeting passed the resolution of the 10th May, cited. It was averred that the select and common councils were not authorized by the Act of incorporation to assemble in jdint meeting for any other purpose than those mentioned in that Act, to wit, for the purpose of organization, on the Eriday next after any election of select and common councilmen, agreeably to the seventh section of the Act of incorporation; and also for electing city officers other than Mayor and City Treasurer, agreeably to the 11th section of the said Act. It was requested that answers be made to interrogatories proposed as to the subjects complained of and matters connected with the complaint. It was alleged that the subscription for 4000 shares of the said stock at $50 per share, amounting to $200,000, would be injurious to the credit of the city, unjust and oppressive to the complainants and others, and be without authority of law.
    It was asked, that the corporate authorities of the city be enjoined and ordered not to subscribe to the said stock, &o.: and the Lebanon Yalley Railroad Company be enjoined not to receive or dispose of any certificates of loan or bonds that may be issued by the corporate authorities of the city, and to grant¿a writ of subpoena to the parties complained against to appear and answer, &c.
    The bill was subsequently amended in the following particulars: That by the Act of Assembly of April 5,1853, referred to in said bill, and made part thereof, the capital stock of said Lebanon Yalley Railroad Company is increased from fifteen thousand shares to thirty thousand shares, at the par value of fifty dollars per share: That the said company are, by the same Act, authorized to borrow as much as one million of dollars for the completion and equipment of said road, and to issue therefor the bonds of the said company, secured by mortgage upon the said road:
    That twenty-three new commissioners are appointed in said act, and that said company are authorized to construct and use a branch railroad from the borough of Lebanon to a point at or near Cornwall in the county of Lebanon :
    That the same Act of April 5, 1853, extends the charter of the city of Reading by authorizing the corporate authorities thereof, in the event of a majority of votes being polled at an election thereby authorized, in favor of subscription, to subscribe for shares in the capital stock of said railroad company, not exceeding six thousand shares, which at $50 per share amounts to three hundred thousand, dollars ; to borrow money to pay therefor and to issue certificates of loan or bonds therefor, as already mentioned in complainants’ bill: Whereas by the charter of said city of Reading the corporate authorities, to wit, the councils of said city, are authorized to borrow money and issue their certificates therefor, to an amount not exceeding seventy thousand dollars. That by the same Act of April 5, 1853, the said city of Reading, if the corporate authorities thereof should subscribe 4000 shares of stock, would be authorized to elect one director of said company; and any two or more corporations, which should together hold 4000 shares of stock in said company, may unite and elect one director thereof, which director should be in addition to the number authorized by the Act of April 1, 1836, to which said Act of April 5, 1853, is a supplement:
    That the aforesaid extension by the said Act of April 5, 1853, of the charters’ of the said Lebanon Valley Railroad Company and of the city of Reading hereinbefore mentioned, are in direct violation of the 25th section of article first of the amended constitution of Pennsylvania of 1837-1838, which provides that “No law thereafter enacted shall create, renew, or extend the charter of more than one corporation,” and for these reasons, as well as those already mentioned in complainants’ bill, the said Act of April 5, 1853, is unconstitutional, inoperative, and void; besides, the legislature had no power to create a debt, and to make it a lien on the property of the citizens of Reading, without the consent of all the citizens, nor without such consent could they make the citizens of Reading corporators in a trading company : Especially could they not do so without providing compensation for losses which might be sustained thereby:
    That the said Lebanon Valley Railroad Company has been incorporated: That the existing debt of the city of Reading is $52,600, and was the same at the time of the filing of the bill aforesaid, to wit, June 16, 1853:
    That said complainants are all citizens and tax-payers of the city of Reading, and all, or nearly all of them, owners of real or personal estate in said city; and the taxable inhabitants of said city, June 16, 1853, were 3699, or thereabouts.
    Interrogatories were submitted: the 11th was as to the terms of the Act of 1853, as stated; 12th, whether the Lebanon Valley Railroad was incorporated; and 13th, as to the amount of the debt of the city of Reading on 16th June, 1853, and the number of taxables of the city at that time.
    In the answer of the respondents it was averred that by the 9th section of the Act of 16th March, 1847, to incorporate the city of Reading, it was enacted “ That the power of the said corporation of the said city shall be vested in the said select and common councils, who shall, in common councils assembled, have full power and authority to make, ordain, constitute, and establish such and so many laws, ordinances, regulations, and constitutions (provided the same shall not be repugnant to the laws and constitution of the United States, or of this Commonwealth) as shall be necessary or convenient for the government and welfare of the said city, and the same to enforce, put in use and execution by constables, watchmen, and other proper officers (whom they shall have power to appoint and remove at pleasure), and at their pleasure to revoke, alter, and make anew, as occasion may require, and shall have, hold, and enjoy, all the powers now vested in the borough of Reading, which are hereby transferred to, and vested in, the said councils.”

    And it was further averred that the powers there vested in the borough of Reading, were defined in part by the 6th section of the Act of Assembly of March 29, 1813, to which Act reference is craved as though set forth, which section is in these words: “ And be it further enacted by the authority aforesaid, That it shall be the duty of the said town council, (five of whom shall be a quorum), to hold quarterly meetings on the last Saturdays of April, July, October, and January, in each year, and oftener if necessary, at which meetings they shall revise, repeal, or amend, all such by-laws and ordinances as have heretofore been made in said borough, and enact such other by-laws, and make such rules, regulations, and ordinances, as shall be deemed by a majority of said council necessary to promote the peace, good order, benefit, and advantage of said borough,” particularly providing for the regulation of the markets, improving, repairing, cleansing, and keeping in order the streets, lanes, alleys, and highways, ascertaining the depth of vaults, &e., as in and by said Act will fully appear.
    By the 13th section it is provided, That the select and common council shall assemble in. common councils for the transaction of business, on the last Saturday of every month in the year, and oftener if occasion shall require.
    It was farther averred that the president and directors of the Lebanon Valley Railroad Company had agreed to pay six per cent, on municipal subscriptions, from the time of payment till the completion of the road. That a written application for a subscription was made to the corporate authorities of the city; and it was averred that on the 10th May, 1853, the select and common councils of the city proposed to make the subscription, and in joint session, by a vote of eleven in the affirmative, and three in the negative, passed the resolution relative to the holding an election for or against the subscription for 4000 shares of the stock of the railroad company.
    Also that the majority of 972 voters in favor of the subscription, was a majority of all the qualified voters of the city, both of those who voted and of those who did not vote; and that the complainants submitted to the holding of the election, and voted thereat.

      It was also averred that the terminus of the railroad was in the city, and that the road was designed to increase its business, and render access by the city easy to the country lying west of it.

      Davis, Banks, and Smith, for complainants.
    — Four questions were raised. The first was that the councils of the city of Reading should separately have acted upon the matter, before the vote of the people was taken. That separate consideration is required by the charter, in all cases, except when the councils organize and when they elect officers. It was said that the power of the select council was overcome in the joint session. The action of the councils being against the public interest, should be strictly construed: 3 Barn. & Ad. 739, Stourbridge Canal Company v. Wheedly and Others. Any ambiguity in the charter must operate in favor of the public: Id.; 4 Bingham 452; 11 Bast 685; 11 Peters 545; 1 Harris 555, Stormfeltz v. Manor Turnpike Company.
    2. Exclusive of the Act of 1853 in question, they had no power to bind the citizens of Reading: McDermond v. Kennedy, 6 Pa. Law Jour. 66.
    It was contended that the Act of 1853 was unconstitutional. Though subscriptions sufficient to authorize the charter of a turnpike company were not obtained, a subscriber to the stock cannot without his assent be attached to either of two companies into which the first company was divided by subsequent legislative enactment: 2 Pa. Rep. 184, Turnpike Company v. Phillips.
    Art. 5 of Amendments to the Don. U. S.: No person shall “ be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”
    Art. 9, Constitution of Pennsylvania, sec. 9: Nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land. Sec. Í0: Nor shall any man’s property be taken or applied to public use, without the consent of his representatives, and without just compensation being made.
    Art. 7, sec. 4: “ The legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owners of said property or give adequate security therefor, before such property shall be taken.”
    In the ease of Woodfolk v. Nashville C. R. R. Co., Am. Law Reg., July, 1853, p. 550, it was held that nothing but money was a constitutional compensation, not general benefits and advantages: 5 W. & Ser. 171, Norman v. Heist, the legislature cannot take the property of one individual and give it to another: 5 Barr 145, Bolton v. Johns; 1 Barr 223, Menges v. Wertman; 6 Barr 86, Brown v. Hummel; 9 Barr 108, Dale v. Medcalf; 4 Harris 256, Ervine’s Appeal; 1 Jones 489; 3 Harris 18, Chastellux v. Fairchild. Compensation for private property taken for public use, should be made: Vattel 112; Rutherford 48; Burlem. 150; Puff. 829; Grot. 333; 1 Bald. 205, 222-223; 12 Ser. & R. 375, Eakin v. Raub; 2 Kent 339, note; 2 John. Ch. 162. It was contended that the Court should restrain the defendants until security was given to the citizens of Reading against loss by reason of the subscription, &c.
    The legislature does not possess all the powers of the people, but only powers delegated to it by the people, and which are the powers necessary for the legislature of a free state: Rogers, J., in Pittsburgh v. Scott, 1 Barr 309. The road in question was not necessary. It may not come to Reading, but only “near Reading.” The case of Commonwealth v. McWilliams, 1 Jones 70, is not in point. It arose under the general law of 1834, as to taxation. Rut the city charter of Reading limits its indebtedness to $70,000, and the Act of 1853 greatly enlarges it. The case of Commonwealth v. McWilliams has not sufficient authority to support it.
    3. It was contended that the Act of 5th April, 1853, was unconstitutional, because, by the 3d section, the subscription is to depend on the vote of the people. This was said to be unfinished legislation,, or legislation by the people; 6 Barr 507, Parker v. Commonwealth; 8 Barr 391, Com’th. v. Judges. Voting for a subscription to the amount of $200,000 was an exercise of sovereignty. It affects the property of the citizen, and is legislation.
    4. The Act of 5th April, 1853, is in conflict with the provision of 25th section of the 1st article of the state constitution, viz. “No law hereafter enacted shall create, renew, or extend the charter of more than one corporation.” It was said that this provision was a general provision applying to all corporations, notwithstanding its connection with provisions regulating lank corporations. That its terms are general. The proceedings in the Convention were referred to, to support the argument that it was understood by the Convention to be a general provision applying to ail corporations. It was said that the constitutional provision was violated by the Act of 1853 in extending three charters if not four — viz. 1. The charter of the Lebanon Valley Railroad Company; 2. That of the city of Reading; 3. Of the borough of Lebanon ; 4. Of the county of Lebanon.
    It was in conclusion observed, in relation to the election, that though a majority of all the votes polled were in favor of the subscription, yet that the votes in favor of the subscription was not a majority of the whole number of voters of the city of Reading.

      Campbell and Strong, for defendants.
    Is the act constitutional ? This involves several questions.
    1. Can the legislature, without violating the constitution, anthorize a subscription by a municipal corporation to the stock of a railroad or turnpike Company? Authorities in support of such legislation were referred to, viz.: 8 Leigh 120; 9 B. Munroe 526; 15 Conn. 475; 9 Humph. 252; 5 Gilman 405; 20 Ohio 609; Id. 625; 4 Comstock 419; 3 Grattan 247; 21 Ohio 77; Id. 105; 24 Wend. 65; 1 Jones 61, Com’th. v. McWilliams. There is no taking of property in this case. The taking of property mentioned in the constitution is the taking of it entirely, not a consequential injury to it: 6 Wharton 46.
    It should not be assumed that the stock of the company will prove worthless, and that taxes will have to be laid to pay it. But if so, it is not the eminent domain of the Commonwealth which is exerted, but the taxing power.

    2. If the power in question exists, may the legislature, without violating the constitution, provide that its exercise be dependent upon the vote of the citizens of the corporation ? As to the case of Parker v. Com’th., 6 Barr 507, and of Rice v. Foster, 4 Harrington 479, it was observed that the point decided in those cases was, that the legislature could not delegate to the people the power to make laws; but that the case of Parker recognises the distinction between a condition in law, valid under the constitution, and a transfer by the legislature of its functions: 6 Barr 526-7. A statute takes effeet as a law upon its passage; whether the municipal corporation will exercise the privilege granted, is left to the determination of the majority. The Act of 5th April, 1853, delegates no legislative power. It operates proprio vigore; it confers larger powers, submitting the question of their exercise to the people. But whether exercised or not, it remains a law: 8 Barr 391, Com’th. v. Judges, relating to anew township; 10 Barr 215, Com’th. v. Painter, in reference to the site for the public buildings of Delaware county. It was submitted, that no clause of the constitution renders invalid an amendment or enlargement of a municipal charter subject to its acceptance by a vote of the citizens.
    3. But if the provision in the 3d section of the Act of 1853 in reference to the election, be unconstitutional, it was submitted whether the previous section, authorizing the subscription was not valid. A statute may be unconstitutional in part, and the remainder valid: 2 Peters 526. The second section is complete in itself. It authorizes the subscription; and the third section applies to the condition upon which the power granted may be exercised.
    4. Is the Act unconstitutional by reason of its granting additional powers to the railroad company, and also authorizing the proposed subscription ? It was contended that the clause in the .constitution forbidding the creating, renewing, or extending the charter of more than one corporation by one law, did not refer to
      municipal coporations. Secondly, that it applies only to such acts as create a corporation, or prolong the duration of an existing one. That any other construction would disable the legislature from passing any general law affecting the powers of either municipal or private corporations. That the Act of 1858 (even if a municipal corporation be within the constitutional provision) does not create the charter of any corporation, nor renew one: and that it did not extend the charter of any, it being contended that She phrase “ extend the charter,” applies only to the duration of the franchise. It was alleged, that since the adoption of the amended constitution, many laws have been passed creating one corporation and enlarging the powers of another; or enlarging the powers of two corporations, both municipal and private. A list of some of the Acts which would he invalid upon such a construction, was submitted. The list contained above two hundred and seventy Acts.
    Further: was the action of the corporate authorities of Reading justified by law ? and if not, what is the consequence of any irregularity on their part ?
    The power was given to corporate authorities to subscribe. The legislature, however, indicated its will, that the subscription should not be made, unless a majority of the qualified voters should approve. The object of the legislature obviously was to obtain the popular opinion. It is not denied that the opinion has been obtained ; those affected by the subscription have by more than a two-thirds vote approved the subscription. Equity looks at the substance, the form is nothing. But the complainants are estopped ; they submitted to the election without complaint; and even if there were irregularity in ordering the election, they cannot complain. They voted at the election.

    But the provisions of the Act of April 5, 1853, are directions in regard to the mode in which the election should he ordered. The councils were to act ministerially to obtain the popular judgment. The result is not affected by a failure to comply with the directions. In the case of Lyon & Smith (contested election 110), no notice had been given to some towns of the election: it was decided that the want of notice did not invalidate the election. The popular will is the substance: the mode of obtaining it is only form and direction. If the statute be regarded as conditional, the condition was, that the people should approve: not that notice of the election should be written or printed, or that A. or B. should publish the advertisement of the election. The time of approval, or ■the time of proposition to subscribe, is immaterial. This may he as well after the election as anterior to it : the legislative design was to obtain the popular judgment.
    Nor is it clear that the fact that the city councils met in joint meeting was irregular. For some purposes they are authorized to meet in joint meeting, and probably for others in separate session. From the ninth section it appears that the duties of the select and common councils, when acting separately, are to “ ordain, constitute, and establish such and so many laws, regulations, and constitutions as occasion may require. It was submitted, that fixing the time of holding an election -is not embraced in these powers given to the councils acting separately. The Act of April 5, 1853, conferred new powers, but did not provide whether they shall be exercised by councils acting jointly or separately. But. the fundamental inquiry is, Has the popular sense been obtained ?
    7 Alabama 114, Clifton v. Cook, where an election was ordered by the legislature of Alabama, to determine upon the site of a courthouse, and an election was had, in which a majority of the legal votes were east in favor of a particular place : It was held, that it ought not to be disturbed because of some informality or irregularity in the mode of holding it.
    Sept. 8, 1853,
   The opinion of the Court, filed was delivered by

Black, C. J.

— By an act of the legislature, passed April 5,1853, supplemental to the charter of the Lebanon Yalley Railroad Company, that corporation was authorized to increase its capital, to borrow money, to construct a branch, and to pay interest to its stockholders until the work was finished. The same act provided that the corporate or constituted authorities of Reading city, Lebanon county, and Lebanon borough, might subscribe for shares in the stock of the company. It was further provided that in case the constituted authorities of the city, borough, or county aforesaid should propose to make such subscription, they should fix upon, and give notice of a time for holding a public election, at which the people might vote for or against the subscription, which should be valid if a majority was for it, and otherwise should not be made. On the 10th of May last, the select and common councils of Reading met in joint session, and by a joint vote adopted a resolution, that an election should be held on the 15th of June, “ to decide for or against a municipal subscription of two hundred thousand dollars.” The election was had, and resulted in favor of the measure by a majority of more than two to one. This bill is brought to restrain the corporate authorities from making the subscription.

The injunction is claimed on four different grounds, which may be stated as follows : 1. All laws authorizing subscriptions by municipal bodies to the stock of railroad companies, are unconstitutional and void. 2. This particular act is void, because it extends the charter of more than one corporation. 3. The act is void, for the further reason that it delegates legislative power to the people of Reading. 4. Supposing the law to be in itself constitutional and valid, it has not been properly complied with by the corporate authorities, inasmuch as they did not propose to subscribe before the election of the people was ordered. I shall consider these points in their order.

I. The first one has been already decided in the case of Sharp-less v. Philadelphia. However easy it may be to demonstrate that public debts ought not to be created for the benefit of private corporations, and that such a system of making improvements is impolitic, dangerous, and contrary to the principles of a sound public morality, we can find nothing in the constitution on which we can rest our consciences in saying that it is forbidden by that instrument.

II. The constitution, in sect. 25 of art. 1, provides that “ no corporate body shall be hereafter created,, renewed, or extended with hanking or discounting privileges, without six months’ previous notice of the intended application for the same, in such manner as shall be prescribed by law. Nor shall any charter, for the purpose aforesaid, be granted for a longer period than twenty years, and every such charter shall contain a clause reserving to the legislature the power to alter, revoke, or annul the same, whenever in their opinion it may be injurious to the citizens of the Commonwealth, in such manner, however, that no injustice shall be done to the corporators. No law, hereafter enacted, shall create, renew, or extend the charter of more than one corporation.” It is insisted that the last clause of this section is violated by the lawr before us, inasmuch as it extends the charters of the railroad company and of the city of Reading, as well as those of the county and borough of Lebanon.

The object of this section seems to have been a restraint upon the chartering of banks. Whether it can be made to cover the ease of other private corporations, is a question which need not now be determined. But there is not the least reason to believe that public political corporations were in the minds of the convention when the amendment was agreed on, or thought of by the people when they adopted it. It was meant to meet a well-known evil, much discussed at the time, as well as before and since, and not to prevent what nobody ever thought to be wrong. Qui hceret in litera hceret in cortice is a maxim in the interpretation of all laws, the fundamental law among others. The constitution is entitled, like other instruments, to a construction, as nearly as may be, in accordance with the intent of its makers.

Again: it is very far from being clear, that increasing the privileges of corporations, or assigning new duties to them, is an extension of the charter, within the meaning of the constitution. If it be, and i'f all corporations are included within this prohibition, then no law could be passed authorizing two railroad companies to connect their works, or two counties to make a contract with one another, even though. it should be to compromise a dispute; because these are powers which in their nature could not be given to, nor executed by one alone. What is still worse, a general law would be unconstitutional if it gave new privileges to a whole class of corporations. Is this Court expected to decide, that when the legislature desire to add to the public functions of supervisors, they must pass a separate bill for every township in the state ? Or that the many general laws already passed relating to improvement companies are unconstitutional, and everything done under them void? We must keep clear of these absurdities, if we can do so, without allowing the constitutional injunction to be disregarded. Let us see, therefore, if we cannot satisfy the words in another way.

To create a charter, is to make one which never existed before. To renew a charter, is to give a new existence to one which has been forfeited, or which has lost its vitality by lapse of time. To extend a charter, is to give one which now exists greater or longer time to operate in than that to which it was originally limited. I do not say that these words have no other meaning in the English language. They are not entirely free from ambiguity. Their signification, like that of other words, must depend much on the context. But the definitions here given are consistent with the sense in which they are, if not always, at least very often used, both in popular and legal phraseology; and to understand them so here is no violation of the “jus et norma loquendi.” It is fair to suppose that they are not used in the first sentence of the section with a different meaning from that which they are intended to express in the last. What, then, do they mean' in the first ? The language is, “No corporate body shall be hereafter created, renewed, or extended.” Though an increase of privileges might be, in some sense, extending a eliarter, it can hardly be said that a corporate body is extended in any other way than by prolonging its entire existence.

This construction is not unsupported by authority. It has not, indeed, received the direct sanction of any express judicial decision. But the legislature, with many members of the convention in it, has always acted upon this interpretation. And this has been done with the silent acquiescence of all the people, including the legal profession and the judiciary. The defendants’ counsel has produced us a list of two hundred and seventy-nine acts of Assembly, passed only within the last four years, creating one, and enlarging the powers of another corporation, or enlarging the powers of two corporations, both municipal and private. Some thousands of such laws have probably been passed since 1838. If we now declare them to be unconstitutional, and sweep away at once all the rights, publib and private, which have been acquired under them, we must do an amount of mischief which no man’s arithmetic can calculate. This is a proper element of legal judgment on such a subject. We are not to overlook the practice of the legislature, or disregard the consequences of doing so. The law questioned in Norris v. Clymer (2 Barr 277), was sustained by this Court principally because there had been many laws like it, and l’ights had grown up under them which it would be mischievous to annihilate. And the Supreme Court of the United States have declared (11 Peters 257), that the uniform exercise of an important power almost without question is no unsatisfactory evidence that the power is rightfully exercised.

III. It is argued that this is not an exertion of legislative power by the assembly, but a mere delegation of it to the people of Reading. We cannot see it in that light. Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such a discretion is the making of the law. New privileges, conferred on a public corporation, need not be absolute and peremptory, so as to force them on the members against their consent. When individuals or corporators are merely authorized to do a thing, the doing of it necessarily depends on their own will; and we can see no reason why the acceptance of a new power, tendered to a public corporation, may not be made to depend on the will of the people when it is expressed by themselves, as well as when it is spoken by the mouths of their officers and agents.

The case of Parker v. The Commonwealth (6 Barr 507), has been cited, and much ingenuity has been expended in the effort to make the principle there decided cover the facts which exist here. I do not propose to discuss it. In the case of the Cin., Wilm., & Zanesville R. R. Co. v. The Commissioners of Clinton County, very recently decided by the Supreme Court of Ohio, and not yet regularly reported, all the authorities which bear on the point, our own among them, are very carefully and ably reviewed. The opinion of the Court contains a full and convincing refutation of the plaintiffs’ argument here. When that case and the case of Slack v. The Maysville & Lexington R. R. Co., determined by the Supreme Court of Kentucky, shall come to be in the books, they will leave but little more to be expected or desired on the subject.

But there is one view not distinctly taken by either of those courts, which I will add, because it strikes me as very conclusive.

When the city was chartered, the legislature' had a right to prescribe, and did prescribe, how its municipal affairs should be administered. They ordained that this should be done by two bodies called the Select and Common Councils. But they had the power to give it a very different organization. They could have made its government as purely democratic as that of Athens, requiring the people in their primary capacity to decide every question for themselves. Having this power at first, and there being nothing to forbid an alteration in the charter of a city, they could afterwards change it so as to increase the power of the people, and diminish that of the councils. This, in point of fact, is all that has been done. The law of 1853 is but an amendment of the charter, and declares that with reference to this affair of a railroad subscription the city shall be governed, not by the councils alone, but by the councils and the people together.

IV. There is another objection to this subscription, which, though comparatively unimportant as a general principle, is much more serious than any of the rest in its effect on this case. The law says that in case the constituted authorities shall propose to subscribe, it shall be their duty to fix upon a time for holding an election, &c. I am of opinion that this made it the duty of the councils to meet separately, to deliberate on the question, and to decide it, before ordering an election — that the people had no more than a veto on the decision of the councils — and that an election before a formal proposal by the con'stituted authorities is void. Of this opinion also is Mr. Justice Lowrie. But the three other judges think differently. There is therefore no point in the cause on which a majority is willing to decree an injunction. Such a decree cannot be made either on the first or fourth without basing it on a foundation which the Court decide to be illegal.

The motion for a special injunction is refused.

Lewis, J., and Lowrie, J., dissented.


author: Per Curiam.

text:
    New Jersey Railroad Company versus Kennard.
    1. The proposition is not sound as a general principle, that “ no car is road-worthy if the windows are not so constructed as to prevent the passengers from putting their arms through them but it is applicable to a road which in some places is so narrow as to endanger projecting limbs.
    2. A carrier of passengers or goods is bound to provide a proper vehicle; in default of which he becomes responsible for any loss or injury which may be suffered; provided it happen without negligence or misconduct on the part of the party injured.
    3. A carrier of passengers is bound to omit no caution which may conduce to their safety.
    This case came up from the Nisi Prius.

      It was an action on the case hy Manning Kennard v. The New Jersey Railroad and Transportation Company, to recover damages for personal injuries to the plaintiff, by the breaking of his arm. The plaintiff was a passenger in the defendant’s cars, on a journey from New York to Philadelphia, on the 27th day of August, 1849. In the course of the journey the cars pass over the Delaware and Raritan Canal, at Trenton. The cars pass the canal by a bridge, the side of which, opposite the window, where the plaintiff was sitting, is lined or sheathed with weather-boarding, so as to present a smooth, plain, unbroken surface, from each end of the bridge to the king post (or post in the centre of the bridge), with which it is in line, the king post forming a part of the sheathing; so that any projection from the window, would impinge against the face of the post opposite the window. At this post it was alleged that the plaintiff’s arm was broken. A curve existed on the bridge.
    The bridge did not belong to the defendants; was not built by them; and was not on their railroad. It was built in 1844.
    There was a contusion on the plaintiff’s arm, about two and a half inches above the elbow, and the fracture was a little above the contusion. There was also another contusion about as far below the elbow as the fracture was above it; there was no contusion or abrasion of the elbow itself.
    The witnesses testified that there was no danger of such an accident to a passenger keeping his arms inside the car. No injury' to a passenger had before occurred there, but the cars had struck against the king-post before.
    The material question upon the whole case was, Whether the defendants were obliged so to construct their cars with slats, bars, wire gauze, or other barricades, at the windows, so that a passenger could not put his arms out at the windows; and, if defendants did not do so, whether they are liable ?
    Charge of Gibson, J. — “A carrier of either goods or passengers, is bound to provide a carriage or vehicle, perfect in all its parts; in default of which he becomes responsible for any loss or injury that may be suffered, provided it happen without negligence or misconduct on the part of the party injured. A carrier of passengers is bound to omit no precaution that may conduce to their safety. He is bound to guard before hand against every apparent danger that may beset them. The dangers incident to travelling in railway cars, are few in comparison with those incident to other modes of travel; but among the most prominent of them, is risk of injury to limbs stuck out of. the windows, where the cars are not so constructed as to prevent it. Any one who has travelled by railway, must have observed that even the most careful passengers forget the risk, and unconsciously suffer their elbows to slip out beyond the window sill. What can the carrier do to prevent it ? * * * No more is required than a few metallic rods set in the
    windows perpendicularly or horizontally, or a netting of wire work, or even wooden slats. None of these would materially impede the circulation of the air, or abridge the comfort of the passengers, while it would make their 'safety sure. (A car without any of these appliances, is, to coin a phrase, not road-worthy, and a carrier is responsible for any loss that may happen from that cause alone.) Risking his passengers in an unsafe car, it behoves him to use every means in his power to guard against danger from it at dangerous places, by audibly proclaiming in the car the necessity of keeping arms and heads inside. If any one should disregard such warning, he would incur the charge of wilful neglect of his own safety; and when there is negligence on both sides, neither party is answerable for any injury from it. It is not pretended that the passengers were warned not to put out their arms in passing this bridge, and so far the case is against the defendant.
    “Rut even verbal warning might not protect the carrier in every case. It would be of no service to a foreigner ignorant of the language, or to a sleeping passenger, or to a child incapable of reason. The utmost care of a parent or nurse, is insufficient to restrain a child’s curiosity to look at things ‘ outside. Should either of these be injured by want of a proper construction of the car, an action would lie for it. Nor would written notice stuck up be any better. There may be passengers who can’t read, and they would, of course, not be affected by it. Others may get into the ear at night, and some might not observe it even in day time, and neither of these would be chargeable with negligence. At best, however, such notice is too general to be of service. It gives no more than general information, known to everybody without it, that injury may result from putting heads or limbs through the windows. .It would seldom be recollected at the critical moment; but it would be otherwise in regard to particular information at a particular time of a particular danger at a particular place. Surely a written notice is not an equivalent for a properly constructed car. But there was not even that.
    “ I will not say that there might not be cases of injury to a passenger from his own negligence, in the absence of all the precautions I have mentioned. A man who would choose to loll on the window sill with his head, arms, and a part of his body hanging outside of it, would not ride like a prudent man or a gentleman, and he would have to bear the consequences of his foolhardiness. But if he were sitting at the time as passengers usually sit, the case would be different entirely.

      “ Now it is a notorious custom in railway cars, and it is proved to be so by the evidence in the cause, for passengers next to the windows, to rest their elbows on the sills of them; and (carriers are bound to take notice of the customs and habitudes of railway passengers, and to provide for them. If a passenger, therefore, sits and rides in a car as others generally do, and receives injury from an imperfect construction of it, the carrier is liable for it.)
    “ It is urged that his contract is to carry the passengers inside of the car, and that he has nothing to do with anything which happens outside of it. (That would be true in regard to a passenger who was standing on one of the platforms to enjoy his cigar, the air, or the prospect; the risk of danger from his position would be extraordinary, and exposure to it would be rash as well as wilful; but in regard to leaning on the window sills the case would be different. A passenger is not entered as a bale of goods, nor is he bound to behave like one. He is entitled to all the comforts which change of position and change of place may afford. He may have his elbows on the window sills, ride back foremost or face foremost, and the occupants of adjoining benches may reverse one of them for purposes of conversation, as was done in this case, without incurring the charge of remissness in not keeping a sharp lookout. A person who dare not put his nose out of the car, could not discover that a post was coming. Nor are all the duties of the carrier to his passengers performed, when the conductor puts him into the car and leaves him to shift for himself. He is bound to guard him from every danger which extreme vigilance can prevent. The passenger has put his life into his hands, and the carrier is bound to defend it as his own. In the present case, it would seem that every precaution was neglected, inasmuch as there was neither a properly constructed car, nor a verbal warning of danger, nor even the miserable and insufficient substitute, a written caution.)
    “ (If, then, the plaintiff’s arm was broken by an upright post, in the bridge, the plaintiff is entitled to recover.)
    “ The counsel for the defendant require me to instruct you on points of law which would arise out of a particular state of the facts, leaving you to say whether such facts are sustained by the evidence.
    “ 1. I am asked to instruct you, That if you believe that the injury was caused in any degree by any carelessness or negligence of the plaintiff himself, or that his acts contributed to it, he cannot recover.
    “ (I have already told you, that if there was negligence on both sides, neither is responsible to the other ; but I cannot direct you without .qualification, that if the mere act of the plaintiff contributed to the injury, he may not recover. To have that effect, it must have been an act of carelessness or negligence, and it will be for you to say whether the resting of his arm on the window sill, with the elbow outside of it, was such. If the law were as the defendant requires me to lay it down, there never could be a recovery in any case like the present. It is for you to say whether such resting of the arm is proof of negligence.)

      “ 4. That if you believe the car was staunch and good, that the railway was in good travelling order, and that-the bridge was sufficiently wide for the car to pass, especially if cars had done so for five years without accident, the burden of proof is on the plaintiff to show negligence on the part of the company.
    “ (No car is good if the windows are not so constructed as to prevent the passengers from putting their limbs through them. It may be staunch, but without the appliances I have mentioned, it cannot be perfect.) The length of time that elapsed without accident is immaterial except as to damages; and without blame on the part of the passenger, every injury to him without fault on his part, must be compensated. If the car was deficient and consequently not good, the burden of proof is on the carrier.
    “ 5. That the contract was to carry inside the car; and that if the passenger would have been carried safely keeping his limbs inside the car, he cannot recover.
    “ (I have already said that such is not the law.)
    “ 6. That the burden of proof is on the plaintiff to show affirmatively that his arm was inside the car.
    “ (I cannot so instruct you. He may recover though it were outside, provided he was reasonably attentive to the safety of it.)
    “7. That the plaintiff is only entitled to compensatory damages.
    “ That is a matter exclusively for you, and not for legal direction. In an aggravated case of personal injury a jury may go beyond mere compensation. But this does not seem to be such a case. No special blame can be imputed to the company. They constructed the cars as others had done. The road was not theirs, and they had no power to alter the bridge. Their cars had passed over it during five years without accident; and this greatly tended to diminish their fear of accidents in time to come. But the question of compensation is not exactly a question of dollars and cents. There is no measure or standard of damages for a broken limb; and you ought therefore to be liberal against the author of it. You ought certainly to give enough; for it is safer to err, if at all, against the party who was the cause of the injury, than against an innocent man who suffered it. You are, however, the exclusive judges of the amount.
    “ 8. That the company is responsible only for defects discoverable by a careful man .after a careful examination and exercise of a sound judgment.

      “ (This is true, but were there such an examination and exercise of judgment? The defective construction of the car must have been obvious to the dullest perception; and the company having the lives and limbs of the travelling public in charge, were bound to see it. They would not see it; and unless you shall find that the plaintiff has been negligent, or that the accident did not happen as it is stated in the declaration, it will be your duty to make them pay for it.)”
    Eebruary 4, 1852, verdict for plaintiff for $2500.
    Error was assigned to the parts of the charge in parentheses.

      Mallery and Read, for plaintiff in error.
    — It was said that the Court charged, as a matter of law, that the car of the company was not properly constructed; and it was contended that the construction of the car and the position of the plaintiff in the car and the other facts involved in the case, should have been submitted to the jury: 4 Bin. 129; 4 Yeates 115.
    It was said to be culpable negligence and want of care in the plaintiff in the suit, to put his arm out of the window, and that if he was guilty of want of care or of negligence, he was not entitled to recover: 6 Wharton 311; 4 Comstock 349; 1 Cowen 78; 6 Id. 189; 19 Wend. 399; 11 East 60; 4 Harris 468.
    Though a defendant has been guilty of negligence, the plaintiff, if he has not taken care to avoid the injury, is not entitled to recover: 2 Hall 151; 2 Pick. 621; 12 Id. 177; 4 Car. & Payne 106, 19 E. C. L. R. If the car was not a proper one, yet if the plaintiff in the action could have avoided the accident by ordinary care, viz., by keeping his arm within the car, he cannot recover.
    The law regulating the responsibility of common carriers of goods, does not apply to the carrying of human beings: 2 Peters 150; Angell on Carriers, sec. 522.

      J. T. Montgomery and Qadwalader, for the defendant in error.—
    The company gave the plaintiff a ticket which was in evidence, and thereby undertook to carry him safely. Though the bridge was not on the road of the defendant, but 'on that of the Camden and Amboy Company, the cars of the defendants travelled the whole road from Jersey City to Tacony. The company had the control of its cars, a,nd it was their duty to adapt them to the road. The bridge was a swinging bridge, and was therefore insecure, and a curve existed on it. The cars, several times before the accident in question, had struck against this post in the bridge. It was said that the plaintiff was sitting in a usual and ordinary position in the car, about the middle of it; his arm resting on the window sill; when hy a jolt caused by contact with the bridge, the elbow was' thrown from its rest, and dropped down in an upright position outside of the car, and was thus caught between the side of the car and the king post in the bridge, and broken. The distance between the side of the car, at the place where the plaintiff was sitting, and the post against which the arm was struck, was only from 2-£ to 2J inches.
    It was contended that the carrier of passengers impliedly undertakes that his carriage shall answer the purposes of the road, and of the transportation for whieh it was intended: 1 Carr. Payne 414; 9 Bing. 457; 2 M. Scott 621. Coach owners are answerable for injuries arising from the- misconduct of their drivers. 6 T. Rep. 659; PeaTse 81; 1 Camp. 167; 2 StarTs. 87. In some of these cases it is decided that before passing through a dangerous place, the driver is bound to give the passengers notice. Also cited, 2 Barn. & A. 169; 13 Louis. 349; 8 Barr 479, Laing v. Calder; 1 Jones 146; Story on Bailments, sec. 592, 560.
    Whether a car is road-worthy is of the same character as the question whether a ship is seaworthy; and what constitutes seaworthiness is a question of law. Though the existence of disputed facts on whieh seaworthiness depends is for the jury, yet the Court may instruct them what facts, if proved, constitute unseaworthiness in law: Phillips on Ins. 310 — 11; 1 Wharton 400-403; 4 Bin. 137.
    Though to submit to the jury a question as to facts not in dispute, is irregular, yet in this case evidence was positive that the cars were not provided with wires or slats, to prevent the arms from slipping out of the windows. The Court instructed the jury that if there was negligence on both sides, neither was responsible to the other. See answer to 1st point; also 4 Harris 463, Beatty v. Gilmore. But in the present case there wás no fact in evidence from which the jury would have been authorized to infer a want of care on the part of the plaintiff in the suit. It was for the defendant to prove such want of cafe. As to the amount of care required of the plaintiff, reference was made to the case of Beers in 19 Conn. 566; Id. 507; and also 5 Exch. 243.
    The mere happening of an injury to a passenger, raises primd facie a presumption of neglect, and throws upon the carrier the burden of proving otherwise: 8 Barr 483; 11 Pick. 106; 2 Camp. 80.
    October 12, 1853.
   Per Curiam.

— This case was rightly tried at Nisi Prius, and the principles on which the cause was submitted to the jury, are entirely correct. The language of the learned judge who presided at the trial, seems to be too broad as a general principle, where he says that “ no car is good if the windows are not so constructed as to prevent the passengers from putting their limbs through them.” But in its application to a road, which in some places is so narrow as to endanger projecting limbs, as here, the instruction is proper. Judgment affirmed.


text:
    Bowyer’s Appeal.
    .1. Where a debtor desires to avail himself of the provisions of the Act of 9th April 1849 and retain $300 worth of his real estate, he must elect to do so and request an appraisement before inquisition. But in cases where no inquisition is required by law, as in proceedings under the Mechanics' Lien Acts, the request for an appraisement should be made before advertisement of the sale.
    2. The claim is not allowable if the necessary consequence will be to postpone the sale.
    3. A term must necessarily intervene between the appraisement under the Act and the sale.
    4. The debtor's claim is too late after waiver of inquisition.
    5. He cannot waive his right to the $300 in favor of a junior lien creditor, nor assign it to a third person.
    6. Whatever he does not regularly claim for himself remains in the fund, to be distributed according to law.
    Appeal from the decree of the Common Pleas of Lancaster county.

    This was a.n appeal by J. C. Bowyer, a judgment-creditor and transferee of Jacob Miller, from the decree of the Court, directing distribution of the net proceeds of the sheriff’s sale of real estate of said Miller. The property consisted of two lots of ground in Columbia, on which were erected certain buildings. There were certain mechanics’ liens, which were allowed by the auditor, which left but about $196.31 for further distribution.
    Next in order to the said liens appeared to be a judgment of Ery & Co., for $157.74. Next followed a judgment of Rumple for $20.37; a judgment of Epler for $5.50; of Mullen for $7.87$; Frazer for $20; and then a judgment of Bowyer & Maxton for $47.04.
    On the judgment of Fry & Co., a fi. fa. was issued on 3d July, 1851. The property was levied on, inquisition held, but it was not condemned, the yearly rent being assessed at $105.
    Another fi. fa. was issued against defendant on the judgment of Bowyer & Maxton, on the 6th day of September, 1851, and defendant’s real estate was again levied upon. A waiver of inquisition was executed by defendant on the 13th day of October, and on the 5th day of November, 1851, the said real estate was sold by the sheriff to Messrs. Ford & Shaeffer for $595 — the net proceeds being $569.01$.

      On the day of, and previous to the sale, notice was given to Sheriff Huber, that the defendant claimed the benefit of the exemption law of April 9,1849. Three appraisers were appointed, who reported that “ the real estate in the above case cannot beset apart without prejudice, or the spoiling of the whole thereof.”
    On the 8th day of July, 1851, Jacob Miller executed a judgment note to Reah Frazer, Esq., for twenty dollars, in which he waived in favor of said judgment any exemption to which he might be entitled under the laws exempting property from levy and sale.
    Portions. of the proceeds were claimed by parties under two different assignments, executed by Miller. The first was dated August 7,1851; by it was assigned to James O. Bowyer all the benefits and privileges secured to Miller by the three hundred dollar exemption law. By the second, dated Nov. 6th, was transferred to Ford & Shaeffer a like interest.
    During the investigation of the case, notice was given to the counsel of Bowyer to prove the consideration of the assignment to him, and having failed to do so satisfactorily, it was contended that the first assignment was in law fraudulent, and void as against the second.
    The auditor adopted this view of the case, and awarded the balance of the fund to Ford & Shaeffer as assignees of Miller.
    On the part of Bowyer & Maxton exceptions were filed, viz.:
    1. The auditor erred in deciding that defendant’s privilege under the exemption law could be claimed after failing to do so at or before the inquisition, held in August last; and also after waiving the inquisition under the fi. fa. in October last.
    2. If the privilege could be claimed after the inquisition, and the waiver of it after inquisition, the balance of the $300, after deducting R. Frazer’s judgment, should have been awarded to Bowyer under his assignment.
    3. The auditor should have decided that the exemption was waived by defendant, and should have apportioned the fund, after satisfying the liens of mechanics, to the judgments according to their priority.
    The opinion of the Court was, in part, as follows:
    “ One of the exceptions urged in this case is, that the defendant, having failed to avail himself of the privilege of claiming property to the amount of $300, in pursuance of the Act of the 9th April, 1849, at the time the inquisition was held on the fi. fa. issued by H. H. Fry & Co., when the property was not condemned, it is a waiver of his right to do so in any subsequent proceedings: that the proceedings upon such inquisition must control all subsequent proceedings, and having once foregone the right of availing himself of that privilege, he cannot now resume it.
    “ The Act of 9th April, 1849, seems to contemplate that the privilege must be claimed before tíiefi.fa. is returned, for, according to the provisions of the Act, the vend. exp. is to issue for the sale of only- the residue of the land; and the Supreme Court, in the case of Miller’s Appeal, 4 Harris 300, intimate that the claim ought to be made before the inquest is held; but the Act of Assembly does not provide for a case like the one now before the Court. Here there was no sale, in pursuance of the inquisition, but the sale was made in pursuance of a fi. fa. issued by the plaintiff; when defendant waived the right of having an inquest, and before the sale claimed the $300 allowed by the Act of 1849. In a proceeding of this kind, there is no time indicated by the Act of Assembly when the claim must be made; and as this is a law intended to benefit poor insolvent debtors, as favorable a construction ought to be given in their favor as the words and spirit of the law will permit ; and as the Act of Assembly, when personal property is sold upon a fi. fa., only seems to require that the claim for the $300 worth of property should be made some time before the sale, and as this was done here, we see nothing to cause a forfeiture of that privilege, unless the proceedings had under the execution of Ery & Co. is to bar the defendant. The proceedings had in the last execution were, in my opinion, independent of the first proceedings, and his omission to claim the $300 in those proceedings is not to prejudice him.”
    As it respected the 2d exception, the Court did not disagree with the report of the auditor.
    The report was confirmed.
    Exceptions were filed, viz.
    1. The Court erred in not rejecting the claim of defendant to the $300 exemption, and in decreeing the same to Eord & Shaeffer.
    2. The portion thus decreed should have been decreed to the judgment-creditors according to their priority.
    3. But even if the $300 were allowed, it should have been given to James C. Bowyer, the prior transferee to Eord & Shaeffer.

      Frazer, for appellants.

      Ford, contrá.
    May 19, 1853,
   The opinion of the Court was delivered, by

Black, C. J.

— When a debtor desires to avail himself of the act of 9th April, 1849, by retaining $300 worth of his real estate as exempt from levy, he must elect to do so and request an appraisement before inquisition. This has already been decided several times within the last year.

In cases where no inquisition is required by law (as for instance when the execution is on a mechanic’s lien), the request for an appraisement must be made before the plaintiff has incurred the expense of advertising. Nor can it be allowed if the appraisement will necessarily postpone the sale.

In every case where the demand of the debtor is made 'so tardily that a compliance with it would prevent the collection of the debt for a term beyond that at which the money might have been realized, if the demand had been prompt, it may, and ought to be, disregarded entirely.

The 3d section of the act of 1849, is imperative in its mandate to the sheriff to return the appraisement with the writ to the Court. The sale cannot be proceeded in before a term intervenes after the appraisement, so as' to give the parties interested an opportunity to set it aside, if there be cause. The 4th .section provides that upon ike return of the'writ with the appraisement, the plaintiff may have another writ for the sale of the residue, if the appraisers have determined on a division, and if not, he may have another writ for the sale of the whole. If, therefore, the defendant’s claim for an appraisement be first set up at a time when the writ is out on which a sale could be made, the allowance of the claim must necessarily have the effect of postponing the sale for a term. This can never be tolerated, unless the debtor can show that he made his request as soon as he could after he knew of the levy.

The act of 1849 was not made to hinder or delay the recovery of just claims. It was meant only for the benevolent purpose of enabling an insolvent debtor to keep a shelter and the means of living for himself and his family. This he cannot have unless he demands it; for the law gives it to him on that condition. It is as easy to make this demand early as late. That is not a harsh construction which requires him to claim the advantages of a statute like this at a time and in a manner which will do the least possible injury to his honest creditors.

In the case before us the defendant waived inquisition, and agreed that the sheriff might proceed with the sale under the sewv^ facias. On the day fixed for the sale a request was made for appraisers, who were appointed, and found that the property could not be divided. The sale then went on as if no appraisement had been made. The regularity of the sale was only saved by the irregularity of the appraisement, since, if the latter had not been wholly out of time and void, the sheriff was bound to return it and wait for another writ before he could sell. But one error neutralized the other.

The waiver of an inquisition has all the effect of a condemnation by a jury. Every consideration of justice and policy which induced this Court to determine that the benefit of the statute must be claimed before inquisition, requires us to hold that all advantages under it are gone, after a waiver. When the defendant in an execution consents to a condemnation, and agrees to an immediate sale on a fi. fa., and when the plaintiff, taking him at his word, proceeds in the proper steps to make his money, it would violate the principle which pervades all the cases on the subject, to let the proceeding be stopped on the eve of consummation by such a demand as was made here.

There is a still more serious objection to the distribution of the Court below. The defendant agreed with one of his creditors, that he would not claim the benefit of the three hundred dollar law against him. To the creditor who held that agreement; the full amount of his debt was awarded, though there were other liens prior to his. What is worse still, the defendant assigned his claim under the act to a person who had no judgment at all; and this assignee was preferred to judgment-creditors for whose payment the land was pledged by law.

It is easy to see how this statute might be perverted to purposes as far as possible from the intention of the legislature, if the courts would maintain the right of the debtor to claim its benefit against one creditor, and relinquish it in favor of another; or to assign his interest under it to other parties, who may or may not have paid him a consideration for it. The debtor in this case seems to have thought that the law was made, not to protect his family from want, but to give him the power of preferring those whom he chose to favor, at the expense of others whom he liked less, but whose legal rights were superior. He used it to subvert the maxims of the law, by giving to the sleepy what none but the vigilant were entitled to.

We are clearly of opinion, that all stipulations not to claim the three hundred dollars made in favor of a particular creditor, are void, so far as they are intended to affect others; and that an assignment of a debtor’s right is, fro tanto, an abandonment of it. He must make his claim, if he makes it at all, in good faith to carry out the very purpose of the law, and no other. All transfers and all waivers of his right, whether express or implied, enure to the benefit of his creditors in the proper order of their liens. Whatever he does not claim for himself or his family, he leaves in the general fund under the control of the Court, to be distributed among those who are legally entitled to it; and such distribution is not to be regulated by any wish of his, no matter in what form he may choose to express it.

We are not now deciding whether or not a waiver of the debtor’s claim to the three hundred dollars before execution is binding as between bim and the party he agrees with, if he repents him after-wards, and gives notice in time. We do not say whether he may or may not, when he creates a debt, irrevocably bind himself to defeat the object of the law with reference to his family. However this may be, he cannot, by means of a transfer or a waiver, put one who has no legal right to the fund in the place of one who has.

The decree of the Court of Common Pleas is to be reversed; and it is here decreed, that the whole fund in Court be distributed amongst the several lien creditors, beginning at the eldest, and so downwards in the order of their priority, paying the debt, interest, and costs on each until the fund is exhausted.


text:
    Downing versus Commonwealth.
    1. The prosecutrix for fornication and bastardy, cannot maintain an action for the escape of the party accused, against an officer Who took him in custody under a warrant. Booz v. Engarman, 6 Harris 263, re-affirmed.
    2. The case of Lantz v. Lutz, 8 Barr 405, is no authority to the contrary.
    Error to the Common Pleas of Lancaster county.

    This was an action of debt in the name of the Commonwealth, for the use of Sarah J. Wright, v. J. S. Downing and J. Russell, on the official bond of Downing, as constable. Plea, covenants performed with leave, &c.
    Sarah J. Wright had made complaint against Rockey, for fornication and bastardy. The warrant was delivered to Downing for execution; he arrested Rockey, but he was permitted to escape, and this action was brought to recover damages for permitting the escape. On the trial it was contended on the part, of the defendants, that the arrest being on mesne process; case was the proper form of action: 2 Chitty’s Pl. 739; 4 Black. Com. 130; 1 Chitty Crim. Law 59; McKinney’s Am. M. 226; 3 Bacon 419. On the part of the defendant it was offered to prove by parol testimony, that Rockey was insolvent at the time of his arrest, and has since been so. Also that the plaintiff and Rockey compromised the matter by an agreement to become married. This evidence was overruled.
    The parties, however, never became married.
    Long, J., charged that the form of action was proper, and that damages could be recovered; not however for the maintenance of the child for seven years, as it might die, but such damage as the plaintiff in interest had sustained.

      January 28, 1852, verdict for $1000, the amount of the bond, and damages assessed for the plaintiff at $137, with six cents costs.
    It was assigned for error, that the Court erred in instructing the jury that the action could be sustained. 2. In not allowing the defendant to prove the insolvency of Rockey. 3. In not allowing the defendant to prove that the prosecutrix and Rockey had compromised the matter by an agreement to become married; and that the prosecution under which Rockey was arrested, was in that manner agreed to be withdrawn. 4. In charging that in finding for the plaintiff the jury might find the amount of the bond, $1000, and then assess the damages which the plaintiff had sustained, it being alleged in the assignment that no damages were proven. 5. In taking the question of escape from the jury. 6. In not allowing the defendants to prove that Sarah J. Wright refused to appear against Rockey to prosecute her complaint, when he was under arrest.

      Hllmaher and Franklin, for plaintiff in error.
    — It was contended that the action should have been case ; or that if the form of action brought in this case be sustainable, the insolvency of the party escaping should have been allow'ed to be proved; as the cases in which such proof was disallowed, were decided on the ground that the execution was in law a satisfaction of the debt; 7 Ser & R. 278; 1 Pa. Rep. 94; 3 Barr 273.
    2. In the case of Maurer v. Marshall, 9 F. j1 Ser. 69, it was decided that the prosecutrix had the right to settle the complaint.

    That an action on the bond of the constable could not be sustained, was cited Booz v. Engarman, 6 Harris 263.

      Frazer, for the defendant in error.
    — The form of action was.correct. Case could not be maintained on the official bond. The party may sue the constable on his bond: 6 Ser. & R. 245.
    There is no distinction between mesne and final process in criminal cases: 6 Hill 344, Clark v. Cleveland. The insolvency could not be proved by parol; no record of insolvency was offered: 1 Barr 503.
    2. It was not offered to prove that the plaintiff agreed to withdraw the prosecution.
    There was no offer to prove that after the arrest the prosecutrix was notified to appear and substantiate the charge. The charge was not denied.
    In favor of the action was cited Lantz v. Lutz, 8 Barr 405.
    May 19, 1853,
   The opinion of the Court was delivered, fly

Black, C. J.

— In Booz v. Engarman (6 Harris 263), we held that an action could not be sustained against a constable for the escape of a party who was arrested on a charge of fornication and bastardy; because (1) the prosecutrix can have no legal or vested interest in the proceeding until after sentence; (2) because it may be that the sentence, when it is pronounced, will not order the payment of any money to her; (3) because the wrong to her has been committed with her own consent, and is therefore damnum absque injuria; (4) because the ministerial officer in all criminal cases is in the service of the Commonwealth alone, and must perform his duty at the peril of an indictment for neglecting it; and (5) because it would be impolitic to place such process under the control of individuals.

We have reconsidered the subject, and we are not able to give an answer at all satisfactory to the reasons set forth in that opinion. It still seems to us that to sustain an action like this would be against principle and analogy.

It does not appear by the report of Booz v. Engarman, whether Lantz v. Lutz (8 Barr 405) was cited or not. But it is no authority on this point. The question was not raised either here or in the Court below. The right of the plaintiff to sustain the action was taken for granted. It was not contested by counsel. The whole defence was grounded on the act of 1772. The reference to this question, which Chief Justice Gibson makes in his opinion, only show's that he saw the difficulty, not that he meant to solve it. It is not the duty of this Court to make assignments of error which the parties do not make for themselves, or to reverse a judgment for reasons which do not appear on the record to have been mentioned in the Common Pleas. If the right to maintain the action had been conceded in this case, as it was in Lantz v. Lutz, we would have affirmed the judgment. But the fact is otherwise. The point was fairly raised and erroneously decided.

Judgment reversed and ven. fa. de novo awarded.


text:
    Hess’s Mill Road.
    1. ' On a petition and order to vacate and supply a road between designated points, the viewers may adopt part of a road already laid out.
    2. It is not necessary that the road thus adopted should be re-surveyed.
    Certiorari to the Quarter Sessions of Lancaster county.

    In August 1852, a petition was presented to the Quarter Sessions for the appointment of viewers to vacate fart of a public road in Leacock township, Lancaster county, laid out in 1796, leading from Christian Hess’s mill, on Pequea creek, to Shirley’s mill, and which part was described as beginning at a stone, a corner of lands of Esther Miller and David Graff, in said public road, to a stone, a corner of Henry Krider, and late Levi Bushong’s lands, also in said public road; and to lay out another in lieu thereof, from a stone, a corner of lands of Esther Miller and David Graff, the beginning of the old road above mentioned, to a stone, a corner of lands of Jacob Reno and Esther Miller, in a wew-laid-out road, leading from the old Philadelphia road, &c., to a stone, a corner of Henry Krider, and late Levi Bushong’s iands, the termination of the old road above mentioned, confirmed at the April sessions of 1851.
    Viewers were appointed, who, on 15th November, 1852, reported in favor of vacating the road as prayed for, and in favor of another road, which was described in part as, Beginning at the commencement of the aforesaid old road vacated as aforesaid, at a stone, a corner of lands of Esther Miller and David Graff, Esq., the middle of said old road, thence from said place of beginning north, &c., to a post on land of the said Esther Miller, fourteen feet, northerly, from the line dividing lands of said Esther Miller and David Graff, Esq.: thence through improved lands of the said Esther Miller, &c., parallel with the said, division line of said Esther Miller and David Graff forty perches, to a post on lands of said Esther Miller fourteen feet, northerly, from said division line: thence, &c., to a stone a corner of lands of Jacob Reno, ascertained to be in a line of lands of said Esther Miller, in a new-laid-out public road, leading from the old Philadelphia road at a corner of Catharine Yates’s land to a stone, a corner of lands of Henry Krider and late Levi Bushong’s, the termination of the old road vacated as aforesaid, confirmed at the April Sessions of 1851. •
    All which said courses and distances of said road we return as and for the middle thereof, and being all in Leacock township, said county.
    It was recommended to the Court to direct the road laid out to be opened of the breadth of 28 feet. A draft of the road was annexed.
    The report was confirmed nisi, the road to be of the breadth of 28 feet.
    Exceptions were filed in December, 1852: 1. The order calls for the laying out of a new road ending at a corner of lands of Jacob Reno and Esther Miller: the report lays out a road with no such termination; and, in fact, there was no corner of lands of Jacob Reno and Esther Miller, and the viewers have endeavored to correct the point of ending of a road laid out different from both petition and order. 2. The order directs the viewers to vacate a road, and lay out another in lieu thereof between different points, and in an entirely different direction; thus giving to one set of viewers the powers that can only be exercised by two juries. 3. A straight road is vacated — part of old Newport road laid out sixty years ago; and a change in. the same will be productive of great inconvenience to the public.
    An additional exception was afterwards filed, to the effect, that the road reported was recommended to be opened of the width of 28 feet; whereas the old Newport road, part of which was vacated, was 33 feet wide.
    In March, 1853, the report was set aside* because the portion of the road laid out did not end where the portion of the old road ashed to be vacated ends.
    It was assigned for error, That the Court erred in setting aside the report on the second exception; and that they should have confirmed the report.

      Frazer, for petitioners.
    — The court set aside the report on the second exception, because the road laid out, although it commenced at the beginning of the road vacated, did not run to the termination of the road vacated, although it did run into the newly-laid-out road, leading from the old Philadelphia road at a corner of Catherine Yeates’s land, to a stone, a corner of Henry Krider and late Levi Bushong, the termination of the vacated road.

    That is, the Court say, that the viewers must lay out the new road by courses and distances, to the point of termination of the vacated road, and not enter a road already laid out which leads and runs to that very point. That the viewers cannot adopt part of a road already laid out leading to the point of termination, although they may run over that same road, lay it out again, and thus comply with the law.
    It was contended that it was not necessary to report a road on the bed of a public road already laid out, and leading to the point of termination of the road to be vacated. 8 Barr 485 was cited.

      FRlmaher, contrá.
    — The case in 2 Bawle 421 was cited as deciding that, “ though road viewers are restricted to the space between the points specified in the order, yet they inay carry the road to the point designated, partly over the bed of a road already laid out and opened.” But it was said that, in the present case, the viewers do not make a part of their report the road leading from the old Philadelphia road referred to as confirmed at April sessions, 1851; they stopped at the public road, which, it was alleged on the part of petitioners, leads to the point of termination prayed for. It was said, that the viewers should have reported as far as the said point of termination; but that, in fact, they had .not laid out any road for near two-thirds of the distance between the points of the road vacated.
    May 19, 1853,
   The opinion of the Court was delivered, by

Black, C. J.

— The petition prayed that an old road might be vacated and a new one laid out to supply it, and so ran the order. The viewers reported in favor of the vacation, and, in lieu of the old road, laid out another from the place of beginning, not to the terminus of the old road, but to another point intersecting another road, which did run to the terminus.

If it was more advantageous to the public that the vacated road should be supplied in part by another already laid out, the viewers were right in adopting it. If the best route between the points laid down in the order was along the courses previously chosen for another public road, they were surely not bound to avoid it at the cost of more money to the township, and greater loss to the landowners or less convenience to the people. Neither was it necessary that the viewers should re-survey the road adopted. It could do no possible good, and works of supererogation are not required.

The order of the Quarter Sessions setting aside the report is reversed, and the report is reinstated.


text:
    Strasburg Railroad Company versus Echternacht.
    1. A corporation cannot sustain an action against one who, before it was chartered, with others, signed a paper agreeing to take a certain quantity of its stock and afterwards refused to do so.
    2. Such a paper signed by the party is not a contract, but amere expression of the subscriber’s intention.

    3. Supposing it to be a contract, it is not to be enforced by a bill in equity, but at law, where the remedy would be full and complete.
    Certiorari to the Common Pleas of Lancaster county..

    This was a bill in equity on the part of the railroad company, filed with the view of enforcing the specific performance of an agreement, which was as follo.ws:
    “ We, the undersigned, agree to take the number of shares of the capital stock of the Strasburg Railroad Company, set opposite to our respective names, the price per share to be $ 100, provided there can be a charter obtained at the next ensuing session of the legislature of Pennsylvania, granting said company to terminate said road at the east end of the borough of Strasburg, and connecting with the state road at or near Lemon Place, — granting also the said company to do all the business connected with the road, such as forwarding and receiving produce of all kinds, coal, lumber, and all other commodities as are transportable over other railroads.”
    William Echternaeht, the defendant, was a signer for five shares. Application was made to the legislature, and on the llth of February 1851, (which was during the next ensuing session after the signing of the agreement), the Act to incorporate the Strasburg Railroad Company was passed (Pam. L. p. 53), the provisions-of which are in accordance with the terms specified in the above agreement.
    The road was commenced, and it was alleged that the property of the defendant rose in value. He however refused to subscribe to the stock of the company, and the bill in question was filed.
    On the part of the defendant the bill was demurred to. The facts stated in the bill were not confessed, but it'was alleged that no matter of equity was stated in the bill whereon a decree of specific performance should be made.
    The demurrer was sustained by the Court below, and the bill was dismissed; and to this error was assigned.

      Bshelman, for the Company.
    It is not a sufficient objection to the jurisdiction of a Court of Equity that the complainant has a remedy at law, unless such remedy be adequate and complete: Brightly’s Rep. 203, Skilton v. Webster; 1 Parsons 220; Id. 541; 4 Wash. C. C. Rep. 205; 10 Barr, Wesley Church v. Moore; 2 Story’s Eq., sec. 716-724; 2 Kent 448; 2 Jones 56.
    Where a bill prayed for specific performance of a contract for the purchase of a quantity of timber, performance was decreed: 8 Atk. 383. Also cited 12 Sim. 189; 1 Wheaton 151; 1 Peters 304; 1 Parsons 479.
    The plaintiffs, the company, not being a party to the agreement, may not be able to maintain an action at law; their only remedy may be in equity: 1 Sim. & Stu. 598.

      Hood, contra.
    — No contract is set out in the bill. There were no contracting parties to the agreement, and no legal consideration to support a promise is set out in it. There is no privity between the company and the defendant: 1 Dan. Ch. Prac. 427. If it be a contract it is one to procure legislation and is void: 5 W. & Ser. 320-2; 5 Barr 452. A contract as to which there is not mutual obligation and mutual remedy, will not be enforced in equity: 10 Mod. 506; 1 W. Ser. 555; 2 Peere Will. 304. Nor where there is an adequate and complete remedy at law: Act of 16 June, 1836; 1 Pars. Eq. 41, 479. In this case the measure of damages would be the difference between the current price of the stock and its par value.
    There is a distinction between eases where the stock or other chattel is required to he given up to the' plaintiff, and those in which the defendant is required to take it. In the first class of cases no amount of damages may be able to compensate the loss of the thing itself. In the second, the loss may be always compensated in damages: 2 Story’s Equity, sec. 716, et seq.

    When a party has no right of action at law, he has none in equity.
   The opinion of the Court was delivered by

Black, C. J.

— Before the Strasburg Railroad Company was incorporated, the defendant and others signed a paper, agreeing that if it should be incorporated with certain privileges, they would subscribe the number of shares set opposite to their respective names. The charter was obtained, and the defendant refused to take the stock. Whereupon the company brought this bill in equity to enforce specific performance of the contract.

A contract cannot be made by one person alone. It takes two to make a bargain. Before a promise becomes a binding obligation, it must not only be made to, but must be expressly or impliedly accepted by, the party for whose benefit it was meant. The paper before us is no more than a naked expression of the subscriber’s intention to purchase certain shares in the capital stock of a company which it was expected would be incorporated by the legislature. Besides, it is without any sufficient consideration. It is not pretended, and cannot be made out from the paper, that the agreement of the defendant was the motive of the others for taking stock. ■ It is well settled, that procuring legislation of any land, is not a consideration which will support even a direct promise to pay a fair compensation for the labor of the promisee about such a business.

Again: If there was a binding engagement, it was not made with the railroad company, which did not exist at the time.

But, supposing this to have been a valid contract, to which the plaintiff was á party, and based upon good consideration, a bill in equity is not the mode of enforcing it; the remedy at law for its violation being full, complete, and adequate.

Decree affirmed.