text:
    Bland, Appellant, v. Tipton Water Company.

      Corporations — W ater companies — Franchises—Injunction—Equity-Act of June 19, 1871, P. L. 1360.
    ■ Where a water company has the undoubted right or franchise to supply water to the public within the limits of a designated township, a riparian owner on a stream from which the water company takes some of its supply has no standing to maintain a bill in equity under the Act of June 19, 1871, P. L. 1360, to restrain the water company from delivering water to a railroad company within the limits of the township, although it appears that the railroad company after receiving the water from the pipes of the water company carries the water in its own pipes beyond the limits of the township. If in such a case it appears that the water company is misbehaving itself in the exercise of its franchise, the remedy is a proper proceeding at the instance of the commonwealth.
    Where a preliminary injunction has been granted against a water company at the instance of a landowner at a time when a condemnation bond has not been approved, such injunction will not be made perpetual where it appears that the company subsequently filed a bond which was approved by the court. In such a cáse the proper penalty for the attempt of the water company to take water before legally authorized to do. so is imposed upon it by directing it to pay the costs in the injunction proceedings.
    Where a bond to secure a landowner has been filed by a water company, and the bond has been approved by the court, the approval of the bond involves an adjudication that an attempt had been previously made by the company to settle with the landowner.
    Argued April 20, 1908.
    Appeal, No. 318, Jan. T., 1907, by-plaintiff, from decree of C. P. Blair Co., Equity Docket D., No. 567, dismissing bill in equity in case of Fred Bland v. The Tipton Water Company, The Pennsylvania Railroad Company and The American Pipe Manufacturing Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      A. V. Barker and W. I. Woodcock, for appellant.
    The plaintiff has a right to demand the restraining hand of the court to be raised in defense of his inviolate title to his property, before the act is done of which he complains: Edgwood R. R. Company’s Appeal, 79 Pa. 257; Bly v. Water Co., 197 Pa. 80; Sowego Water & Power Co., 16 Pa. C. C. Rep. 179; Portland Water, etc., Co., 29 Pa. C. C. Rep. 180; Peifly v. Water Supply Co., 214 Pa. 340.

      John G. Johnson, with him Neff, Riley & Hicks, for appellee, Pennsylvania Railroad Company, and O. H. Hewitt and H. B. Gill, for appellee, Tipton Water Company.
    The plaintiff has no standing to complain: Larimer, etc., Ry. Co. v. Ry. Co., 137 Pa. 533; Rafferty v. Central Traction Co., 147 Pa. 579; Becker v. Ry. Co., 188 Pa. 484.
    October 12,1908:
   Opinion by

Mr. Justice Brown,

This bill, which was filed under the Act of June 19, 1871, P. L. 1360, was properly dismissed by the court below. It was not necessary to determine what rights had been acquired by the Tipton Water Company from the Merivale Water Supply Company, or to discuss those possessed by the Pennsylvania Railroad Company under the Acts of April 15, 1859, P. L. 679, and April 22, 1905, P. L. 264. The limit of the court’s inquiry in this proceeding was to ascertain whether the Tipton Water Company, the real defendant, did, in fact, possess the right or franchise to do the act through which the appellant alleges injuries resulted and will result, to his private rights, and, in view of the undoubted franchise conferred upon it by its charter and the undisputed facts in the case, the learned chancellor ought not to have rested with the mere statement that there was some force in the contention that the plaintiff had no standing to complain under the act of 1871, but should have so distinctly ruled.

The Tipton Water Company was incorporated under the act of April 29, 1874, and its supplements, for the purpose, according to its charter, “of supplying water to the public in Antis township, Blair county, Pennsylvania, and to such persons, partnerships and corporations residing or located therein as may desire the same.” It was incorporated February 11, 1903, and, by due and appropriate action, on November 21, 1904, appropriated perpetually the entire flow of the waters of Tipton run. The appellant is the owner in fee of a farm through which this run flows for a distance of 600 feet, emptying into the Juniata river, on which his lands also abut and border. He does not assail the water company’s charter nor question its right to appropriate the waters of Tipton run for the purpose of supplying the same to the public in Antis township, but he would have it enjoined from taking the waters of the run, because, after it takes and conveys them into Antis township, it there metes out, sells and delivers to the Pennsylvania Railroad Company, as one of its customers, large quantities of the same, which that company conveys out of the township for the supply of its engines, stations and shops.

After its appropriation of the waters of Tipton run the Tip-ton Water Company laid a line of pipe leading from its impounding dam to the line of the right of way of the Pennsylvania Railroad Company at Tipton station, also in said township. Prior to the laying of this pipe the Pennsylvania Railroad Company had laid and owned, on or near its right of way, running westwardly from Tipton station, a line of pipe through which it took water from Tipton run by pumping the same from a milldam. When the pipe laid by the Tipton Water Company was completed it was connected with the said line of pipe owned by the Pennsylvania Railroad Company, and some of the water taken from Tipton run by the water company is conveyed by pressure from the reservoir of the water company through the line of pipe owned by the Pennsylvania Railroad Company, westwardly, outside of the township of Antis, to the railroad company’s shops, in the township of Logan. On the line of the water company’s pipe there is a meter by which it measures the water which it furnishes to the Pennsylvania Railroad Company. The water is all furnished within the township of Antis and amounts to 1,500,000 gallons daily. The water company has no control over the disposition made by the Pennsylvania Railroad Company of the water beyond the point of delivery and owns no pipe or other means of delivering water beyond the termination of its line at Tipton station. The railroad company has established a water station at Tipton, where, on an average, fifty engines per day take water for steam purposes. The capacity of each engine’s tank is 7,000 gallons, and the number of gallons thus taken daily is approximately 350,000. In addition to the pipe which the water company has laid and which connects with the pipe of the Pennsylvania Railroad Company running westwardly it has laid another line of pipe leading from its dam or reservoir to the right of way of the railroad company at Tipton station, and that company has laid and owns a line of pipe on its right of way leading eastwardly, which has not yet been connected with the pipe of the water company, but it is the intention to connect these pipes, that additional waters, to be delivered by the Tipton Water Company to the railroad company, may be conveyed through said pipe of the railroad company eastwardly out of the township for the railroad company’s use. A finding of fact, unchallenged by any of the twenty-eight assignments of error is that there is no agreement between the Tipton Water Company and the Pennsylvania Railroad Company relative to the use or disposition of the water or the place to which it is to be transported by the railroad company, the water company merely selling the water to the railroad company and delivering it at Tipton station, in the township of Antis. The findings of fact are numerous and somewhat confused, but the foregoing is an epitome of them, from which, without regard to the rights acquired by the water company from the Merivale Water Supply Company, or those alleged to be possessed by the Pennsylvania Railroad Company under the acts of 1859 and 1905, is to be determined the only question which the appellant can raise by his bill.

The right of the Tipton Water Company to take the waters of Tipton run for the purpose of supplying water to the public in Antis township is not questioned, and it was in the exercise of this right or franchise that the waters of the run were taken, resulting in what, in this proceeding, may be conceded to be an injury to the private rights of the complainant as a riparian owner. His complaint is not that the water company, after taking the water, refuses to supply it to any individual, partnership or corporation within the township of Antis, the territory covered by its charter, but is that it there furnishes-large quantities to the Pennsylvania Railroad Company, which that company, after the supply and delivery of the same to it in that'township, takes elsewhere for its corporate purposes. This is not what injures him. The injury done to him is the taking of the waters of the run, but they are taken in the exercise of a clear right or franchise to take them for the purpose of supplying water to the public in Antis township. In daily furnishing to the engines of the railroad company 350,000 gallons of water in that township, the water company is not exercising a mere right, but performing a duty, for the railroad company, in the operation of its road in said township is to be regarded as a part of the public therein, within the purview of the act of 1874. How much of this water is actually converted into steam within the township is no more a question in this proceeding than would be the quantity of water remaining in stage horses, watered by the company in the township, after they had passed beyond its borders; and so, upon principle, this is equally true of the remaining 1,150,000 gallons measured, sold and delivered to the Pennsylvania Railroad Company within the said township. The appellant’s right to complain is concededly limited to a complaint that the water company, in taking the waters from the run to the injury of his private rights, is exercising a right or franchise which in fact it docs not possess; but, as it has such undoubted right or franchise for the purpose of supplying water to the public in Antis township, it is none of his concern tvhat its customers do with the water after it there delivers the same to them. Its right under clause 2 of sec. 34 of the act of 1874 is to supply water to those asking for the same where it is located, and if it be misbehaving itself in the exercise of that right, it is for the commonwealth alone to correct it. Failure to distinguish between an attempt to exercise a right or franchise which a corporation does not, in fact, possess, to the injury of the private rights of the complainant, and its mere misbehavior in the exercise of an undoubted right or franchise is responsible for this fruitless litigation. The inquiry which the appellant would have had the court make under his bill was not into the rights conferred by the charter of the water company, but into its conduct under the same. This can be done only at the instance of the commonwealth: Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.

It is urged that this case is identical with Bly v. White Deer Mountain Water Company et al., 197 Pa. 80. This results from • a misapprehension of what was decided in that case, for what was there enjoined would not be permitted here. Bly’s complaint was that the White Deer Mountain Water Company, or the White Deer Creek Water Supply Company, or both of them, were proceeding to build a dam or reservoir across the White Deer creek, and were digging ditches and trenches and laying mains and pipes from the said reservoir into municipalities, boroughs and townships other than White Deer and Kelly townships, for the purpose of supplying water to such municipalities, boroughs and townships. Neither company had the right or franchise to supply water in the territories into which the pipes were being laid, and the prayers of the bill were for an injunction to restrain each of them from taking any of the waters of White Deer creek for the purpose of supplying the same to the public in any municipality, borough or township other than the townships of White Deer or Kelly. The injunction as to the White Deer Creek Water Supply Company ought manifestly to have been continued, for reasons appearing in the opinion, and as to the water company we said, through our Brother Mestrezat: “The only questions, therefore, for consideration here are (1) the right of the White Deer Mountain Water Company to appropriate the waters of White Deer creek for the purpose of supplying the same to the public in any municipality, borough or township other than White Deer township, in Union county, and (2) the right of the plaintiff to have that question determined by a court of equity in a proceeding under the provisions of the act of June 19, 1871.” What was enjoined was the taking of the waters of the creek for the purpose of directly supplying the same to the public in townships and municipalities other than the one in which the water company was authorized to supply the same. In the present case no pipe of the water company runs outside of Antis township, and it is not undertaking to deliver water to anyone, much less to the public, at any point beyond the limits of that township. The supply and delivery of which the appellant complains are within the township, and to a single customer of the water company. If the pipe of this customer connecting with that of the water company should not extend beyond the lines of Antis township, it would hardly be pretended that the supply of the water would not be entirely lawful, and we can recognize no difference because, after the supply and delivery of the water to the railroad company are complete within the township, that company, under no arrangement between it and the water company, carries the water for its own corporate purposes beyond the line of the township.

At the time this bill was filed — February 14, 1906 — a bond had not been approved by the court to secure to the appellant the payment of his damages, and the court found as a fact that no effort had been made to agree upon the amount of compensation-to be allowed him for the taking and appropriation of the waters of the run. In view of this he contends that the preliminary injunction should have been made perpetual. Though no bond had been approved at the time these proceedings were instituted, one had been tendered to the appellant in December, 1904, and, upon his refusal to accept it, notice was given to him that it would be presented to the court of common pleas of the county for approval on the 24th of that month. In pursuance of this notice a bond was filed on that day, but was not approved because excepted to by the appellant. Subsequently, on May 16, 1906, another bond, in a larger amount, was substituted and approved by the court. As no bond had been approved at the time the appellant applied for the injunction, the restraining writ was properly issued and ought to have been continued until the water company secured to him the payment of his damages in the mode prescribed in sec. 41 of the act of April 29, 1874. This it did when its bond was approved by the court in May, 1906,.and the injunction which, up to that time, had properly restrained all interference with the appellant’s rights, ought then to have been dissolved. In the decree dissolving it and dismissing the bill the proper penalty for the attempt of the water company to take the waters of the run before legally authorized to do so was imposed upon it by directing it to pay the costs in the proceedings below.

As to the contention that, as there was no evidence of any attempt by the water company to agree with the appellant as to the amount of compensation he ought to receive for the damages he sustained, the tender and filing of the bond were unauthorized, we need only repeat what was said of a similar contention in Wadhams v. Lackawanna & Bloomsburg Railroad Co., 42 Pa. 303: “It is next insisted that there ,was no evidence of any attempt by the defendants to settle with the plaintiff, and agree upon the damages before they entered upon his land and before they filed the bond given as a security. Hence it is inferred that the tender of the bond, and the filing of the same, was unauthorized by law, and that the defendants were not empowered .to appropriate the land for the said road. Though the acts of assembly do not -in terms require any attempt to make a settlement before a tender of a bond or filing it in the common pleas, it is perhaps a just inference from their language that there should be some evidence of inability of the parties to agree before the court should undertake to pass upon the security offered. But the very offer of a bond is an assertion by one of the parties that they cannot agree, and is in itself some proof of such inability, for without the consent of both such an agreement cannot be made. And if it were not so, the action of the court approving the sureties, and directing the bond to be filed, involves an adjudication that everything had been done which entitled the company to have the bond filed. If an attempt to settle was a prerequisite, the order of the court is conclusive that the attempt had been made. The decree of the court, like any other judgment, is final between the parties, as to all matters adjudicated therein directly, and to all facts which were essential to the adjudication.” The act of 1874 does “not in terms require any attempt to make a settlement before a tender of a bond or filing it in the common pleas.”

All of the assignments of error are overruled and the decree of the court below is affirmed, the costs on this appeal to be paid by the appellant.


source: Caselaw Access Project

author: Me. Justice Brown,

license: Public Domain

text:
    Commonwealth, Appellant, v. Clairton Steel Company.

      Taxation — Corporations—Act of July 15, 1897, P. L. 292 — Bonds.
    Under the Act of July 15, 1897, P. L. 292, a bank or savings institution which has paid a four mills tax upon the actual value of all the shares of its stock that have been subscribed for or issued, is not required to pay any tax on personal property owned by it in its own right.
    Where such an institution owns the bonds of a Pennsylvania manufacturing company, the latter company is not required to collect any tax on such bonds and pay it over to the commonwealth.
    Argued June 2, 1908.
    Appeal, No. 7, May T., 1908, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1908, No. 130, for defendant on case tried by the court without a jury in suit of Commonwealth v. Clairton Steel Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from tax settlement.
    Ktjnkel, P. J., found the facts to be as follows:
    1. The Clairton Steel Company, defendant, is a corporation of the state of Pennsylvania. For the year 1906, its treasurer made report to the auditor general of Pennsylvania, showing the amount of its indebtedness to be $9,290,446.64. The report showed, inter alia, $1,162,000 of bonds and $7,916.64 of mortgages owned by individual residents of Pennsylvania, $69,000 of bonds held in trust by Pennsylvania corporations, and $1,039,000 of bonds owned by state banks and savings institutions chartered under the laws of Pennsylvania.
    2. Upon March 25, 1908, the auditor general settled and entered and the state treasurer approved an account agains.t the defendant company in which the tax of four mills was charged upon $2,277,916.64 of bonds and mortgages, being those referred to in the next preceding finding of fact. From this account defendant duly appealed to this court, first paying into the state treasury $4,800 as tax on loans for the year 1906.
    3. All of the state banks and savings institutions owning bonds of the defendant company to the amount of $1,039,000 included in the account of the auditor general and state treasurer paid into the state treasury before March 1, 1906, the four mills tax upon the shares of their capital stock under the provisions of the act entitled, “An act to provide revenue by taxation,” approved July 15, 1897, P. L. 292, except the Bank of Charleroi, which owned $4,000 of the $1,039,000 and which paid before March 1,1906, the ten mills tax provided by the said act of July 15, 1897.
    The court entered judgment for defendant on the case stated.

      Error assigned was in entering judgment for defendant.

      Frederic W. Fleitz, deputy attorney general, with him M. Hampton Todd, attorney general, for appellant.
    The legal right of the commonwealth to impose this tax is well settled: Com. v. Wilkes-Barre, etc., Ry. Co., 162 Pa. 614; Wilkes-Barre Deposit & Savings Bank v. Wilkes-Barre, 148 Pa. 601.

      M. E. Olmsted, with him A. C. Stamm, for appellee,
    cited: Com. v. Martin, 107 Pa. 185; Com. v. Wilkes-Barre, etc., Ry. Co., 162 Pa. 614; Wilkes-Barre Deposit & Savings Bank v. Wilkes-Barre, 148 Pa. 601; Fidelity Ins., etc., Co. v. Loughlin, 139 Pa. 612; People’s Savings Bank v. Coal & Coke Co., 29 Pa. Superior Ct. 153.
    October 12,1908:
   Opinion by

Me. Justice Brown,

The Clairton Steel Company, in its report to the' auditor general for the year 1906, reported that its bonds, to the amount of $1,039,000, were held by state banks and savings institutions chartered under the laws of this state, which, with the exception of the Bank of Charleroi, the holder of $4,000 of the bonds, had paid into the state treasury before March 1, 1906, the four mills tax upon the actual value of all the shares of their stock, in accordance with the provisions of the Act of July 15, 1897, P. L. 292. The narrow question on this appeal is the correctness of the conclusion of the court below that the bonds held by the banks and savings institutions, other than the Bank of Charleroi, are exempt from taxation for the year 1906. If they are not, it was the duty of the appellee, through its treasurer, to collect the tax due the commonwealth, and, upon his failure to do so, it became liable for his default: Commonwealth v. Delaware Division Canal Company, 123 Pa. 594.

It is not necessary in disposing of this appeal to review the several acts of assembly relating to the taxation of the shares of the capital stock of banks and savings institutions, for the exemption which the appellee claims, if it exists, must be found in the act of 1897. Prior enactments throw no light upon the question and are of no assistance in interpreting that act. Following Peoples Savings Bank v. Monongahela River Consolidated Coal & Coke Company, 29 Pa. Superior Ct. 153, and what he conceived to be the plain and unambiguous meaning of the act, the learned judge below held the bonds to be exempt, and in his conclusion we concur.

The first section of the act of 1897 provides, “That in case any bank or savings institution having capital stock, incorporated under the law of this state or of the United States, shall collect, annually, from the shareholders thereof said tax of four mills on the dollar upon the actual value of all the shares of stock of said bank or savings institutions according to the rule hereinbefore stated that have been subscribed for or issued, and pay the same into the state treasury on or before the first day of March in each year, the shares and so much of the capital and profits of such bank or savings institutions as shall not be invested in real estate, shall be exempt from local taxation under the laws of this commonwealth.” If the legislature had stopped here the contention of the commonwealth would have to prevail, for we so held in passing upon the Act of June 1, 1889, P. L. 420, in which there is a similar provision: Wilkes-Barre Deposit & Savings Bank v. City of Wilkes-Barre, 148 Pa. 601; but in the same section the words immediately following are, “and such bank or savings institution shall not be required to make any report to the local assessor or county commissioners of its personal property owned by it in its own right for purposes of taxation, and shall not be required to pay any tax thereon.” These words were not needed if relief was to be given only from local taxation, for that had already been given by what immediately preceded. They were, therefore, intended to have some other effect. Their clear meaning is that any bank or savings institutions paying a four mills tax upon the actual value of all the shares of its stock that have been subscribed for or issued shall not be required to pay any tax on personal property owned by it in its own right, and, therefore, shall not be required, “for the purposes of taxation,” to make any report to the local assessor or county commissioners. That the legislature intended that exemption from all further taxation should follow the payment of the four mills tax is made clearer still from what immediately follows as to the exemption upon the payment of the ten mills tax. The clause as to this is, “Except however that any bank or savings institution incorporated as aforesaid, in lieu of the method hereinbefore set out for ascertaining the actual value of the shares of capital stock thereof, may elect to collect annually from the stockholders thereof a tax of ten mills on the dollar upon the par value of all shares of said bank that have been subscribed for or issued, and pay the same into the state treasury on or before the first day of March in each year; and the shares of such bank or savings institution, and so much of the capital and profits of such bank or savings institution, as shall not be invested in real estate shall be exempted from local taxation under the laws of this commonwealth.” Here is not only a distinct limitation of the exemption to local taxation when the ten mills tax is paid, but an expression of the legislative intent that the effect of the two payments shall not be the same. The payment of the tax within the statutory period upon the actual value of the shares of the capital stock of the bank or savings institution is exemption of its personal property owned in its own right from any tax; the payment of the ten mills tax is exemption from local taxation of so much of the capital and profits of the bank or savings institution as shall not be invested in real estate.

The bonds of the appellee held by the Bank of Charleroi which paid the ten mills tax are not exempt, and the appellee concedes its liability as to them.

Judgment affirmed.


author: Per Curiam,

text:
    Commonwealth v. Caraffa, Appellant.

      Criminal law — Murder—Charge—Evidence of good character.

    A conviction of murder of the first degree will not be reversed merely because the'trial judge omitted in his charge to refer to evidence of good character.
    Argued Oct. 5,1908.
    Appeal, No. 159, Oct. T., 1908, by defendant, from judgment of O. & T. Cambria Co., June T., 1907, No. 3, on verdict of guilty of murder of the first degree in case of Commonwealth v. John Caraffa.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before O’Connor, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the omission on the part of the trial judge to refer in his charge to the evidence as to the prisoner’s good character.

      S. L. Reed, with him H. H. Myers, for appellant.

      J. W. Leech and D. P. Weimer, for appellee,
    were not heard.

      October 12, 1908:
   Per Curiam,

The fact of the killing of the deceased by the prisoner was not denied, and the only assignment of error is to the omission of the judge in his charge to the jury to refer to the evidence of good character. He was not bound to do so. How detailed a judge’s reference to the evidence shall be, is largely in his discretion, even in criminal cases. Though he may not omit all mention of the crucial or controlling facts yet he is under no obligation to discuss every item of the evidence even upon such facts. To do so would many times tend to confuse rather than to assist the jury.

While it was said in a concurring opinion in Meyers v. Commonwealth, 83 Pa. 131 (though it was not the basis of the decision), that it is the duty of a judge trying a man for his life to charge fully upon the law as applicable to the facts, and this without regard to the points presented by counsel, yet this it must be observed was said of the charge upon the law, not upon the greater or less detailed reference to the facts. And even in regard to the charge upon the law it must be read in connection with the general rule as shown in the later case of McMeen v. Com., 114 Pa. 300, that the omission to charge upon a point to which the attention of the court is not called and request made is not error.

“The law of Pennsylvania as to the weight of good character is more favorable to the accused than the common law or the law of most other states, but it has not gone so far as to give it any special prominence or superiority to the other facts in evidence in the case:” Commonwealth v. Beingo, 217 Pa. 60.

In the present case the good character of the prisoner was a very subordinate fact, and the learned judge below in refusing anew trial was justified in saying, “The evidence was so meager that the mention of it would have but emphasized its meagerness.”

Judgment affirmed and record remitted for purpose of execution.


author: Mr. Justice Brown,

text:
    Commonwealth v. Palmer, Appellant.

      Criminal law — Murder—Self-defense—Burden of proof — Evidence.
    On the trial of an indictment for murder, the court commits no error in charging on the subject of self-defense, as follows: “If there be a reasonable doubt that any offense has been committed by the prisoner, it operates to acquit, but if the evidence clearly establishes the killing by the prisoner purposely, with a deadly weapon, an illegal homicide of some kind is established, and the burden then falls upon the prisoner, and not the commonwealth, to show that it was excusable as an act of self-defense. If, then, his evidence leaves his extenuation in doubt, he cannot be acquitted of all crime, but must be convicted of homicide in some of its grades, of manslaughter at least.”
    The burden of proving self-defense is not placed heavily upon one accused of taking life. Sacred as is human life, he is not bound to show beyond all doubt that he was compelled to take it, but is humanely permitted to satisfy the jury by a fair preponderance of the testimony that he killed under circumstances justifying his belief that his own life could not otherwise have been saved. To doubt, however, even to reasonably doubt, that life was taken in self-defense, is not to be satisfied that it was so taken, and when this affirmative defense is left in doubt it has not been established at all as a basis for acquittal. Per Brown, J.
    Argued Oct. 5, 1908.
    Appeal, No. 186, Jan. T., 1908, by defendant, from judgment of O. & T. Berks Co., Dec. T., 1907, No. 71, on verdict of guilty of murder of the first degree in case of Commonwealth v. Frank Palmer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Endlich, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree. Defendant appealed.

      Error assigned was portion of charge quoted in the opinion of the Supreme Court.

      Robert Grey Bushong, with him D. N. Schceffer, for appellant.

      Harry D. Schceffer, district attorney, for appellee, was not heard.
    October 12, 1908:
   Opinion by

Mr. Justice Brown,

The victim of this homicide was a woman with whom the prisoner had lived in illicit relations. He admitted the killing, but attempted to justify it as an act of self-defense. His story on the trial was that they had quarrelled a number of times; that on the evening of the killing they went to a lonely spot in the city of Reading, where they again quarrelled; that she there drew a revolver upon him, which he took from her and threw away; that she then grabbed him and struck him with some object; that before he started with her to the place of the killing, he had put a razor in his pocket for his protection, thinking she would attempt to do him bodily harm, and that when she grabbed him a second time, believing his life was in danger, he threw his arm around her neck and, holding her head back, cut her throat; that without releasing him she sank down, and he then, sitting upon her stomach, cut her throat a second time. The uncontradicted evidence was that there were five cuts upon her body.

On this appeal two errors are alleged to have been committed by the court below, the first in the following instruction to the jury: “As to whether a reasonable doubt shall establish the existence of a plea of self-defense, the law is this: If there be a reasonable doubt that any offense has been committed by the prisoner, it operates to acquit, but if the evidence clearly establishes the killing by the prisoner purposely, with a deadly weapon, an illegal homicide of some kind is established, and the burden then falls upon the prisoner, and not the commonwealth, to show that it was excusable as an act of self-defense. If, then, his evidence leaves his extenuation in doubt, he cannot be acquitted of all crime, but must be convicted of homicide in some of its grades, of manslaughter at least.” These are the exact words of Agnew, J., in his charge to the jury when specially presiding in Com. v. Drum, 58 Pa. 9. That charge was accepted at the time by his associates in this court as a clear and correct exposition of the law of homicide and as a precedent and guide in the trial of such cases. We have since frequently approved it, the present chief justice very recently saying of it: “Its substantial accuracy has never been challenged:” Com. v. Pease, 220 Pa. 371.

When the commonwealth clearly establishes an intentional killing by the use of a deadly weapon, an illegal homicide is presumed. If the defense be insanity, the burden of sustaining it is upon those having charge of the defense, for the accused is presumed to be sane and his insanity must be established by a fair preponderance of the testimony: Ortwein v. Com., 76 Pa. 414; Meyers v. Com., 83 Pa. 131; Coyle v. Com., 100 Pa. 573; Com. v. Barner, 199 Pa. 335. And so of self-defense, for there is no presumption, in the face of clear evidence of intentional killing with a deadly weapon, that life was taken that life might be spared. The presumption is otherwise, in the absence of anything developed to the contrary in the commonwealth’s presentation of its case, and when the attempt is made to rebut that presumption by the affirmative plea of self-defense, it must be made out by a' fair preponderance of evidence. The guilt of the accused must be established in the first instance beyond a reasonable doubt, and when so established he is not to be acquitted because the jury, after hearing him or his witnesses, may be in doubt whether he acted in self-defense. In making that defense, he admits his intentional killing of another — a crime under divine and human law, unless it appear in the proof of the killing that it was excusable — and the burden is righteously upon him to show that it could not be avoided’ “We may take it for a general rule that all homicide is malicious, and of course amounts to murder, unless where justified by the command or permission of the law, excused on the account of accident or self-preservation, or alleviated into manslaughter by being either the involuntary consequence of some act not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out to the satisfaction of the court and jury, the latter of whom are to decide whether the circumstances alleged are proved to have actually existed, the former how far they extend to take away or mitigate guilt. For all homicide is presumed to be malicious until the contrary appeareth upon evidence:” 4 Blackstone’s Commentaries, 201. The burden of proving self-defense is not placed heavily upon one accused of taking life. Sacred as is human life, he is not bound to show beyond all doubt that he was compelled to take it, but is humanely permitted, to satisfy the jury by a fair preponderance of the testimony that he killed under circumstances justifying his belief that his own life could not otherwise have' been saved. To doubt, however, even to reasonably doubt, that life was taken in self-defense, is not to be satisfied that it was so taken, and when this affirmative defense is left in doubt it has not been established at all as a basis for acquittal.

There was nothing in the case justifying the presentation of the prisoner’s sixth point, and it was therefore properly declined and not read to the jury. :

Both assignments of error are overruled, the judgment is affirmed and the record remitted for the purpose of execution.


text:
    Commonwealth v. Lewis, Appellant.

      Criminal law — Murder—Insanity—Charge.
    On the trial of an indictment for murder the trial judge correctly charges on the subject of insanity as follows: “If the prisoner although he labors under partial insanity, hallucination or delusion, did understand the nature and character of his act, had a knowledge that it was wrong and criminal, and mental power sufficient to apply that knowledge to his own case, and he knew if he did the act he would do wrong and would receive punishment; and if, further, he had sufficient power of memory to recall the relation in which he stood to others, and others stood to him, and that the act in question was contrary to the plain dictates of justice and right, injurious to others and in violation of the dictates of duty, he would be responsible; or, putting it in briefer shape, the law is that whether the insanity be general or partial the degree of it must be so great as to have controlled the will of its subject and to have taken from him the freedom of moral action.”

      Practice — Trial—Charge—Points.
    A trial judge is not bound to adopt the language of points, but may choose his own form of expression, and if it expresses the law fully and with substantial accuracy nothing further is necessary.
    Argued Oct. 5. 1908.
    Appeal, No. 195, Jan. T., 1908, by defendant, from judgment of O. & T. Chester Co., Oct. T., 1907, on verdict of guilty of murder of the first degree in case of Cohimonwealth v. Irwin A. Lewis.
    Before Mit,chell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Hemphill, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was portion of charge quoted in the opinion of the Supreme Court, and answers to various points.

      Wm. S, Windle and Thomas W. Pierce, for appellant.

      Robert S. Gawthrop, for appellee.
    October 12,1908:
   Per Curiam,

The defense being insanity the learned judge below charged the jury that, “ If the prisoner although he labors under partial insanity, hallucination, or delusion, did understand the nature and character of his act, had a knowledge that it was wrong and criminal, and mental power sufficient to apply that knowledge to his own case, and he knew if he did the act he would do wrong and would receive punishment; and if, further, he had sufficient power of memory to recall the relation in which he stood to others, and others stood to him, and that the act in question was contrary to the plain dictates of justice and right, injurious to others and in violation of the dictates of duty, he would be responsible; or, putting it in briefer shape, the law is that whether the insanity be general or partial the degree of it must be so great as to have controlled the will of its subject and to have taken from him the freedom of moral action.

“These are the guides as to the insanity that will excuse the commission of the crime, if you find that such a crime has been committed.”

This is the language of Ludlow, P. J., in Sayres v. Commonwealth, affirmed in 88 Pa. 291, 299, and repeatedly cited-by this court as a correct and adequate definition of the law of insanity in trials for murder: Com. v. Wireback, 190 Pa. 138; Com. v. Barner, 199 Pa. 335.

Counsel for the prisoner presented five points for charge on the subject of insanity dealing with more detailed reference to the prisoner’s actions and the rule of responsibility in regard to them. All of them were declined by the judge on the ground that they were sufficiently covered by the general charge above quoted. Notwithstanding the earnest argument of counsel, and our careful examination of these points, we have not found in any or all of them any substantial element or principle of law not exactly covered and answered in the passage quoted. They are only variations and expansions of phraseology.

It has been repeatedly held that the judge is not bound to adopt the language of points, but may choose his own form of expression, and if it expresses the law fully and with substantial accuracy nothing further is necessary.

The judge’s charge is not made to a technical and critical audience scanning closely every phrase capable of a construction which would be error, but is addressed to a jury of plain men of various ages, education, intelligence and experience and is intended to inform them as to the law, and to guide them in its application to the facts as they may find them from the evidence. Having given them one plain, full and adequate statement of the law, it need not do more.

Judgment affirmed and record remitted for purpose of execution.


text:
    Commonwealth v. Garrito, Appellant.

      Criminal law — Murder—Misconduct of juryman — New trial.

    The whole subject of new trial in criminal cases, including alleged misconduct of jurors, is largely within the discretion of the trial judge, and his conclusions upon disputed facts will not be disturbed, except for serious and manifest error.

      Criminal law — Murder—Review by appellate court — Province of court and jury — Act of February 15,1870, P. L. 15.
    The review of the law and the evidence required of the Supreme Court in murder cases by the Act of February 15, 1870, P. L. 15, is limited to the inquiry whether competent evidence has been given, which if believed will sustain the conviction. Whether it shall be believed or not is exclusively for the jury. '
    Argued Oct. 5, 1908.
    Appeal, No. 276, Jan. T., 1908, by defendant, from judgment of O. & T. Berks Co., Dec. T., 1907, No. 28, on verdict of guilty of murder of the first degree in case of Commonwealth v. Salvatore Garrito.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Endlich, J.
    Verdict of guilty of murder of the first degree. Defendant appealed.

      Error assigned was in the following form:
    The court erred in overruling the defendant’s first additional reason for a new trial, which was as follows:
    One of the jurors had, before the case was called for trial, formed and expressed an opinion that the defendant was guilty and should be hung, and stated that he hoped he would get on the jury, and that if he would, he would hang him. This was not known to the prisoners or their counsel until after the verdict was rendered.
    The rule to show cause was discharged.
    The evidence does not warrant a conviction of murder in the first degree.

      George D. Humbert, for appellant.

      Harry D. Schcejfer, district attorney, for appellee, was not heard.
    October 12, 1908:
   Per Curiam,

The first assignment of error is to the overruling of the appellant’s reason for new trial that a juror had before the trial expressed the opinion that defendant was guilty and should be hanged. It appears that the juror on his voir dire when first called, admitted that he had formed an opinion but testified that he could disregard such opinion and render a verdict on the evidence. This made him a-competent juror under all the cases. On the motion for a new trial, however, an affidavit was presented averring not only the • expression by the juror of an opinion of the prisoner’s guilt, but an intention to hang him if he could get on the jury. The learned judge investigated this charge, and found it not sustained. It is sufficient to say that the whole subject of new trial including alleged misconduct of jurors is largely within the discretion of the trial judge and his conclusions upon disputed facts will not be disturbed except for serious and manifest error.

The second assignment is that the evidence does not warrant a conviction of murder of the first degree. This assignment seems to be founded on the provision of the Act of February 15, 1870, P. L. 15, requiring the Supreme Court to review the law and the evidence and “to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” But this review is limited to the inquiry whether competent evidence has been given which if believed will sustain the conviction. Whether it shall be believed or not is exclusively for the jury: Com. v. Morrison, 193 Pa. 613.

The objection on which the assignment is based in the present case is that the witness furnishing the testimony which established the degree of the crime was not worthy of belief. But the credibility was for the jury and is not within our province.

Judgment affirmed and record remitted for purpose of execution.


text:
    Henderson’s Case.

      Election law — Primary elections — Nomination.
    Under the primary election Act of February 17, 1906, P. L. 36, where no name of a candidate of one party is printed on the primary ballot, and a number of electors write in the blank space on the ballot the name of the candidate of the opposite party, and no other person is voted for, such candidate is entitled to have his name printed on the official ballot as the candidate of such party.
    Argued Oct. 5, 1908.
    Appeal, No. 216, Oct. T., 1908, by Harry C. Golden, from order of C. P. Armstrong Co., Sept. T., 1908, No. 177, dismissing objections to nomination of Harry B. Henderson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Objections to nomination of Harry B. Henderson.
    Patton, P. J., filed the following opinion:
    The act of assembly approved February 17, 1906, P. L. 36, providing a uniform method of electing party officers, made a radical change in the manner of conducting primary elections.
    Section four of said act-prescribes the form of said ballot and directs, inter alia, “make a cross (X) in the square to the right of each candidate for whom you wish to vote. If you desire to vote for a person whose name is not on the ballot, write or paste his name on the blank space provided for that purpose.
    At the spring primary held in Armstrong county on April 11, 1908, one person was to be chosen by the electors of said county for the office of register and recorder. If the provisions of this act were carried out (and in the absence of allegations to the contrary, we must presume that they were), the chairman of the county committee would give notice to the county commissioners of the names of the party officers to be filled, and the commissioners in turn would advertise this fact in at. least two newspapers of general circulation. If any person desired to become a candidate for the nomination for register and recorder in any party, it became his duty, if he desired to have his name printed upon the official ballot, to prepare and circulate a petition for that purpose, have it .signed by fifty qualified electors, and file it with the county commissioners at least three weeks prior to the primary.
    Harry B. Henderson, as the Republican candidate for the office of register and recorder, strictly complied with this act of assembly and was duly nominated for said office by that party.
    No person desired to become a candidate for the office of register and recorder on the Democratic ticket. At least no person expressed any such desire by circulating and filing a petition as required by the act of assembly.
    It then became the duty of the county commissioners to prepare the official ballot for the primary election, and in doing so the law requires that they should provide a blank space, in which any elector, who desires to vote for a person whose name was not on the ballot, might write or paste his name. If the commissioners complied with the law (and we are bound to presume that they did) in preparing the Democratic ballot, they would- leave a blank space as above provided.
    In this space the law expressly authorized any Democratic elector to vote for any person whose name was not on the ballot. As Harry B. Henderson’s name was not on the ballot, twenty electors, being a plurality of the votes cast for the office of register and recorder following the letter of the law, voted for him. The vote so cast was counted by the election board, returned by them to the county commissioners, and computed by them .and a certificate granted to said Harry B. Henderson that he was the legal nominee for register and recorder on the Democratic ticket.
    It is apparent that the letter of the law was strictly complied with and that on the face of the proceedings he is entitled to the certificate given him.
    The petitioner assigns seven reasons why said nomination should be declared illegal and void. The first, second, fifth and seventh reasons are in effect that it was not intended or allowed by the “Uniform Primary 'Act” that the Democratic party should be allowed to place on nomination a recognized Republican as its candidate for the said office.
    We remark that there is no such provision in the act of assembly. If the legislature had intended any such limitations of the right of franchise, it would have been very easy to have written in the act after the word “person,” the words, “of the same political affiliation.” In the absence of any such qualification we must presume that the legislature meant just what it said.
    It is argued that by so construing the law it will permit one political party to interfere with the nominations of the other. Not so. No Republican interfered in any manner with the Democratic electors. But a plurality of the latter, not having an avowed candidate of their own, thinking that Mr. Henderson was the man best qualified to fill the office, expressed their desire to have him fill it, by the way pointed out by the law, viz., by writing his name in the blank space provided for that purpose. We see nothing in the letter or spirit of the law to prevent them from indicating by their votes whom they desired to have placed on their ballot as their candidate.
    It is argued that the nomination of Mr. Henderson is against the spirit of the act. But no authority has been cited nor can any be found to sustain this contention. On the contrary, in Magee’s Nomination, 18 Pa. C. C. Rep. 225, it is said by Judge McPherson, “ At least in the absence of a rule to the contrary, a nominating convention of one party is certainly at liberty to choose a candidate of a different political faith. This power has been exercised repeatedly without challenge and indeed its existence is not denied.”
    We all know that it is of frequent occurrence for one party to indorse the candidate of another. In our own county, last year, Thos. W. Williams, the Republican candidate for county •surveyor, was placed upon the Democratic ticket, just in the same manner as Mr. Henderson is now placed, and his name was printed on the official Democratic ticket in the fall without challenge.

      The third reason is that there is no petition filed by at least fifty electors to have Mr. Henderson’s name placed upon the ballot, and the sixth reason is that there is no certificate of nomination filed. The respondent does not claim to have his name on the ballot by petition or certificate, but under that provision of the act which allows an elector to write his name in the blank space provided for that purpose. The fourth reason is that the “Uniform Primaries Act” does not authorize the elector to vote for any person whose name is' not printed on the ballot. This reason is contradictory of the form of the ballot above quoted, and also the provision in the act that declares “The voter may designate his choice, as indicated by the instructions shown on the form of ballot above set forth.”
    We are also of the opinion that the complainant as an elector has entirely mistaken his remedy in objecting to “the nomination certificate or paper under the Act of 21st of April, 1903, sec. 1, P. L. 224.” This act was passed prior to the “Uniform Primary Act,” and its cumbersome methods are not applicable to the present law. The objections before us are not so much to the nomination papers as to the counting of the votes. Section 9 of the act of February 17, 1906, provides: “ Any person aggrieved by any decision of the county, commissioners relative to the counting of votes, may appeal therefrom to the court of common pleas of the proper county, whose duty it shall be to hear such appeal, and to make such order as right and justice shall require. Uriah H. Cook is the party aggrieved, and could have taken an appeal as above provided. Or Cook might have proceeded by writ of mandamus against the county commissioners to compel them to have his name printed on the ballot, and thus raised the legal questions involved.
    However, we place our decision upon the broad ground that no Democratic elector having sought to have his name placed upon the official ballot as his party’s candidate for register and recorder, any member of his party had the right to write the name of any elector, be he Democrat, Prohibitionist, Socialist,1 or Republican, in the blank space provided for that purpose, and that it was' the duty of the election officers to count said votes, and the commissioners to compute and canvass the returns, and that Harry B. Henderson, having received the plurality of votes cast by the Democratic party at the primary election, he is the legal candidate of that party for the office of register and recorder, and it is the duty of the proper officers to print his name on the official ballot as such candidate.
    And now, August 22, 1908, the objections are dismissed at the cost of the petitioner.

      Error assigned was the order of the court.

      R. L. Ralston and C. E. Harrington, for appellant,
    cited: Dinger’s Petition, 17 Pa. Dist. Rep. 399; Weiss v. County Commissioners, 17 Pa. Dist. Rep. 262; Super v. Strauss, 17 Pa. Dist. Rep. 333; Von Moss's Election, 219 Pa. 453; Independence Party Nomination, 208 Pa. 108.

      H. N. Snyder, for appellee,
    cited: Magee’s Nomination, 18 Pa. C. C. Rep. 225.
    October 12, 1908:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


author: Me. Justice Beown,

text:
    Long v. Lemoyne Borough, Appellant.

      Boroughs — Resolutions—Approval of chief burgess — Loan—Invalid loan —Act of May 23,1893, P. L. 113 .
    The resolution of a borough council authorizing the borrowing of money for municipal purposes, and the giving of a judgment note therefor, must be presented to the chief burgess for his approval and signature, and if this is not done the loan is invalid, and a judgment entered on the note against the borough will be stricken off. In such a case it is immaterial that the chief burgess was present when the resolution was passed, and personally applied to a bank for the loan.
    While a judgment against a borough entered on a judgment note given for a loan may be stricken off because the resolution authorizing the loan had not been submitted to the chief burgess for his approval, still if the borough intended to contract the loan and actually received the money, the debt is an honest one, and the lender may recover the amount of it from the borough in an action for money had and received.

      Boroughs — Municipalities—Member of council — Furnishing supplies. The statute which prevents a member of a borough council from profiting by any contract “for the sale or furnishing of any supplies or materials,” to his municipality, does not apply to a case where a borough council authorizes a loan from a bank, and a member of the council authorizing the loan is also a member of the banking association.

      Judgment — Invalid, judgment — Striking off judgment.

    As a general rule a judgment, regular on its face, will not be stricken off, but when it is entered wholly without authority it may be stricken off, for it is no judgment at all so far as it affects the rights of the defendant.
    Argued April 27, 1908.
    Appeal, No. 44, Jan. T., 1908, by defendant, from order of C. P. Cumberland Co., Sept. T., 1907, No. 167, discharging rule to strike off judgment in case of S. W. Long, for use of the Cumberland Valley Bank, v. Lemoyne Borough.
    Before Fell, Brown, Mestrezat, Potter and Elicin, JJ.
    Reversed.
    Rule to strike off judgment. Before Sadler, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order discharging rule to strike off judgment.

      E. M. Biddle,. Jr., for appellant.
    Where the authority of the officer to make a note is denied, the burden of proving such authority is cast upon the person offering the note: Millward-Cliff Cracker Co.’s Estate, 161 Pa. 157; Wayne Title & Trust Co. v. Ry. Co., 191 Pa. 90; Worthington v. Schuylkill Electric Ry. Co., 195 Pa. 211; First Nat. Bank v. Slate Co., 16 Pa. Dist. Rep. 860.
    A municipality cannot be bound by contract of its agents beyond their special authority: Barnes v. Phila., 3 Phila. 409; Davis v. Phila., 3 Phila. 374; Devinney v. Reynolds, 1 W. & S. 328; Campbell v. Foster Home Assn., 163 Pa. 609; Payne v. Robinson, 1 Pa. Dist. Rep. 638; Keller v. Scranton, 200 Pa. 130; City of Erie’s App., 91 Pa. 398.

      All resolutions relating to contracts for borough improvements, special expenditures of borough moneys, approval of contracts and orders for the payment of borough debts for every special purpose, other than the routine of current expenses, although in the form of motion or resolution, must be signed by the burgess and approved by him, or passed over his veto, as provided by the act of 1893: Galloway v. Gilmour, 5 Pa. Dist. Rep. 553; Riebe v. Lansford Borough, 5 Pa. Dist. Rep. 555; Kepner v. Com., 40 Pa. 124; Com. ex rel. v. Buchanan, 6 Kulp, 217; Lehigh Coal & Nav. Co. v. Ry. Co., 167 Pa. 126; Milford Borough v. Milford Water Co., 124 Pa. 610; Larimer, etc., St. Ry. Co. v. Ry. Co., 137 Pa. 533; Butler v. School Dist., 149 Pa. 351; Brandmeier v. Coal Co., 219 Pa. 19.
    Apart from any irregularities in the confession of judgment or in the manner in which the resolutions authorizing the loans were enacted, or in the manner in which the debt was contracted, the appellant contends that the underlying contract with the bank was wholly void, as being in violation of sec. 66 of the Act of March 31, 1860, P. L. 382, and as being against public policy: Milford Boro. v. Milford Water Co., 124 Pa. 610; Washington Twp. v. Shoop, 2 Pa. Dist. Rep. 639; Trainer v. Wolfe, 140 Pa. 279; Marshall v. Ellwood City Boro., 189 Pa. 348; Harrison Twp., 20 Pa. C. C. Rep. 54; Com. v. DeCamp, 177 Pa. 112; Hazle Twp., 1 Pa. Dist. Rep. 813; Pratt v. Luther, 45 Ind. 250; Goodrich v. Waterville, 88 Me. 39 (33 Atl. Repr. 659); O’Neil v. Flannagan, 98 Me. 426 (57 Atl. Repr. 591); Com. v. Witman, 217 Pa. 411; Bartolett v. Achey, 38 Pa. 273; Com. v. Commissioners of Phila. County, 2 S. & R. 193; In re Hazle Twp., 1 Pa. Dist. Rep. 813; Milford v. Water Co., 124 Pa. 610.
    Apart from the effect of the act of 1860, the contract between the bank and the officers of the borough was void as against public policy: Washington Twp. v. Shoop, 2 Pa. Dist. Rep. 639; Everhart v. Searle, 71 Pa. 256.

      S. B. Sadler, with him C. S. Brinton, for appellee.
    When a municipality has lawfully created a debt, it 1ms the implied power, unless restrained by its charter, or a statute, to evidence the same by bill, bond or other instrument. The power to contract the debt implies the right to issue proper acknowledgments therefor: Williamsport v. Com., 84 Pa. 487; Com. v. Councils of Pittsburg, 41 Pa. 278; Commonwealth v. Pittsburg, 34 Pa. 496; Oil City v. McAboy, 74 Pa. 249.
    It is not universally true that a corporation cannot bind the corporators beyond what is expressly authorized in the charter. There is power to contract, undoubtedly, and if a series of contracts have been made openly and palpably within the knowledge of the corporators, the public have a right to presume that they are within the scope of the authority granted: Allegheny City v. McClurkan, 14 Pa. 81; Commonwealth v. Buchanan, 6 Kulp, 217; City of Pittsburg v. Biggart, 85 Pa. 425.
    That the indebtedness was temporary in character, and in-, tended to provide funds until a permanent loan could be arranged clearly appears from the notes themselves, which were made payable in thirty or sixty days, and from all of the testimony in the case. That the entire sums borrowed were less than two per cent of the assessed valuation has not been denied. This practice of making temporary loans has been recognized frequently by the courts: Williamsport v. Com., 84 Pa. 487; Safe Dep. Bank v. Schuylkill County, 190 Pa. 188; Snyder v. Kantner, 190 Pa. 440; Spangler v. Leitheiser, 182 Pa. 277; Bell v. Waynesboro Borough, 195 Pa. 299; Lehigh Coal & Nav. Co.’s App., 112 Pa. 360.
    Even without the ratification by the burgess, it is believed that these temporary loans were “in the nature of a business transaction relating to municipal affairs of the borough,” and under such circumstances the signature of the burgess would not be required: Lansdowne v. Citizens’ Electric Light & Power Co., 206 Pa. 188; Kolb v. Tamaqua Borough, 218 Pa. 126; Com. v. Diamond Nat. Bank, 9 Pa. Superior Ct. 118.
    In the case at bar there was not only an approval of the action of council by the burgess, but a loan secured at his instance, and with full knowledge of all the facts as a result of the resolutions. In addition, the benefits arising by reason of the action of council have been fully enjoyed by the borough, and it is now es-topped from setting up an alleged irregularity in the proceedings of its officers: MacGeorge v. Manufacturing Company, 141 Pa. 575; Wojciechowski v. Johnkowski, 16 Pa. Superior Ct. 444; Allegheny City v. McClurkan, 14 Pa. 81; Barber Asphalt Paving Co. v. Harrisburg, 64 Fed. Repr. 283; Addyston Pipe & Steel Co. v. Corry, 197 Pa. 41.
    It is also insisted that the signature of the burgess to the ordinance subsequently passed providing for an election to fund the loan in question, would be sufficient ratification, if the signature of the burgess was required to the original resolutions. That there may be a ratification of such acts cannot be questioned: Roye v. Borough of Columbia, 192 Pa. 146; Bell v. Waynesboro Borough, 195 Pa. 299; Millvale Borough, 162 Pa. 374; Sandy Lake Borough v. Gas Co., 16 Pa. Superior Ct. 234.
    The act of 1860 is a highly penal statute and it cannot be extended by implication beyond its precise meaning: Trainer v. Wolfe, 140 Pa. 279; Com. ex rel. v. Hilibish, 12 Pa. C. C. Rep. 25; Cavender v. Steamboat Fanny Barker, 40 Mo. 235; Marshall v. Elwood City Borough, 189 Pa. 348.
    November 2, 1908:
   Opinion by

Me. Justice Beown,

The borough of Lemoyne was incorporate^. May 23,' 1905. The first meeting of its council was held July 26, following. The new borough being without funds to enable it to start properly on its municipal career, its council, on October 31, 1905, passed the following resolution: “Resolved, That the Borough of Lemoyne borrow from the Cumberland Valley Bank for general Borough purposes the sum of ($500) Five Hundred Dollars and that the President of Town Council and Borough Treasurer be authorized and directed to execute a note in the name of the Borough of Lemoyne, and attested by the Secretary, to said Cumberland Valley Bank for said loan of ($500) Five Hundred Dollars and all renewals of the same.” To secure this loan of $500 a judgment note was executed in that sum on November 3,1905, by the president of the town council and attested by the secretary, payable ninety days after date to the order of S. W. Long, the borough treasurer. A copy of the resolution of October 31, signed by the president of the town council and duly certified by the secretary, was presented to the bank and, upon the assignment of the note to it by Long as treasurer, the same was discounted by the bank and the proceeds placed to his credit as borough treasurer. The borough subsequently made three other loans from the bank in the same way, one for $1,000, one for $2,000-and the third for $1,000. The resolutions authorizing these loans were in the same form as the one of October 31, and the notes were in the same form as that given for $500 on November 3, the only difference being in the amounts. Shortly after the last loan was made, on February 27, 1906, all the notes were consolidated into one of the same form for $4,500, payable to the order of S. W. Long, treasurer, which he assigned to the bank. At the municipal election in February, 1906, new councilmen were elected, only one of the old members holding over. The new council refused to recognize the obligation for $4,500 held by the bank, and, when judgment was entered upon it, a rule was taken to show cause why it should not be opened and stricken off on the grounds, (1) that no legal action had been taken by the borough authorizing the loans; (2) that when the resolutions were passed authorizing the loans a majority of the members of council were members of a partnership association conducting the said Cumberland Valley Bank, and the loans were, therefore, void under sec. 66 of the Act of March 31, 1860, P. L. 382; and (3) that a portion of the money borrowed from the bank had been illegally expended by the borough in making improvements. The rule granted was discharged, and from the refusal of the court to interfere with the judgment we have this appeal.

No one of the four resolutions directing the loan to be made was presented to the chief burgess for his approval. It is true he was present when each of them was passed, and he personally applied to the bank for the loans. Under this state of facts the court below was of opinion that he had impliedly approved-the resolutions. But this is not the kind of approval recognized by the statute when approval is essential to the validity of an ordinance. The requirement of the Act of May 23, 1893, P. L. 113, is that every resolution shall be presented to the chief burgess and, if he approve it, he shall sign it. It must be expressly approved by him, and the evidence of such approval is that he has signed it. If the resolutions were of such a character as to require the approval of the borough’s chief executive, they never became operative, and the judgment for $4,500 against the borough was confessed by the president of the town council without authority. Whether the resolutions required the approval of the chief burgess depended upon whether they were legislative or ministerial. If legislative, approval was essential to their validity; if ministerial, it was not. That they were of a legislative character is clear. They did not direct the doing of something which had been provided for by prior municipal legislation, but, on .the contrary, each was an independent attempt at original municipal action. No one of them directed the performance of an executory, contract previously authorized by ordinance or resolution, but each was a ways and means act, passed for the purpose of authorizing the borough officers to make a contract with the Cumberland Valley Bank, and, therefore, required the approval of the chief burgess before it could confer authority upon the president of the council to create a municipal liability to the bank: Jones v. Schuylkill Light, Heat & Power Co., 202 Pa. 164. Without such approval the president of the town council was without authority to execute any kind of obligation in the name of the borough, and appellant’s contention that the judgment entered on the note given by him is void for want of authority to confess it, must, therefore, prevail. But while we are compelled to so hold, the borough will gain nothing by our reversal of the court below. Though the bank cannot recover on the judgment note given to it, because the attempt to do so is an attempt to enforce an express contract which no one had been properly authorized to execute on behalf of the borough, there is an implied obligation resting upon the municipality to pay back.what was lent to it in good faith. The council concededly could have authorized the borrowing of the money and the execution of an obligation to repay it to the bank, and, the borough having received, at its special instance and request, $4,500 from the appellee for its municipal needs, its implied legal obligation is to pay this honest debt. In an action against it for money had and received it will be the duty of the court, under the facts as developed in this proceeding, to direct a recovery: Rainsburg Borough v. Fyan, 127 Pa. 74. Municipal repudiation of honest indebtedness which the municipality intended to contract and could have lawfully contracted, is no more to be tolerated than individual repudiation of honest indebtedness merely because it was not incurred in pursuance of a duly executed express contract, unless the municipal charter or the statutes prohibit the municipality from incurring any liability by implication.

As to the second reason given by the borough for asking that the judgment be declared void, it is a sufficient answer to say that the act of 1860 is a penal one and must be strictly construed: Trainer v. Wolfe, 140 Pa. 279. It prevents a member of council from profiting by any contract “for the sale or furnishing of any supplies or materials” to his municipality. Money is not within its letter and certainly not within its spirit. For the use of money a rate of interest is fixed by statute, beyond which no lender can profit. In asking the court below to decide that a loan from a bank to a municipality is void if a member of the banking association making it happens to be a member of the town council authorizing it, the appellant was simply consistent in its narrow, technical and unconscionable attitude towards the honest claim of the appellee.

After the bank had lent the money to the borough in good faith, it was none of its concern how it was spent. A sample of the objections to paying the loan because the borough had illegally expended some of the money, is the hiring of teams from two of the members of the town council by the man who was making repairs on the streets. To discuss these objections would be to unduly dignify them.

As a general rule a judgment, regular on its face, will not be stricken off, but when it is entered wholly without authority it may be stricken off, for it is no judgment at all so far as it affects the rights of the defendant: Bryn Mawr National Bank v. James, 152 Pa. 364. This judgment was entered without authority, and the court below found that the entry of it had jiever been ratified. It cannot, therefore, remain on the record. The order of the court below is reversed and the judgment is stricken off.


author: Me. Justice Elkin,

text:
    Conoy Township Supervisors, Appellant, v. York Haven Electric Power Plant Company.

      Taxation — Alterations—Quasi public corporations — Real estate — Local taxation — Water and power companies.

    The real estate of a public or quasi public corporation, essential to the exercise of its corporate franchises, is not subject to local taxation in the absence of legislative authority imposing such taxes.
    The words “real estate” in the taxing statutes of this state, do not include lands or appurtenances essential and necessary to the exercise of the franchise of a public corporation.
    The test as to whether a corporation is or is not a quasi public corporation is not what the corporation has done, or what it may attempt to do, but what it is authorized to do, and may be compelled to do, under its charter in the performance of duties imposed thereby.
    A corporation chartered “for the purpose of supplying water and power to the public and to firms, individuals and corporations,” in a district named, is a quasi public corporation exempt from local taxation on its real estate.
    It is the settled policy of the law in Pennsylvania to tax the real estate of quasi public corporations, except those exempted from such taxation by statute, by including the value thereof in the assessment of the capital stoclC
    Argued June 2, 1908.
    Appeal, No. 70, Jan. T., 1908, by plaintiff, from judgment of C. P. Luzerne Co., Nov. T., 1905, No. 88,- for defendant non obstante veredicto in case of Conoy Township Supervisors v. York Haven Electric Power Plant Company or York Haven Water & Power Company, owners or reputed owners.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur tax lien. Before Hassler, J.
    The opinion of the Supreme Court states the case.
    At the trial the jury returned a verdict for plaintiff for 11,875. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Bernard J. Myers, with him Wm. R. Brinton, for appellant.
    —The following cases clearly set forth the difference between private corporations, to which class we allege the York Haven Water & Power Company belongs, and quasi public or public service corporations: Carbon Iron Co. v. Carbon County, 39 Pa. 251; South. Reading Market House Co. v. Berks County, 11 W. N. C. 424; Allegheny County v. McKeesport Diamond Market, 123 Pa. 164; Miners’ Ditch Co. v. Zellerbach, 37 Cal. 543; Scranton v. Light & Power Co., 8 Pa. C. C. Rep. 626; Bonaparte v. R. R. Co., 1 Baldwin (U. S.), 205; Twelfth St. Market Co. v. R. R. Co., 142 Pa. 580; McLeod v. Normal School Assn., 152 Pa. 575.
    The following Pennsylvania corporations have been held liable to pay state tax on their capital stock, as well as local taxes on their property, and actually do pay both classes of taxes, to wit: market companies, real estate companies, hotel companies, printing companies, publishing companies, drove yard companies, opera house companies, grain elevator companies, stable and livery companies, storage companies, brewing and distilling companies, mercantile and many other classes of incorporations.
    The general trend of the decisions in this and other states is against the further exemption of property of corporations from local taxation: Philadelphia v. Traction Co., 208 Pa. 157; People v. Cassity, 2 Lans. (N. Y.) 294; Middlesex Railroad Co. v. Charlestown, 90 Mass. 330; Providence Gas Co. v. Thurber, 2 R. I. 15; Louisville City Ry. Co. v. Louisville, 4 Bush (Ky.), 478; Des Moines Water Co.’s App., 48 Iowa, 324; City of St. Joseph v. Hannibal, etc., R. R. Co., 39 Mo. 476.

      W. U. Hensel, for appellee.
    A water and water power company, incorporated to supply water and water power to the general public under the Acts of June 10, 1893, P. L. 412, and of July 2, 1895, P. L. 425, belongs to that class of quasi public corporations which the courts of Pennsylvania have uniformly held to be exempt from local taxation: Brown v. Radnor Twp. Electric Light Co., 208 Pa. 453; Southern Electric Light & Power Co. v. Philadelphia, 191 Pa. 170; Scranton v. Scranton Electric Light & Power Co., 8 Pa. C. C. Rep. 626; Philadelphia v. Traction Co., 208 Pa. 157; Coatesville Gas Co. v. Chester Co., 97 Pa. 476; Lehigh Coal & Nav. Co. v. Northampton County, 8 W. & S. 334; Wayne County v. Del. & Hudson Canal Co., 15 Pa. 351; R. R. Co. v. Berks County, 6 Pa. 70; West Chester Gas Co. v. Chester County, 30 Pa. 232; Roaring Creek Water Co. v. Northumberland County, 6 Pa. C. C. Rep. 473; Northampton County v. Easton Pass. Ry. Co., 148 Pa. 282; People’s Pass. Ry. Co. v. Taylor, 22 Pa. Superior Ct. 156; Lancaster v. Edison Elec. Illuminating Co., 8 Pa. C. C. Rep. 631; Pittsburg’s Appeal, 123 Pa. 374; St. Mary’s Gas Company v. Elk County, 191 Pa. 458.

      Bernard J. Myers, with him Wm. R. Brintpn, for appellant,
    in reply, cited: Sowego Water & Power Co., 16 Pa. C. C. Rep. 179; Portland Water & Power Co., 13 Pa. Dist. Rep. 659; Peifly v. Mountain Water Supply Co., 214 Pa. 340.
    November 2,1908:
   Opinion by

Me. Justice Elkin,

It has been uniformly held in Pennsylvania, that.the real estate of a public, or quasi public, corporation, essential to the exercise of its corporate franchises is not subject to local taxation in the absence of legislative authority imposing such taxes. The power to tax necessarily includes the power to sell for nonpayment of taxes, and thus the property of a. public corporation, without which it could not perform its duties to the public, could be sold piecemeal and the corporate purpose be defeated by divesting the title to certain portions of the real estate against which- tax liens were filed. Again, many, quasi public corporations extend into and through different municipalities, and as a question of public policy, it has not been deemed wise to subject them to the exactions of the taxing officer at every municipal division line, but rather to authorize the commonwealth to impose a capital stock tax upon such corporations, and in appraising the same for the purpose of taxation, the real estate, franchises, earning power, dividends and all other matters which affect the value thereof, must be taken into consideration. In this manner the real estate of a quasi public corporation is taxed, and while the tax goes directly to the state in the first instance, cities, boroughs, townships, school districts and other municipal divisions receive the benefits of such taxation by appropriations made to the public schools, to hospitals, to eleemosynary institutions and to charities of different kinds located throughout the state. But without further discussion of the policy of the law, which is the foundation of the rule, it is settled in this state that the words “real estate” in our taxing statutes do not include lands or appurtenances essential and necessary to the exercise of the franchise of a public corporation: Lehigh Coal & Navigation Company v. Northampton County, 8 W. & S. 334; Railroad Co. v. Berks County, 6 Pa. 70; Schuylkill Navigation Co. v. Berks County, 11 Pa. 202; Wayne County v. Canal Co., 15 Pa. 351; Railroad Co. v. Sabin, 26 Pa. 242; West Chester Gas Co. v. Chester County, 30 Pa. 232; Coatesville Gas Co. v. Chester County, 97 Pa. 476; Pittsburg’s Appeal, 123 Pa. 374; Roaring Creek Water Co. v. Girton, 142 Pa. 92; Northampton County v. Easton Pass. Railway Co., 148 Pa. 282; Spring Brook Water Co. v. Kelly, 17 Pa. Superior Ct. 347; St. Mary’s Gas Co. v. Elk County, 191 Pa. 458; Southern Electric Light & Power Co. v. Phila., 191 Pa. 170; Philadelphia v. Electric Traction Co., 208 Pa. 157.

These and other similar cases hold that the real estate of turnpike, navigation, canal, railroad, street railway, artificial and natural gas, water and electric light and power companies, essential and necessary to the exercise of their corporate franchises, is not subject to taxation for local purposes. The only question in the present case is whether appellee is a quasi public corporation within the meaning of the law, so as to entitle it to exemption from local taxation.

The learned court below so held and, after careful consideration, we have reached the same conclusion. If companies incorporated to supply water, electricity and light to the public, are exempt from local taxation, under the rule hereinbefore mentioned, it is difficult to see why a company incorporated for the express purpose of supplying water and power should occupy a different position. So far as the power of taxation is involved, there is no difference in principle between a company incorporated to supply water, or electricity to the public, and one incorporated to supply both water and water power, which produces electricity for the'same purpose. The test, in such cases is not what the corporation has done, or what it may attempt to do, but what it is authorized to do, and may be compelled to do, under its charter in the performance of ’.the duties imposed thereby.

Measured by this standard, and there is no other, there can be no doubt about the purpose for which the appellee company was incorporated, nor about what duties to the public it may be compelled to perform. The York Haven Water & Power Company was created under the general corporation act of 1874, and the several supplements thereto. It does not appear in the application for the charter, nor in the letters patent, what particular supplemental statutes it claims the benefit of, but it is specifically stated that the corporation is formed "for the purpose of supplying water and power to the public and to firms, individuals and corporations in the borough of York Haven, York County, Pennsylvania, and the territory adjacent thereto.”

A corporation organized for the purpose of supplying water to the public has béen held to be a quasi public corporation, and it has also been decided that a corporation created for the supply, storage and transportation of water and water power for commercial and manufacturing purposes, is a quasi public corporation. It would therefore seem to necessarily follow that a corporation possessing the power to do both of these things is no less a quasi public corporation. Indeed the argument would seem to be in favor of the company enjoying the greater power. It is argued, however, that the appellee company does not supply water' or power to the public and firms and individuals and corporations in the borough of York Haven, and that what it attempts to do cannot in any sense be considered to be a service to the public, or that the public has a right to compel the performance of any duty to it. The answer to this contention is that the powers, privileges and duties of a corporation are fixed by its charter, and in a legal proceeding must be determined by the requirements of the charter, and in a case involving the right to impose a tax, the question whether or not such corporation may be exceeding its. corporate powers or has failed to perform duties owed to the public,, cannot be raised and determined. In this proceeding the question of whether the appellee is a quasi public corporation must be determined by the powers granted in the charter and not by evidence dehors the record tending to show that the corporation may be engaged in business not of a public character. If the corporation- is exceeding its corporate powers, the commonwealth alone, at the suggestion of the attorney general, has the right to raise that question. Clearly, however, under the recent case of Jacobs v. Clearview Water Supply Company, 220 Pa. 388, a company incorporated for the purpose of supplying water and water power for commercial and manufacturing purposes, as well as a company supplying water to the public for domestic purposes, is a public corporation. .

This case has been exceptionally well prepared and very ably argued by counsel on both sides. The learned counsel for appellant have made an exhaustive examination of the statutes and decisions relating to the subject, and if we did not consider it a departure from the settled policy of law, much that has been said in behalf of appellant would appeal' to us with great force. However, in a long and unbroken line of cases extending back for a period of more than eighty years, it has been the policy of the law to tax the real estate of quasi public corporations, except those exempted from such taxation by statute, by including the value thereof in the assessment of the capital stock, and we are not convinced that a distinction can be.made in the case at bar without making a departure from what must be considered the settled rule in such cases.

Assignments of error overruled and judgment affirmed.


text:
    Jones v. Lincoln Savings & Trust Company.

      Receivers — Banks and banking — Jurisdiction—Receiver in dissolution proceedings — Receiver under stockholder’s bill.

    The receiver of a trust company appointed at the instance of the attorney general under a bill for dissolution made in accordance with the Act of February 11,1895, P. L. 4, creating a banking department of the commonwealth, does not supersede a receiver previously appointed of the same corporation by another court under a stockholder’s bill for the preservation of assets.
    Argued Oct. 5, 1908.
    Appeals, Nos. 242 and 251, Jan. T., 1908, by Commonwealth ex rel. M. Hampton Todd, Attorney General, and Charles F. Warwick, from order of C. P. No. 4, Phila. Co., June'T., 1908, No. 1,990, discharging rule to set aside appointment of receiver in case of Jeremiah C. Jones, on behalf of himself and other stockholders of Lincoln Savings & Trust Company v. Lincoln Savings & Trust Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to set aside appointment of receiver.
    Willson, P. J., filed the following opinion:
    On the application of the plaintiff, a stockholder of the defendant corporation, this court, on June 18, 1908, appointed Samuel M. Hyneman, Esq., receiver of the said corporation, with the usual powers of such an officer.
    It was not alleged in the plaintiff’s bill that the assets of the corporation were insufficient to pay its debts. Indeed, the contrary was alleged, while at the same time it was, in effect, averred that the appointment of a receiver was necessary to protect the interests of creditors and to prevent a wasteful sacrifice of the assets. The regularity of the appointment of the said receiver is not questioned, but we are asked by the attorney general, for reasons stated in his petition, to supersede, that is, annul the decree made by this court, and to direct the receiver named by us to turn over all the assets and property of the said corporation which have come into his possession, to Charles F. Warwick, Esq., a receiver appointed , by the court of Dauphin county in proceedings instituted by the attorney general in the name of the commonwealth.
    These proceedings were taken under what is commonly known as the Banking Act of 1895, P. L. 4. We do not question the validity or the propriety of the action taken by the Dauphin county court. The act of assembly just referred to was designed to furnish, and does furnish, a method, under which the banking business of state banking institutions can be regulated and controlled, with a view to securing honest and safe management of such institutions. A system of procedure is provided for that purpose, arid the' purpose is most laudable and salutary. We would not deliberately interfere with the successful operation of any of. the means or machinery furnished by the statute to accomplish the end in view. If by reason of the provisions of the statute, all proceedings instituted in a regular manner for the purpose of protecting the interests of creditors, in which a court of competent jurisdiction has appointed a receiver to take and hold the assets of a corporation, are avoided and nullified, then, undoubtedly, it is our duty to do what the attorney general asks us to do, and to direct our officer to stay his hands and turn over to the receiver appointed in Dauphin county all the assets that have come into his possession. Whether or not that be the effect of the statute, and our duty depends upon the proper answer to this single question, is the jurisdiction of the court in Dauphin county, which took cognizance of the matter at the instance of the commonwealth, exclusive; do proceedings there instituted necessarily supersede and avoid all other proceedings regularly .and previously instituted in a court of competent jurisdiction for the settlement of the affairs of a corporation? In other and fewer words,-the question is,-did the action of the Dauphin county court, resulting in the appointment of a receiver, operate to prevent this court and its receiver from moving forward in an orderly and ordinary way towards the end of litigation, which had been here begun before the Dauphin- county court took a step in the matter?

      We need consider no other question. All of the specific reasons urged upon our attention by the attorney general are wrapped up in the contention that, when the court in Dauphin county made its decree appointing a receiver, the bars were raised against any further proceeding by this court under the bill filed here.
    We are not able to agree with that view of the question, not because we think it to be of any importance who shall receive the fees or commissions that may accrue to a receiver, but because we fail to find in the statute any provision which gives to the proceedings brought in the name of. the commonwealth any such exclusive force as is claimed for them.
    We have not been asked by the plaintiff to do anything which the statute referred to above authorizes. We are not asked to dissolve the corporation. We are not asked to give time for making good an impaired capital, or to make a decree based upon proofs of unsafe or improper conduct of business; On the contrary, we are asked only to give a relief which is customary and often afforded, and which has no reference whatever to the remedies of a. public character that the statute affords. So far as we can see, there is nothing in any proper action which we have taken or may hereafter take, in the case, that will interfere with the commonwealth’s effecting all that ought to be done, in any interest which needs to be guarded, without impinging upon the previously acquired jurisdiction of this court. We have said that we do not find in the statute any grant of exclusive jurisdiction over the case to the court of' Dauphin county. This might be owing to some want of perception on our part, but we may go further and say that no such express grant has been pointed out to us by the attorney general. In the absence of that which would deprive us of the jurisdiction already taken of the case as it stands before us, we know of no rule of law or requirement of public policy, which demands that we should vacate the decree made by us.
    There is, besides, a certain amount of respect for our own tribunal that we are bound to recognize. It would be difficult to give reasons for such a thought more cogent than those uttered on behalf of the Supreme Court of this state, by its present learned chief justice, in the case of Commonwealth v. Order of Vesta, 156 Pa. 531, and substantially reiterated in Fraternal Guardians’ Assigned Estate, 159 Pa. 594.
    Aside, however, from there being in the statute no express bar against our jurisdiction, and aside, also, from the consideration just referred to, the statute itself, in the fourth and eleventh sections, seems to show'that the legislature intended to preserve the jurisdiction of other courts of the commonwealth óvér matters which were already within their jurisdiction.
    •In sec. 4 appears the provision, “And the said corporation shall not be subject to any other visitorial power than such as may be authorized by this Act, except such as are vested in the several courts of law.”
    Section 11 reads as follows:
    “No corporation subject to the supervision of the Banking Department shall be subject to any visitorial power other than such as are authorized by this Act, or are invested by law in the courts of this Commonwealth.”
    It seems to us that these express provisions of the statute are totally at variance with the position now taken on behalf of the commonwealth, and that upon the basis of these alone we might well decline to put the plaintiff out of court by granting the application under consideration.
    The 'case of Kittanning Ins. Co., 146 Pa. 102, is cited to us as controlling the situation with which we have to deal, but we do not ascribe to it the weight which it appears to have in the mind of counsel.
    That case arose under the insurance act, which, undoubtedly, in many respects resembles the banking act. The lower court took jurisdiction of a bill praying for a dissolution of the corporation. The court made a decree dissolving the corporation and appointing a receiver. On appeal to the Supreme Court, in a per curiam opinion, it was held that the lower court had no power to dissolve the corporation, and, in what seems to have been no more than an obiter dictum it was intimated that, where a receiver should be appointed in the court of Dauphin county, he would supersede the officer appointed in the court below.

      We do not regard this remark as conclusive of the question, even in a case arising under the insurance act.
    It is far less applicable to the present case, for the reason that the statute last referred to does not recognize, as does the banking act, the right of courts other than the court of Dauphin county to preserve and exercise their jurisdiction over matters that do not arise out of the statute.
    The question under discussion is pre-eminently one for final determination on appeal. We have expressed in this opinion the views that have led us to the conclusion that the rules granted upon the petitions of the attorney general and of the receiver appointed in Dauphin county should be discharged.

      Error assigned was order discharging rule to set aside appointment of receiver.

      M. Hampton Todd, attorney general, with him J. Edgar Butler, for appellant.
    The Act of assembly approved February 11, 1895, P. L. 4, creating a banking department; providing for the supervision of monetary institutions and their dissolution and winding up, establishes a code of procedure which is exclusive of all others.: Com. v. Order of Vesta, 156 Pa. 531; Fraternal Guardians’ Assigned Est., 159 Pa. 594; Bank v. Francklyn, 120 U. S. 747 (7 Sup. Ct. Repr. 757); Com. v. Garrigues, 28 Pa. 9; Nav. Co. v. Blair, 20 Pa. 71; Com. v. Heller, 219 Pa. 65; Hare v. Com., 92 Pa. 141; Beltzhoover Boro. v. Gollings, 101 Pa. 293; Kennedy v. Gibson, 75 U. S. 498; Williamson v. Bank, 115 Fed. Repr. 793; Kittanning Ins. Co.’s Petition, 146 Pa. 102; Com. v. Ins. Co., 10 Pa. Dist. Rep. 339.
    The receiver appointed by court No. 4 has no authority to do more than hold assets under his control. Neither under the bill and decree of his appointment nor under authority of law can he wind up the corporation. On notice that the corporation had been dissolved on the application of the attorney general it became his duty to transfer and account to the receiver appointed on the application of the attorney general: Schwartz v. Oil Co., 153 Pa. 283; In re Union Banking Co., 12 Phila. 469; Olyphant Sewage-Drainage Co. v. Olyphant Boro., 196 Pa. 553; Gas & Water Co. of Downington v. Downington, 193 Pa. 255; Clark v. Bridge Co., 41 Pa. 147.

      John G. Johnson, with him Charles E. Bartlett and Samuel M. Clement, 'Jr., for appellee.
    The Dauphin county court had no exclusive jurisdiction: Com. v. Order of Vesta, 156 Pa. 531; Fraternal Guardians’ Assigned Est., 159 Pa. 594; Treat v. Life Ins. Co., 199 Pa. 326.

      M. Hampton Todd, attorney general, with him J. Edgar Butler, for appellant,
    in reply, cited: Doyle v. Com., 107 Pa. 20; McClain’s Est., 180 Pa. 231; Sweeney v. Girolo, 154 Pa. 609; Hering v. Chambers, 103 Pa. 172.
    November 2, 1908:
   Per Curiam,

Judgments affirmed by a majority of this court on .the opinion of the court below.