author: Mr. Justice Elkin, Mr. Justice Mestrezat, Mr. Justice Potter and Mr. Justice Stewart,

text:
    Indian Brewing Company’s License.

      Liquor laws — Brewer’s license — Necessity—Unfitness of applicant.

    1. In an application for a brewer’s license under the act of 1891 the question of necessity does not arise because eliminated by the statute and the inquiry of the court is limited to the fitness of the applicant.
    2. If the applicant be a corporation its unfitness must be established by showing the commission of unlawful acts by the directors, officers, or authorized agents. This may be done by showing sales on Sunday, or to minors, or to persons of known intemperate habits, or by establishing other violations of the liquor laws.
    3. When the record is made up by the original application, the additional petitions favoring the license and the remonstrances against the granting of it which only contain the naked averment that the “applicant is an unfit corporation to be licensed,” the court is not warranted in finding as a conclusion of law in an opinion filed that the unfitness of the applicant is thus established by the weight of the evidence.
    4. "When the commonwealth chartered the corporation it stamped it as fit to do the business for which it was created, but although made fit by the act of incorporation to engage in the business of brewing liquors it may become unfit within the meaning of the license laws by corporate acts committed in violation of law.
    5. The number and character of the signers should have great weight with the court especially in those cases where the question of necessity arises, but where violations of the law are relied on to defeat the application, numerously signed petitions or remonstrances by persons without knowledge of any unlawful act having been committed, should have no weight in determining whether there had been any violations of the law. In no case is the judgment and discretion of the court absolutely bound by the number and character of the signers, but in every instance the final judgment is that of the court and must be so considered.
    6. The form of the order on reversal is within the power and discretion of the appellate court reviewing the case.
    Mestrezat, Potter and Stewart, JJ., dissent.
    Argued Oct. 12, 1909.
    Appeal, No. 187, Oct. T., 1909, by the Indian Brewing Company, from judgment of the Superior Court, April T., 1909, No. 181, affirming judgment of Q. S. Indiana Co., Dec. T. 1908, No. 17, refusing a liquor license in case of Indian Brewing Company’s License.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Petition for a brewer’s license. Before Telford, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order refusing a license.

      Harry White, with him D. B. Taylor, for appellant.
    The judgment of the court as to the personal fitness of the applicant involves considerations of residence, citizenship, interest in other places where liquor is made or sold, conduct in regard to previous license, etc., applying equally to all kinds of licenses asked for. These matters will be presumed to have been considered: Gemas’s License, 169 Pa. 43; Donoghue’s License, 5 Pa. Superior Ct. 1; Gross’ License, 161 Pa. 344; Prospect Brewing Co.’s Petition, 127 Pa. 523.

      John H. Pierce, with him H. E. Anderson, for appellees.—
    In an application for license there must be a judicial hearing and if the license is refused the refusal must be for a legal reason. Where these two points appear the appellate court will not discuss the correctness of the result reached by the court below: Gemas’s License, 169 Pa. 43; Doberneck’s App., 1 Pa. Superior Ct. 99; Brown’s App., 2 Pa. Superior Ct. 63.
    The unfitness of the applicant is a legal reason for the refusal of this license and also under the decisions of the Supreme and Superior Courts: Mead’s License, 161 Pa. 375; Gemas’s License, 169 Pa. 43.
    When a license has been refused after a hearing the presumption on appeal is that the refusal was for a legal reason unless the contrary affirmatively appear: Free’s License, 33 Pa. Superior Ct. 348; Sweeney’s License, 11 Pa. Superior Ct. 569.
    The statutes under which this application is made make no distinction between natural and artificial persons: Pittsburg Brewing Co.’s Wholesale License, 12 Pa. Superior Ct. 129.
    From the earliest times corporations have been held liable for torts: Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4 S. & R. 6; National Bank v. Graham, 8 W. N. C. 361; Erie City Iron Works v. Barber & Co., 106 Pa. 125.
    November 5, 1909:
    Where a license has been refused the presumption is that the court refused the license for a legal reason and this applies to wholesale as well as retail licenses: Black Diamond Distilling Co.’s License, 33 Pa. Superior Ct. 649; Reynoldsville Distilling Co.’s License, 34 Pa. Superior Ct. 269.
   Opinion by

Mr. Justice Elkin,

The appellant brewing company, a domestic corporation, was refused a license on the sole ground of the applicant being an unfit corporation to be licensed. The learned judge of the quarter sessions filed an opinion in which the reason for refusing the license and the character of the weight of the evidence relied on to sustain the order of refusal are clearly stated. This opinion in its entirety is as follows, to wit: "At the hearing of this application there were presented petitions favoring the application and remonstrances against the granting of the license, by reason of the unfitness of the applicant. The petitions filed contained the names of about three thousand residents of the county and the remonstrances the names of about five thousand residents of the county entitled to the court’s consideration. Of the remonstrants about two thousand were men and three thousand, women. From an examination of these petitions and remonstrances, having due regard to the number and character of the petitioners and remonstrants, we find that the weight of the evidence rests with the remonstrants and that the unfitness of the applicant is established by the weight of the evidence. Whenever in the opinion of the court this fact should be found from the evidence, the statute under which the application is made requires that the license shall be refused.”

An examination of the opinion shows that the question of fitness was determined at the hearing upon the record made up by the application, the additional petitions favoring the license and the remonstrances filed against the granting of it. The record thus made up forms the pleadings in the case and is now properly before this court for review: Brewing Company’s Petition, 127 Pa. 523. There is thus presented for determination the narrow question, Does the weight of the evidence gathered from the petitions and remonstrances furnish a legal reason for refusing the license? The only averment contained in the remonstrances is that the applicant is not a “fit corporation” to be licensed, and upon this naked averment more numerously signed by persons who objected to the granting of the license than by those who favored it, the learned judge found that the unfitness of the applicant had been established by the weight of the evidence. The application was made under the Act of June 9, 1891, P. L. 257, which relates to wholesale dealers, brewers, distillers, rectifiers, compounders, bottlers, storekeepers and agents. The most casual reading of this act will show that the draughtsman had in mind primarily the granting of licenses to natural persons, and the phraseology as well as the requirements followed this primary purpose. As for instance one of the jurisdictional facts to be averred in the application is the place of birth of the applicant, and, if a naturalized citizen, when and where naturalized. While this is an imperative requirement of the act as applied to natural persons, it cannot of necessity apply to a corporation. There are other statutory provisions and requirements which cannot in the very nature of things apply in the same manner to natural and artificial persons. While the obvious purpose of the act under which this application is made is to regulate the granting of licenses to individuals, this court in order to give general effect to the spirit and purpose of the license laws in restraining the sale of liquors, has held that corporations created for the purpose of manufacturing and selling liquors, come within its purview, and that the proceedings in the granting of licenses to such corporations are assimilated as far as may be to the licensing of natural persons. The assimilative process, however, must necessarily have due regard to the natural and legal distinctions relating to each class of applicants. There can be no doubt that the words “fit persons” used in the act were intended to apply primarily to individuals, and the question raised by this record is in what manner ought these words be made applicable to a corporation seeking a license. In determining the fitness of a natural person and of a corporation very different questions arise. In the case of an individual the qualities of the man, such as moral character, temperate habits, business integrity, citizenship and other kindred matters, are the important and frequently the controlling considerations with the court. With corporations the inquiry is different. A corporation has no personal attributes and must be judged by its corporate acts. In the present case the only averment in the remonstrances upon which the court based its finding is that the applicant is not a “fit corporation” to be licensed. This is clearly not sufficient. This corporation was created by the commonwealth with the authority to do the business in which it is engaged. To hold upon the naked averment of an individual or a large number of individuals that á corporation is not fit to engage in the business for which it was created would be to challenge the power of the legislature to authorize its incorporation and such a contention could not be seriously made. Of course, a corporation made fit by the act of incorporation to engage in the manufacture and sale of liquor may become unfit within the meaning of the license laws by corporate acts committed in violation of law by its directors, officers and authorized agents. In this sense the fitness of a corporation presenting an application for a license may be inquired into. When unlawful acts such as selling on Sunday, or to minors, or to persons of known intemperate habits, or any other violations of the law, are relied on to defeat the application, the evidence whether presented in a remonstrance or produced by witnesses at the hearing must establish to the satisfaction of the court the unlawful acts complained of. Such evidence must come from persons who know the facts, and numerously signed petitions or remonstrances expressing the views of the signers on the license question generally can have no weight in determining whether particular sales had been made, or specific acts had been committed, in violation of law.

Again the learned judge who passed upon the application in the opinion above quoted states in substance that the petitions filed contain the names of about 3,000 residents of the county and the remonstrances the names of about 5,000 residents entitled to consideration, and having due regard to the number and character of the signers, he finds the weight of the evidence to be with the remonstrants and that the unfitness of the applicant is thus established. As has been hereinbefore pointed out, the unfitness of a corporation cannot be established in this manner, and it is immaterial which side to the controversy preponderates in numbers. If, however, it was intended to announce the principle that the judgment and discretion of the court are absolutely and conclusively bound by the preponderating number of the petitioners or remonstrants, such a conclusion would be clear error. This in effect would amount to a substitution of the wishes or convictions of-a majority of the signers for the judgment of the court, and this is not the law. The act imposes upon the court the duty to hear and determine, and the judge must decide whether the weight of the evidence, or all of it, makes out a case which in the exercise of a legal discretion requires a refusal. Having due regard to the number and character of the signers does not mean that in a judicial proceeding the issue resolves itself into a problem in arithmetic in which the court simply adds the columns and announces the result. In the granting of licenses to wholesale and retail dealers the question of necessity, applicable alike to corporations and to natural persons, is of first importance, and in such cases nearly every resident of a community has a fixed opinion upon this question which can as well be indicated by signing a petition or remonstrance as in any other manner. In an issue of this kind the number and character of signers should have great weight with the court. As to a brewing company the question of necessity cannot arise because it is so expressly written in the law, and if the applicant be a corporation, its unfitness must be established by evidence showing the commission of unlawful acts. If the applicant be an individual, moral character, temperate or intemperate habits, business integrity, and other personal qualities may always be inquired into. In such a case, however, the evidence whether by remonstrance or by oral testimony should come from persons who know the facts relied on to establish the unfitness of the applicant in the respects charged. If the applicant be a corporation, questions of moral character, intemperate habits and other personal qualities cannot be raised because in no proper legal sense can such attributes relate to a corporate entity. The only method of establishing the unfitness of a corporation is to show that in the conduct or management of its business it has been guilty of violating the law. It is clear, therefore, that in the hearing of such an application numerously signed petitions or remonstrances by persons without knowledge of any unlawful act or acts having been committed should have no weight in determining whether the applicant had been guilty of violating the law.

The learned Superior Court in reviewing this case suggested that the language of the opinion permits the presumption that other evidence besides the remonstrances may have been considered in determining the propriety of granting the application. We do not so read or understand the language used. No one can read the opinion and give reasonable interpretation to its meaning without concluding the learned judge who wrote it meant what he said and said what he meant. He has specifically, stated the evidence upon which he relied and has given the reason which moved him to refuse the application, and we are not at liberty to presume he intended something else. When on appeal there is a reversal the form of the order is within the power and discretion of the appellate court reviewing the case. It may be a procedendo as in Pollard’s Petition, 127 Pa. 507, and in Johnson’s License, 156 Pa. 322; or it may be a positive direction that the license be issued as in Donoghue’s License, 5 Pa. Superior Ct. 18, and Distiller’s License, 6 Pa. Superior Ct. 92; or in exceptional cases mandamus may he to compel the granting, as in Prospect Brewing Company’s Petition, 127 Pa. 523.

Order reversed and license directed to issue. Costs of appeal to this court to be paid by appellees and in the courts below to be paid as there ordered.

Mestrezat, Potter and Stewart, JJ., dissent.

Mr. Justice Mestrezat,

dissenting”.

This was an application by the Indian Brewing Company to the court of quarter sessions of Indiana county for a brewer’s license for the year 1909. The application was filed in November, 1908. Additional petitions were filed in support of the application and remonstrances were filed against it. The court of quarter sessions gave the parties a hearing at the time fixed by the rules of court in February, 1909, and after dué consideration of the petitions and remonstrances and other matters required to be considered by the court, the learned judge of the quarter sessions refused the license. An appeal was taken from his decision to the Superior Court and by the unanimous judgment of that court the order of the quarter sessions refusing the license was affirmed. A petition of the brewing company was then presented to Mr. Justice Elkin of this court at chambers in Indiana and he entered the following order: “And now, July 30, 1909, appeal with certiorari allowed as prayed for.” The case was argued on October 12 in this court, and by a bare majority of its members the order of the quarter sessions refusing the license, as well as the decree of the Superior Court affirming the quarter sessions, are to be reversed, and a peremptory order made by this court directing the quarter sessions to issue the license. An opinion has been prepared by Mr. Justice Elkin to be handed down expressing the views of the four members of this court who concur therein.

The application was for a brewer’s license in the town of Indiana, Indiana county, under the Act of assembly approved June 9,1891, P. L. 257, entitled, “An act to restrain and regulate the sale of vinous, spirituous, malt or brewed liquors, or any admixture thereof, by wholesale.” The petition and supplemental petitions accompanying the application were signed by 3,090 persons, purporting to be residents of Indiana county, and averred “that said Indian Brewing Company is a fit corporation to which such license should be granted.” Remonstrances were filed against the granting of the license and were signed by 5,191 persons, purporting to be residents of Indiana county, and averred that “the applicant is not a fit person or corporation to be granted the license applied for.” In addition to these remonstrances two reputable members of the Indiana county bar and members of the bar of this court, acting as attorneys for the remonstrants, filed specific charges of violations of the law against the applicant (1) for illegally selling malt or brewed liquors, and (2) for selling malt or brewed liquors contrary to the provisions of the Act of assembly of June 21, 1897, P. L. 176, which provides: “When any court shall have refused a license for any particular brewery the sale of said liquors at said brewery shall not be permitted under this act until the expiration of one year after the date of the application for the license which has been so refused.” At the time provided by the rules of court, the learned judge of the quarter sessions gave the parties a full hearing, at which both parties were represented by counsel; and after due consideration the application for a license was refused. The court filed the following opinion: “At the hearing of this application there were presented petitions favoring the application and remonstrances against the granting of the license, by reason of the unfitness of the applicant. The petitions filed contained the names of about three thousand residents of the county and the remonstrances the names of about five thousand residents of the county entitled to the court's consideration. Of the remonstrants about two thousand were men and three thousand, women. Prom an examination of these petitions and remonstrances, having due regard to the number and character of the petitioners and remonstrants, we find that the weight of the evidence rests with the remonstrants and that the unfitness of the applicant is established by the weight of the evidence. Whenever in the opinion of the court this fact should be found from the evidence, the statute under which the application is made requires that the license shall be refused.”

It will be observed that the learned quarter sessions court heard and regularly disposed of the question on which the right of the applicant to have a license depended, viz., whether the applicant was a fit person or corporation to be granted a brewer’s license. It will further be observed, and should not be overlooked, that that was the sole and only question raised by the petitioners for and the remonstrants against the license, and required by the statute to be considered by the court in determining the right of the applicant to the license. The petitioners averred that the brewing company was a fit person or corporation to have the license and the remonstrants averred directly the contrary. Upon the issue thus made, both parties were permitted to file petitions and to introduce any other evidence which they desired. It must be conceded that the proceeding before the quarter sessions was entirely regular and conformable to the statute and rules of court governing the application, that the parties had a full hearing, and that the court received all the evidence offered for and against the application, and that the judge’s order refusing a license was made after consideration of all the facts bearing upon the question at issue.

An appeal was taken to the Superior Court, as we have seen, and the order of the quarter sessions was affirmed by a unanimous court in an opinion filed by Henderson, J., in which he points out that the action of the quarter sessions court in refusing the license is clearly sustained by all the cases on the subject both in the Superior Court and the Supreme Court of this state. The first sentence of the opinion says: “None of the features of this case distinguish it in a material way from Black Diamond Distilling Co.’s License, 33 Pa. Superior Ct. 649; Reynoldsville Distilling Co.’s License, 34 Pa. Superior Ct. 269; and American Brewing Co.’s License, 161 Pa. 378.”

Before considering the opinion on which the majority of this court reverses the two lower courts, we will notice the statutes regulating applications for brewers’ licenses and some of the decisions construing those statutes. As has been noted, this application was made under the act of June 9, 1891. The sixth section of the act provides as follows: “The court of quarter sessions shall hear petitions from residents of the county, in addition to that of the applicant, in favor of and remonstrances against the application for such license, and in all cases shall refuse the same whenever in the opinion of the said, court having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public, or that the applicant or applicants is or are not fit persons to whom such license should be granted.” The fourth section of the act provides that the provision “ as to whether the place to be licensed is necessary shall not apply to a brewery or distillery.” The only question, therefore, under the statute for the consideration of the court in granting or refusing an application for a brewer’s license is whether the applicant is or is not a fit person to whom the license should be granted. The second section of the act provides, inter alia, that “the said court shall fix by rule or standing order a time at which application for said licenses shall be heard, at which time all persons applying or making objections to applications for licenses may be heard by evidence, petition, remonstrance or counsel.”

Numerous decisions have been rendered by this court and the Superior Court, construing this act of assembly and the prior acts relating to the subject. They are all in accord, and there is no difficulty whatever in determining from them the proper construction of the act. In Gemas’s License, 169 Pa. 43, in which the application was made under the act of 1891, this court, speaking by Mitchell, J., said (p. 46): “the judgment of the court (of quarter sessions) as to the personal fitness of the applicant involves considerations of residence, citizenship, interest in other places where liquor is made or sold, conduct in regard to previous license, etc., applying equally to all kinds of licenses asked for.” It may be well to suggest here that it is the duty of the quarter sessions in passing upon a license application to consider not only the voters but also all citizens, male or female, who sign the remonstrance. This is distinctly ruled by this court in Reed’s App., 114 Pa. 452, an application for a wholesale liquor license. It is there said (p. 463): “The act does not require that either the petitioners or remonstrants should be voters; it is enough that they be citizens, whether male or female, hence, it is a mistake to pass over women, and count only voters.”

The duty of the court of quarter sessions in granting or refusing a license to deal in intoxicating liquors, the evidence to be considered by it, and the right of an appellate court to review its discretion are pointed out in many decisions of both appellate courts of the state. In Reed’s App., 114 Pa. 452, it is said (p. 463): “The petitions, pro and con, are not matters of record, but in the nature of evidence for the information of the conscience of the court, and, as a consequence, we cannot review them, or reverse the action of the judge of the quarter sessions on a certiorari. Moreover, as no appeal has been given, we have no power to take cognizance of the complaint of the appellants.” In Raudenbusch’s Petition, 120 Pa. 328, in speaking of what the quarter sessions should consider in passing upon an application for license this court said (p. 342): “ In order to perform this duty properly, the act of assembly has provided means by which the conscience of the court may be informed as to the facts; it may hear petitions, remonstrances, or witnesses, and we have no doubt the court may in some instances act of its own knowledge. The mere appearance of an applicant for license, when he comes to the bar of the court, may be sufficient to satisfy the judge that he is not a fit person to keep a public house. The judge is not bound to grant a license to a man whom he knows to be a drunkard or a thief, or has actual knowledge that his house is not necessary for the public accommodation.” In Kelminski’s License, 164 Pa. 231 we said (p. 233): “The law evidently contemplates action by the court in accordance with the knowledge it has of the character of the applicant and the needs of the locality in which he proposes to carry on business under the license, but this action is not necessarily founded upon the knowledge exclusively derived from the evidence and petitions produced on hearing. It may, and sometimes very properly does, act of its own knowledge obtained from observation of the applicant and acquaintance with the district.” Thomas’s License, 169 Pa. 111, was an application for a wholesale liquor license under the act of 1891. The quarter sessions refused the license, and in affirming its action this court said: “The record shows that the case was heard, considered and decided by the learned court below, and that the license was refused on the ground that in the opinion of the court it was not necessary. It is true it was the individual opinion of the judge upon which this action was taken, but we have so many times held that such opinion may be the basis of decision that we regard the subject as settled, and do not deem it necessary to review the 'cases or to change them,” (citing cases).

The duty of the quarter sessions and its discretion in granting licenses under the act of 1891 is discussed at length by the late Mr. Justice Dean in Gross’s License, 161 Pa. 344. He says, inter alia (p. 347): “If the court has in a lawful manner performed the duty imposed upon it, it is not our business to inquire whether it has made a mistake in its conclusions of fact. Whether the same facts induce in our minds the same belief as in that of the court below, as to the character of the applicant or other material averments, is wholly immaterial; it is the discretion of the court of quarter sessions, not ours, that the law requires. ... If the record shows the decree was had after hearing at a time fixed by rule or standing order, the presumption is, the decree is judicial and not arbitrary, and this presumption is not rebutted by an argument from evidence that the court ought to have reached a different conclusion.” There is the same discretion in the court of quarter sessions in granting or refusing a wholesale license as in the case of a retail license; Nordstrom’s Petition, 127 Pa. 542, 553. The judge is not bound to set out legal reasons for his action in refusing a license; he is only bound to have them: Gross’s License, 161 Pa. 344.

In the light of the above decisions of this court and the conceded facts of the case let us examine the opinion of the majority of the court in the present case. Justice Elkin says: “There is thus presented (to this court) for determination the narrow question, Does the weight of the evidence gathered from the petitions and remonstrances furnish a legal reason for refusing the license? The only averment contained in the remonstrance is that the applicant is not a 'fit corporation’ to be licensed and upon this naked averment, more numerously signed by persons who objected to the granting of the license than by those who favored it, the learned judge found that the unfitness of the applicant had been established by the weight of the evidence.” It will thus be observed that the majority of the court holds that it is the duty of this court to weigh the evidence and determine whether the license should have been granted; that it is for this court to determine whether the applicant is a “fit corporation” to be licensed. This is in the’ teeth of all the authorities and is the fundamental error which leads the maj ority to its incorrect conclusion. This, as pointed out in the authorities cited, is a certiorari, on which this court can determine only whether the court below in passing upon the application conformed its action to the statutes regulating the subject. This court has nothing to do with the evidence in the case or in determining whether its weight is in favor of or against the application. It has no authority to examine and consider the petitions or remonstrances or any evidence which was produced at the hearing for the purpose of determining the facts. Those matters were for the quarter sessions and for that court only, and when this court attempts, as it does, to consider and determine the weight of the evidence for and against the license it is confronted by an unbroken line of our own decisions condemning its action. The reason assigned by the quarter sessions for refusing the license is a valid one under the act of assembly, and hence an appellate court cannot inquire into the reason or determine whether the evidence sustains the quarter sessions in its conclusions. No further discussion of this paragraph of the majority opinion is necessary, as the authorities cited above clearly covers the question and convicts the majority of palpable error.

The majority opinion concedes that the wholesale liquor license act of 1891 applies to corporations, and suggests that the “ question raised by this record is in what manner ought these words (fit persons) be made applicable to a corporation seeking a license. ... A corporation has no personal attributes and must be judged-by its corporate acts. In the present case the only averment in the remonstrances upon which the court based its finding is that the applicant is not a ‘fit corporation’ to be licensed. This is clearly not sufficient.” The finding of the quarter sessions is: “That the unfitness of the applicant is established by the weight of the evidence.” The additional petitions in favor of the license aver that the Indian Brewing Company, “is a fit corporation to which such license should be granted,” and the remonstrances allege that the applicant “is not a fit person or corporation to be granted the license applied for.” This is the issue made by the pleadings and the one which the act of 1891 requires the quarter sessions to pass on in determining the applicant’s right to a license. How was this issue to be determined? As we have seen, the statute points out specifically that the court shall hear petitions, remonstrances, and any evidence which the parties may desire to introduce for and against the application. Such evidence was presented to and considered by the quarter sessions, and upon it the learned judge based his refusal of a license. It was the acts of the applicant corporation, as disclosed by the evidence, which compelled the quarter sessions to refuse the license.

The parties objecting to the license were required to aver in the remonstrance simply the unfitness of the applicant, and such is the uniform practice throughout the commonwealth. The sixth section of the Act of June 9, 1891, P. L. 257, provides that the quarter sessions shall not grant the license if the applicant is not a fit person. It is wholly immaterial why he is not a fit person, and if the remonstrants on the hearing convince the court that for any reason he is unfit, then the act prohibits the granting of the license. For aught we know, the quarter sessions found that this corporation had violated many of the laws of the commonwealth regulating the sale of intoxicating liquors. Specific charges were filed to that effect by reputable members of the bar of Indiana county in behalf of the remonstrants, and we must assume that these or other illegal acts, making the applicant unfit, were established to the satisfaction of the court. As pointed out above, our decisions all hold that the judge has the right to act on facts affecting the fitness of the applicant which are within his own knowledge. He therefore had before him in considering this application the fact that he had refused this same applicant a license during the previous year, because it was shown to his satisfaction by evidence that the Indian Brewing Company was guilty of seven specific charges of violating the liquor laws of the commonwealth. The refusal of the license was based upon the evidence, as appears by the opinion of the learned judge, wherein he says: “We find that the weight of the evidence rests with the remonstrants and that the unfitness of the applicant is established by the weight of the evidence. Whenever in the opinion of the court this fact should be found from the evidence, the statute under which the application is made requires that the license shall be refused.” It is apparent, therefore, that the averment of unfitness by the remonstrants was supplemented by evidence which convinced the court of the unfitness of the corporation to receive a brewer’s license, and required the quarter sessions, under the statute, to deny the application.

The order to be entered by the majority of the court is clearly erroneous. It is as follows: “Order reversed and license directed to issue.” This court assumes the functions, and proposes to exercise the powers, of the court of quarter sessions in disposing of the application for the license. It undertakes to pass upon the fitness of the corporation.when, as we have seen, it does not and cannot legally-have before it any evidence on the subject. The case is being considered here upon a writ of certiorari, which brings up simply the record, and the evidence, including the petitions and remonstrances, are no part of the record for the purpose of determining the fitness of the applicant. Notwithstanding these facts, the majority of the court enters a mandatory order on the quarter sessions to issue the license, instead of awarding a procedendo requiring that court to again hear and determine the applicant’s right to the- license. This, I submit, is manifest error and is without a single precedent in the courts of this state to support it. On the other hand, it is condemned by all our authorities.

Johnson’s License, 156 Pa. 322, was an application for a distiller’s license under the act of 1891. The license was refused by the quarter sessions without filing an opinion, and the applicant appealed to this court. The appeal was sustained, as in the present case, but this court did not issue a peremptory order to the quarter sessions to grant the license. On the contrary, the decree of this court was as follows: “The order of the court below refusing a license is reversed, and a procedendo awarded.” The applicant thereupon moved the quarter sessions to grant the license. The judge of the quarter sessions filed a lengthy opinion in which he set forth his reasons for refusing to grant the license, and again declined to grant the application. The applicant then presented his petition to this court for a mandamus to compel the court of quarter sessions to grant the license. This court refused the petition and declined to interfere with the discretion of the quarter sessions in refusing the application: Johnson's License, 165 Pa. 315.

The same mode of procedure was observed in Gemas’s License, 169 Pa. 43, which was also an application for a distiller’s license under the act of June 9, 1891. The quarter sessions, without filing an opinion, refused the application and the applicant appealed to this court. The order of the quarter sessions was reversed, this court holding that the reason assigned in the order by the quarter sessions was not a valid one. This court, however, did not direct the court below to issue the license, but entered the decree: “Judgment reversed and procedendo awarded.” By this order the application was again remanded to the quarter sessions, which had the authority to again consider and determine the right of the applicant to his license. In concluding the opinion Mr. Justice Mitchell says (p. 46): “We are of opinion therefore that the only reason assigned for a refusal of the license was not a valid reason under the statute in the case of a distiller, and unless there is other-ground for refusing it, which does not appear, the license should be granted.” Whether there was “other ground” for refusing it was a matter submitted by this court for the consideration and decision of the quarter sessions.

I regard the ruling of the majority of the court as an entire departure from all the adjudicated decisions of both appellate courts of this commonwealth. It practically annuls the act of assembly, and denies the right to grant licenses by the court of quarter sessions, the only tribunal invested by the laws of the commonwealth with that power. It assumes the authority to review on a certiorari the merits of a procedure in a court of first instance which has never heretofore been attempted in this commonwealth.

I object to granting this license because the members of this court have no authority to usurp the functions of the quarter sessions and determine the fitness of the applicant from their own knowledge of the facts or from facts otherwise obtained; because the quarter sessions of Indiana county was compelled to refuse a similar application by this corporation the previous year on the ground that it was guilty of seven distinct offenses against the liquor laws of the commonwealth; and because 5,000 reputable citizens of Indiana county where the applicant proposes to manufacture and sell its liquors, declare the Indian Brewing Company unfit to have a license, and the correctness of their judgment is confirmed by the court of quarter sessions of the county, the only legal tribunal under the laws of the state having authority to determine the question.

I would affirm the order of the court of quarter sessions refusing the license and also the judgment of the Superior Court affirming that order.

Mr. Justice Potter and Mr. Justice Stewart,

dissenting:

If it certainly appeared in the opinion of the learned judge that in determining the unfitness of the applicant, he was governed only by the numbers on one side and the other of the petitioners and remonstrants, we would agree that this was a wholly erroneous way of reaching a decision and a reversal would be called for. But we think the opinion warrants a fair inference that he had regard as well to other evidence. What that evidence was, is not set out in the opinion, nor was it necessary that it should be, but that he had other evidence before him we think is clearly implied in what he says.

We would affirm the judgment of the Superior Court, and the order of the court of quarter sessions.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Mallissee, Appellant, v. Keown.

      Mortgage — Landlord and tenant — Possession—Order—Justice of the peace.

    Where a mortgagee out of possession takes a lease from the owner, and thereafter enters into possession under the lease and not under the mortgage, he may after default under the lease, be ousted of his possession by proceedings before a justice of the peace.
    Argued Oct. 19, 1909.
    Appeal, No. 42, Oct. T., 1909, by plaintiff, from decree of C. P. No. 4, Allegheny Co., First Term, 1908, No. 747, dismissing bill in equity in case of Henry W. Mallissee v. William Keown.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to restrain proceedings before justice of the peace.
    Carnahan, J., found the facts to be as follows:
    1. The plaintiff is a citizen of Pennsylvania, a resident of Pittsbui’g, and is engaged in the business of keeping a livery and sales stable at No. 5623 Eva street, twentieth ward, city of Pittsburg.
    2. The defendant is the owner of certain premises, which have a frontage of about forty-two feet on Eva street, and a depth of 170 feet, extending back to Mignonette street, in the city of Pittsburg. Whether the width is uniform throughout does not appear.
    3. The defendant, on April 25, 1907, executed and delivered to the plaintiff a mortgage against the whole of said premises to secure the payment of $3,500 in three years from the date thereof, which mortgage was accompanied with the usual bond.
    4. At some time prior to May 1,1907 — probably in January of that year — the plaintiff, who was then in the livery business on Broad street, Pittsburg, told the defendant that his lease would expire on May 1, 1907, and that he would then be obliged to vacate and would dispose of his stock and retire from the business. The defendant replied that he himself intended to go into the livery business, having suitable property at No. 5623 Eva street, and that he was about to arrange for a loan sufficient to enable him to build a stable. The plaintiff then said that he had money to loan, and proposed to loan an amount sufficient to enable defendant to build a stable; he further proposed that if, upon completion of the stable, defendant would allow him to occupy it for a month or two, so that he could dispose of his stock, he would then vacate the premises and pass over to defendant his good will in the livery business. He proposed still further, to pay a monthly rental of one-twelfth of six per centum of the total cost of the stable and the land. This offer was accepted by defendant, the stable was erected and a mortgage and bond for $3,500 were given, this amount including the sum of $2,000 paid by plaintiff in full satisfaction of a prior mortgage against the premises.
    5. On May 1,1907, the plaintiff took possession of the stable and premises, but made no claim to right of possession as mortgagee; nor did he, in any manner, indicate to defendant an intention, on his part, to hold otherwise than as a tenant by reason of the aforesaid agreement.
    6. For some reason, not explained, but satisfactory to both parties, no rental was charged or paid until October 1, 1907, at about which time the sum of $31.30 per month was agreed upon, the same being one-twelfth of six per centum of $6,260, which amount was fixed as the total cost of the stable and premises.
    7. The plaintiff has continued in possession of said premises until the present time, and has been and is now conducting thereon a livery and sales business, which in addition to a regular livery business, means the buying, selling and boarding of horses.
    8. On December 2, 1907, the defendant instituted proceedings before Alderman J. D. Walker, of the city of Pittsburg, for the recovery of possession of said premises from the plaintiff. The plaintiff gave due notice to the magistrate that in said proceedings was involved a question respecting the title to land and that, under the law, he could not entertain jurisdiction. The magistrate, however, did entertain jurisdiction, and gave judgment of ouster, which judgment he was about to carry into execution, when he was given notice of a preliminary injunction issued in this case, and thereupon execution proceedings were stayed.
    November 5, 1909:
    9. The plaintiff claiming, as mortgagee, the right of possession, is ready and willing to account for and pay to defendant reasonable rents, issues and profits, which he claims the defendant agreed with him should not exceed the sum of $31.30 per month. This amount, however, was not agreed upon as rents, issues and profits which plaintiff was to pay as mortgagee, but was the amount fixed as rental which plaintiff was to pay as a mere tenant.
    The court entered a decree dismissing the bill.

      Error assigned was decree dismissing the bill.

      George Heltrich Bonner, with him E. J. Kent, for appellant.

      Harry R. Bunion, for appellee, was not heard.
   Per Curiam,

The appellant’s title to retain possession was founded on his status as mortgagee, but the learned judge below having found that appellant was not in possession by virtue of the mortgage but as a tenant under an express contract of lease, the title set up in the bill was not made out and the bill was properly dismissed. We have not been convinced that the finding was erroneous.

Decree affirmed.


text:
    McDonald v. Monongahela Cemetery Company, Appellant.

      Corporations — Cemeteries—Sale of lands.

    An incorporated cemetery company may sell part of its lands not used for burial purposes so long as the sale proposed does not deprive the lot holders of the use of and reasonable access to their lots or interfere with the integrity of the cemetery as a burial place. Such a corporation may sell a part of its lands to a Roman Catholic church for burial purposes and such a sale is not invalidated by the fact that the church and the cemetery company are each to receive one-half of the proceeds of the sale of lots to the members of the church.
    Argued Oct. 19, 1909.
    Appeal, No. 54, Oct. T., 1909, by defendant, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 207, on bill in equity in case of Rev. Robert McDonald, Trustee, Rector and Pastor of St. Thomas' Roman Catholic Congregation of the Borough of Braddoek, v. Monongahela Cemetery Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account and for specific performance of a contract, and to convey cemetery lots.
    Shaper, J., filed the following opinion:
    FINDINGS OF FACT.
    1. The defendant company was incorporated February 24, 1883, in the common pleas of Allegheny county, under the corporation Act of April 29, 1874, P. L. 73, for the purpose of maintaining a public cemetery. The charter provides that the company shall have power to purchase land, to divide it into suitable plats and burial lots, to sell and dispose of the same for the purpose of sepulcher to individuals, societies or congregations, and that the income of the corporation, after paying for the land, shall be applied to the improvement of the cemetery and its perpetual maintenance.

      2. The defendant company thereupon purchased from various persons contiguous tracts of land, containing in all about sixty-five acres, for the purpose of a cemetery, and proceeded to improve the same and sold lots therein for burial purposes.
    3. Thereafter, on October 16, 1883, an indenture was made between the defendant company and the Very Rev. John Hickey, rector for and in behalf of St. Thomas’ Roman Catholic Congregation, being exhibit “A” of the bill, whereby the cemetery company granted, bargained and sold to the rector and his successors on behalf of the congregation a certain tract of land described by metes and bounds, containing eighteen acres, being part of the lands purchased for cemetery purposes by the company, said lands to be thereafter known as St. Thomas’ Roman Catholic Cemetery. The agreement provides that the cemetery company shall lay out in sections, lots and graves, plant shrubs and otherwise ornament, not exceeding five acres of this land at a time as the demand for burial places might require, the average price of the lots being fixed at from $25.00 to $50.00, with power in the rector of the church to increase or diminish this as should be deemed expedient. It is then agreed that when lots are sold in St. Thomas’ division of the cemetery the cemetery company is to receive one-half the proceeds of such sale and the congregation the other half, to be paid over monthly. It is further agreed that the pemetery company will at any future time make a deed in fee to the church for all the unsold and unoccupied portion of the St. Thomas cemetery upon the payment of $1,000 per acre, and an equitable adjustment of the improvements made and the money expended on the same, and also that they will deed in fee simple that portion of the cemetery in which interments have been made and paid for up to that date, the Monongahela Cemetery Company thereafter to relinquish all claims to control in any way of lots in St. Thomas’ cemetery, the St. Thomas’ cemetery, however, reserving right of way over all the avenues and streets in the rest of the company’s ground; and it is further provided that when all the bonds and moneys invested in the purchases and improvements of the Monongahela Cemetery Company have been paid and redeemed, then the company without any further payment will convey to St. Thomas' church in fee all the lots remaining unsold in the eighteen acres; and further that the cemetery company will give one acre as a burial place for the poor of St. Thomas and other neighboring churches, being Catholics, and that the cemetery company will not sell burial privileges to any persons except such Catholics as shall first have permits from the pastors of either St. Thomas or St. Joseph Roman Catholic churches.
    4. Shortly thereafter the eighteen acres above mentioned was dedicated as a cemetery according to the rites of the Roman Catholic church and it has ever since been used as a burying place by the congregation for its members and others, and a large number of lots have been sold, a large number of persons buried and many costly monuments and improvements erected by the lot holders, members of the church.
    5. The debt of the cemetery company incurred for the purchase of the land and the improvements thereon is over $100,000.
    6. No accounting has ever been had between the parties of the proceeds of sales of lóts in the St. Thomas' division of the cemetery, although various communications were had between the parties in regard to the same. It is claimed by the defendants that in 1879 it was agreed that the contract between the parties in regard to these lots should be abandoned and canceled, that all money then in the treasury of the company and thereafter to be realized from the sale of lots should be applied to the debts of the company, the reason alleged for this contract being the threatened insolvency of the company and appointment of a receivership. This allegation the defendant has failed to prove. The testimony offered in support of it is that of Mr. Corey, the president, as to conversations had with Father Hickey, rector of the church. It seems very probable that the financial situation of the cemetery company discussed between the parties was one reason at least for the delay of the congregation in calling for an account, but it does not appear that either Mr. Corey, as president of the company, or Father Hickey, as rector of the church, were authorized to annul the contract for the company and the congregation respectively and even if they were, the testimony is too vague and indefinite as to what was said and done to justify a finding that the contract was in any way abandoned or surrendered.
    7. A large number of sales of lots have been made by the cemetery company in the St. Thomas’ division above mentioned for which moneys have been received by the cemetery company and no part of the purchase money paid to the congregation, and a considerable credit, therefore, stands upon the books of the cemetery company in favor of the congregation if the contract is to be carried out.
    CONCLUSIONS OP LAW.
    1. The defenses set up to the bill by the defendant are substantially : First, that the contract in question had been modified or abandoned; and second, that it is ultra vires. The finding of fact that there was no modification or abandonment of the contract, if correct, disposes of the first.
    2. It is claimed that the contract is ultra vires because the payment of one-half of the proceeds of the sale of lots in the St. Thomas’ division to the congregation is a diversion of the income from cemetery purposes, and that the conveyance in fee of such part of the eighteen acres as is not actually used for burial purposes by the congregation on payment of the $1,000 per acre is a diversion of part of the lands from the use to which they were dedicated.
    3. As to the first of these claims that the company has no right to divert from cemetery use any part of the proceeds of the sale of lots, we are of the opinion that the cemetery company has power to sell its lots, provided they are sold for burial purposes, for any price it can procure for the same, and that it has a right if it thinks proper to do so to agree to pay a commission or share of the purchase price to an agent for sale or any other person or body in a proposition to increase the sale of lots and bring customers which it would not otherwise have, and that the arrangement therefore to pay one-half of the proceeds of sales of certain lots to a Catholic church whose members were to be the purchasers is not ultra vires.

      4. The defendant claims that the cemetery company is a quasi public corporation, and that when it has once purchased a tract of land and opened it for cemetery purposes, it is incapable of selling any part of it except for burial purposes. This we do not understand to be the law. There seems to be no reason why a cemetery company may not sell its land as well as any other corporation, provided it does not infringe upon the rights of the grantees of burial privileges. There seems to be no reason why it may not sell parts of its land not used for burial purposes, so long as the sale proposed does not deprive the lot holders of the use of and reasonable access to their lots or interfere with the integrity of the cemetery as a burial place. It is not claimed in this case that the sale in question does any of these things, and the only objection to the sale of the unoccupied portions of the eighteen acres that could be made would seem to be by the lot holders in that part of the cemetery who might object to the lots immediately surrounding their lots being sold, but we have here no such objection.
    5. The deed in question has been discussed by counsel on both sides as a purely executory contract and some parts of it speak as if that were the intention of the parties. It will be observed, however, that the operative part of the deed is not an agreement to sell the eighteen acres to the congregation, but is a formal and complete conveyance by the usual technical words for that purpose, in the present tense, from the cemetery company to the church. The other parts may be treated as a provision for the payment of the purchase money, the conveyance being made not for any specified purchase money, but “for and in consideration of the payments and conditions hereinafter mentioned to be fulfilled strictly and lawfully made by the parties of the second part.”
    6. Even if the contract were ultra vires, it does not now lie in the power of the defendant to allege that as a defense, it having for a long time acted upon the contract and reaped the benefits of it and having in its possession the fruits of it.
    7. We are of the opinion, therefore, that the plaintiff is entitled to an account of the proceeds of sales of lots made by the cemetery company in the eighteen acres designated as St. Thomas’ cemetery, in order that there may be ascertained what amount, if any, is due from the cemetery company to St. Thomas’ congregation on account of the sale of lots and to a decree for the payment thereof; and further to an account of the moneys expended by the cemetery company for improvements upon or connected with the St. Thomas’ cemetery, in order that the equitable share of such improvements made and money expended on said land may be ascertained, and further to a decree for specific performance of the contract for the conveyance or further assurance to the congregation of all the unsold and unoccupied portion of said St. Thomas’ cemetery on payment of $1,000 per acre, and an equitable share of the improvements made and money expended on the same, without making payment, however, for such part of the one acre set aside for burial of paupers as is not already occupied, and to a like conveyance without further payment of that portion of the said St. Thomas’ cemetery in which interments have been made and paid for, together with the rights of way in said deeds reserved over the other portions of the Monongahela Cemetery Company’s land, and that each of the parties pay one-half the costs.

      Joseph F. Mayhugh, for appellant.
    The contract is ultra vires and void: Evergreen Cemetery Assn. v. Beecher, 53 Conn. 551; Com. v. Viall, 84 Mass. 512; Stockton v. Newark, 42 N. J. Eq. 531 (9 Atl. Repr. 203); Brown v. Maplewood Cemetery Assn., 85 Minn. 498 (89 N. W. Repr. 872); Kincaid’s App., 66 Pa. 411; Hancock v. McAvoy, 151 Pa. 460.
    Cemetery companies are quasi public corporations: McLeod v. Normal School, 152 Pa. 575; Foster v. Fowler, 60 Pa. 27; Rosehill Cemetery Co. v. Hopkinson, 114 Ill. 209 (29 N. E. Repr. 685).
    The charter of a cemetery company must be strictly construed : Mount Moriah Cemetery Assn. v. Com., 81 Pa. 235.
    The contract involved in the case is against public policy and void: Richardson v. Crandall, 48 N. Y. 348; Brown v. First Nat. Bank, 137 Ind. 655 (37 N. E. Repr. 158); Goodyear v. Brown, 155 Pa. 514; Rosehill Cemetery Co. v. Hopkinson, 114 Ill. 209 (29 N. E. Repr. 685); Mount Moriah Cemetery Assn. v. Com., 81 Pa. 235; Boyd v. Am. Carbon Black Co., 182 Pa. 206; Wolford v. Crystal Lake Cemetery Co., 54 Minn. 440 (56 N. W. Repr. 56).
    The contract involved in this case is void because it attempts to bind the defendant corporation to do that which the law expressly forbids public corporations to do, to wit, alienate the property of the corporation. For this reason it is also against public policy: Shrewsbury, etc., Ry. Co. v. Northwestern Ry. Co., 6 H. L. Cases, 113; Atlantic, etc., Tel. Co. v. Union Pac. Ry. Co., 1 McCrary (U. S.), 541; Middlesex R. R. Co. v. Boston, etc., R. R. Co., 115 Mass. 347; Richardson v. Sibley, 93 Mass. 65; Susquehanna Canal Co. v. Bonham, 9 W. & S. 27.
    The contract involved in this case is void because it binds the corporation to the execution of a contract “unfitting the corporation for the discharge of the duties which it owes to the public and for the execution of which it was created by the state: ” Central Transp. Co. v. Pullman’s Palace Car Co., 139 U. S. 24 (11 Sup. Ct. Repr. 478); Middlesex R. R. Co. v. Boston, etc., R. R. Co., 115 Mass. 347; Troy, etc., R. R. Co. v. Boston, etc., Ry. Co., 86 N. Y. 107; Abbott v. Johnstown, etc., R. R. Co., 80 N. Y. 27; Pittsburg, etc., R. R. Co. v. Bedford, etc., R. R. Co., 81* Pa. 104; Stewart’s App., 56 Pa. 413.

      Charles D. Gillespie, with him Patterson, 8terrett& Acheson, for appellee.
    The policy of our government is to render real estate held by corporations, such as appellant, unfettered and free for alienation, even where the deed expressly denotes the use-to which it has to be devoted: Burton’s App., 57 Pa. 213; Wilkes-Barre v. Historical etc., Society, 134 Pa. 616; Barr v. Weld, 24 Pa. 84; Methodist Church v. Old Columbia Public Ground Co., 103 Pa. 608; Kerlin v. Campbell, 15 Pa. 500; Sellers Church Petition, 139 Pa. 61; Wright v. Linn, 9 Pa. 433; Griffitts v. Cope, 17 Pa. 96.
    Corporations or associations holding property in trust for special purposes can always convey a fee in the absence of any restraint on alienation: Sellers Church Petition, 139 Pa. 61; Wilkes-Barre v. Wyoming Historical, etc., Society, 134 Pa. 616; Seebold v. Shitler, 34 Pa. 133; Kerlin v. Campbell, 15 Pa. 500.
    November 5, 1909:
    And a quasi public corporation cannot only sell its property for which it has no use, M. E. Church v. Public Ground Company, 103 Pa. 608; Union Canal Company v. Young, 1 Whart. 410, but it can give it away if it tends to aid its corporate business: Taunton v. Royal Ins. Company, 2 Hem. & M. 135; Hutton v. West Cork Ry. Company, L. R. 23 Ch. Div. 654; Henderson v. Bank of Australasia, L. R. 40 Ch. Div. 170; Steinway v. Steinway & Sons, 17 Misc. Rep. 43 (40 N. Y. Supp. 718); Louisville, etc., R. R. Co. v. St. Rose Library Society, 91 Ky. 395 (15 S. W. Repr. 1065).
   Per Curiam,

Decree affirmed on the opinion of the court below.


text:
    May v. Monongahela Cemetery Company, Appellant.

      Corporations — Cemetery companies — Sale of lands.

    An incorporated cemetery company may sell parts of its land to a Roman Catholic church to be used for burial purposes by members of the church, and the fact that the church is to share in the profits from the resale of the lots to the members is immaterial. A court of-equity at the suit of the church against the cemetery company will decree an account of the lots sold by the cemetery company.
    Argued Oct. 19, 1909.
    Appeal, No. 53, Oct. T., 1909, by defendant, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 206, on bill in equity in case of Rev. Peter E. May, Trustee, Rector and Pastor of St. Joseph German Roman Catholic Church of Braddock Borough, v. Monongahela Cemetery Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account and for specific performance of a contract to convey lands.

      Shafer, J., filed the following opinion:
    FINDINGS OF FACT.
    1. The bill herein was filed with a similar bill by another Catholic congregation of Braddock against the same defendant, at No. 207, January Term, 1908, the two cases having been tried together by the same counsel, the facts in each case being, with one or two unimportant variations, identical, and the questions of law and fact disputed between the parties completely identical. We have not,, therefore, deemed it necessary to duplicate the findings of fact and conclusions of law already filed in that case.
    2. The deed between the parties in the present case conveys about five acres of land belonging to the cemetery company, adjoining the eighteen acres described in the deed, conveyed to St. Thomas’ church, and in question in the case above mentioned. The deed contains no provision for any land to be given gratuitously for the burial of paupers as does the deed to St. Thomas’ church. In all other respects, so far as we can find, the deed, which is printed as exhibit “A” of the bill, is identical in effect with the deed to St. Thomas’ church above mentioned, and we find the facts of this case to be, except as to the description of the land and the omission in the present case of any agreement for paupers, the same as in the case of St. Thomas’ church, and the conclusions of law in that case are fully applicable to this.
    3. We are of the opinion, therefore, that the plaintiff is entitled to an account of the proceeds of sale of lots made by the cemetery company in the five acres designated as St. Joseph’s cemetery, in order that there may be ascertained what amount,, if any, is due from the cemetery company to St. Joseph’s congregation on account of the sale of lots and to a decree for the payment thereof; and further to an account of the moneys expended by the cemetery company for improvements upon or connected with St. Joseph’s cemetery, in order that the equitable share of such improvements made and money expended on said land may be ascertained; and further to a decree for specific performance of the contract for the conveyance or further assurance to the congregation of all the unsold and unoccupied portion of said St. Joseph’s cemetery on payment of $1,000 per acre, and an equitable share of the improvements made and money expended on the same, and to a like conveyance without further payment for that portion of the said St. Joseph’s cemetery in which interments have been made and paid for, together with the rights of way in said deeds reserved over the other portions of the Monongahela Cemetery Company’s land, and that each of the parties pay one-half the costs.
    November 5, 1909:

      Error assigned was the decree of the court.

      Joseph F. Mayhugh, for appellant.

      Charles D. Gillespie, with him Patterson, Sterrett & Acheson, for appellee.
   Per Curiam,

Decree affirmed on the opinion of the court below.


text:
    Cavanaugh, Appellant, v. Allegheny County Light Company.

      Negligence — Electric light company — Evidence—Death—Nonsuit.
    In an action against an electric light company to recover damages for the death of a boy seventeen years old, a nonsuit is properly entered where all that is proved is that the deceased was found upon the sidewalk of a street, his body in contact with a live wire; that a wire of the defendant which had been stretched along the street was broken with one end in contact with the body; and that prior to the accident the wire had emitted sparks at or near the point where it broke,* where there was nothing to show what caused the break.
    Argued Oct. 19, 1909.
    Appeal, No. 56, Oct. T., 1909, by plaintiff, from order of C. P. Allegheny Co., No. 934, Third Term, 1907, refusing to take off compulsory nonsuit in case of Florence Cavanaugh v. Allegheny County Light Company.

      Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of a boy seventeen years of age.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Swearingen, P. J., filing the following opinion:
    The Allegheny County Light Company, the defendant, has the right to stretch wires upon poles located in the streets of the city of Pittsburg, for the purpose of transmitting electricity and.selling the same for light and power purposes. It had a line of wire stretched along poles upon Alder street, in the city of Pittsburg, on and before March 14, 1907. On the morning of March 14, 1907, Charles R. Rainey was found upon the sidewalk of Alder street with a wire belonging to the defendant, in contact with his body. He was badly burned and was dead at the time he was discovered. The said Charles R. Rainey was, at the time of his death, about seventeen years of age.
    Florence Cavanaugh, the mother of Charles R. Rainey, brought this action against the defendant, wherein she alleged that the defendant failed to exercise due care in erecting and maintaining its poles and wires and failed to maintain proper insulation on said wires for the protection of persons from electric shock, while walking along the streets of said city, and that through the negligent, careless and faulty equipment and defects in its wires and poles, the deceased received an ■electric shock from a live wire, which had broken and dropped from defendant’s pole, which wire the defendant had wrongfully permitted to remain upon the said street without warning to anyone passing by.
    It appeared at the trial that said Charles R. Rainey was found as above stated. No one saw the accident and no direct testimony was given as to the facts relative to the accident which caused his death. All that was proved was that Charles R. Rainey was found lying upon the sidewalk, his body in contact with a live wire and that a wire of the defendant, which had been stretched along Alder street, was broken, one end of which was in contact with the body of said Rainey.
    It must be admitted, under the decisions of our appellate court, that this proof was not sufficient to charge the defendant with negligence. The plaintiff went further, however, and offered testimony to show that the said wire had emitted sparks for some time previous to the happening of the accident, which caused the death of Charles R. Rainey, and the plaintiff argues that the inference could be drawn from said evidence that the said wire was not properly insulated, of which defect the defendant either knew or ought to have known. But this testimony did not show that this wire had been emitting sparks at or near the point where it broke. The wire had broken near the point where the body of Charles R. Rainey was found, but what caused it to break was, as we thought under this testimony, entirely a matter of conjecture. It is not enough for a plaintiff to show mere conjecture. The law imposes upon the plaintiff the duty of establishing the charge made, to wit, negligence. We thought at the trial that the plaintiff had failed to discharge the duty thus imposed upon her, and accordingly the plaintiff’s motion for judgment of compulsory nonsuit was granted.
    ■The plaintiff then moved that the nonsuit be taken off, and, after argument, we are not convinced that any error was committed in the granting of the motion at the trial.
    The defendant also alleged that the plaintiff had not shown any cause of action residing in her. We think, however, that the testimony upon that question probably should have been submitted to the jury. But, upon the first ground alleged, to wit, that the plaintiff had failed to show negligence on the part of the defendant company, the nonsuit was granted, and the motion to take off said nonsuit is now refused.

      Error assigned was order refusing to take off nonsuit.

      David E. Mitchell, with him William A. Griffith, for appellant.
    The'case was for the jury: Morgan v. Electric Co., 213 Pa. 151; Mullen v. Wilkes-Barre Gas & Elec. Co., 38 Pa. Superior Ct. 3; Fitzgerald v. Edison Electric Co., 200 Pa. 540; Shafer v. Lacock, 168 Pa. 497; Daltry v. Media Gas, etc., Co., 208 Pa. 403; Shirey v. Gas Co., 215 Pa. 399; Devlin v. Beacon Light Co., 198 Pa. 583; McCoy v. Gas Co., 213 Pa. 367; Kerr v. R. R. Co., 169 Pa. 95.
    November 5, 1909:

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellee.—
    The burden of proof in a case of this description is upon the plaintiff: Smith v. East End Electric Light Co., 198 Pa. 19; Fitzgerald v. Illuminating Co., 200 Pa. 540; Weir v. Haverford Elec. Light Co., 221 Pa. 611.
    The nonsuit was properly entered: Snodgrass v. Carnegie Steel Co., 173 Pa. 228; Alexander v. Penna. Water Co., 201 Pa. 252; Ott v. Boggs, 219 Pa. 614; Weir v. Elec. Light Co., 221 Pa. 611; Erie Ry. Co. v. Decker, 78 Pa. 293; Albert v. Ry. Co., 98 Pa. 316.
   Per Curiam,

Judgment affirmed on the opinion of the court below.


text:
    C. L. Flaccus Glass Company v. Brackenridge Borough, Appellant.

      Road law — Plan of lots — Streets and alleys — Opening—Statute of limitations — Act of May 9, 1889, P. L. 173.
    Under the Act of May 9, 1889, P. L. 173, which provides that no street or alley on a plan of lots which has not been opened “for twenty-one years next after the laying out of the same,” shall be opened without the consent of the owner of the land, the limitation of twenty-one years begins .to run from the actual laying out of the plan, and not from the acknowledging of the plan, nor from the recording of it, nor from the sale of lots. The court may, however, in the absence of other evidence infer and find as a fact that the plan was laid out prior to the date of the acknowledgment.
    Argued Oct. 19, 1909.
    Appeal, No. 74, Oct. T., 1909, by defendant, from decree of C. P. No. 4, Allegheny Co., Second Term, 1908, No. 34, on bill in equity in case of The C. L. Flaccus Glass Company v. Brackenridge Borough.
    Before Mitchell, C. J., Fell, Brown, MestreSat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction to enjoin the opeñing of a street.
    Swearingen, P. J., filed the following opinion.
    This case involves a proceeding on the part of a municipality to open a street, which had been projected upon a plan by a private owner of land. No lot holder in the plan appeared at the trial to demand the opening of the street.
    William McAlpin made a plat of his land, showing lots, streets and alleys thereon. He formally acknowledged this plan on January 6,1887, and on January 10,1887, he recorded this plan. He then followed this by selling those lots in accordance with his plan, the earliest sale being on April 13, 1887. Under these facts it cannot be doubted that William McAlpin thereby dedicated James street and all other streets and alleys in said plan to public use. By such sale of lots a contract by implication arose between him and the lot purchasers, whereby he undertook that those streets and alleys, including James street, should be forever opened to the public: Woodward v. Pittsburg, 194 Pa. 193. Thereafter, neither William McAlpin, nor anyone claiming under him, could revoke that dedication, unless at least with the consent of every lot holder in the plan; and there is no pretense that any such consent was obtained in this case. It is true the statement is frequently made that such dedication will not be complete until it shall have been accepted by the public. But this refers only to the liability of the public for the maintenance of, or for accidents that might • happen upon, a street so dedicated.
    That the dedication of James street, as well as of the other streets and alleys in said plan, was accepted by the public is, we think, clear. There is no necessity to consider whether or not a township can act for the public in accepting the dedication of highways, because there is no evidence whatever that Harrison township, in any manner, accepted the dedication of the streets in the MeAlpin plan. But there is no question that a borough can act for the public in formally accepting the dedication of streets; and it may do this by formal ordinance or resolution, or by unequivocal acts, such as making repairs or improvements. The borough of Brackenridge did, on December 15, 1902, by formal ordinance, adopt a general plan of the borough, which was recorded; and upon this plan appeared the streets and alleys of the MeAlpin plan, including James street. It seems to us that this was as much an unequivocal act of acceptance as if the proper borough authorities had repaired drains or constructed culverts on James street.
    But however that may be, the said borough did afterwards, by the ordinances mentioned in findings of fact 9, formally accept the dedication of said streets, including James street, the one in dispute. These ordinances were enacted within twenty-one years next after the time when, according to the evidence, the MeAlpin plan could have been laid out. And we therefore hold that the acceptance was within time, and that the borough lawfully exercised its power.
    If this be true, then the borough of Brackenridge had the lawful right to proceed with the opening of James street, at any time at least after the passage of the ordinance of May 28, 1907, unless it had lost its right by delaying the opening (for it is the opening that controls) until January 9, 1908, by reason of the provisions of the Act of May 9, 1889, P. L. 173. That act is as follows:
    “Be it enacted, etc., That any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be laid out.”

      The question then is, When did the limitation prescribed in said act begin to run? If it began with the first sale of lots, April 13, 1887, then the borough authorities were in time, when they attempted to open James street on January 9, 1908; if it began with the recording of the MpAlpin plan, January 10, 1887, they were in time; but if it began at some time prior to January 9, 1887, then they were not in time. The question when the bar of the statute was intended to be interposed must be answered by ascertaining the meaning of the language, “twenty-one years next after the laying out of” a plan.
    It must be borne in mind that we have no evidence showing when the land embraced within the McAlpin plan was surveyed into lots, streets and alleys, the marks placed upon the ground, or when these lots, streets and alleys were marked upon the paper plat. The only evidence we have is that which is disclosed by the record of the plan — the original was not produced — and by the record of the deeds conveying lots in the plan, and the legal inferences to which those records give rise.
    It will be observed that the time named in the statute, at which the limitation of twenty-one years is to begin, is not the sale of lots, not the recording of the plan, not the acknowledging of the plan; but the language is “next after the laying out ” of the plan. The question then is, When did William McAlpin lay out this plan, within the meaning of the act of 1889? Because this plan and what was done thereunder afford the only evidence we have as to the dedication of James street to public use. So that, if James street was dedicated at all, it was by virtue of the plan of William McAlpin. It has been repeatedly determined that dedication is a matter of intention, that the question of intention is usually one for the jury, and that, when clearly proven, it is as complete in one day as in twenty-one years.
    When, then, did William McAlpin lay out • this plan? Clearly it must have been at the time when he had fully prepared it, all ready for the use of purchasers of lots and for acceptance of the dedication of streets by the public. It must have been at the time when he had done some act, from which a jury might reasonably infer that he had laid out the plan. It is true that, until either the public had accepted the dedication, or someone had purchased a lot in the plan, William. McAlpin could have revoked his dedication. But it does not follow that he had not actually laid out his plan prior thereto. Even though he should have subsequently revoked the dedication, having still the power to do so, it would not follow that he had not formerly laid it out. He might have formally and effectually laid out his plan and dedicated the streets and never have sold a single lot in it; so that the sale of lots is not the_test of the laying out of the plan. In like manner, he need never have recorded his plan; so that recording is not the test. And in the same way, he need never have acknowledged his plan; so that acknowledgment is not the test. The laying out of a plan is a question of fact, and neither the acknowledgment nor the recording of the plan, nor the sale of lots thereunder is necessary to establish the fact. These acts are only evidence of the fact of the laying out of the plan.
    William McAlpin made his plan some time, be it long or short, prior to January 6, 1887. When he did so is not disclosed by the evidence. But on that date he did perform an unequivocal act, evidencing his intention. He went before a public officer of the law with his plan, and then and there formally acknowledged it. This was a distinct declaration of his intention to dedicate James street and an equally distinct declaration that he had already laid out his plan. It was no less a distinct declaration than if he had announced the same to a dozen of his neighbors and afterwards had followed his statements with confirmatory acts, as he actually did. Because four days afterwards William McAlpin took this plan to a public office and recorded it, and three months after-wards he sold a lot in accordance with it. He did not lock the plan in his own secretary. But he promptly did those things, from which no reasonable inference can be drawn other than that he had, prior to this acknowledgment on January 6, 1887, actually laid out his plan, and had thereby dedicated James street to public use. If this case had been on trial before a jury, would it not have been the duty of the court to submit the foregoing evidence to the jury to find the fact, whether or not William McAlpin had laid out his plan on or before January 6, 1887? If such would have been the court’s duty, it is now our duty to find the fact, upon the same evidence; and we think it is sufficient to sustain the 'plaintiff’s contention as to the time when the McAlpin plan was laid out.
    We therefore hold that William McAlpin laid out his plan not later than January 6, 1887, and that the attempt of the borough of Brackenridge to open James street on January 9, 1908, was more than “twenty-one years next after the lajring out” of the plan. This being true, the bar of the statute of 1889 had interposed, and the borough of Brackenridge could not lawfully execute its purposes.

      Nelson McVicar, of Kennedy, McVicar & Hazlett, for appellant.
    The sale of lots by McAlpin according to his plan showing James street thereon, not previously projected, constituted an irrevocable dedication thereof to public use: Quicksall v. Philadelphia, 177 Pa. 301; Heckerman v. Hummel, 19 Pa. 64.
    The adoption by the borough of Brackenridge in 1902 of an official plan showing James street thereon the same as on the plan of McAlpin, and the formal acceptance by ordinances in 1907 of the dedication of James street and the other streets on the plan, made James street a public highway: Pittsburg v. Epping-Carpenter Co., 194 Pa. 318; Yost v. South Bethlehem Borough, 4 Lancaster Law Rev. 62; Chester v. Thurlow Land Co., 13 Pa. Dist. Rep. 285.

    The borough of Brackenridge had the right to open James street to public use at any time within twenty-one years from the date that the McAlpin plan was recorded: Quicksall v. Philadelphia, 177 Pa. 301.
    The Act of May 9, 1889, P. L. 173, limits the right of a municipality to open or rise a street laid out on a plan to twenty-one years from the dedication thereof.
    There was no limitation of time prior to the Act of May 9, 1889, P. L. 173, on the right of a municipality to accept the dedication of a street laid out on a plan of lots and open the same to public use: Washington Female Seminary v. Washington Borough, 18 Pa. Superior Ct. 555.
    November 5, 1909:
    James street was dedicated to public use, or offered to the public not earlier than the recording of the McAlpin plan on January 10; 1887: Walters v. Philadelphia, 208 Pa. 189.

      John P. Hunter, with him Walter Lyon, for appellee.
    Mc-Alpin having adopted and laid out his plan on January 6, 1887, the bar of the statute begins at that date: Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425; Scott v. Donora Southern R. R. Co., 222 Pa. 634.
    James street being located in a township there was no dedication to public use: Wagner v. Salzburg Township, 132 Pa. 636; Winner v. Graner, 173 Pa. 43; Edge v. Com., 7 Pa. 275.
   Per Curiam,

Judgment affirmed on the opinion of the court below.