author: Smith, P. J.,

text:
    Commonwealth v. Forest Lake Township Supervisors.

      Criminal procedure — Nuisance—Indictment at common law or under a statute — Misfeasance of township supervisors — Acts of March 21, 1806, July H, 1917, and Penal Code of 1860.

    1. Township supervisors may be indicted for neglecting the care and maintenance of public highways. Such indictment may be either under the common law for nuisance or under the Penal Code of March 31,1860, § 73, P. L. 402, which makes the maintenance of a public nuisance a misdemeanor, although the Township Code of July 14, 1917, § 240, P. L. 868, provides for imposing a fine for such failure of duty on the part of supervisors, and under the Act of March 21, 1806, 4 Sm. Laws, 326, where anything is directed to be done by any act of assembly, no penalty shall be inflicted under the. common law further than shall be necessary for carrying such act into effect.
    2. The remedy given by the Township Code of July 14, 1917, § 240, P. L. 868, is not exclusive.
    Indictment on return of constable. Motion to quash. Q. S. Susquehanna Co., Jan. Sess., 1921, No. 12.

      John Ferguson, District Attorney, for Commonwealth.

      H. A. Denny, for defendants.
    April 1, 1921.
   Smith, P. J.,

The reasons assigned in the motion to quash indictment raise for determination substantially two questions alternately stated:

I. Whether supervisors are not punishable by indictment for failure of duty in regard to the care and maintenance of public highways in their respective townships; and

2. Even if they can be so proceeded against, must such indictment be as under the common law for nuisance or under the statute making their misfeasance a misdemeanor?

It will be noticed the indictment here attacked is drawn under the common law and not under the statute of July 22, 1913, § 19, P. L. 926.

It is now contended and earnestly argued that the only penal procedure in such cases is that furnished by section 240 of the Township Code of July 14, 1917, P. L. 868.

“Section 240. Any township supervisor, township superintendent, road-master or contractor, employed to work on the roads, bridges and highways of any township of the second class, who shall violate any of the provisions of this act, other than those for the violation of which specific penalties are provided, or who shall fail, neglect or refuse to carry out the provisions of this act, shall, upon conviction before a justice of the peace, be sentenced to pay a fine of not more than $50, to be collected in the name of the township as other debts of like amount are collected. All such fines shall be paid to the township treasurer for the use of the road fund.”

In support of this position the learned counsel for the supervisors cite the opinion of Prather, P. J., in Com. v. Adsit et al., 49 Pa. C. C. 562, 30 D. R. 760, in which he discussed the same proposition now raised at bar, held the remedy by the 240th section of the Act of 1917 exclusive, and quashed the indictment against the supervisors in that proceeding, and this because of the provisions of the Act of March 21, 1806, 4 Sm. Laws, 326, which provides:

“5. In all cases where a remedy is provided or duty enjoined, or anything directed to be done by any act or acts of assembly of this Commonwealth, the directions of the said acts shall be strictly pursued; and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such act or acts into effect.” [1 Purd. Dig. (13th ed.) 271.]

As not referred to by the learned jurist in the ease above cited, we find that the 183rd section of the Criminal Code of March 31, 1860, P. L. 382, is in the exact language of the Act of 1806, ante.

Additional research on our own account leads us to a different conclusion than that of the learned judge in 49 Pa. C. C. Reps, above cited.

True, as stated by him, the 19th and 20th sections of the Act of 1913, P. L. 915, which declared such misfeasance as here indicated a misdemeanor, were expressly repealed by the Code of 1917, P. L. 840.

But the 73rd section of the Penal Code of 1860, P. L. 402, is still in force, which provides expressly that the creation, maintenance, &c., or causing such, of any public nuisance by any persons shall, if proven, constitute a misdemeanor, and punishable as such. The “not opening a highway, or refusing and neglecting to keep it in repair, is an injury to the public, and is indictable as a public or common nuisance” (Edge v. Com., 7 Pa. 275, 276, citing 3 Pa. 502), and, therefore, is a misdemeanor punishable as such by indictment under the 73rd section of the Act of 1860, above cited.

Such nuisance is also indictable at common law (Phillips v. Com., 44 Pa. 197, 199), and, as said in the opinion (page 200), “both at common law and under the statute.”

This because the offence is the “failure to discharge the public duty” thus imposed upon the supervisors, defendants: Phillips v. Com., 44 Pa. 197, 199.

We have thus far considered the law as existing prior to the enactment of the 240th section of the Act of July 14, 1917, P. L. 868, which we Have quoted above, here observing that the authorities cited are decisions of our appellate courts made long after the enactment of the statute of 1806, also quoted in this opinion, and illustrate one of the exceptions to the exclusiveness of its mandates, of which are many others cited in 8 Vale Digest, col. 24825 F.

The 240th section of the Act of 1917 does not define the misfeasance of the supervisors there recited as a “misdemeanor,” but merely that on “conviction” thereof the offender shall “pay a fine ... to be collected in the name of the township as other debts of like amount are eolllected, ... to be paid to the township treasurer for the use of the road fund,” and to which proceedings the Commonwealth, as the sovereign or state authority, is not a party and has no interest; and unless the proceedings by indictment, either at common law or under the statute of 1860, above cited, still exist, the Commonwealth is without remedy in the criminal courts against supervisors under the facts alleged in the indictment at bar. We are of the opinion any such negation cannot be implied but must be found to be clearly expressed, and is not by the 240th section of the Act of 1917, and, further, that the Act of 1806 cannot be given the controlling effect of making the remedy given the township by the former act exclusive as against either the 73rd section of the Penal Code of 1860 or indictment at common law.

As to the further objection to the present indictment, that if any indictment is proper it should be under the statute instead of at common law as laid because of the mandate of the Act of 1806, we interpret the decisions of Phillips v. Com., 44 Pa. 197, as well as Northern Central Ry. Co. v. Com., 90 Pa. 300, and Com. v. Van Sickle, Br. Rep. 69, as authority to the contrary, and that we must overrule the motion to quash.

And now, April 1, 1921, for the reasons above stated, the motion to quash indictment at bar is overruled, defendants directed to plead and the trial proceed. From Gerritt E. Gardner, Montrose, Pa.


source: Caselaw Access Project

author: Barratt, P. J.,

license: Public Domain

text:
    Twinn v. Noble.

      Personal injuries — Contributory negligence — Case for jury.

    1. Plaintiff testified that he attempted to cross Broad Street from east to west at the southeast corner of Lehigh Avenue; just as he was leaving the sidewalk, he looked south and saw the lights of an automobile 300 feet away; he stepped into the cartway and, when from six to eight feet from the safety platform in the middle of the street, which divides vehicular trafile running north and south, he heard a buzzing sound to his left, and upon looking saw the lights of an automobile about twenty feet away. He was startled into a momentary stop: he then jumped toward the safety platform, but was struck by the automobile and sustained grievous permanent injuries. The driver did not sound his horn, but, nevertheless, through some defect of the engine, according to one of plaintiff’s witnesses, it made a noise which could be heard from 150 to 175 feet away. The jury brought in a verdict for 530,000. On motion for new trial: Held, that the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury, and new trial refused.

      Personal injuries — Dismissal of petition for medical examination — Appeal pending — Continuance.
    2. A continuance will mot be granted in an action for personal injuries upon the ground that an appeal is pending in the Supreme Court from the action of the Court of Common Pleas in dismissing a petition by defendant for a medical examination of plaintiff.

      New trial — Dismissal of petition for medical examination — Offer by plaintiff to permit medical examination on condition that defendant’s experts be called if favorable to plaintiff.

    3. Where, notwithstanding the refusal by the court of defendant’s petition for a compulsory medical examination of plaintiff, counsel for plaintiff offered to counsel for defendant an opportunity for examination upon condition that the latter would call the examining physicians as witnesses whether their findings were favorable or unfavorable to defendant’s cause, and defendant’s counsel declined the offer, a new trial will not be granted on the ground that the petition for examination was improperly refused.

      New trial — Personal injuries — Excessive damages.

    4. Where the plaintiff, a pedestrian, had been grievously and permanently injured by collision with defendant’s automobile in attempting to cross a city street, a verdict of $30,000 was sustained, and rule for new trial dismissed.
    Motions for judgment n. o. v. and for new trial. C. P. No. 2, Phila. Co., March T., 1920, No. 2747.

      A. T. Ashton, for plaintiff.

      R. A. Smith and Bertram D. Rearick, for defendant.
    Dec. 28, 1921.
   Barratt, P. J.,

There are two motions before us, one for judgment n. o. v., the other for a new trial.

The motion for judgment n. o. v. is based upon contributory negligence of the plaintiff; the motion for a new trial is based upon excessiveness of the verdict.

Upon the motion for judgment n. o. v.

At about midnight of Feb. 29, 1920, the plaintiff was crossing Broad Street westerly from the southeast corner of Lehigh Avenue. He testified at the trial that as he was leaving the east sidewalk of Broad Street he looked to the south, from which traffic, if any, would approach, and saw lights of an automobile some 800 feet away; that he then proceeded into the cartway of the east half of Broad Street, and that when some six to eight feet from the centre line of that street, which point is marked by a safety platform dividing Broad Street into two sections for vehicular travel, north and south, he heard a buzzing sound to his left, and, upon looking, he saw approaching him, and within about twenty feet, the lights of an automobile; that he was startled into a momentary stop, and then jumped toward the safety platform and was struck by the oncoming automobile, and that thus the accident happened. He further testified that he was looking both north and west, as well as at the cartway where he was walking, and that the defendant’s automobile did not sound a horn.

The only eye-witness to the occurrence was a flour merchant, whose appearance and manner of testifying were quite convincing of his disinterestedness and his accuracy of narration. He testified that, in his automobile, he was approaching Lehigh Avenue on Broad Street from the north, and that when he reached the north side of Lehigh Avenue he made observations for other traffic, both pedestrian and vehicular; that he saw the plaintiff at the regular crossing-place out in the cartway, about two steps from the east curb of Broad Street; that at the same time his attention was attracted to the defendant’s automobile because of the great noise that it was making, and that the automobile was then from 150 to 175 feet to the south of the south crossing of Lehigh Avenue, over which the plaintiff was then walking west. “As the two drew very close together, it seemed as if there was a hesitancy partly noticeable in the mind of the man, questioning whether to go ahead or go behind, and in this particular instance he went ahead, and as he went ahead he was struck by the machine.”

This is the substance and effect of the evidence upon the part of the plaintiff in respect of the plaintiff’s actions from the time he left the curb until he was struck by the defendant’s automobile. A motion for non-suit was not made, and the question of contributory negligence was submitted to the jury without an exception thereto being asked for.

We are of opinion that there is no merit whatever in the motion for judgment n. o. v., and it is, therefore, refused.

Upon the motion for a new trial based upon excessiveness of the verdict.

This case was tried in December of last year, 1920; resulted in a verdict in behalf of the plaintiff for $10,000; appeal was taken to the Supreme Court; the lower court was reversed in an opinion filed in May of this year (270 Pa. 500), and a new trial ordered. It was set for trial in this court for Monday, Nov. 14th, of this year. During the period of six months intervening, counsel for defendant did not ask for re-examination of the plaintiff by a physician or physicians until on Thursday, Nov. 10th, four days prior to the time set for trial on Nov. 14th, counsel presented a petition asking leave for re-examinations of the plaintiff. Hearing was fixed for 1 o’clock of the same day. At 1 o’clock it was made known to the court that, instead of counsel for defendant having made any effort whatever to obtain the re-examinations now requested, a claim adjuster of an insurance company concerned in the case had been following the plaintiff with propositions of settlement, without the knowledge of his attorney and over his head, representing that the plaintiff could get immediately $3000 in cash settlement, which was more than could be secured by him if he proceeded to trial. Counsel for the insurance company (as will appear by reading the notes of testimony) admitted that he knew this adjuster of the insurance company, and that the phone number given by that adjuster to the plaintiff was also counsel’s phone number, but he declared that he had no part in any negotiations for settlement with the plaintiff over the head -of plaintiff’s counsel.

The petition for re-examinations was dismissed. The case was called for trial on Nov. 16th. It was on the list for the 14th. Under the rule of court, a case on Monday’s list is off for the term unless reached within two days. This two-day rule was relaxed, however, because of the fact that in the preceding week there were two holidays, and the first case upon that week’s list extended into the week of the 14th. On the morning of the 14th the trial judge announced that, because of these interruptions, the eases on Monday’s list would be taken up at the conclusion of the case then on trial over from the previous week. Counsel for defendant were notified of this temporary setting aside of the two-day rule. That is admitted. The effort then was to have a continuance because of unpreparedness due to witnesses having been sent away by the defendant. One of the counsel for defendant was engaged until Tuesday afternoon in the trial of another case in another court-room. This was given as a reason for defendant’s inability to proceed. However, since there was other counsel for defendant, that reason could not prevail under the rule. Motion for continuance was then pressed upon the ground of a certiorari having been issued out of the Supreme Court on the disposition of the petition for medical re-examinations. When this ground failed to pro-. duce the desired result, counsel for defendant again raised the question of medical re-examinations of the plaintiff. In spite of the court having refused this application, counsel for plaintiff offered to counsel for defendant the re-examination, attaching one condition, namely, that counsel for defendant would call the physician or physicians as witnesses, whether their findings were favorable to the defendant’s case or favorable to the plaintiff’s case. This offer, though repeatedly made during the trial, was flatly refused by counsel for defendant.

Whether other medical experts would have testified differently from those called concerning the physical results to the plaintiff of the accident had the defendant seen fit to avail himself of the generous offer of counsel for plaintiff, and thus have reduced the amount of the verdict, we cannot tell. Evidently counsel for the plaintiff was not apprehensive of the outcome. We feel that every opportunity that could be reasonably expected under the circumstances was given by the plaintiff to the defendant for further medical or surgical examinations. If production of such additional medical or surgical evidence would have reduced the amount of the verdict, the fault for the failure to produce that evidence is with the defendant, and cannot in fairness and conscience be charged to the plaintiff.

The amount of the verdict was $30,000. That is three times the amount of the former verdict. The question is, should a new trial be granted on the ground that $30,000 is too much? Counsel for defendant reason that the jury arrived at that amount by taking the expectancy of life under the Carlisle Table of a person of the plaintiff’s age, which expectancy is thirty-four years; the present value of $1 over that period, $768.93; the weekly earnings of the plaintiff at $40; $768.93 multiplied by forty makes $30,757.20. Counsel for the defendant argue that this is the way in which the jury arrived at the $30,000 verdict.

The error of this method of calculation is, of course, apparent. It does not take into consideration the expenses of treatment in the past, as well as those indicated in the future for operation. It also ignores the item of total loss of earnings of the plaintiff immediately following the accident, as also diminution of earning power over the period from the time that he resumed work after the accident until he stopped work entirely some ten months later. The item of pain, suffering and inconvenience is entirely overlooked.. Upon the subject of compensation for loss of earning power, the jury were charged: “. . . and then find the amount of the total gross loss by using what you believe to be the rate of earning power normally. By normally, I mean what he was able to earn when wages were normal, and not during the time of inflated compensation to electric welders during the war, if those wages were abnormally high at that time. You must take things, of course, as you find them. We all know as common knowledge that artisans in all trades were receiving unusually high wages during the war period, and we equally know that those wages have got to come down, and that they are coming down. Therefore, considering these questions that have to do with earning power, you must get about the normality of the thing to do equal and exact justice.”

The jury, it should be said at this point, was above the ordinary. The panel as a whole was of an unusually high grade. They gave several hours’ consideration to the case after having retired. We, of course, do not know upon what basis of figures they arrived at their verdict. Under the law they had the power to fix as well the plaintiff’s expectancy as his earning power. They may have put his expectancy above the table estimate of thirty-four years, as well as below. They may have taken his earning power at $40 a week, or at less. This was within their province. While they were carefully cautioned against sympathy as influencing any finding that they might reach, they could not help being conscious throughout the trial of the reckless and wanton carelessness of the defendant. In our opinion, the jury reached a fair, reasonable, adequate and just conclusion as to amount. The method of their reaching it, as suggested by counsel for defendant, is not so apparently erroneous as to suggest what probably was in the minds of the jury.

The plaintiff earned in the first employment that he secured upon his discharge from the army, $20 a week. At the time of the accident he was earning $40 a week. A quite moderate average earning, therefore, in view of general reduction of wages, would be $25 a week. His expectancy, according to the table, is thirty-four years. They may readily have reduced it to thirty years. The present value of $1 a week at 5 per cent, is $818.81; at 6 per cent., $736.64. We will assume that they took the lower figure, $736.64.

$736.64 multiplied by twenty-five (dollars a week). $18,415
Expenses and diminished earning power from accident to December, 1920 (when plaintiff was obliged to quit work,
which he has since been unable to resume). 1,000
Loss of earnings from December of last year to present
time, at $40 a week. 2,000
Pain, suffering and inconvenience in the past, as well as in the future. 10,000
$31,415

Our conscience is not shocked at this amount. On the contrary, while it is a substantial sum of money undoubtedly, what is its relative equivalent to the plaintiff for his painful bodily existence and mental torture for the rest of his life? Any sum less than $30,000 we feel would be grossly inadequate in view of the physical wreck that we are convinced the wanton negligence of the defendant has made of the plaintiff.

Apropos this subject, it is interesting to note, in passing, an editorial of one of our principal evening papers several days following the rendition of the verdict in this ease, and referring specifically to it:

“A verdict for $25,000 was awarded in Common Pleas, Tuesday, to a woman who was knocken down by an automobile as she stepped from the sidewalk at the corner of the Parkway and Summer Street. In another session, a jury awarded $30,000 to a man who was crippled for life by being struck by a speeding automobile.

“Reckless operation of motor-ears in the public streets appears to involve an unusual degree of financial risk. Juries are very apt to reflect public opinion. Not that the members of the jury are influenced by public prejudice or feeling in any particular case, but they are of the people and representative of the people, and naturally the thought which possesses the public mind finds its expression oftentimes in their action.

“Therefore, there is no straining to relate these extraordinary verdicts to the growing sense in the public mind of the wanton conduct of reckless drivers of automobile and motor-trucks, and to the determination that it must be checked. Possibly a rigid application of the law of liability and the assessment of heavy damages to be paid the victims of careless driving may prove as effective as the enforcement of the Criminal Code for such assaults. Yet it is noted that two sentences of imprisonment were meted out last week, one for a year’s term and one for thirty days, for irresponsible motor driving.

“If the law shall proceed in this manner to protect the safety of the highways, the speeders may learn caution to a degree in which it never has been and never would be enforced on their minds by $10 fines and reprimands.”

While the defendant has presented twenty-two assignments of error, he directed his argument to such of them only as have a bearing upon the matters above discussed, and we will not, therefore, take them up further than to say that, in our opinion, none of them are of sufficient merit to move us either to granting his motion for judgment n. o. v. or for a new trial.

Accordingly, the motion for judgment n. o. v. is overruled and for a new trial is refused.


author: Martin, P. J.,

text:
    Backman et al. v. United States Shipping Board Emergency Fleet Corporation.

      Vendor and vendee — Executory agreement — Interest of ‘parties.

    1. Upon the execution of an agreement for the sale of real estate the vendee becomes the equitable owner; any right claimed by the vendor must have been specifically conferred in the agreement.

      Bill for specific performance — Demurrer—Admission of construction of agreement averred in bill.

    2. A demurrer to a bill for specific performance admits the construction placed upon the agreement of sale by the bill in the absence of anything in the bill, or exhibits attached thereto, that would indicate a different meaning; the fact that the copy of the agreement of sale attached to the bill refers to a schedule which is not attached as an exhibit, and which might possibly have shown the construction placed upon the agreement as inadmissible, will not prevent the application of the principle.
    Demurrer to bill. C. P. No. 5, Phila. Co., March T., 1921, No. 7741, in Equity.

      J. L. Kun and M. Wolf, for plaintiffs.

      W. Y. C. Anderson and C. D. McAvoy, for defendant.
    Jan. 4, 1922.
   Martin, P. J.,

The bill in this case avers that Hyman Backman, Jacob A. Berger and Sol. Hopkins entered into a written agreement dated March 20, 1920, to purchase from the defendant 1479 houses and lots in the City of Philadelphia, described in the contract of sale, for the price of $5,541,800. A copy of the agreement is annexed to the bill, marked “Exhibit A.” The use-plaintiffs acquired their interest by assignment from the grantees named in the contract.

Settlement has been made for certain of the properties, and the use-plaintiffs are now prepared to take 149 of the properties and pay $126,248.18, the price agreed upon, but have requested defendant to allow them credit for $55,000, realized by defendant from the sale of 494 of the houses which defendant sold to tenants by whom they were occupied.

It is stated in paragraphs 6, 7 and 8 of the bill of complaint: “At and previous to the making of the agreement, Exhibit A, the houses which were the subject of that agreement, and mentioned therein, were occupied by various persons, who held them under leases from the defendant, and, in order to give such persons an opportunity to purchase their homes, the defendant requested that, notwithstanding the agreement about to be made with the complainants for the purchase of the 1479 houses for the gross consideration above mentioned, the defendant should be permitted to sell any of said houses to the tenants thereof up to and including April 15, 1921, and the complainants agreed to this request, which was embodied in the agreement in the following provision: ‘The parties of the second part agree that the party of the first part may sell any of the houses to the tenants up to and including April 15, 1920.’ ”

7. The purpose and intention of the said provision was expressed by defendant, at and before agreement of sale was signed, to be the removal of the possibility of any criticism of defendant by the tenants or by any one else, that the defendant, in selling the said properties to the complainants, had consulted its financial interests only, and had not attempted in any way to protect the tenants of the properties who might desire to purchase their homes. It was not contemplated or agreed that if the defendant should sell any of said houses for more than the prices specified in schedule “A” it was to retain the excess and thereby increase the gross consideration mentioned in the agreement to be received by the defendant, but, in order to leave itself free as to the prices at which it might sell such houses to tenants, and at the same time to protect complainants against sales at prices which might be less than the proportioned prices specified for mortgage purposes as aforesaid for each house, to make up the total agreed consideration mentioned in said agreement, the defendant agreed that in no event were the complainants to have a less credit on the sales of any houses so sold than the proportioned prices therefor so specified in schedule “A.”

It was, therefore, provided in the said agreement as follows: “Should any sales be effected within said period, the party of the first part agrees to credit the parties of the second part with the purchase price of such house, as set forth in schedule ‘A,’ hereto annexed, on account of the total purchase price of $5,541,800 above mentioned at the time of final settlement.”

8. Between March 8, 1920, and April 15, 1920, the defendant sold to tenants 494 of the houses involved in the agreement with complainants at purchase prices in excess of the figures specified in schedule “A” by $55,000.

The prayers of the bill are for an injunction to restrain the sale or conveyance of the 149 properties to any other persons than complainants; for specific performance of the contract of sale upon performance by complainants of the conditions to be performed by them, with an allowance of credit of the $55,000 realized by defendant upon sales of properties to tenants, and for general relief.

A demurrer was filed by defendants on the ground that the bill seeks to interfere with defendant’s authority to sell the properties and to nullify the authority conferred upon defendant by Congress, and a third cause, that “the bill on its face, and particularly on the face of the agreement attached as ‘Exhibit A,’ does not show that complainants are entitled to any of the relief prayed for by them. The copy of the agreement annexed to the bill stipulated the amount of mortgage to remain upon each house, and that it shall be ‘equivalent to 80 per cent, of the amount of purchase price specified for each of said houses, and more particularly set forth in schedule ‘A’ hereto attached and made part of this agreement;” but the schedule is not annexed to the bill of complaint. That clause of the agreement which provides, should sales be effected by defendant credit is to be allowed the vendees for “the purchase price of such house, as set forth in schedule ‘A’ hereto annexed,” may have reference to the “house” set forth in schedule “A,” or mean that the “price” to be credited appears in the schedule. In the absence of the schedule to indicate a different meaning, it is fair to regard the construction given to the sentence in the 7th paragraph of the bill when considering the question of a demurrer, which admits the facts averred. The bill states, “it was not contemplated or agreed that if defendant should sell any of said houses for more than the prices specified in schedule ‘A’ it was to retain the excess and thereby increase the gross consideration mentioned in the agreement to he received by the defendant.”

This construction accords with the legal position of parties after the execution of a contract for the sale of real estate, unless altered by its terms.

Upon signing the agreement of sale the vendees became equitable owners of the houses. The vendor reserved a lien for the consideration agreed to be paid as the purchase price. Any right claimed by the vendor to dispose of the fee in the houses that were included in the agreement of sale subsequently to the date of its execution must have been conferred specifically in the agreement.

The demurrer is overruled and defendant is granted leave to answer.


author: Lamorelle, P. J.,

text:
    Roop’s Estate.

      Wills — Construction—General intent — Technical terms.

    Testator expressed as his primary purpose in creating a trust his desire to benefit the W. family. He then directed the trustee to pay the net income of the fund to W.’s mother and sisters and to the survivor or survivors of them so long as any one of them might be living, and upon the death of all of them to “pay the principal of the said sum to W.’s daughter, A. D. W., if she be living, or to her issue if she be deceased, and in default of issue to such person or persons as would then take the same from and under said W. if he had lived until then and then died intestate.” W.’s daughter, A. D. W., died Feb. 12, 1875, some three years after the decedent, without issue, leaving a will, by which she bequeathed her property to persons not of the W. family. On the death of the last survivor of decedent’s sisters, the trustee filed an account. At the audit it was contended that A. D. W. took a vested remainder and the fund passed to her legatees: Held, that the case did not turn on technical rules of construction, but upon the main purpose to benefit the W. family, and the fund passed to those persons who would have been W.’s next of kin had he died at the death of the last surviving cestui que trust.

    Exceptions to adjudication. O. C. Phila. Co., July T., 1879, No. 82.
    Samuel W. Roop, testator, died in 1867, leaving a will, the controlling clause of which was as follows:
    “The principal sum of Eight thousand dollars which stands in my private locked account book to the credit of ‘The Washington Fund’ consists of a balance of my commissions as executor of the estate of my late partner and friend, Warner F. Washington, the residue of said commissions having been already assigned in trust for his daughter. This balance of commissions is not set apart from the rest of my estate or invested, but I have always since I received it intended to appropriate it, principal and income, for the benefit of Mr. Washington’s family. So long as I live I can do this from time to time as I may deem best. Immediately upon and after my decease I direct my executors to take from my general assets or estate a sum equal to the balance of the said ‘Washington Fund’ at that time, whatever it may be, and pay it to the Pennsylvania Company for Insurances on Lives and Granting Annuities, to be received and held by them upon the following trusts, viz.: In trust to divide or pay the net income of the same between Mrs. E. S. Washington, the mother, and Mary M., Rebecca C. and Louisa Washington, sisters of said Warner F. Washington, the survivor or survivors of them, so long as any one of them may be living; and upon the death of all of them, to pay the principal of the said sum to Anna Dorsey Washington, daughter of said Warner F. Washington, if she be living, or her issue, if she be deceased, and in default of issue to such person or persons as would then take the same from and under the said Warner F. Washington, if he had lived until then and then died intestate. I expressly direct that this sum shall in no event be charged upon my estate or prevent in any wise the complete settlement thereof.”
    Anna Dorsey Washington died Feb. 12, 1875, in the lifetime of her sisters, unmarried and without issue, leaving a will, by which she bequeathed the residue of her estate to persons not of the Washington family. At the audit of the account of the trustee, filed upon the death of the last surviving cestui que trust, April 16, 1921, it was contended that the said Anna Dorsey Washington took a vested remainder under the will which passed to her legatees. The auditing judge (Thompson, J.) held that it was the intention of the testator that no interest should vest in any particular individual during the lifetime of the cestui que trust, and that such intention must be given effect without regard to technical rules, citing Mulliken v. Earnshaw, 209 Pa. 226. He, therefore, awarded the fund to those persons who would have been entitled to the estate of Warner F. Washington had he died at the death of the last surviving cestui que trust. The legatees under Anna Dorsey Washington’s will excepted.

      James C. Sellers, for exceptions.

      George J. Hanhauser and R. M. Remide (Saul, Ewing, Remide & Saul with them), contra.
    Jan. 19, 1922.
   Lamorelle, P. J.,

The auditing judge in a concise adjudication has analyzed the terms and provisions of the will, and were it not for the earnest argument and really meritorious briefs presented on behalf of exceptants, we might well dismiss the exceptions without further comment. The argument of counsel, however, deserves further consideration, and we have devoted some time to a thorough examination of the record, and in an endeavor to see the will from the viewpoint of the exceptants. Briefly stated, the testator, after providing for his relatives, calls attention in his will to the fact that a principal sum of $8000, representing a balance of his commissions as the executor of the will of his “late partner and friend, Warner F. Washington,” stands to his credit as the “Washington Fund” in his locked ledger; that such balance, though never so invested, is what remains of such commissions, all else having theretofore been assigned in trust for the benefit of Mr. Washington’s daughter; that his reason for not assigning all was that in his lifetime he could distribute it as seemed best to him “for the benefit of Mr. Washington’s family,” and, finally, that since the receipt of the commissions it has always been his purpose to so appropriate them all. This succinct recital, paraphrased from the will, no testimony having been offered, clearly indicates the dominating purpose. The Washington family is to be refunded that fund to which the testator was of right entitled, and which he had received; he, however, was the one to direct and control the distribution, but it was that family, in such manner as he should determine, who were to be the recipients of his bounty.

Having this purpose in mind, we now take up the language of his gift, premising our discussion that testator’s intention is to be found in the words used by him, but never losing sight of the pole star set for our guidance. And, first, we must not overlook nor minimize two significant clauses: his wife is to be preferred over all legatees; her bequest is not to abate, though all others may, but no part of the “Washington Fund” is to be taken or used for any purpose other than as provided by the will.

His executors are directed to set aside a sum equivalent to that shown by the entry in his locked ledger and to pay it to the present accountant, which sum is to be received by the accountant and held in trust to pay the net income in equal shares to the mother and the three sisters of Warner F. Washington, by name, and the survivor, so long as any of the four are alive. These are the first objects of testator’s consideration. When they are all deceased, Mr. Washington’s daughter is to receive the corpus. She is the one whom testator has already remembered in his lifetime. But her taking is contingent on her being alive (with alternative gift to her children) when the trust shall terminate. Why lose oneself in the mazes of contingent and vested remainders, and split hairs over what has been said and what has been decided in a long line of contradictory so-called precedents? It has been said recently — and well said — by the Chief Justice, in Long’s Estate, 270 Pa. 487, that no will is really a binding authority as decisive of another will; and this, though similar language be used, may be a guide; no more. Single tracking frequently leads to disaster. The surrounding circumstances of each particular case must be examined with care, and testator’s underlying theory, as shown in the will or when permissible by oral testimony, thus legally worked out. Here testator says: “and upon the death of all of them (the four cestuis que trust), to pay the principal or capital of said sum to Anna Dorsey Washington, daughter of said Warner F. Washington, if she should be living, or her issue, if she should be deceased.” The time of payment was fixed as of the date of the death of the survivor of the four cestuis que trust. The daughter was to be the recipient, if living at the time the trust fell in. If, however, she was not living, which was the ease, her descendants were to take. She died in the year 1875, without issue, some few years after testator; the exceptants are residuary legatees under her will; they form no part of the Washington family.

Testator was careful to carry out to the uttermost his desire to benefit the Washington family. Note the phrase with reference to Anna Dorsey Washington, “should she be living.” Can this mean anything else than if she should then, i. e., at the time fixed for payment to her, be in existence? Again, note the alternative gift to her issue, “if she should be deceased.” And, finally, note the further gift in the alternative, “and, in default of issue, to pay to others.” Connote the gift to those who would then take the same, had Warner F. Washington lived till then and then died intestate? Could words more accurately express testator’s thought as to this ultimate distribution of his estate among the members of the Washington family? No one, not even the daughter, Anna Dorsey Washington, could divert the fund by will. In short, the gift and the payment were to be treated as synchronized. The auditing judge could have done nothing other- than to award the fund to the next of kin of Warner P. Washington as of the date of the death of the survivor of the four cestuis que trust, without violating both testator’s purpose and his manifestly expressed intent. A different award would have diverted the fund from the Washington family, the one thing testator did not intend, even to the extent of depriving his own wife of any participation therein.

All exceptions are dismissed and the adjudication is confirmed absolutely.


author: Lindsey, P. J.,

text:
    Kay et al., v. Sagerdahl et al.

      Municipalities — Boroughs — Water-works—Sale of power — Private use— Use of streets — Equity—Remedy—Recording in ordinance book — Submission to burgess — Advertising contracts — Act of May 14, 1915.

    1. A municipal corporation has no powers other than those expressly conferred hy legislative authority or fairly incident thereto or implied therefrom, or such as are indispensable for the purposes for which the corporation exists.
    2. Power in a municipality to enter into the business of providing and selling water and light to its inhabitants is not necessarily implied from the mere creation of the municipality. The power to do so must, like other powers, depend upon a grant of authority, general or special, express or implied, from the legislature.
    3. The power given to boroughs by the General Borough Act of May 14, 1915, P. L. 312, to “provide a supply of water for the use of the public within such borough,” must be exercised for the benefit of the inhabitants generally, and not any section or group of them.
    4. A borough owning a water plant with engines which, when properly operated, produce no more power than is necessary for the water system, has no power to make a contract with a limited partnership association by which the latter is given authority, for a consideration named, to install a generator and develop electricity from the excess power thus secured, for the use of the members of the association exclusively.
    5. The borough has no authority to grant such an association the use of the public streets with its poles and wires upon the condition that “electricity shall be furnished only for use of the members of the company or for the use of their tenants and lessees.”
    6. An enactment of a borough council, whether ordinance, resolution or motion, which provides for the permanent regulation of the government of the borough, or the creation of liability by contract, or permanent occupation of the streets, is legislative as distinguished from being merely ministerial, and, as such, falls within the statutory requirements as to being advertised and recorded in the ordinance book and submitted to the burgess for his approval.
    7. Where a borough council wrongfully contracts for the use of its water plant and public streets by private parties for their own use and advantage, citizens and taxpayers may maintain a bill in equity for an injunction to restrain the carrying out of such contract.
    8. The remedy provided by the Act of May 14, 1915, § 9, art. i, ch. vii, P. L. 312, 393, is not appropriate in such case, inasmuch as it was intended to apply to cases where the action was regular and authorized by statute, but in some way especially injures some particular person.
    Bill in equity for an injunction. C. P. Warren Co., Sept. T., 1920, No. 56.

      Alexander & Clark, for plaintiffs.

      D. U. Arird and Bordwell & Eldred, for defendants.
    Feb. 14, 1921.
   Lindsey, P. J.,

This bill in equity is filed by A. S. Kay, J. L. Mead and John L. Sweetland on behalf of themselves and other citizens and taxpayers of the Borough of Youngsville, Warren County, against J. A. Sager-dahl, Burgess, and H. H. Hull, Virgil D. Smith, E. C. Swanson, T. H. Russell, I.L. Anderson, M. E. Krimbill and P. S. Agnew, Town Council of said Borough of Youngsville, and Co-operative Light and Power Company and C. P. Cloak, president, and G. E. Mix, secretary thereof, and seeks to have a certain contract or agreement entered into between the said borough authorities and said Co-operative Light and Power Company declared void and the parties enjoined from carrying out the same, and also declared void a certain resolution of the said town council granting permission to the aforesaid company to erect poles and string wires in the public streets of the said borough and the said defendants enjoined from erecting or maintaining poles and wires in the streets under the said permission. Testimony was taken on Nov. 5, 1920, and subsequently the cause was fully argued by counsel on both sides.

Findings of fact.

From the evidence taken at the hearing we find the following facts:

1. The plaintiffs are citizens and residents of the Borough of Youngsville, Warren County, and are owners of property and taxpayers in said borough.

2. The Borough of Youngsville is one of the municipal corporations of the Státe, and J. A. Sagerdahl is and was, at the time of the adoption of the agreement and resolution complained of, acting as burgess of said borough, and H. H. Hull, Virgil D. Smith, E. C. Swanson, T. H. Russell, I. L. Anderson, M. E. Krimbill, F. S. Agnew are and were at the time aforesaid acting as the town council of said borough.

3. The Co-operative Light and Power Company, Limited, is a limited partnership under the laws of Pennsylvania, but at the date of the adoption of the aforesaid resolution and contract was an unincorporated association, of which C. P. Cloak is president and G. E. Mix is secretary.

4. The Borough of Youngsville owns and operates a water-works within said borough for the purpose of providing a supply of water for the use of the public and the citizens within said borough, and said water-works includes a power plant for the pumping of water, consisting of engines, pumps and other equipment and appliances.

5. On June 7, 1920, an agreement was entered into in writing between the aforesaid borough authorities and the Co-operative Light and Power Company, in which the company agreed to install, maintain and operate a generator at the water-works building for the manufacture of electric light and power; the borough agreed “to permit the said company to use the surplus or excess power at the plant of the borough water-works system for the purpose of operating the said generator;” the company agreed to pay the borough 2 cents per K. W. hour (specifying how that was to be determined) and certain additional expenses, and as soon as all cost and expense of the equipment of the company “shall have been fully earned and paid” to turn over the same to the borough for the sum of $1. It was also provided in the instrument that the rights granted might be revoked by the town council upon thirty days’ notice.

6. On June 7, 1920, the said town council adopted the following resolution:

“Be it resolved, that permission be and the same is hereby granted the Co-operative Light and Power Company, Limited, its successors and assigns, to erect poles and equipment, to string wires and to maintain the same for the purpose of supplying electricity in, over, across and along the following streets and portions thereof in the Borough of Youngsville, County of Wafren and State of Pennsylvania: Railroad Street, East Main to Bates, West Main to Mead Hardware Company’s store, Bates Street to College Street, subject, however, to the following terms and restrictions: (a) No poles shall be erected unless and until the location of the same shall have been approved by the pole commission of this borough, and all poles shall be set as far as possible opposite the division-lines of the properties, (b) Electricity shall be furnished only for use of the members of the company or for the use of their tenants and lessees, (c) The permission hereby granted may be revoked by resolution of the borough council upon thirty days’ notice to the said company, and in ease of such revoke, the said company shall forthwith remove from streets of the borough all poles, wires and equipment owned by it.”

7. The said company has installed an electric generator at the water-works building and is operating the same with power from the engines and equipment of the water-works, and is furnishing electric current for lighting purposes to the dwelling-houses of certain of the members of said company and to the stores and other places of business of certain of the members of said company, but no current is furnished to persons not members, except to tenants or lessees of members.

8. The said company has erected poles and strung wires in and along certain public streets of the said borough, and the same is now maintaining them in said streets.

9. Neither the said resolution nor the said agreement were published in a newspaper, and neither of them were advertised by posting or recorded in the ordinance book of the borough, nor were either of them presented to the burgess for his approval or approved by him by signing.

10. When properly operated for the purpose for which they were installed, the engines of the water-works system do not produce any surplus or excess of power over and above what is required for the operating of said water system; but they are of a rated horse power and are capable of producing a greater amount of power than is needed to operate the water system at any one time.

Discussion.

Whatever may be thought of its soundness historically, the rule seems to be well established at the present day in this country that a municipal corporation has no powers other than those expressly conferred by legislative authority or fairly incident thereto or implied therefrom, or such as are indispensable for the purposes for which the corporation exists. It is clearly expressed by Chief Justice Mercur in Whelen’s Appeal, 108 Pa. 162, 197, as follows: “In Dillon on Municipal Corporations, § 89, it is declared to be an unquestioned rule of law that a municipal corporation does not possess and cannot exercise any other powers than these, to wit: First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt as to the existence of power is resolved by the courts against its existence in the corporation, and, therefore, denied. It is equally well settled that the agents, officers or city council of a municipality cannot bind the corporation by any contract not within the scope of its powers. The rule is said to grow out of the nature of such institutions and to rest on just and solid grounds. The inhabitants are the corporators. The officers are only the public agents of the corporation. Their powers and their duties are prescribed by the charter or by statute. All persons dealing with them are bound to know the extent of those powers. Any rule or practice which permits municipal officers to transcend their powers is clearly contrary to public policy and fraught with such mischievous and injurious effect to the taxpayers of the municipality that it should receive judicial condemnation.”

“Power in a municipality to enter into the business of providing and selling water and light to its inhabitants is not necessarily implied from the mere creation of the municipality. The power to do so must, like other powers, depend upon a grant of authority, general or special, express or implied, from the legislature:” Dillon on Municipal Corporations (5th ed.), § 1296; White v. Meadville, 177 Pa. 643; Bly v. White Deer Mountain Water Co., 197 Pa. 80.

The General Borough Act of May 14, 1915, P. L. 312, gives to boroughs the authority to “provide a supply of water for the use of the public within such borough,” and this it may do by erecting and operating water-works or by contracting for a supply. The same act also provides that boroughs “may manufacture or purchase electricity for the use of the inhabitants of such borough.” It will be noted that the authority given is to provide these services for the public and the inhabitants of the borough. It is a public service that is authorized; something for the benefit of the inhabitants generally, and not any section or group of them. “It is the public character of the use or service which justifies the laying of pipes and mains in the city streets, because these streets are devoted to public purposes and cannot be applied to a private use. It is also the public character of the use which authorizes and justifies the application of moneys derived from taxation to the construction and maintenance of the works:” Dillon on Municipal Corporations (5th ed.), § 1297.

The provision of the General Borough Act which we have referred to is simply a continuation of the statutory law as it existed prior thereto, and it had been settled that, under the prior statutes, a borough had no power to supply water outside of the borough limits: Haupt’s Appeal, 125 Pa. 211; Stauffer v. East Stroudsburg, 215 Pa. 143.

While that power has now been specifically conferred by the General Borough Act, so far as “adjacent” territory is concerned, it will be strictly construed : Day v. Lansdale Borough, 28 Dist. R. 330.

Moreover, property owned by a municipality for these public purposes is held in trust for the use and benefit of the public generally, and must be maintained by the municipal authorities for the public benefit and cannot be appropriated to any other use: Dillon on Municipal Corporations (5th ed.), § 1301.

Examining the agreement between the borough authorities and the Co-operative Light and Power Company in this case in the light of these general principles, is it one that is within the power of the borough authorities to make? It provides that the said company may “use the surplus or excess power at the plant of the borough water-works system for the purpose of operating” a generator there installed by the company to develop electricity and provides for a payment for said use. The agreement is silent as to what the “electric light and power” so developed by the company is to be used for; there is no provision for the use of any of it by the borough or for the furnishing of any of it to the public or the inhabitants of the borough, either for compensation or otherwise. So far as the agreement is concerned, it is to be the property of the company solely. It appears from the evidence that the company is an association of individuals or partnership which from the electricity so generated furnishes electric lights to its own members and their tenants, but to no others not members of the. association and not to the public generally. The use made of the electricity generated in the borough plant is, therefore, a purely private and in no sense a public use. It is not essential that the whole community or any considerable portion thereof should directly enjoy or participate in an improvement to make the use public. An enterprise does not lose the character of a public use because that use may be limited by circumstances to a comparatively small part of the public, but “to constitute a public use, it is essential that the general public be to some extent entitled to a fixed and definite right to participate in the use, not as a mere matter of favor, nor by permission of the owner, but as a matter of right:” Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 393. See, also, Peifly v. Mountain Water Supply Co., 214 Pa. 340.

If the Co-operative Light and Power Company were supplying electric light to the public generally in Youngsville, or to all who desired to use it upon the same terms, a different question would be presented; but it is in fact supplying only itself, and is under no obligation, under its agreement with the borough, to do anything else. It would seem clear, therefore, that this agreement falls within the class of cases such as State v. Murphy, 134 Mo. 548, 34 L. R. A. 369, where it was held that the grantee was placed under no obligation to use the rights and privileges granted to it in any way or to any extent for the benefit of the public, and that no duty whatever to the public was imposed upon it; consequently, such grant was for a purely private use and was beyond the powers of the municipality to bestow. See, also, Miller v. Pulaski, 109 Va. 137.

It is true that a consideration is to be paid to the borough by the company, but this does not render the use of the plant a public one, and it is not clear that it is even of benefit to the borough under the evidence in the case. Is there any other benefit accruing under the agreement to the borough or the public? It is provided that the company agrees, “as soon as all costs and expenses of furnishing, equipping and operating the said generator and the lines and equipment of the said company shall have been fully earned and paid, to assign, convey and turn over all of this plant, equipment, poles, lines, wires and furnishings to said borough . . . upon the payment of $1.” This provision, however, is vague and indefinite, and it is difficult to say what it means. The “costs and expenses” are not specified, nor is any method provided of ascertaining them. It is impossible to say of what the “lines and equipment of the company” consist that it agrees to “turn over;” what is the meaning of “fully earned and paid,” and how and by whom can it or shall it he determined whether these “costs and expenses” have been “fully earned and paid?” No answers to these questions can be found in the agreement. We are nob informed whether or not the company has any earnings or income or from what source. It is not a public service company, and, so far as appears in evidence, simply supplies electric light to its members; that is to say, to itself. The “costs and expenses” referred to and the earnings, if any, being wholly in the control of the company, and there being no method of defining or ascertaining the same provided for in the agreement, we are unable to gather from this portion of the agreement any such enforceable obligation as would constitute a benefit to the borough.

The permission granted to the company is, in the language of the agreement, “to use the surplus or excess power” at the water plant. What this means is not clear. What the parties themselves construe it to mean, or, at all events, what actually happens, is shown by the evidence, and that is that the generator of the Co-operative Light and Power Company is connected to the power' plant of the water-works, and the said generator is operated by the engines which were installed and are there for the purpose of running the water-works. There is no surplus or excess power at the water-works plant when the same is properly operated. The engines are of a greater horse power and are capable of developing more power than is necessary to operate the water-works at any one time, which would be the case, no doubt, with almost any power plant. But, when operating, the engines do not actually develop any more power than is needed at any particular time, due to the mechanism of the engine provided for that purpose, in order to insure economical operation, and, of course, when not operating at all, there is no power developed. There is, therefore, no excess power that would go to waste if not utilized in some manner; in other words, no surplus or excess power at all in the proper sense of those words.

“When a city owns, maintains and operates its own water or light plant, it is to be reasonably expected that, in the prudent management of its works, some excess beyond the natural requirements of the public will arise; that there will be some surplus which will be available for disposal over and above such as it requires for its own purposes, and such as its inhabitants can claim by reason of the prior duty which it owes them. With reference to the surplus so arising, the city may contract with private individuals for the private use thereof, so long as it does so without affecting the supply which is required for public or quasi-public purposes:” Dillon on Municipal Corporations (5th ed.), § 1300.

In State v. City of Eau Claire, 40 Wis. 533, and Green Bay & M. Canal Co. v. Kaukauna Water Power Co., 70 Wis. 635, the Supreme Court of Wisconsin held that where a city had legislative authority to erect a dam for the purpose of water-works for the city, it might lawfully lease for private purposes any excess of water not required for its water-works. In Riverside & A. R. Co. v. Riverside, 118 Fed. Repr. 736, it was held that where a city has made a contract with an electric company for a supply of electric power greater than its present needs, and which will go to waste unless it is sold to private individuals for such use as they desire to make of it, it may enter into a contract with- a street railroad company to furnish such surplus power for a term of years for the purpose of operating the railway. The decision was, however, placed mainly on the ground that the city had legislative grant of power to maintain and operate street railways, and that, therefore, the power furnished was being used for a public convenience within the powers of the city itself to furnish. The case of Pikes Peak Power Co. v. City of Colorado Springs, 105 Fed. Repr. 1, has been cited as holding that a city council has authority to lease to private parties the use of the water flowing through its water system to enable them to generate power to create electricity, where such lease does not impair the usefulness of the water or the system for the purposes for which they were obtained by the city, and such is one of the syllabi of the case; but in that case the city council had authority “to distribute and apply its water not only to ordinary municipal uses, but to ‘irrigation and other purposes.’ ” Moreover, the contract under consideration in that case was much broader in its scope and involved other essential features not necessary to advert to here.

We know of no Pennsylvania case which has gone as far as the line of cases above cited in sustaining the power of a municipality to dispose of surplus products from municipal plants to private parties. But supposing the principle to be established, the facts of this case do not, in our opinion, bring it within the rule of those cases. What is here disposed of is not an excess or surplus of water from the water supply or a surplus of electricity, either purchased or produced by the borough, as in those cases. In this case the company is allowed to use the engines of the borough to generate power for its own use. The borough is not disposing of a surplus of anything it has that would otherwise go to waste, but is allowing borough property to be used by private individuals for their own benefit, although for a consideration. It is true that it does not appear that the use of the engines by the company interferes with the operation of the water-works to any appreciable extent. If, however, the borough authorities may permit the use of the water-works engines by these particular parties for this particular purpose, there is no reason why they cannot permit their use by others for other purposes. They are owned by the borough, however, and should be used by its authorities for the purpose of supplying water to the public in the Borough of Youngsville, and for no other purpose. We are of the opinion that there is no power in the borough authorities to make the agreement entered into with the Co-operative Light and Power Company, and that the same is ultra vires and void.

We now come to the resolution of the council granting to the Co-operative Light and Power Company the use of the public streets of the Borough of Youngsville, which contains the following remarkable condition: “Electricity shall be furnished only for use of the members of the company or for the use of their tenants and lessees.” It thus- plainly appears upon the face of the resolution that the permission to use the public streets is granted for the benefit of a select number of individuals and not of the public generally, and that the licensee is expressly forbidden by the borough authorities from serving the public as a condition of the grant.

“Public streets are for the public use, and the use is none the less for the public at large, as distinguished from the municipality, because they are situate within the limits of the latter, and because the legislature may have given the supervision, control and regulation of them to the local authorities. The legislature of the State represents the public at large, and has, in the absence of special constitutional restraint, and subject (according to the tendency of more recent judicial opinion) to certain private and property rights and easements of the abutting owner, full and paramount authority over all public ways and public places:” Dillon on Municipal Corporations (5th ed.), § 1122.

“To the Commonwealth here,” said Chief Justice Gibson in O’Connor v. Pittsburgh, 18 Pa. 187, 189, “as to the King in England, belongs the franchise of every highway as a trustee for the public; and streets regulated and repaired by the authority of a municipal corporation are as much highways as are rivers, railroads, canals or public roads laid out by the authority of the Quarter Sessions.”

“The furnishing of light, both for the purpose of lighting the streets and public places and for the use and consumption of the inhabitants of the municipality, is clearly recognized as a public use. The privilege of using the streets and highways of a municipality for this purpose can only be exercised by some one having a grant thereof from the State. When required by statute, the consent of the municipal authorities is essential to the right to use the streets:” Dillon on Municipal Corporations (5th ed.), § 1213; Philadelphia Company v. Freeport, 167 Pa. 279.

“In speaking of the uses to which the streets may be devoted, it has been said that not even the legislature can authorize the condemnation of private property for other than public use; hence, the appropriation of a street to a private purpose cannot be justified even by legislative authority. . . . But whatever the power of the legislature may be, to justify a use of the street or an act which would constitute a nuisance without making compensation therefor to those who are specially injured and without their consent, the statute must be express or the right to permit such act given by a clear and unquestionable implication from the powers expressly conferred, so that it can. be fairly said that the legislature contemplated the doing of the very act which occasioned the injury, and it may not be presumed from a general grant of authority. Hence, without express or plain authority of this nature, a city cannot grant a permanent right or easement in a street for the benefit of private parties and for an exclusively private purpose: ” Dillon on Municipal Corporations (5th ed.), § 1176.

A city cannot grant the right to lay pipes in the streets for the purpose of distributing ammonia gas for refrigerating purposes, particularly where it appears that the enterprise is undertaken for the advantage of a limited number of people within a limited district: Rhinehart v. Redfield, 93 N. Y. App. Div. 410, affirmed 179 N. Y. 569.

In the case of Sandy Lake Borough v. Sandy Lake Gas Co., 16 Pa. Superior Ct. 234, 240, it was said: “The borough had power to lay gas pipes under its streets for the purpose of supplying gas for lighting the streets and for the use of citizens, and it was competent for it to exercise that power in favor of private citizens by granting a license to do the same thing: Wood v. McGrath, 150 Pa. 451.” It is to be noted that in the Sandy Lake Borough case the license granted was to lay pipes in the streets of the borough for the purpose of supplying natural gas to the inhabitants of said borough. The license, therefore, while granted to private persons, was for a public purpose, and that case, therefore, has no application to the facts of the case at bar. Moreover, in that case the validity of the grant was not passed upon; the decision was that the licensee, having accepted the benefits of the grant, had no standing to set up that it was ultra vires. In the case of Wood v. McGrath, quoted above, the action complained of was the giving of permission by a borough council to a citizen to lay a drain or sewer under the public street from a well on the citizen’s property abutting on the street. This is spoken of in the opinion as a private purpose, but what seems to be meant is, that what the borough has authority to do for the public benefit it may permit a single property owner to do, although in the specific instance he is the only member of the public directly benefited. Thus it is said in the opinion: “The argument on the part of the plaintiff proves too much. It denies entirely the right of the borough to allow a private owner along a street which has no drain to connect with a drain on another street, unless the consent of all intervening owners be obtained. ... It is clear, therefore, that the adjoining owners have no interest in the sub-soil of the street which will enable them to demand that their consent must be obtained before any uses of the sub-soil of the streets can be made. It does not lie with them to say they admit that the borough authorities can use them for all public purposes, but cannot permit their use for the same kind of purpose by a private citizen, because we have already decided that they can do so; and if the use permitted is of the same kind to which the surface or sub-soil of the streets may be devoted, they have no more right to object in the one case than in the other.” The court cited as authority for its ruling the case of Smith v. Simmons, 103 Pa. 32. That was an action for damages sustained by the plaintiff by falling into a ditch being dug and not properly protected by the contractor who was digging it. The ditch was dug for the purpose of laying a pipe for the conveyance of water from a spring to one of defendant’s houses on a street in the borough, and permission had been given by the borough council to open the street. The court states that the question to be decided (on that branch of the case) was whether the digging of the ditch in the public street of the Borough of Susquehanna was a nuisance per se, and concludes “that the digging of the trench complained of in this case under the license of the borough council was not such an act as of itself rendered the parties engaged in it guilty of a public wrong.” This, then, is the foundation of the rulings in the line of cases we have been considering, and, in our opinion, all that they can legitimately be regarded as authority for. Certainly they cannot be regarded as authority for asserting the right of a borough council to grant to a group of persons the right to occupy a number of public streets with poles and wires carrying electric current solely for their own use and with the express condition attached that it could not be used by the public, to whom the streets belong. We have before referred to this condition as extraordinary, and it seems to us to clearly mark this grant as conferring peculiar benefits on a small portion of the public so as to clearly render it void. Certainly, no statutory authority exists for such a grant. It is directly contrary to the general principles of the law governing public streets and falls within no exception to the general rule. The fact the company is actually furnishing a few lights to light the streets has no bearing on the question, as it is under no obligation under either the contract or the resolution to do so.

It is further claimed that the contract and resolution are invalid because they were not advertised, recorded in the ordinance book nor. submitted to the burgess for approval by him. It is well settled that an enactment by a borough council, no matter what it is called, whether ordinance, resolution or motion, which provides for the permanent regulation of the government of the borough, or the creation of liability by contract, or the permanent occupation of the streets, is legislative, as distinguished from being merely ministerial and the transaction of ordinary routine business, and as such falls within the statutory requirements as to being advertised and recorded in the ordinance book and must be submitted to the burgess for his approval: Howard v. Olyphant Borough, 181 Pa. 191; Kolb v. Tamaqua Borough, 218 Pa. 126.

The rule is well stated in the case of Jones v. Light, Heat, etc., Co., 202 Pa. 164, 167. There, after quoting the statutory provision with respect to the presentation of ordinances and resolutions of councils to the chief burgess, Mr. Justice Pell said: “The construction placed on this section of the act and on sections providing for advertisement and recording is that they apply to all acts of the council by ordinance or resolution which are of a legislative character, but not to those that are merely ministerial or executive. Generally, under the first are permanent regulations for the government of the borough, the granting of privileges to occupy streets and the creation of liability by contract; under the second, the transaction of current business, the ordinary administration of municipal affairs and the awarding of contracts which have been previously authorized: Howard v. Olyphant Borough, 181 Pa. 191; Com. v. Diamond National Bank, 9 Pa. Superior Ct. 118. Seitzinger v. Edison Electric Illuminating Co., 187 Pa. 539, does not establish a different rule. In that case a resolution awarding a contract was presented by a resolution duly approved by the chief burgess, authorizing the making of the contract. What is said in the opinion as to a resolution awarding a contract being a ministerial act has reference to a contract which council has by resolution approved by the chief burgess previously authorized.” The word “presented” in the above quotation is evidently a misprint for “preceded.” So, also, in Lansdowne v. Citizens’ Electric Light and Power Co., 206 Pa. 188, an ordinance had been passed with all requisite formalities, authorizing the making of contracts for lighting the borough, and it was held that the acceptance of a bid submitted under such ordinance was merely a ministerial act.

In this case we are of the opinion that both the resolution and the agreement are legislative in their character, in the sense of being distinguished from being purely ministerial or routine business. Grants of permission to occupy streets have been uniformly so held, and the agreement is the creation of a liability. This conclusion would in itself require that the resolution and the agreement be held to be invalid. It is true that “a municipal corporation may ratify the unauthorized acts and contracts of its officers or agents which are within the corporate powers by ordinance subsequently passed:” Millvale Borough, 162 Pa. 374. But no ratification has been attempted in this case.

The defendants contend that this court has no jurisdiction to entertain the bill here filed for several reasons, among which is that there is an adequate remedy at law. This claim is based upon section 9 of art. I, ch. VII of the Act of May 14, 1915, P. L. 312, 393, which reads as follows: “Complaint may be made to the next Court of Quarter Sessions upon entering into recognizance with sufficient security to prosecute the same with effect, and for the payment of costs, by any person aggrieved in consequence of any ordinance, regulation or act done, or purporting to be done, in virtue of this act, and the determination and order of the court thereon shall be conclusive.”

This provision is a continuation of the provisions of the previous Acts of April 3, 1851, P. L. 320, and May 22, 1883, P. L. 39. Under the said acts it has been held that no jurisdiction was given to the Quarter Sessions in cases of contracts or agreements between the borough and other parties, nor in cases in regard to the occupancy of streets in boroughs: Carlisle & Mechanicsburg Street Ry. Co.’s Appeal, 54 Pa. Superior Ct. 311.

It seems that this summary appeal under the Act of 1851 is restricted to eases where the legislative action of councils is valid and pursuant to authority conferred upon them by that statute or amendments thereof, but a legal grievance otherwise exists: Ritter’s Appeal, 16 Dist. R. 713.

Persons aggrieved, to acquire standing to appeal, must suffer some special injury different from that which affects them and the general public equally: Heller’s Appeal, 16 Dist. R. 647.

To the same effect, since the Act of 1915, is the case of Davies v. Crafton Borough, 48 Pa. C. C. Reps. 295.

It seems clear to us that the summary appeal given by the statute is intended for cases where the action is regular and authorized by the statute, but in some way especially injures some particular person. It does not apply to a case like the present one, in which citizens and taxpayers claim that the borough authorities are using borough property for private purposes and permitting an illegal use of the public streets. We think the jurisdiction in such case is clearly in equity.

We have no doubt of the right of the plaintiffs to maintain this bill. The general rule is stated by Dillon, § 1579, as follows:

“ In this country the right of property holders or taxable inhabitants to resort to equity to restrain municipal corporations and their officers from transcending their lawful powers or violating their legal duties in any mode which will injuriously affect the property holders . . . has, without the aid of statute provision to that effect, been affirmed or recognized in numerous cases in many of the states. It is the prevailing, we may now add, almost universal, doctrine on the subject. It can, we think, be vindicated upon principle, in view of the nature of the powers exercised by municipal corporations and the necessity of affording easy, direct and adequate preventive relief against their misuse.” The principle is asserted, so far as relates to expenditures from the treasury or illegal contracts, in the following Pennsylvania cases, among others: Wheeler v. Philadelphia, 77 Pa. 338; Frame v. Felix, 167 Pa. 47; Wolff Chemical Co. v. Philadelphia, 217 Pa. 215; Whelen’s Appeal, 108 Pa. 162.

NOTE. — An appeal was taken In this case, but was subsequently abandoned.

In Morton et al. v. City of Philadelphia, 4 Dist. R. 523, certain citizens and taxpayers of Philadelphia filed a bill to enjoin the city authorities from taking the Liberty Bell from Independence Hall and sending it to the Atlanta Exposition, on the ground that such would be an unlawful diversion of corporate property from its legitimate and appropriate use, and the court held that a court of equity would issue an injunction at the suit of taxpayers against an unlawful use of corporate property. Authorities might be multiplied, but we think the standing of plaintiffs to maintain the bill is sufficiently vindicated.

Conclusions of law.

We reach the following conclusions of law:

(a) The borough authorities of Youngsville Borough have no power or lawful authority to permit the use of the engines or other portion of the waterworks plant belonging to the borough for the purpose of generating electricity by the Co-operative Light and Power Company.

(b) The agreement of June 7, 1920, between the borough authorities and Co-operative Light and Power Company is beyond the power of the borough authorities to make, and is illegal and void.

(o) The borough authorities of Youngsville Borough have no authority in law to permit the use of the public streets of said borough by the Co-operative Light and Power Company for erecting poles and stretching wires for transmission of electric current for the exclusive use and benefit of the members of said company.

(d) The resolution passed June 7, 1920, by the Town Council of Youngs-ville Borough, granting the use of certain public streets of said borough to Co-operative Light and Power Company, is illegal and void.

(e) The injunction should issue as prayed for.

From W. S. Clark, Warren, Pa.


author: Hassler, J.,

text:
    Minnick v. Denny.

      Breach of promise to marry — Oral or written promise — Statement signed by attorney — Amendment—Practice Act, 1915.

    1. tinder the Practice Act oí May 14,1915, P. L. 483, it is necessary for the statement in an action for breach of promise to marry to set forth whether the promise was oral or written.
    2. Under the act, a statement must be signed by the plaintiff’s attorney, if there be an attorney.
    3. The statement may be sworn to by some one other than the plaintiff having knowledge of the facts. If he alleges that he has such knowledge, the affidavit is sufficient without giving the source of his knowledge.
    4. Statements not signed by the plaintiff’s attorney or not stating whether the contract sued upon is oral or written may be corrected by amendment..
    Affidavit of defence raising questions of law. C. P. Lancaster Co., April T., 1921, No. 20.

      Chester A. Diller and Louis Appelbaum, for plaintiff.

      John E. Malone, for defendant.
    July 21, 1921.
   Hassler, J.,

On March 16, 1921, the plaintiff filed a statement in this case, in which it is alleged that the defendant, on Dec. 25, 1919, promised to marry the plaintiff, and the plaintiff then and there promised to marry the defendant. The statement was signed by William H. Barnhurst, who, in an affidavit, deposes and says that he is well acquainted with the facts set forth in the foregoing statement, and that he makes the affidavit in behalf of the plaintiff because she is detained out of the jurisdiction of the court on account of business reasons. This statement is not signed by the plaintiff’s attorneys. The defendant has filed an affidavit raising questions of law, which are, first, whether the statement is defective, in that it does not set forth whether the promises sued on were verbal or in writing; and, secondly, whether it is necessary to be signed by the attorneys for the plaintiff.

The Act of May 14, 1915, § 9, P. L. 483, provides that a statement of claim shall be as brief as the nature of the case will admit. In actions on contracts, it shall state whether the contract is oral or in writing. It shall be sworn to by the plaintiff or some person having knowledge of the facts, and if there be an attorney, it shall be signed by him.

The requirements of this act must be complied with to make the statement a valid one: Philadelphia Gear Co. v. Climax Machine Co., 36 Lanc. Law Rev. 271, 29 Dist. R. 493; Zullinger v. Grebe, 33 Lanc. Law Rev. 401, 26 Dist. R. 483; Sorrick v. Scheetz, 33 Lanc. Law Rev. 401, 26 Dist. R. 484; Ferraro v. Pennsylvania R. R. Co., 34 Lanc. Law Rev. 403; Berger Bros. Co. v. Haas, 32 York Leg. Record, 134. As the Practice Act requires the plaintiff to state whether a contract is oral or in writing, and that it be signed by the plaintiff’s attorney, it must be done, and can be done at any time, as such matters are amendable: Encore Hosiery Co. v. York Mills Co., 32 York Leg. Record, 169. It may be taken for granted that such a promise as is the subject-matter of this suit is oral, but, in compliance with the requirements of the act of assembly, it will be necessary for the plaintiff to state that fact.

A question was raised at the argument as to the sufficiency of the affidavit to the statement, it having been made by William H. Barnhurst without stating his means of knowledge. Section 9 of the Act of 1915 provides that a statement may be sworn to by the plaintiff or some person having knowledge of the facts. As he alleged he had such knowledge, the affidavit made by him is sufficient. The plaintiff is, therefore, directed to amend her statement by stating whether the contract sued on is oral or written, and the attorneys for the plaintiff are directed to sign the statement.

From George Ross Eshleman, Lancaster, Pa.


author: Reiber, P. J.,

text:
    Kennedy v. Gelbach.

      Costs — Practice, C. P. — Malicious prosecution — Statute of 22 and 23 Charles II, chap. 9.

    The British Statute of 22 and 23 Charles II, ch. 9, entitled “An act for laying impositions on proceedings at law,” does not apply to an action of trespass for malicious prosecution.
    Rule to strike off judgment. C. P. Butler Co., June T., 1921, No. 43.

      Marshall & Watson, for plaintiff.

      E. H. Negley and W. H. Martin, for defendant.
    July 15, 1921.
   Reiber, P. J.,

This case is an action of trespass for false arrest and malicious prosecution, and, on trial thereof, resulted in a verdict for the plaintiff for 61 cents damages. The defendant paid into court the damages and costs to the extent thereof in the total amount of 13 cents. Judgment was thereupon taken by plaintiff on the verdict and an execution issued to enforce the payment of the balance of the costs, and the matter is before us on such motion to determine whether or not the plaintiff is limited to the amount of damages in his judgment for costs.

The question involves the construction of the British Statute 22 and 23 Charles II, chapter 9, entitled “An act for laying impositions on proceedings at law.” The same question was fully considered in Kunkle v. Aiken, 23 W. N. C. 372, and McCormick v. Northeim, 20 Dist. R. 112, and, following the conclusions therein reached that the statute extended to no actions save trespass quare clausum fregit and assault and battery, it follows in this case, being an action under the old pleadings of trespass on the case, the injuries being consequential, it does not come within the provisions of the statute.

For these reasons, it becomes the duty of the court to discharge the rule and sustain the judgment.

And now, July 15, 1921, rule to strike off judgment on part of defendant discharged and judgment sustained.

From James E. Marshall, Butler, Pa.


author: Haegest, P. J.,

text:
    Commonwealth v. American Ice Company.

      Taxation — Corporations—Tax on loans — Foreign corporations — Non-resident treasurer — Act of July 15, IS 19 — Constitutionality.
    1. The Act of July 15, 1919, P. L. 958, amending the Acts of 1885 and 1913, so as to impose on non-resident treasurers of foreign corporations the duty of acting as agents for the Commonwealth in collecting the tax due from the individual residents of Pennsylvania who own bonds of such corporations, is unconstitutional.
    2. The Commonwealth of Pennsylvania cannot constitutionally impose upon a foreign corporation the duty of requiring its non-resident treasurer, when paying outside of the State the interest on its bonds, to deduct from such interest the tax due to the Commonwealth from the holders of the bonds residing in Pennsylvania.
    Appeal from settlement by the Commonwealth of tax on loans. C. P. Dauphin Co., Commonwealth Docket, 1920, No. 70.

      William I. Schaffer, Attorney-General, and Frank M. Hunter, Deputy Attorney-General, for plaintiff.

      Olmsted, Snyder & Miller, for defendant.
    Dec. 15, 1921.
   Haegest, P. J.,

This is an appeal by the defendant from the settlement of an account by the Auditor General and State Treasurer for a tax on loans for the year 1919. It was submitted to the court under a stipulation that trial by jury be dispensed with, pursuant to the provisions of the Act of April 22, 1874, P. L. 109.

Facts.

The facts which have been agreed upon by counsel we find as follows:

1. The American Ice Company is a corporation of the State of New Jersey, having its principal place of business, office and treasury in Jersey City, New Jersey.

2. During the year 1919, and for a number of years prior thereto, the company was registered to do business within the State of Pennsylvania, and actually carried on part of its business within the State of Pennsylvania.

3. The treasurer of the company, during all of the year 1919, and during the previous years of the company’s existence, resided in the State of New Jersey, and performed his duties as treasurer in Jersey City, in the State of New Jersey.

4. All the evidences of the company’s indebtedness were created and issued under the authority of the laws of the State of New Jersey. The interest accruing from time to time thereon is payable, and actually paid, in Jersey City and New York City, and not elsewhere, and was there paid during the year 1919. The right to interest is evidenced by coupons payable to the bearer, which, when due, are separated from the bonds and presented for payment in Jersey City or New York City.

5. During the year 1919 the defendant had outstanding $6,264,700 of bonds, $586,000 of which were owned by individual residents of the State of Pennsylvania. Upon $522,000 a full year’s interest was paid by the defendant, and upon the remaining $64,000 only six months’ interest was paid. All of said interest on said $586,000 was paid after the passage of the Act of July 15, 1919, P. L. 958. All of the said interest paid upon the total amount of bonds owned by individual residents of the State of Pennsylvania was paid by the company’s treasurer at the company’s office located outside of the State of Pennsylvania.

Discussion.

The tax sought to be collected in this case is the personal property tax, due from individual residents of Pennsylvania, on the evidences of indebtedness held and owned by them. It is imposed by the 4th section of the Act of June 30, 1885, P. L. 193, and the 18th section of the Act of June 17, 1913, P. L. 507. This latter act was amended by the Act of July 15, 1919, P. L. 958, and the Commonwealth claims the tax in this case by virtue of that amendment, the language of which is as follows: “The provisions of this section shall apply to all foreign corporations, duly registered and doing business in this State, without regard to whether the treasurers or other fiscal officers of such corporations whose duty it may be to pay the interest on obligations of the character aforesaid may be residents or non-residents of this Commonwealth.”

The purpose of this amendment was to impose on the non-resident treasurers of foreign corporations the duty of acting as agents for the Commonwealth of Pennsylvania in collecting the tax due from the individual residents of Pennsylvania who own bonds of such corporations. The tax upon the loans of corporations is not a tax laid on the company, but on each individual resident holder of the bonds of the corporation; and the corporation, or its treasurer, is merely the agent of the Commonwealth, or the instrument for the collection of the tax: Com. v. Lehigh Valley R. R. Co., 104 Pa. 89.

The failure of the treasurer to deduct the tax from the interest due to owners of the bonds, resident in Pennsylvania, makes the corporation liable for the tax: Com. v. Phila. & R. C. & I. Co., 137 Pa. 481; Com. v. Delaware Division Canal Co., 123 Pa. 594. The question is, therefore, whether the Commonwealth can require a non-resident treasurer of a foreign corporation to act for it outside of the territorial limits of the State, and impose a penalty upon the corporation for his failure so to do?

This question is no longer open to discussion. The case of New York, Lake Erie & West. R. R. Co. v. Pennsylvania, 153 U. S. 628, 646, which reversed the Supreme Court of Pennsylvania (129 Pa. 429, 463), clearly settles it. In that case Mr. Justice Harlan, speaking for the court, said: “The New York, Lake Erie & Western Railroad Company is not subject to regulations established by Pennsylvania in respect to the mode in which it shall transact its business in the State of New York. The money in the hands of the company in New York to be applied by it to the payment of interest, which by the terms of the contract is payable in New York and not elsewhere, is property beyond the jurisdiction of Pennsylvania, and Pennsylvania is without power to say how the corporation holding such money in another state shall apply it, and to inflict a penalty upon it for not applying it as directed by its statutes; especially may not Pennsylvania, directly or indirectly, interpose between the corporation and its creditors and forbid it to perform its contract with creditors according to its terms and according to the law of the place of performance. No principle is better settled than that the power of a state, even its power of taxation, in respect to property, is limited to such as is within its jurisdiction.”

The Supreme Court of the United States reversed the Supreme Court of Pennsylvania, which had sustained the right of the Commonwealth to require the non-resident treasurer to deduct and pay the tax. The Commonwealth, however, presented the same question again, on a different state of facts, in the case of Com. v. The New York Central & Hudson River R. R. Co., 14 Dauphin Co. Reps. 68, and Judge Kunkel, after carefully considering the subject, came to the conclusion that the Commonwealth could not, consistently with the Constitution of the United States, impose upon the New York Central & Hudson River Railroad Company the duty of deducting from the interest paid in New York to the holders of bonds, resident in Pennsylvania, the tax due thereon from such residents.

In the case of Com. v. The Barrett Manuf. Co., 246 Pa. 301, another effort was made to collect this tax. In that case the treasurer was a non-resident. He sent money from New York to the Land Title and Trust Company in Philadelphia, which corporation was expressly designated on the coupons to make the payment of interest. The Commonwealth contended that, because the company made the Land Title and Trust Company in Philadelphia its agent for this purpose, it came into the State to perform this function, and that in requiring the company to deduct the tax when paying the same through its agent in Pennsylvania, no extra-territorial effect was given to the act.

The Supreme Court of Pennsylvania, however, did not agree with this construction, but followed the case of New York, Lake Erie & Western R. R. Co. v. Pennsylvania, 153 U. S. 628, in holding the tax invalid.

Further discussion of this question seems unnecessary. The Commonwealth of Pennsylvania cannot, constitutionally, impose upon a foreign corporation the duty of requiring its non-resident treasurer, when paying, outside of the State, the interest on its bonds, to deduct from such interest the tax due to the Commonwealth from the holders of the bonds residing in Pennsylvania.

Conclusions of law.

We, therefore, conclude:

1. That the Commonwealth of Pennsylvania cannot, consistently with the Constitution of the United States, impose upon the American Ice Company the duty, when paying in the City of New York or Jersey City the interest due upon its evidences of indebtedness held by residents of Pennsylvania, of deducting from the interest so paid the amount of tax assessed upon such evidences of indebtedness owned or held by residents of Pennsylvania.

2. The Act of July 15, 1919, P. L. 958, cannot be constitutionally enforced against the defendant company, whose treasurer is a non-resident of this State.

Judgment is, therefore, directed to be entered against the Commonwealth and in favor of the defendant company, unless exceptions be filed within the time limited by law.

Prom William Jenkins Wilcox, Harrisburg, Pa.