the State of Ohio. It refers to all such things as are within the jurisdiction of the taxing power. Regarding the words "capital stock" in the Act of Assembly as the equivalent of the property and assets of the corporation, we must construe them to mean so much of the capital stock, measured by the property actually brought within the State by the company in the transaction of its business. This construction is in entire accord with the practice heretofore exist

without a license, and it was made a misdemeanor for any person to act as agent or transact business for an unlicensed company. A license tax is evidently intended as a compensation to the State for the protection which it affords foreign corporations who have an office within its borders for the convenience of its officers, but upon whose property it could impose no tax because not within its jurisdiction. | The tax in this case is in no sense a license tax. The State never granted a license to the Stand-ing in the auditor-general's office and the reard Oil Company to do business here. It merely taxes its property, that is, its capital stock, to the extent that it brings such property within its borders in the transaction of its business. It was contended, on behalf of the Commonwealth, and pressed with much learning and ability, that when a foreign corporation enters the State to do business it brings its entire stock with it. This position is ingenious but unsound. It is a fundamental principle that the person must have a domicile within the State in order to be taxed, and the thing must have a situs therein: Hayes v. Pacific Mail Co., 17 Howard, 596; Morgan v. Parham, 16 Wallace, 471; St. Louis v. The Ferry Co., 11 Id., 423. Persons and property in transitu cannot be taxed: Hoyt v. The Commissioners of Taxes, 23 N. Y., 224. The domicile of a corporation is the State of its origin; Potter on Corporations, section 10, and it cannot migrate to another sovereignty: Bank of Augusta v. Earle, 13 Pet., 586; Paul v. Virginia, 8 Wall., 168; St. Louis v. The Ferry Co., 11 Id., 423. The domicile of the Standard Oil Company is in the State of Ohio. Being a corporation, it is an invisible, artificial and intangible thing. When it sent its agents to this State to transact business, it no more entered the State in point of fact than any other foreign corporation, firm or individual who sends an agent here to open an office or branch house. Nor does it bring its capital here constructively. A corporation must be considered as a person, an artificial one it is true, and it would be as reasonable to assume that a business firm in Ohio brought its entire capital here because it sent an agent here to establish a branch of its business, as to hold that the Standard Oil Company, by employing certain persons in this State to transact a portion of its business, thereby brought all its property or capital stock within this jurisdiction. There is neither reason nor authority for such a proposition.

To the extent that it brought its property here it is taxable and no further; an Act of Assembly must have a reasonable construction. When it says "all" horses, "all" carriages shall be taxed, it does not mean all horses and all carriages in

peated decisions of the courts. It has been distinctly recognized and affirmed in The Cominonwealth v. The Trenton Bridge Co., 9 Am. L. Reg. (O. S.), 298; Commonwealth v. Pittsburgh & Connellsville R. Co., 2 Pearson, 389. In Pittsburgh, Ft. Wayne & Chicago R. Co. v. Commonwealth, 16 P. F. Smith, 73, it was said: "It cannot be pretended that a State can, by law, impose a tax upon that which is entirely beyond its jurisdiction, or on property to which its laws afford no protection. The custom to assess pro rata has received the sanction of the court in several cases when applied to the stock of corporations." To the same effect are Commonwealth v. C. P. & A. R. Co., 5 Casey, 370; Buffalo and Erie R. Co. v. Commonwealth, 3 Brewster, 370; Commonwealth v. Erie R. Co., 38 Legal Intell., 334, and Petroleum Co. v. The Commonwealth, 25 Id., 316. The Commonwealth v. The Gloucester Ferry Co., 38 Id., 412, is not in conflict with this view. That case came up upon a case stated, and the amount of the tax was therein fixed, provided the company should be held liable at all. My impression is the tax was upon half the capital stock, the company being a New Jersey corporation engaged in carrying passengers and freight between Philadelphia and Gloucester, N. J., and having an office and wharf at each place. There was nothing in the case to militate against the apportionment of taxes. In the Erie Railway Company case, decided at the same term, it was said by our brother TRUNKEY: "It is conceded that' the Act of 1874 does not impose a tax upon the entire stock of the Erie Railway Company, only a fair proportion with reference to so much of the road as is located in Pennsylvania:" 38 Legal Intelligencer, 334.

Speaking for myself, I doubt the power of the Legislature to tax the entire property and assets, i. e., the entire capital stock of a foreign corporation whose necessities compel it to transact a portion of its business, however small, within this State. I concede the power of the Commonwealth to exclude foreign corporations altogether from her borders, or she may impose a license tax so heavy as practically to amount to the

same thing. But great and searching as her taxing power is, I deny that it can tax either persons or property not within its jurisdiction. A foreign corporation has no domicile here, and can have none. Hence it cannot be said to draw to itself the constructive possession of its property located elsewhere. There are a large number of foreign insurance companies doing business here under license from the State. Some of them have a very large capital. It is usually invested at the domicile of the company. If the position of the Commonwealth is correct, she can tax the entire property of the Royal Insurance Company, although the same is located almost wholly in England, or the assets of the New York Mutual, located in New York. Whether . I am correct in this view or not, it is very certain that a sense of its injustice, or perhaps that courtesy which springs from the comity between the States, has prevented the Legislature heretofore from asserting a power of so doubtful a character. We will not impute such a purpose to it now, in the absence of any such clearly expressed intent. It would be the more improper to do so in view of the fact that when the Acts of 1868, 1874, 1877 and 1879 were passed the Legislature were perfectly aware of the construction given to similar acts by the auditor-general and by the courts. That they made no change in those acts in this respect is persuasive evidence that they were satisfied with the law as thus construed and intended to continue it. We see no error in the conclusion of law which the learned judge arrived at upon his fourth finding of factss

we think the company liable to taxation here upon its shares of stock in Pennsylvania corporations, including limited partnerships. These corporations have already contributed their proportion of the State's burdens. That the capital stock of a corporation is a different thing from shares of stock, appears from the case of Lycoming County v. Gamble, 11 Wright, 110. The capital stock represents the property and assets of the company which may consist in whole or in part of real estate. The certificates or shares of stock are the evidence of an interest which the holder has in the corporation, and it is well settled that this interest is personal property: Bouvier's Law Dict., 4 Davis' Ab., 670; Sult on Land Titles, 71; and as such follow the person of the owner: McKean v. County of Northampton, 13 Wright, 519. It was held in the case last cited that shares of stock were taxable at the domicile of the owner, although the shares were the stock of a corporation of another State. It follows necessarily that shares of stock in a Pennsylvania corporation, held by a corporation or individual domiciled in another State, cannot be taxed here. One sufficient reason is that there is nothing here to tax, the capital stock, that is, the property and assets, are here and are taxed, but the shares or certificates of stock are not here; they are actually and constructively at the domicile of the owner, at which place they are subject to taxation by the taxing power of the place. The Standard Oil Company, as before observed, is domiciled in the State of Ohio. It has never been here, for it cannot migrate. It is recognized in this and other States, and has its agents here, who attend to its affairs. We are of opinion that the Commonwealth has no occasion to complain of the rulings of the court below, and upon its writ of error the judgment must be affirmed.

It remains to consider the case as presented upon the writ of error taken out by the Standard Oil Company.

That the purchase of oil in this State by a foreign corporation for the purpose of shipping to its refineries without the State is doing business within this State is a proposition that does not need serious discussion. It is true, the charter of the Standard Oil Company authorizes it to deal in oil, but the finding of facts does not include such dealing. On the contrary, the court finds that the petroleum was shipped to and refined at the company's refineries, beyond the limits The only important error assigned is that the of the State. Thousands of corporations and in-court erred in finding as a conclusion of law, dividuals in other States make their purchases of supplies of raw materials here, but it has never been seriously asserted that they were doing business within this State. It has not been the policy of the State at any time (as evidenced by its tax laws) to embarrass the development and sale of her rich products, mineral and agricultural, by levying tolls upon strangers who come here to buy, and it is not the province of the courts to erect a judicial Chinese wall around the State, which could not fail to affect injuriously the best interests of the people. Nor do

that the defendant is liable for interest at 12 per cent. per annum and penalty of 10 per centum of the amount of tax due.

The third section of the Act of May 1, 1868, provided that if the officers of corporations taxed under the said act should neglect or refuse to furnish the report required by the second section of said act on or before the 31st day of December, a penalty of 10 per centum should be added to and collected with the tax. The Commonwealth claimed and the court below allowed this penalty. The difficulty in the way of the Common

affirmed. The right of way is undoubtedly appurtenant to Gunson's land; its use is not in any manner qualified or restricted, and hence it follows that he and those who, by his permission, use the land for any legitimate purpose have a right to pass and repass over the road.

The two adjoining tracts, now owned respectively by Healy, the defendant in error, and Gunson, formerly belonged to Daniel Hunter, who in 1829 sold and conveyed the Gunson tract, and, in connection therewith, granted and confirmed unto his vendee, "his heirs and assigns, the free use and privilege of a road, one perch and a half wide, in the clear," from the Hope

KREITER v. BIGLER.

Where parties own lots fronting upon a turnpike road which is afterwards vacated, and a new street is run at an angle to the course of the old turnpike, and disputes arise as to the ownership of such road so vacated. Held, that the lines of the lots in dispute should be the continuation of the old lines at right angles with the vacated road: Wood v. Appal, 13 P. F. Smith, 210, distinguished.

The Act of 1809, regulating riparian rights on the Dela

ware river, as interpreted in Ball v. Slack, 2 Wharton, 507, approved.

Error to the Court of Common Pleas of Dauphin county.

Opinion by GORDON, J. Filed October 2, 1882. well road across his own land to that of his ven- It is an undoubted rule of law that where a dee, "to remain an open road forever." The survey calls for a river or other navigable stream road as located in the grant was not used, but, of water, even though the marks of the surveyor by common consent, another more convenient are found along its banks, nevertheless, in the to the servient tenement was substituted, and absence of other controlling circumstances, it thenceforth enjoyed by the owners and occu- shall be considered as extending to low water piers of the dominant tenement. The change mark. In like manner where the call is for a of location thus assented to was long afterwards road, without other description of the line, the recognized and ratified by a written agreement survey must be taken to include all the land to between Gunson and Healy executed in 1864. the middle of the road. But it will not do to The learned judge substantially charged, as re-interpret the case of Wood v. Appal, 13 P. F.. quested by defendants, that the agreement of Smith, 210, as the plaintiff would have us inter1864 simply changed the location of the road pret it. granted by Hunter, and that "the extent of the right and every thing pertaining to it (except location) is to be gathered from the terms of the grant in the Hunter deed."

Recurring to it we find the grant was the free use and privilege of an open road forever. If there was any doubt as to the nature or extent of the grant, the well settled rule would require it to be taken most strongly against the grantor, but there is no ambiguity about it. On the contrary, it is clear and explicit, and instead of restricting or in any way limiting the use, it is declared to be free and an open road forever. It needs no citation of authority to show that such a right of way, appendant or annexed to an estate, may be used and enjoyed by those who own or lawfully occupy any part of the dominant tenement for any purpose to which it may, from time to time, be legitimately applied. Only those who may be properly regarded as trespassers on the dominant tenement can be excluded.

It follows from what has been said that the second, fourth, fifth and sixth assignments are also sustained.

Judgment reversed and venire facias de novo awarded.

It is true that it is there stated in general terms that to start from the bank on a line perpendicular to or at right angles with the stream is the proper method of determining the river frontage, but we must take this statement as made with reference exclusively to the character of the survey then before the learned justice who delivered the opinion of the court in that case. The projection of the side lines of that survey would have run it nearly or altogether to an apex before reaching the low water line. Hence, it was argued, the surveyor, by fixing his marks on the bank, indicated what he intended for the river frontage, and, as a consequence, the front thus indicated, must be extended directly to low water mark. But it is obvious that the rule, as above stated, applies only where the lines of the survey either converge or diverge, for when they are parallel a simple extension of them from the bank to the water would, under ordinary circumstances, secure the proper frontage. And such would seem to be the interpretation given in Ball v. Slack, 2 Wharton, 507, to the Act of 1809, regulating riparian rights on the Delaware river.

We think the better statement of the rule to be that the owner of land on the bank of a navi

For plaintiffs in error, Messrs. Jeff. Snyder gable stream is entitled to claim to low water and George F. Baer.

mark by lines running directly from his exContra, Messrs. A. G. Green and Daniel & treme bank marks, if any such he has, to the James N. Ermentrout.

beach, and this without regard to the courses of

the side lines of his survey. It is obvious, how- | bare land. Hence, no reason obtains why the

ever, that even this rule cannot be applied to all cases, and we must, after all, have regard to the circumstances of each particular case rather than to any unbending rule of law.

lines designed to embrace it should not be run with their original courses. Perhaps it would be different were the road but partially vacated, so that the lots could still be made to front upon it by an extension of their lines. In such case the rule governing river fronts might possibly apply; but such is not the case in hand. Front street has not been laid upon the old turnpike; it has not even the same general direction, but crosses the old road diagonally. Beside this, the rights of the parties in suit were fixed long before Front street was thought of. Hence, we must regard the vacation of the turnpike as total, and treat this case on that hypothesis.

Under this view of the matter in controversy, nothing can be more certain than that the judgment of the court below was wrong.

Now, had the present eastern line of the Kreiter lot, which is parallel with Herr street, been the original line between J. M. Wiestling and A. C. Smith, the vendors of the parties in suit, under the rule above stated, the case would be a clear one for the plaintiff, for, in that event, the lines of both lots being parallel, a projection of them to the centre of the abandoned turnpike would give them exactly the same front on that line as they had on the north border of that road. But such is not the fact. The line between Smith and Wiestling, before the time of Smith's purchase of the western part of the eastern lot was diagonal to the present Kreiter line and perpendicular to the turnpike. So also were all the lines of lots Nos. 148, 149, 150, and the eastern line of No. 151, the former owned by Wiestling and the latter by Smith; that is, they were parallel to each other and perpendicular to the road. Here then, again, by a simple projection GIRARD LIFE AND TRUST CO.'S APPEAL. of these lines, we give to each lot its full front BARTON'S ESTATE. on the centre of the turnpike road. And why shall not this projection prevail? The judgment Liability of trustee for losses occasioned by supine negliof the court violates all rules; it neither extends the lines directly to the required boundary, neither does it run them at right angles with the turnpike.

It is true that a contrary judgment will interfere with the plaintiff's front as it now exists, but this results from the act of her vendor, Wiestling, who, before her purchase, so altered the east line of lot No. 148 as to make it parallel with Herr street. Wiestling could alter the lines of his own land to suit himself, but that gave neither to him nor to his vendees any new rights as to the lines or land of his neighbor. As the lines of lots Nos. 149 and 150 originally stood, the triangular strip in controversy was clearly within lot No. 150; but when Smith | bought part of lot No. 149 he did not surrender any part of the land which he had previously owned, and, if the land in dispute then belonged to lot No. 150, we cannot see why it should not yet belong to it.

But again, it is very doubtful whether the rule, as stated in Wood v. Appal, applies at all to the case of a vacated road. The reason for the rule as applicable to navigable streams is obvious enough; it is, that the land owner's front may be maintained upon a natural highway, which, in the nature of things, exists always; but, when a road is vacated, there is no front to maintain-there is but the reversion of

The judgment is now reversed, and it is ordered that judgment be entered on the case stated for the defendant with costs.

For plaintiff in error, J. C. McAlarney, Esq.
Contra, Lyman D. Gilbert, Esq.

gence in the investment of trust funds; certain investments made in what are known as "bonus mortgages" were clearly too speculative to justify the investments, and the trustee was justly held liable for the loss thereby occasioned.

This was an appeal by The Girard Life Insurance, Annuity and Trust Company, trustees under deed of trust from Dr. J. Rhea Barton, from the decree of the Court of Common Pleas, No. 1, for the county of Philadelphia.

The facts were as follows: Dr. Barton died in January, 1871. On the 28th day of December, 1870, a few days before his death, he gave a check for $60,000 to Mr. Thomas Ridgway, the President of The Girard Life Insurance, Annuity and Trust Company, and executed a deed of trust for the benefit of his five nieces, children of his brother, Dr. William P. C. Barton, viz., Adeline B. Paschal, Elizabeth S. B. Abbott, Clara Barton, Lavinia Barton and Selina Barton, by which the trustee was to invest and keep the said principal moneys invested in lawful securities, and to pay the net income and interest semi-annually to his said nieces and the survivors of them during their natural lives, and, upon the decease of all of them, to pay over the said principal sum to the parties entitled to his residuary estate.

The first investments were made immediately after Dr. Barton's death, and, upon petition by the trustee, were approved by the Court of Com