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the property is in such a rural neighborhood, in classifying the property in question as subthat to charge it with the expense of paving by urban, was conclusive evidence, in this action, this method, would be unconstitutional and un- that it was “rural," is too plain to need any just. The city, it bas been determined, has no argument. We admit that the action of that right to charge lots according to frontage, for board is conclusive; but it is only conclusive so expense of paving, in a rural region, and the far as classification of property for the purpose reason is that the owner, under such circum- of general taxation for purposes of government stances, derives no special benefit from the im is concerned. The classification act has no approvements, and such improvements ought to plication to anything else. The fallacy of the be made at the general expense, if they are argument of the counsel on the other side is in desired. A special tax ought not to be laid for confounding taxation for general purposes with what is a general advantage only. * * *

local assessments on peculiar benefits conferred “ This consideration of the reason of the rule for local improvements. The two systems are of law may aid you in settling the present con- essentially dissimilar and governed by entirely troversy, and in determining whether this prop- different principles. Local assessments on peerty is rural or not, in the sense in which that culiar benefits conferred, though imposed under fact is in issue in this case.

the taxing power, are not, in the strict legal "You have to decide whether this property of sense, taxation, and are not within the purview Lukens is rural or not rural, in the sense that it of the Acts of Assembly relating to general ought to be exempt from taxation in this man- taxation : Northern Liberties v. St. John's ner; whether to impose a specific tax, by front Church, 1 Harris, 106 ; Pray v. Northern Liberage, upon property situated as this is, would be ties, 7 Casey, 71. unjust and illegal or not. "If you think it is rural in this sense, you

PER CURIAM. Filed April 3, 1882, will find for defendants; if not, for plaintiffs."' |

The main contention in this case is, whether • Verdict and judgment for the plaintiff. De- the lot of the plaintiff in error was rural, so as fendants thereupon took this writ, assigning for to exempt it from the assessment for paving and error, inter alia, the refusal of their point above

curbing. That question was fairly submitted cited.

to the jury. It would clearly be manifest error

to hold that the classification for purposes of For plaintiffs in error, Walter J. Budd, Esq. taxation by the Board of Revision of taxes was The Act of May 13, 1856, section 11, P. L., 569,

conclusive evidence in this action of the rural provides, “That councils shall not impose taxes

or suburban character of the lot. Neither party upon rural portions of the city for * * * paving

in this suit is estopped by that former classifica

tion from proving the true character of the lot. and cleaning the streets. * * *”. In this contention, between the city and the

Under the facts found by the jury we see no

error in the record. Judgment affirmed. plaintiffs in error as to the character of the land described in the claim filed against it, the decision of the Board of Revision should be final

FRITCHMAN'S APPEAL. and conclusive. The plaintiffs in error would | HENRY H. HOUSTON V. 'YOUGHIOGHENY not, in an action to recover any other tax as COAL HOLLOW COAL COMPANY. sessed against the land, be permitted to prove

The proceeds of a sheriff's sale of real estate held in fee would be bound by the decision-and it is diffi- of an insolvent corporation should be distributed to cult to perceive any reason why the city should the liens of record, according to priority, as provided

in the Act of 30th April, 1844, and not according to the be permitted to do so in this case.

Act of 1870, because the latter act especially excepts That the Act of March 24, 1868, P. L., 444, "lands held in fee," etc. confers judicial powers upon the board, and A corporation has power to mortgage its real estate withtheir decision, unappealed from, is final. It is

out being specially authorized so to do. If a corpora

tion be delegated with power to "take and hold land as much the duty of the city as it is of the

in fee-simple or by lease" with power to “sell or lease" owners of real estate to see that the board have

the same, the power to sell or lease includes the power decided rightly as to the character of the land | to mortgage, even under the statute of uses, though in the rural wards.

strictly construed; and a fortiori it ought, under a stat

utory grant which is to be beneficially construed. Contra, Messrs. William Hoppbe, Jr., and B. See Gordon v. Preston, 1 Watts, 385; Commonwealth v. Woodward.

Councils of Pittsburgh, 5 Wright, 284; Watt's Appeal, 28

P. F. Smith, 391. That the court below was right in declining when a corporation gives a mortgage, the validity of to say that the action of the Board of Revision which is unquestioned by the corporation itself,no defense set up to an action brought to recover on the said company, and upon any increase thereof, bond-and judgment is regularly obtained, such judg

payable in four equal annual installments; the ment cannot be collaterally attacked except for fraud or collusion.

first payment to be made in one year from the

date of said act of incorporation, and also to pay Appeal of Christ. Fritchman from the decree such taxes on dividends as might be provided of the Court of Common Pleas of Westmoreland | by law. county, distributing money realized by sheriff's On the 29th April, 1864, a supplement of the sale.

| act of incorporation was passed, providing for On the 17th day of March, 1863, an act was the repeal of the 4th section, relating to the passed by the Legislature of Pennsylvania in- capital stock and authorizing an increase of stock corporating the Youghiogheny Coal Hollow to 10,000 shares of $50, with power of further Coal Company: P. L., 1863, p. 140.

| increase of stock not exceeding 20,000 shares, Section 1 set forth the names of the incorpo- and upon all increase of stock the company was rators, the name of the corporation, etc., with to pay into the State Treasury a bonus of onepower to take and hold land in fee-simple or by half of one per centum, in four equal annual lease, in the county of Westmoreland, not ex- payments. ceeding, at any time, 1,500 acres, with power to On the 28th February, 1865, a further supplesell, mortgage, lease or otherwise dispose of the ment was passed by the Legislature authorizing: same, or any part thereof.

Section 1. In lieu of the number of shares Section 2 defined the privilege of the corpora- of stock authorized, the company was to have tion to mine and market coal, iron ore, fire-clay power to issue 250,000 shares of the value of $3 and other minerals; to manufacture iron, fire each, and upon all increase to pay a bonus of brick, mineral oil, and to transport, sell and dis- one-half of one per cent. pose of the same; to make improvements, ma Section 2. That the seventh (7th) section of chinery fixtures and erections, etc.

the act incorporating said company, and which Section 3 authorized the company to construct authorizes said company to borrow money and a railroad to connect with other railroads, not issue bonds, be repealed. to exceed five miles, with restrictions, etc.

Section 3 changing the corporate name to the Section 4 provided that the capital stock should New York and Youghiogheny Gas Coal Comconsist of 2,000 shares at $50 each, with power to pany, and providing for a board of managers: increase the same, not to exceed 4,000 shares, P. L., 1865, p. 243. to be personal property and to be transferable. On the 20th April, 1866, an Act of Assembly

Sections 5 and 6 provided for a board of mana-was passed which provided that an act entitled gers and officers, and authorized the company “A further supplement of the act incorporating to make and establish ordinances, rules and the Youghiogheny Coal Hollow Coal Company, regulations and by-laws for the same.

approved March 17, 1863, changing the name of Section 7 authorized the company to borrow said company and increasing the number of any sum of money not exceeding one-half of the shares of stock to be issued by the same," apamount of stock subscribed to enable them to proved February 28, 1865, be and the same is carry out the purposes of their organization and hereby repealed; and the original act entitled to issue bonds for the payment of the same on “An Act to incorporate the Youghiogheny Coal such terms and at such rates of interest as they | Hollow Coal Company," approved March 17, may deem best, and shall have power to mort- | 1863, approved the 29th April, 1864, be and the gage their property, real and personal, to secure same are hereby continued in full force, and payment of the same: provided, that they shall any and all acts of the said company done in issue no bond or mortgage for a less amount | pursuance of the provisions of the said acts, be than one hundred dollars.

and the same are hereby validated and conSection 8 provided that the stockholders of firmed. said company shall be jointly and severally The certificate of the Secretary of the Com"liable in their individual capacities and estatesmonwealth to a copy of the foregoing act recites: for all debts contracted for work and labor done “The said Act of the General Assembly never and material furnished for said company, and having been published in any edition of the provided for the collection of the same, excepit Pamphlet Laws for the reason that the enrollthat they were not liable, individually, for any ment tax thereon was not paid.". bonded or mortgage debt, etc.

On November 18, 1865, Thomas Moore and Section 9 required the company to pay to the wife, by their deed of indenture, conveyed to the Commonwealth of Pennsylvania a bonus of one-Youghiogheny Coal Hollow Coal Company, half of one per centum on the capital stock of their successors and assigns, certain coal lands, mineral and surface, in Sewickley township, 1879, sold to Wilson McCandless and Alexander Westmoreland county, Pennsylvania, contain- King for the sum of $115,050. ing 1,090 acres, more or less, with certain res. On October 1, 1880, the Court of Common ervations. The deed is recorded on the 27th Pleas of Westmoreland county made an order day of December, 1865, in the Recorder's Office allowing the sheriff credit for $123.72 taxes paid of said county, in Deed Book No. 54, p. 582. by him and $759.05 costs, leaving a balance of

On April 25, 1866, the Youghiogheny Coal $114,167.53 for distribution. Hollow Coal Company mortgaged the land de- On March 22, 1881, the court appointed Jno. scribed in the deed from Thomas Moore and Armstrong and H. Byers Kuhns, Esqs., audiwife, to “Pennsylvania Company for Insurance tors to distribute the fund. on Lives and granting annuities” as trustee, to On May 20, 1881, the auditors filed the followsecure the payment of seventy-five bonds for ing report: $1,000 each, numbered from 1 to 75, payable on The auditors are of opinion: the 1st day of May, 1876, with interest thereon, 1st. That the proceeds of the sale now for payable semi-annually on the 1st of November distribution arise from the sale of real estate and May of each year. Mortgage recorded April and should be distributed to the liens of rec28, 1866, at 1 o'clock P. M., in the Recorder's ord, as provided for in the second section of Office of said county, in Mortgage Book No. 3, the Act of 30th April, 1844, P. L., 532, according pp. 274, 5, 6.

to priority. On February 28, 1868, the Youghiogheny Coal The deed of Thomas Moore to the company Hollow Coal Company executed a second mort- defendant conveys the property sold, as real gage to the Pennsylvania Company, etc., afore- estate in fee-simple. The levy and inquisition said, as trustees, to secure the payment of several by the sheriff is of real estate, the venditioni, bonds of different amounts, amounting in all to sale and confirmation of the deed, is of and for $50,000, payable March 1, 1878, with interest at real estate in fee-simple, and the Supreme Court 10 per cent,, payable semi-annually. Recorded in Borlin's Appeal, and Houston's and PoultFebruary 29, 1868, in Recorder's Office in said ney's Appeal treat the case as real estate: 28 county, in Mortgage Book No. 3, p. 493.

PITTSBURGH LEGAL JOURNAL, 412. The mortgages contain recitals of the Acts of | The Act of 1870, providing for the sale of prop1863 and 1864, incorporating the company. Res. erty of insolvent corporations, especially excepts olutions of the stockholders authorizing the di-“lauds held in fee, which latter shall be prorectors to execute the mortgage, and in addition ceeded against and sold in the manner provided to the description of the coal lands, etc., con- in cases for the sale of real estate:" P. L., 58. tained in the deed from Thomas Moore and wife, 2d. That the company defendant had power as follows: "Together with all and singular, to borrow money and execute the mortgages the houses, buildings, factories and improve- given to the “Pennsylvania Company for Inments of whatsoever nature, machinery, fixtures surance," and are valid liens. and all and singular, the cars, rolling stock, and It was contended before the auditors that the also all and singular the franchises and property, defendant company could not give the mortreal and personal, of the said company; and also gages unless specially authorized so to do; that a together with all ores, minerals, mines, ways, corporatiou being an artificial person or body, waters, water courses, rights, liberties, privi- it can only exercise such powers as are specially leges, hereditaments and appurtenances whatso- delegated to it by its organic law; that although ever thereunto belonging, etc.

the 7th section of the Act of 17th March, 1863, On the 29th May, 1879, Henry H. Houston, authorized the borrowing of money and giving who became the holder, by assignment, of the a mortgage to secure the same, this power was outstanding bonds issued by the company, selle subsequently repealed by the 2d section of the ing each for $1,000 and secured by the first mort- Act of 28th February, 1865, P. L., 243, and was gage of 25th April, 1866, brought suit in the not restored by the Act of 20th April, 1866, by Common Pleas, No. 1, Philadelphia county, No. reason of failure to pay the enrollment tax, and 207 June Term, 1879, upon said bonds. The therefore the mortgages were ultra vires unless summons was served on W. F. Caruthers, presi- / that it was specially authorized by a law passed dent of the company, by the sheriff of Philadel- between the 28th February, 1865, and 25th April, phia county, on 29th May, 1879.

1866. Subsequent to this judgment, and by virtue of The auditors are of the opinion that the mortit, process was issued to the sheriff of Westmore- gages were not ultra vires, that being legally land county and the property of the company executed, placed upon record without any evilevied on, condemned, and on the 6th December, I dence or shadow of fraud, long before the contracting of the debts by the parties objecting to | P. F. Smith, 190, Justice THOMPSON says, since the payment in this distribution, unobjected to the decision of Stewart v. Stocker, 13 S. & R., by the defendant company, it becomes such an 199, the question has not been regarded as an executed dealing as should be allowed to stand open one and that it cannot be raised collaterally, for and against both parties, and by virtue of but must be raised by the parties in the judgits priority of lien entitles the holder of the ment. In Mason's Appeal, 4 Watts, 345, it is bonds secured by it, Henry H. Houston, to pay- | held that the validity of a judgment cannot be ment in full of the debt, interest and costs of questioned on the distribution of the money the judgments obtained upon them in Philadel- | raised by the sheriff's sale; and further, if the pluia county.

judgments or the mortgages could be attacked The 1st section of the act of incorporation pro- collaterally it cannot be done successfully before vides that the company "take and hold land in the auditors in the present distribution. fee-simple or by lease in the county of West- In Second National Bank of Titusville's Apmoreland, not exceeding, at any time, fifteen peal, 4 Norris, 530, Judge Paxson says: It has hundred acres, with power to sell, mortgage, | been settled by a line of authority that in the lease or otherwise dispose of the same, or any distribution of a fund an auditor cannot inquire part thereof."

into the validity of a judgment regular upon its In Gordon v. Preston, 1 Watts, 385, Judge face. GIBSON, says: According to the principle of He further says: So long as it stands as a Lancaster v. Dolan, 1 Rawle, 131, a power to valid judgment against tbe defendant it is a sell includes a power to mortgage, even under good judgment against them (other creditors). the statute of uses, though strictly construed; In such cases the only person who can impeach and a fortiori it ought, under a statutory grant the judgment is the defendant himself, and this which is to be beneficially construed in futher- | must be done by a motion in the proper court ance of the object.

to open it. In the Commonwealth v. Councils of Pitts- The auditors have made distribution of the burgh, 5 Wright, 284, Judge STRONG says: The fund, therefore, as appears in the schedule of power to issue bonds, contracts or other certifi distribution annexed : cates of indebtedness, belongs to all corporations

SHEDULE OF DISTRIBUTION. public as well as private, and is inseparable Amount for distribution..


No. 1. Costs, dockets, etc....... 606.49 from their existence..

Auditor's fees............

678.46 In Watt's Appeal, 28 P. F. Smith, 391, Judge " 2. Labor claims..


Com'th judgments.......... 3,800.00
GORDON, says: This is good law, and that a

Judgment and mortgage

.... 106,214.85
company having power to dispose of the com-
pany's lands by deed or lease, the minor one of

$114,167.23 $114,167.23 mortgaging these lands upon a proper occasion May 20, 1881, the auditors' report was conand for a proper debt, may be inferred.

firmed nisi, and the same day Cbrist. FritchIn St. John's Church v. Steinmetz, 6 Harris, man, a lien creditor, by his counsel, filed the 275, Justice LOWRY says that a corporation following exceptions thereto. “may run in debt and then they may pledge The auditors erred: such property as they have," and the company 1. In deciding that the alleged mortgages were will not be allowed to dispute the title which valid and subsisting liens at the time of the they have pledged.

sheriff's sale; and in distributing the proceeds Again the validity of these mortgages being of said sale, to said mortgages and judgment unquestioned by the company itself-no defense liens in the order of their priority. set up at the actions brought in Philadelphia to 2. In failing to allow the claims of others than recover on the bonds-no allegation or evidence stockholders' priority. of fraud anywhere, who has the right to object 3. In failing to distribute to creditors (saving to their payment?

the rights of creditors, other than stockholders) In Gordon v. Preston, 1 Watts, 395, it is de pro rata, without reference to priority of judgcided that a judgment creditor of a corporation ments and alleged mortgages. cannot take advantage of such an irregularity 4. In charging for their services in violation in the execution of a mortgage, so as to defeat it, of the provisions of the Act of 4th June, 1879. and entitle himself to the proceeds of the sale May 21, 1881, the auditors overruled the exof the mortgaged premises.

ceptions, and on the same day C. Fritchman In Lewis v. Smith, 2 S. & R., 142, it is desided renewed his exceptions filed before the auditors. that a judgment erroneously entered is valid October 11, 1881, the court, after due considerauntil reversed, and in Wilkinson's Appeal, 15 tion, dismissed the exceptions and confirmed the report, and ordered that the money be paid this must be derived either from the powers out accordingly.

granted in respect to high ways or the general C. Fritchman then took this appeal, assign- power to exact laws for the government of the ing as error, substantially, the exceptions filed Borough. to the auditors' report, and the dismissing the The original act of incorporation authorized appellant's exceptions below, and confirming the town council to appoint officers for “reguthe auditors' report by the court.

lating the streets, lanes and alleys," and by the For appellants, Messrs. Edgar Cowan and Act of 1851 the borough authorities are emHazlett & Williams.

powered “to survey, lay out, enart and ordain Contra. Messrs. J. A. Marchand, J. S. Moor- | such roads, streets, lares, alleys, courts and comhead, D. 7. Watson and Hampton & Dalzell.

mon sewers as they may deem necessary;” and

"to regulate the roads, streets, lanes, alleys, PER CURIAM. Filed October 16, 1882. courts, common sewers, public squares, com

Upon the statement of facts as reported by the mon grounds, foot walks, pavements, gutters, learned auditors in the court below, we entirely culverts and drains, and the heights, grades, concur in the conclusion at law at which they widths, slopes and forms thereof; and they arrived, and in the distribution of the fund as shall have all other needful jurisdiction over decreed by them. The general power of mort- | the same.” gaging their lands by this corporation in se | Under a substantially similar grant of power, curity for debts contracted by them ought not the Supreme Court of Indiana, in Snyder v. to be denied at this day, and we are not satisfied Rockport, 6 Ind., 237, held that the municithat any legislative action in this case has im. | pality was not authorized to construct a wharf. paired that right. A regular judgment cannot | But if it be conceded that the borough of Elizabe collaterally attacked except for fraud or col

| beth might lawfully construct a wharf at the lusion. We are of opinion that the decree of river terininus of a street, it by no means foldistribution was in all respects right.

lows that the borough can charge wharfage for Decree affirmed and appeal dismissed at costs its use any more than it can exact tolls for the of the appellant.

use of any other public highway.

In respect to municipal affairs generally, the council is empowered to make "laws, ordi

nances, by-laws and regulations” for the good Western District of Pennsylvania.

order and government of the borough, subject IN ADMIRALTY.

to the express restriction that they shall not be

repugnant to or inconsistent with the laws of THE BOROUGH OF ELIZABETH v. THE the Commonwealth. STEAM-BOAT "GENEVA."

The question first to be decided is whether | from the express powers above recited the bor

ough of Elizabeth can rightfully deduce a legisA municipal corporation claiming the right to exact wharfage for the use of a public wharf must show a

| lative grant of the franchise to charge wharfage? plain legislative grant of the franchise; and such au In his work on Municipal Corporations, % 67, thority cannot be deduced from the powers to lay out, | (2d Ed.) Mr. Dillon classes the authority to regulate and exercise all needful jurisdiction over

erect wharves and charge wharfage among “the roads, streets, lanes and alleys, and to make laws, ordinances, by-laws and regulations for the good order powers of a special and extra-municipal nature.” and government of the municipality not repugnant to In this view he is fully sustained by the ador inconsistent with the laws of the ('ommonwealth. judged cases. The Wharf Case, 3 Bland. Ch., The borough of Elizabeth has no such riparian proprie

361; People v. Broadway Wharf Co., 31 Cal., torship in the wharf at the foot of Market street as will sustain its claim to wharfage.

33. It was declared in The Wharf Case, supra,

384, that except by express legislative allowOpinion by ACHESON, D. J. Filed June 9, 1883. | ancce, the “public wharves (of Baltimore] are

The borough of Elizabeth claims the right no more liable to wharfage than any one of the to charge wharfage, first, under legislative au streets of the city are subject to toll." In the thority; and secondly, by virtue of riparian case of the Brig Empire State, 1 Newb. Ad. R., proprietorship. " Let us briefly examine the 541, it was held that while the authorities of grounds of the claim in the order stated. the city of Detroit might erect wharves at the

(1.) It is not pretended that the borough char- termini of their streets, suitable for landings, ter confers any express authority to construct a such erections became free to the public as exwharf and exact tolls or wharfage for its use. tensions of the streets, and the city had no aliĮmplied authority is all that is asserted; and thority to exact toll for ingress or egress. In

District Court, United States,

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