the parties in interest?" The solution of this question depends on the rights of E. P. Swift as tenant for life in possession of the one undivided half part of the property described in the writ.

166; Miller on Partition, 159. It may set aside | division, was it made " so as to correspond with the inquisition for error, and may do so for one cause of complaint whether to the division or valuation, as numerous cases show. Thus it has been held that an erroneous valuation is alone sufficient to justify such a decree: Galbraith v. Galbraith, supra, and numerous cases may be found in which inquests have been set aside for a single error: Miller on Partition, 147; but no case has been cited by counsel nor found by the court in which the powers of the inquest have been restricted to the matters of which complaint has been made. With "another" inquest the proceedings necessarily commence anew: Gordon on Decedents, 365; and this court has no more power to interfere with the exercise of its functions than it had with those of the old jury. To restrict the powers of the jury would oftentimes defeat the purpose of the Act of 1832 to promote in the first instance the division of land so as to correspond with the rights of the parties; and have a tendency to influence the jury to adjust its valuations so as to equalize the purparts already made rather than make its division accord with a just valuation. The functions of the jury are indivisible and consequently their finding must stand or fall as a whole.

That E. P. Swift acted upon an erroneous theory of his rights in the original proceeding, is no reason, now that he has ascertained what his rights are, he should be denied their ascertion at the present stage of the proceeding. The decree in Rankin's Appeal does not restrict him necessarily to the correction of the valuation; but rather contemplates the ordinary and usual consequences resulting from showing an erroneous valuation. There is nothing in the law which recognizes any distinction between the jurisdiction of this court where the exceptions have been filed by a tenant for life and where they have been filed by a tenant in fee. On the contrary, in Bishop's Appeal, 7 W. & S., 251, the inquest was set aside at the instance of the widow, with direction to the court below to "proceed to have a partition of the estate made, if practicable, and if not, an appraisement thereof be made, as directed by the Act of Assembly passed in this behalf." "The Act of Assembly passed in this behalf" makes no discrimination between owners in such cases. The ground of the jurisdiction of this court, when the finding of the jury is attacked, is error; and when that has been shown, it has no option but to set the whole aside, and award an alias writ of "inquest to make partition of the real estate of *** decedent."

That where there are lineal descendants, the widow is entitled to have her share set apart in land under the 36th section of the Act of 29th March, 1832, was settled in Bishop's Appeal, supra, and recognized in McCall's Appeal, 56 Pa. St., 363; Gourley v. Kinley, 66 Id., 273; Steel's Appeal, 86 Id., 244; Rankin's Appeal, supra; Benfield's Estate, 7 W. N. C., 575. The 46th section of that act prescribes "like proceedings" amongst collaterals; and that other lifeestates besides the widow's are contemplated is apparent from the proviso which expressly mentions cases where there may be “a lifeestate, or life-estates." Rankin's Estate, 95 Pa. St., 358, expressly determined that Swift's estate was within its purview. There is nothing in this proviso relating to remainder-men which conflicts with the theory that the sheriff should allot. The right there given to remainder-men "to accept or refuse the premises *** in the same manner as the lineal descendants may | do,” relates to a subsequent state of the proceedings.

"The object of partition is severance of possession. The life-tenant is a necessary party to the proceedings. It is the duty of the inquest to set-off to the widow her share by metes and bounds: Bishop's Appeat, 7 W. & S., 251. By analogy the same rule may be extended to other tenants for life. It is true this leaves the remainder open to further partition at the death of the tenant for life, but this is an inconvenience that arises where the interests of the tenant are different in the time of their duration:

Poundstone v. Everly, 7 Casey, 11." Rankin's Appeal, supra, per PAXSON, J.

It follows from the foregoing that the division by the jury of the property described in the writ into two purparts of equal value is consistent with their finding that such property could "be parted and divided without prejudice to or spoiling the whole thereof and so as to correspond with the parties in interest.”

The property described in the writ having been divided into two purparts of equal value as found by the jury, it became the duty of the sheriff to allot to Mrs. Rankin in fee and to Mr. Swift for life, respectively, "such part as he thought good: Coke's Litt. 167 b; Allnatt on Partition, 72; Miller on Partition, 393; Dana v. Jackson, 6 Pa. St., 234. This was a step in the proceedings on which the sheriff must necessa

If then the new jury had power to make a re- rily be the actor. He had charge of the writ

PER CURIAM:

Error to C. C. P. of Dauphin ('o.-Falster v. Roumfort. Judgment affirmed. Wareham v. Rummel. Judgment affirmed. Hamilton Steeled Wheel Co. v. Com'th. Judgment affirmed in each case.

Appeals from the C. C. P. of Dauphin Co.-Auctmutz's. Decree affirmed and appeal dismissed at the costs of the missed at the costs of the appellant.

Appeal from the O. C. of Dauphin Co.-Russ'. Decree affirmed and appeal dismissed at the costs of the appel

lant.

Error to C. C. P. of Franklin Co.-Schwartz v. Kyner. Judgment affirmed. Walter v. Imbrie. Judgment affirmed. Winger v. Rife. Judgment affirmed.

Appeal from the O. C. of Fulton Co.-Gracey's. Decree affirmed and appeal dismissed at the costs of the appellant.

BY SHARSWOOD, C. J.:

and conduct of the proceedings from its issuance until its return. It is his discretion which must be exercised in the allotment, and his action must affirmatively appear as a necessary basis for further proceedings: Sampson's Appeal, 4 W. & S., 86. The parties interested had no power in the matter The record is therefore appellant. Douden's. Decree affirmed and appeal disfatally defective in that it fails to show an allotment by the sheriff. How can this defect be cured? Certainly not directly by this court by way of amendment. That in effect would be an attempt to do what it was said in Rankin's Appeal, supra, this court had no power to do. The allotment to a tenant for life is a discretion delegated to the sheriff which can be exercised by him alone. There is as much reason for holding that this court cannot supply an omission of duty by the sheriff as that it cannot supply that of a jury by amendment. But as the functions of the jury as respects division and valuation are separate and distinct from that of the sheriff in allottment, there is no apparent reason why this court should not afford the sheriff an opportunity for correction of an obvious inadvertence: McConnell v. Linton, 4 W., 357. The defect may thus be readily cured without sacrifice of principle, and the parties be saved the expense and delay of a plurics writ of inquest at this state of the procedings. The foregoing views renders unnecessary any decision now on the exception with reference to the character of the division and to the valuations made by the jury.

Nor is it proper that any decision should be now made on the exception to costs. In view of the character of the sheriff's office, and of the vast amount of business done there, it would be unreasonable to expect him to follow every case that passes out of his hands to ascertain whether exceptions had been filed to his bill of costs. It seems only just under the circumstances that he should be notified personally that exceptions have been filed. This does not appear to have been done in this case.

The inquisition will be sent back to the sheriff to make allotment of purparts to Mrs. Rankin in fee and to E. P. Swift for life, respectively. On his return the exceptions as respects valuation, division and costs, may be renewed, and such others as the parties see fit to take be filed. For Mrs. Rankin, W. B. Negley, Esq. For E. P. Swift, Messrs. Hampton & Dalzell.

SUPREME COURT OF PENNSYLVANIA.
Sitting in the Western District.

The court met in this city on Monday last (all the Justices being present), when the following judgments were entered and opinions filed:

Error to C. C. P. of Adams (o.-Neaper v. New Era Life Insurance Co. Judgment reversed and venire facias de novo awarded.

BY MERCUR, J.:

Error to C. C. P., No. 1, of Philadelphia Co.-Hollis v. Burns. Judgment affirmed. Error to C. C. P., No. 2.—

Thackara v. Mintzer. Judgment reversed and judgment in favor of plaintiff in error non obstante veredicto. Error to C. C. P., No. 3.-Bell v. Kinnedy. Judgment affirmed. Error to C. C. P., No. 4.-Carr v. Sellers. Judgment reversed and venire facias de novo awarded.

Appeals from the O. C. of Philadelphia Co.-Biddle's. Decree reversed at the costs of the appellees, and distribution is ordered to be made conformably with this opinion. Barger's, Hirst's, Philadelphia Trust Safe DeHirst's. Decree is reversed and it is ordered that distriposit and Insurance Company's and Edwin DeForrest

bution be made conformably with this opinion. It is further ordered that the appellants each pay one-half of the costs of their respective appeal, and the appellees the other half.

Error to C. C. P. of Berks Co.-Cooper v. Oriental Sav

ings & Loan Association. Judgment affirmed. Benjamin v. Zell. Judgment affirmed. Amberhower v. Mil

ler. Judgment reversed and venire facias de novo awarded. Judgment reversed and ventre facias de novo awarded.

Error to C. C. P. of Chester Co.-Crawford v. Davis.

Error to C. C. P. of Clearfield Co.-Dubree v. Albert. Judgment affirmed. Pentz v. Clark. Judgment affirmed.

Error to C. C. P. of Cumberland Co.-Bradish v. McClellan. Judgment affirmed.

Error to C. C. P. of Lackawanna Co.--Sweetzer v. Alterberry. Judgment affirmed.

Error to C. C. P. of Lehigh Co.-Pearson v. Hartman.

Judgment reversed, and now judgment in favor of the

plaintiff in error non obstante veredicto. Brobst v. Ruff.

Judgment affirmed. Binger v. Dankel. Judgment reversed and venire facias de novo awarded.

Error to C. C. P. of Luzerne Co.-Slutter v. Kirkendall.

Judgment reversed and venire facias de novo awarded.

Appeal from the C. C. P. of Luzerne Co.-Frauenthal's. Decree reversed and bill dismissed at the costs of the appellee.

Appeal from the O. C. of Lycoming Co.-Taggart's. Decree affirmed and appeal dismissed at the costs of the appellant.

Appeal from the C. C. P. of Schuylkill Co.-Garrett's. Decree affirmed and appeal dismissed at the costs of the appellant.

Appeal from the O. C. of Snyder Co.-Bower's. Decree affirmed and appeal dismissed at the costs of the appellants.

PITTSBURGH, PA., OCTOBER 11, 1882.

Supreme Court, U. S.

KELLY v. CITY OF PITTSBURGH.

In this country and in England, the necessities of gov-
ernment, the nature of the duties to be performed, and
custom and usage, have established a procedure in re-
gard to the levy and collection of taxes which differs
from proceedings in courts of justice, but which is still
due process of law, within the meaning of the Consti-
tution.

What parts of a State shall, for local purposes, be gov-
erned by a county, a town or city government, and
the character of the land included in each, are matters
of detail within the legistative discretion.
When the taxes levied by a city are clearly for a proper
public purpose, and are authorized by the State law,
though some of the property assessed be farm land
within the city, this court cannot say that such a
statute deprives the owner of his property without
due process of law.

Error to the Supreme Court of the State of
Pennsylvania.

Second. The Supreme Court of Pennsylvania erred in sustaining the authority of the city of Pittsburgh to assess and collect taxes from complainant's farm lands for municipal or city purposes, such exercise of the taxing power being a violation of the rights of complainant as guarantied to him by Art. XIV, Sec. 1, of the amendments to the Constitution of the United States.

For plaintiff in error, Hon. Daniel Agnew and Albert N. Sutton, Esq.

Contra, George Shiras, Jr., Esq.

Opinion by MILLER, J. Filed November 21,

1881.

As regards the effect of the fifth amendment of the Constitution, it has always been held to be a restriction upon the powers of the federal government and to have no reference to the exercise of such powers by the State governments. See Withers v. Buckley, 20 How., 84; Davidson v. New Orleans, 6 Otto, 97. We need, therefore, give this assignment of error no further consideration. But this is not material, as the provision of Sec. 1, Art. XIV, of the amendments relied on in the second assignment of errors contains a prohibition on the power of the State in language almost identical with that of the fifth amendment above referred to. That language is that "no State shall *** deprive any person of life, liberty or property without due process of law." The main argument of counsel for plaintiff in error, the only one to which we can listen, is that the proceeding in regard to the taxes assessed on plaintiff's land does deprive him of his property without due process of law. It is not asserted that in the methods by which the value of plaintiff's land is ascertained for the purpose of this taxation there is any departure from the usual modes of assessment. Nor that the manner of apportioning and collecting the tax is unusual or materi

Kelly is the owner of eighty acres of land which, prior to the year 1867, was a part of the township of Collins, in the county of Allegheny, Pennsylvania. In that year the Legislature of Pennsylvania passed an act by virtue of which, and the subsequent proceedings under it, this township became a part of the city of Pittsburgh. The authorities of that city assessed the land in question for the taxes of the year 1874 at a sum which the plaintiff asserts to be enormously beyond its value, and which, he alleges, is almost destructive of his interest in the property. The taxes thus assessed are divisible into two classes, namely those assessed for State and county purposes by the county of Allegheny, within which Pittsburgh is situated, and those assessed by the city for city purposes. Kelly took an appeal from the assessment to the board of revision, but the result was unsatisfactory, and he brought a suit in equity in the Court of Com-ally different from those in force in all commumon Pleas of the State to restrain the collection of the tax by the city authorities. There was an answer to this bill, a replication, and a reference to a master, on whose report that court dismissed the bill, and the decree was affirmed on appeal by the Supreme Court of the State. He then assigned as error to this court:

First. The Supreme Court of Pennsylvania

nities where land is subject to taxation. In these respects there is no charge that the method pursued is not due process of law. Taxes have not, as a general rule, in this country since its independence, nor in England before that time, been collected by regular judicial proceedings in a court of justice. The necessities of government, the nature of the duty to be performed,

and the customary usages of the people, have established a different procedure, which, in regard to that matter, is, and always has been, | due process of law. The tax in question was assessed and the proper officers were proceeding to collect it in this way.

of such improvements and who use, or might use them if they choose, while the owner of this land reaps no such benefit. Cases are cited from the higher courts of Kentucky and Iowa where this principle is asserted, and where those courts have held that farm lands in a city are not subject to the ordinary city taxes. It is no part of our duty to inquire into the grounds on which those courts have so decided. They are questions which arise between the citizens of those States and their own city authorities, and afford no rule for construing the Constitution of the United States. .

The distinct ground on which this provision of the Constitution of the United States is invoked is, that the eighty acres of land of the defendant is, and always has been, used as farm land, for agricultural use only, and cannot for that reason be subjected to taxation for ordinary city purposes. That to do this is to deprive him of his property without due process of law. We are also referred to the case of The Loan It is alleged, and probably with truth, that | Association v. Topeka, 20 Wall., 662, and the the estimate of the value of this land for taxa- | assertion there of the doctrine, that taxation tion is very greatly in excess of its true value. which is not for a public use is an unauthorized Whether this be true or not we cannot here in- taking of private property, though sanctioned quire. We have so often decided that we can- by a State statute. We are unable to see that not review and correct, in this court, the errors the taxes levied on plaintiff's property were not and mistakes of the State tribunals on that sub- for a public use. Taxes for schools, for the supject that we can only refer to those decisions port of the poor, for protection against fire, for without a restatement of the argument: State water-works,-these are the specific taxes found Railroad Tax Cases, 92 U. S., 575; Kennard v. in the list complained of. We think it will not Louisiana ex rel. Morgan, Id., 481; National be denied by any one that these are public purBank v. Kimball, 103 Id., 732; Davidson v. New poses; purposes in which the whole community Orleans, 96 Id., 97; Kirtland v. Hotchkiss, 100 have an interest, for which by common consent Id., 491; Missouri v. Lewis, 101 Id., 22. But property owners everywhere in this country are passing from the question of the administration taxed. There are items styled city tax and city of the law of Pennsylvania by her authorities, buildings, which, in the absence of any explathe argument is that the law itself is in conflict nation, we must suppose to be for the good govwith the Constitution in the matter already ernment of the city, and for the construction of mentioned. It is not denied that the Legisla- such buildings as are necessary for municipal ture could rightfully enlarge the boundary of purposes. Surely these are all public purposes; the city of Pittsburgh so as to include the de- and the money so to be raised is for public use. fendant's land. If this power were denied, we No item of the tax assessed against plaintiff is are unable to see how such denial could be sus- pointed out as intended for any other than a tained. What portion of a State shall be within public use. It may be true that plaintiff does the limits of a city and governed by its authori- not receive the same amount of benefit from ties and its laws has always been considered to some of these taxes, or from any of them, as do be a proper subject of legislation. How thickly citizens living in the heart of the city. It probor how sparsely the territory must be settled so ably is true, from the evidence found in this organized into a city, must be one of the matters record, that his tax bears a very unjust relation within the discretion of the legislative body. to the benefits received as compared with its Whether its territory shall be governed for local amount. But who can undertake to adjust with purposes by a county, city or township organi- precise accuracy the amount which each indization, is one of the most usual and ordinary vidual in an organized civil community shall subjects of State legislation. It is urged, how- contribute to sustain the organization? Or to ever, with much force, that though land of this insure in this respect absolute equality of burcharacter,-land which its owner has not laid den, and fairness in its distribution among those out into town lots, but which he insists on using who must bear it. as agricultural land, through which no streets are run or used,-cannot be, even by the Legislature, subjected to the taxes of a city, the water tax, the gas tax, the street tax, and others of similar character. The reason for this is said to be that such taxes are for the benefit of those in a city who own property within the limits

We cannot say judicially that Mr. Kelly received no benefit from the city organization. These streets, if they do not penetrate his farm, lead to it. The water-works will probably reach him some day, and may be near enough to him now to serve him on some occasion. The schools may receive his children, and in