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tion (1890), 136 Pa. 459, 20 Atl. 574, 10 L. R., been in question, which left him at least A. 228, the principle is there settled that, 51 admittedly valid votes. Whereas, de “the Constitution having fixed the qualifi- ducting the votes of the five electors whose cations of voters, it is not in the power of qualifications we have discussed from Tome's the Legislature either to enlarge or abridge total, he only has left to his credit 49. them; but legislation may be enacted which Therefore it becomes unnecessary to conmerely regulates the exercise of the elective sider the questions involved in the rulings franchise and does not amount to a denial on the remaining two votes cast for Tome of the franchise itself. The Constitution and rejected by the court below. having provided no machinery for ascer- [2] Kennedy's eligibility to hold the office taining whether a particular voter possesses of road supervisor cannot be questioned or the requisite qualifications, the Legislature adjudicated in this proceeding. Under the has power to prescribe the form and nature Act of 1874, supra, the court merely deterof the proof by which

electors mined which candidate received the highest must establish the existence of a right to number of legal votes and is entitled to the vote under the Constitution.

The certificate. The proper method of deterLegislature has from time to time passed mining a question of eligibility is by quo various laws to regulate elections, their ob- warranto. ject has always been to preserve the purity The appeal is dismissed at the cost of the of the ballot. It is too late to question the appellant. constitutionality of such legislation so long as it merely regulates the exercise of the

(237 Pa. 13) elective franchise, and does not deny the franchise itself.'

GRESH v. WANAMAKER et al. We agree with the views so well express

(Supreme Court of Pennsylvania. July 2, ed by the learned court below. The con

1912.) stitutional requirement is that the elector MASTER AND SErvant ($ 302*)-NEGLIGENCE

OF SERVANT-SCOPE OF AUTHORITY.. "shall have paid his state or county tax”.

The proprietors of a general store mainbefore he is qualified to vote. The prime tained an automobile department, and sent out purpose of the legislation creating occupation men to bring in automobiles to be repaired, and poll taxes was to enable persons to be request of plaintiff to a personal friend in an

but did not undertake to carry passengers. By come qualified as voters rather than to raise other department, a man was sent out who revenue, and the Legislature, having af- made the repairs and was running the car back forded this opportunity, may in all reason with plaintiff as a passenger, when an accident able ways prescribe and regulate the manner had no connection with the automobile depart

occurred. The person with whom plaintiff dealt of the payment of such taxes. The Act of ment, and the manager of that department had 1897, supra, was no doubt passed to remedy no authority to contract to bring such person

back. Held, that the proprietors of the store a public evil which had come into existence

were not liable. through the wholesale purchase of tax re

[Ed. Note. For other cases, see Master and ceipts by organized political parties, con- Servant, Cent. Dig. 88 1217-1221, 1225, 1229; trary to the intent of the Constitution that Dec. Dig. § 302.*] each elector should individually pay a tax. Appeal from Court of Common Pleas, Phil. The object of the act was to see to it that adelphia County. each elector should in good faith pay such Action by Dora A. Gresh against John taxes with his own funds. There is noth- Wanamaker and others. Judgment for de ing in the statute which serves to disfran- fendant notwithstanding the verdict, and chise the citizen, for it rests with each man plaintiff appeals. Affirmed. properly to qualify himself to exercise the Argued before FELL, C. J., and BROWN, franchise of an elector, and the act affords POTTER, ELKIN, and STEWART, JJ. him ample opportunity so to do, without Henry J. Scott and J. S. Freemann, both unreasonable restraints. It comes to this: of Philadelphia, for appellant. W. W. SmithThe Constitution requires that each electorers, of Philadelphia, for appellees. shall pay a tax in order to qualify himself. The Legislature has afforded that oppor- PER CURIAM. This appeal is from an tunity, at the same time hedging it around order entering judgment for the defendants with proper and reasonable safeguards, and non obstante veredicto in an action by the only payment in the manner prescribed plaintiff to recover for injuries caused by by this legislation constitutes a payment of the upsetting of her automobile, which at the tax in a legal sense, so as to give the the time was driven by an employé of the voter the requisite constitutional qualifica- defendants. The plaintiff's automobile had tion.

been left by her because of a broken chain The real point in this case is whether or at Caln Station, some 37 miles west of Philnot error was committed in awarding the adelphia. On the morning of the accident, certificate of election to Kennedy, instead she telephoned John A. Bunn, a personal of to Tome. The qualifications of only one friend, who was the manager of the bureau other of Kennedy's electors seem to have of adjustment of accounts in the defendant's

store, and requested him to send her a com- 13. EMINENT DOMAIN ($ 10*)-DELEGATION OF petent man to repair the automobile, and to

POWER CARRIAGE OF GOODS - STATUTOBY

PROVISION. run it back to the city with her as a passen

Under Act June 1, 1907 (P. L. 368), conger. The request for a man to make repairs ferring on street railways the power of emiwas complied with by the automobile depart- nent domain, and providing that any company ment of the defendant's store, the repairs availing itself of such right shall be a common were made, and on the return to the city street railway serves notice on a landowner of

carrier of express matter, etc., wbenever a the machine was upset and the plaintiff was its purpose to condemn his land, and files its injured. The ground of her action was that petition and bond in court, it becomes bound as the defendants contracted to transport her a common carrier of light freight. in safety from Caln Station to Philadelphia, main, Cent. Dig. 88 35-48; Dec. Dig. $ 10.*]

[Ed. Note.-For other cases, see Eminent Doand that by reason of the negligence of their 4. STREET RAILROADS_($ 71*)—CARRIAGE OF employé she was injured.

GOODS-STATUTORY PROVISIONS. The defendants maintained, in connection Under Act April 22, 1907 (P. L. 96), givwith their general business as retail mer- ing to street railway companies the right to chants, a department for selling and repair the articles of association of a street railway

transport light freight, the purpose stated in ing automobiles, and they sent men out to company of constructing and operating a street bring in automobiles to be repaired and to railway for the conveyance of passengers is deliver them when repaired, but they dia sufficient to indicate the right to carry light

freight as incidental to its primary purpose. not undertake to carry persons as passengers.

[Ed. Note.–For other cases, see Street RailWith this department Mr. Bunn had no con- roads, Dec. Dig. $ 71.*] nection whatever, and there was no ground

Appeal from Court of Common Pleas, Fa. for the implication of authority in him to

yette County. do anything in connection therewith. Giy

Bill in equity by John Keys against the ing to the plaintiff's testimony the greatest Uniontown Radial Street Railway Company force that can be claimed for it, she did not

for an injunction. From a decree continu. show that either Mr. Bunn or the manager ing the preliminary injunction, defendant apof the automobile department had authori

peals. Reversed, preliminary injunction disty, real or apparent, to contract to bring her solved, and record remitted for further hearback to the city, nor that the latter made

ing on the bill. or was requested to make such a contract.

Argued before FELL, C. J., and MESTREThe judgment is affirmed.

ZAT, POTTER, ELKIN, and MOSCHZIS-
KER, JJ.

E. C. Higbee and L. B. Brownfield, both (236 Pa. 611)

of Uniontown, for appellant. H. S. DumKEYS v. UNIONTOWN RADIAL ST. RY. CO. bauld and Charles A. Tuit, both of Union(Supreme Court of Pennsylvania. May 22, town, for appellee. 1912.)

ELKIN, J. [1] This is an appeal from a 1. APPEAL AND ERROR (8 863*) — REVIEW SCOPE AND EXTENT.

decree continuing until final hearing and furWhere an appeal is taken from a decreether order of court a preliminary injunction continuing a preliminary injunction, the estab- restraining appellant from exercising the lished practice is not to consider the merits on right of eminent domain. In the court be appeal until after final hearing, but where the decree restrains a street railway company from low, at the hearing to continue, and upon exercising the power of eminent domain, and the motion to dissolve the preliminary inthe court below based the decree on the ground junction, testimony was taken and an exthat the company was not vested by its char-haustive opinion filed on the principal ques. ter with such power, that question will be considered by the appellate court.

tion in controversy between the parties. [Ed. Note.-For other cases, see Appeal and When it appears from the record that there Error, Cent. Dig. 88 1765, 1766, 3450–3455; was suficient ground for the action of the Dec. Dig. & 863.*]

court in awarding the preliminary injunc2. EMINENT Domain (f 10*) — NATURE AND tion, the established practice is not to con

EXTENT OF POWER-STREET RAILWAY COM- sider the merits on appeal until after final PANY.

hearing and decree in the common pleas. The power of eminent domain conferred on street railway companies by Act June 1, But in this case, the learned court below 1907 (P. L. 368), providing that street railways having based its decree on the ground that availing themselves of such right shall be car- appellant company was not vested by its charriers of express matter, farm produce, etc., extends to a street railway incorporated in 1910 ter with the power of eminent domain, that under Act May 14, 1889 (P. L. 211), and question is squarely raised by this record, amendments thereof, for the conveyance of pas- and may be properly considered now. All sengers, though its certificate of incorporation of the facts necessary for a determination and letters patent do not state that it shall be of this question are before us, and it may a common carrier of express matter, farm prod- be disposed of without any infringement of uce, etc,

(Ed. Note. For other cases, see Eminent Do- the rule. main, Cent. Dig. $$ 35-48; Dec. Dig. 8 10.*] [2] Appellant company was incorporated in

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1910 for the purpose of constructing, main- , tal to this general purpose. Under existing taining, and operating a passenger street law, there is no authority to incorporate a railway, under act of 1889, and the amend street railway company for the transportaments thereto. It is contended that a street tion of light freight alone. This is a privi. railway company incorporated after 1907 for lege conferred, or a duty imposed, as the case the transportation of passengers cannot en- may be, upon street railway companies incorgage in the business of transporting farm porated for the transportation of passengers. produce, garden truck, milk, merchandise, The power is conferred upon companies inand other light freight and property over its corporated to transport passengers, when lines, and that, in order to be vested with they elect to avail themselves of the right, the power to exercise the right of eminent and is not restricted to those originally indomain, it must be a common carrier of light corporated as carriers of freight and pasfreight and property of this character. Pri- sengers. or to act of 1907 street railway companies It would seem to follow that the statement did not have the power of eminent domain. of purpose for which the company is primarThis act conferred a power not theretofore ily incorporated is sufficient to include those possessed, upon all such companies “now or incidental duties which the Legislature hereafter chartered” under Act May 14, 1889 thought proper to ose upon corporations (P. L. 211), and the several amendments so created. It must not be overlooked that thereof and supplements thereto. In section eminent domain is the sovereign power vest1 of Act June 1, 1907 (P. L. 368), it is pro-ed in the commonwealth, and that its exervided that a company incorporated either be- cise is always regulated by constitutional fore or after that date "may locate or re- and statutory law. In dealing with this sublocate its tracks and lines of railway so thatject the Legislature, within constitutional the same may be in whole or in part on a limitations, has very great power to grant public highway, or in whole or in part over or withhold. It was within the power of the private property; and shall have the right of Legislature to confer the right of eminent eminent domain, which is hereby conferred; domain upon corporations already created, and by virtue of such right may take and as well as upon those to be subsequently inoccupy so much land or material as may be corporated. It did this thing in express necessary for the location, construction and terms, and it would seem somewhat violent operation of its railway either as an exten- for courts to say that corporations may not sion or relocation of an existing line, or as exercise the right conferred until charters a new line. *” It is too plain for ar- have been amended, or other acts antece. gument that the right of eminent domain is dently done, which the act does not require. conferred upon all street railway companies We are not advised of any statutory provi. without reference to the time of their in- sion for amendment of the statement of purcorporation. It is true the act does provide pose in charters of street railway companies, “that all street railway companies that shall and, if it now be held that the purpose to

arry light freight must be stated in the aravail themselves of the right of eminent domain shall be common carriers of express right of eminent domain, all such companies

ticles of association before exercising the matter, farm produce, garden truck, milk, incorporated prior to act of 1907 would be merchandise, and other light freight and property.” Any company that avails itself pressly conferred. There is nothing in this

denied a right which the Legislature has exof the right has imposed upon it the duties record to warrant such a result, nor is there of a common carrier of light freight by the anything to indicate that the Legislature in. express terms of the statute. The only ques-tended to thus restrict the power granted. tion that can possibly arise under the act Nor is it apparent why any distinction in is, In what manner shall a company be re- this respect should be made between comquired to avail itself of the right? Shall it panies incorporated before and after act of be required that the purpose to carry light 1907. The Legislature treated these corpofreight be stated in the articles of associa- rations as a class, without reference to the tion, or in the letters patent, or in the con- date of their incorporation, and, this being stating instruments, before the right can be primarily a legislative question, there does asserted? The appellee so contends. Act of not seem to be any suficient ground for ap. 1907 does not so provide, and, to so hold, plying one rule to companies incorporated it will be necessary to read into the act by after act of 1907, and another to those creatinterpretation this requirement. In our opin- ed prior to that time. It is clear that the ion neither the language of act of 1907, con- Legislature intended the right to be exercisferring the right of eminent domain, nor the ed by all street railway companies if they historical view of the legislation authorizing choose to avail themselves of it. the incorporation of street railway compa- [3] When they do avail themselves of the nies, warrants such a conclusion. The pri- right, they are bound as common carriers mary purpose of these acts is to authorize during their corporate existence. When, as the incorporation of companies for the trans- in the case at bar, the company served noportation of passengers, and the carrying of tice on the landowner of its purpose to condomain, and filed in the court below its peti- | purpose of their incorporation. When SO tion and bond as required by the act, it be- regarded, the purpose stated in the articles came bound, so far as appellee is concerned, of association in the case at bar is sufficient, as a common carrier of light freight from not only to indicate the right to transport which duty nothing but performance would passengers, but to include the right to carry relieve it. This was a declaration in a court light freight as incidental to the primary of law of its election to assume the duties of purpose of the corporation. a common carrier, and to be vested with the We therefore conclude that appellant comright of eminent domain. It was not re- pany, in so far at least as the provisions of quired to make the election, but, when it act of 1907 are involved, was in position to did so, the right to exercise the power vested, exercise the right of eminent domain when and the duties of a common carrier were as- it filed its petition and bond in the court besumed. After that election the rights and low with notice to the landowner of its purduties of the corporation were fixed with repose to condemn. Several other grounds are spect to the privileges and burdens resulting set forth in the injunction bill asking for reas a legal consequence.

lief, but upon the record presented here they [4] We agree that in the consideration of cannot be considered. Upon the main questhis case some confusion has arisen by rea- tion hereinbefore discussed, the merits of the son of failure to distinguish between the pur- controversy are with appellant, although for pose of a corporation as stated in the arti- other reasons indicated by the record the cles of association and the powers of such right to condemn may not have existed at corporation conferred by statute. No matter the time the bill was filed. We do not pass what the charter contains, or what is stated on any of these questions except the one in the articles of association, the powers of considered. They may be brought to the ata corporation depend upon statutory grant. tention of the court below if it is so desired. The purpose must be stated in the constat. Under these circumstances, and because the ing instruments, but the powers are confer- right to locate the line of street railway red by statute. Act April 22, 1907 (P. L. through land of appellee may not have exist96), gave to street railway companies the ed when the bill was filed, we think appelright and privilege to transport light freight lant should pay the costs in the court below of the kind specified over their lines, and it and here up to the present time. is important to bear in mind that this privi- Decree reversed, preliminary injunction dislege was conferred upon street railway com- solved, and record remitted for further hearpanies incorporated to carry passengers. ing on the bill, if for any of the reasons not This is a legislative declaration that the car. considered here, the appellee desires to be rying of light freight by street railways is to heard in the court below; costs to be paid by be considered as incidental to the general appellant.

END OF CASES IN VOL. 8A

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