Sidor som bilder
PDF
ePub

ducting the votes of the five electors whose qualifications we have discussed from Tome's total, he only has left to his credit 49. Therefore it becomes unnecessary to consider the questions involved in the rulings on the remaining two votes cast for Tome and rejected by the court below.

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 qualifications of voters, it is not in the power of the Legislature either to enlarge or abridge them; but legislation may be enacted which merely regulates the exercise of the elective franchise and does not amount to a denial of the franchise itself. The Constitution 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 of the ballot. It is too late to question the constitutionality of such legislation so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself.'

[ocr errors]
[ocr errors]

We agree with the views so well expressed by the learned court below. The constitutional requirement is that the elector "shall have paid his state or county tax" before he is qualified to vote. The prime purpose of the legislation creating occupation and poll taxes was to enable persons to become qualified as voters rather than to raise revenue, and the Legislature, having afforded this opportunity, may in all reasonable ways prescribe and regulate the manner of the payment of such taxes. The Act of 1897, supra, was no doubt passed to remedy a public evil which had come into existence through the wholesale purchase of tax receipts by organized political parties, contrary to the intent of the Constitution that each elector should individually pay a tax. The object of the act was to see to it that each elector should in good faith pay such taxes with his own funds. There is nothing in the statute which serves to disfranchise the citizen, for it rests with each man properly to qualify himself to exercise the franchise of an elector, and the act affords him ample opportunity so to do, without unreasonable restraints. It comes to this: The Constitution requires that each elector shall pay a tax in order to qualify himself. The Legislature has afforded that opportunity, at the same time hedging it around with proper and reasonable safeguards, and only payment in the manner prescribed by this legislation constitutes a payment of the tax in a legal sense, so as to give the voter the requisite constitutional qualification.

The real point in this case is whether or not error was committed in awarding the certificate of election to Kennedy, instead of to Tome. The qualifications of only one other of Kennedy's electors seem to have

The appeal is dismissed at the cost of the appellant.

(237 Pa. 13)

GRESH v. WANAMAKER et al.
(Supreme Court of Pennsylvania. July 2,
1912.)

MASTER AND SERVANT (§ 302*)-NEGLIGENCE
OF SERVANT-SCOPE OF AUTHORITY..
The proprietors of a general store main-
tained an automobile department, and sent out
men to bring in automobiles to be repaired,
request of plaintiff to a personal friend in an-
but did not undertake to carry passengers. By
other department, a man was sent out who
made the repairs and was running the car back
with plaintiff as a passenger, when an accident
had no connection with the automobile depart-
occurred. The person with whom plaintiff dealt
ment, and the manager of that department had
no authority to contract to bring such person
back. Held, that the proprietors of the store
were not liable.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.*]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Dora A. Gresh against John Wanamaker and others. Judgment for defendant notwithstanding the verdict, and plaintiff appeals. Affirmed.

Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ.

Henry J. Scott and J. S. Freemann, both of Philadelphia, for appellant. W. W. Smithers, of Philadelphia, for appellees.

PER CURIAM. This appeal is from an order entering judgment for the defendants non obstante veredicto in an action by the plaintiff to recover for injuries caused by the upsetting of her automobile, which at the time was driven by an employé of the defendants. The plaintiff's automobile had been left by her because of a broken chain at Caln Station, some 37 miles west of Philadelphia. On the morning of the accident, she telephoned John A. Bunn, a personal friend, who was the manager of the bureau of adjustment of accounts in the defendant's

POWER CARRIAGE OF GOODS - STATUTORY
PROVISION.

store, and requested him to send her a com- 13. EMINENT DOMAIN (§ 10*)-DELEGATION OF petent man to repair the automobile, and to run it back to the city with her as a passenger. The request for a man to make repairs was complied with by the automobile department of the defendant's store, the repairs were made, and on the return to the city the machine was upset and the plaintiff was injured. The ground of her action was that the defendants contracted to transport her in safety from Caln Station to Philadelphia, and that by reason of the negligence of their employé she was injured.

.

Under Act June 1, 1907 (P. L. 368), conferring on street railways the power of eminent domain, and providing that any company availing itself of such right shall be a common carrier of express matter, etc., whenever a street railway serves notice on a landowner of its purpose to condemn his land, and files its petition and bond in court, it becomes bound as a common carrier of light freight. main, Cent. Dig. §§ 35-48; Dec. Dig. § 10.*] [Ed. Note.-For other cases, see Eminent Do4. STREET RAILROADS (§ 71*)-CARRIAGE OF GOODS-STATUTORY PROVISIONS.

Under Act April 22, 1907 (P. L. 96), giving to street railway companies the right to the articles of association of a street railway transport light freight, the purpose stated in company of constructing and operating a street railway for the conveyance of passengers is sufficient to indicate the right to carry light freight as incidental to its primary purpose.

[Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 71.*]

Appeal from Court of Common Pleas, Fayette County.

The defendants maintained, in connection with their general business as retail merchants, a department for selling and repairing automobiles, and they sent men out to bring in automobiles to be repaired and to deliver them when repaired, but they did not undertake to carry persons as passengers. With this department Mr. Bunn had no connection whatever, and there was no ground for the implication of authority in him to do anything in connection therewith. GivBill 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 continushow 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. The judgment is affirmed.

(236 Pa. 611)

KEYS v. UNIONTOWN RADIAL ST. RY. CO. (Supreme Court of Pennsylvania. May 22, 1912.)

1. APPEAL AND ERROR (§ 863*) — REVIEW SCOPE AND EXTENT.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

E. C. Higbee and L. B. Brownfield, both of Uniontown, for appellant. H. S. Dumbauld and Charles A. Tuit, both of Uniontown, for appellee.

ELKIN, J. [1] This is an appeal from a decree continuing until final hearing and furWhere an appeal is taken from a decree ther 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 beappeal 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 quester with such power, that question will be considered by the appellate court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1765, 1766, 3450-3455; Dec. Dig. & 863.*]

2. EMINENT DOMAIN (§ 10*) - NATURE AND EXTENT OF POWER-STREET RAILWAY COM

PANY.

tion in controversy between the parties. When it appears from the record that there was sufficient ground for the action of the court in awarding the preliminary injunction, the established practice is not to consider the merits on appeal until after final 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. 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. § 10.*]

All

[2] Appellant company was incorporated in

street railway company for the transportation of light freight alone. This is a privilege conferred, or a duty imposed, as the case may be, upon street railway companies incorporated for the transportation of passengers. The power is conferred upon companies incorporated to transport passengers, when they elect to avail themselves of the right, and is not restricted to those originally incorporated as carriers of freight and passengers.

It would seem to follow that the statement of purpose for which the company is primarily incorporated is sufficient to include those incidental duties which the Legislature thought proper to impose upon corporations so created. It must not be overlooked that eminent domain is the sovereign power vested in the commonwealth, and that its exercise is always regulated by constitutional and statutory law. In dealing with this subject the Legislature, within constitutional limitations, has very great power to grant or withhold. It was within the power of the Legislature to confer the right of eminent domain upon corporations already created, as well as upon those to be subsequently incorporated.

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 amendments thereto. It is contended that a street railway company incorporated after 1907 for the transportation of passengers cannot engage in the business of transporting farm produce, garden truck, milk, merchandise, and other light freight and property over its lines, and that, in order to be vested with the power to exercise the right of eminent domain, it must be a common carrier of light freight and property of this character. Prior to act of 1907 street railway companies did not have the power of eminent domain. This act conferred a power not theretofore possessed, upon all such companies "now or hereafter chartered" under Act May 14, 1889 (P. L. 211), and the several amendments thereof and supplements thereto. In section 1 of Act June 1, 1907 (P. L. 368), it is provided that a company incorporated either before or after that date "may locate or relocate its tracks and lines of railway so that the same may be in whole or in part on a public highway, or in whole or in part over private property; and shall have the right of eminent domain, which is hereby conferred; and by virtue of such right may take and occupy so much land or material as may be necessary for the location, construction and operation of its railway either as an extension or relocation of an existing line, or as a new line. It is too plain for argument that the right of eminent domain is conferred upon all street railway companies without reference to the time of their incorporation. It is true the act does provide "that all street railway companies that shall avail themselves of the right of eminent domain shall be common carriers of express matter, farm produce, garden truck, milk, merchandise, and other light freight and property." Any company that avails itself of the right has imposed upon it the duties of a common carrier of light freight by the express terms of the statute. The only question that can possibly arise under the act is, In what manner shall a company be required to avail itself of the right? Shall it be required that the purpose to carry light freight be stated in the articles of association, or in the letters patent, or in the constating instruments, before the right can be asserted? The appellee so contends. Act of 1907 does not so provide, and, to so hold, it will be necessary to read into the act by interpretation this requirement. In our opinion neither the language of act of 1907, conferring the right of eminent domain, nor the historical view of the legislation authorizing the incorporation of street railway companies, warrants such a conclusion. The primary purpose of these acts is to authorize the incorporation of companies for the transportation of passengers, and the carrying of

It did this thing in express terms, and it would seem somewhat violent for courts to say that corporations may not exercise the right conferred until charters have been amended, or other acts antecedently done, which the act does not require. We are not advised of any statutory provision for amendment of the statement of purpose in charters of street railway companies, and, if it now be held that the purpose to carry light freight must be stated in the articles of association before exercising the right of eminent domain, all such companies denied a right which the Legislature has exincorporated prior to act of 1907 would be pressly conferred. There is nothing in this record to warrant such a result, nor is there anything to indicate that the Legislature intended to thus restrict the power granted. Nor is it apparent why any distinction in this respect should be made between companies incorporated before and after act of 1907. The Legislature treated these corporations as a class, without reference to the date of their incorporation, and, this being primarily a legislative question, there does not seem to be any sufficient ground for applying one rule to companies incorporated after act of 1907, and another to those created prior to that time. It is clear that the Legislature intended the right to be exercised by all street railway companies if they choose to avail themselves of it.

[3] When they do avail themselves of the right, they are bound as common carriers during their corporate existence. When, as in the case at bar, the company served notice on the landowner of its purpose to con

of association in the case at bar is sufficient, not only to indicate the right to transport passengers, but to include the right to carry light freight as incidental to the primary purpose of the corporation.

domain, 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, as a common carrier of light freight from which duty nothing but performance would relieve it. This was a declaration in a court of law of its election to assume the duties of a common carrier, and to be vested with the right of eminent domain. It was not required to make the election, but, when it did so, the right to exercise the power vested, and the duties of a common carrier were assumed. After that election the rights and duties of the corporation were fixed with respect to the privileges and burdens resulting as a legal consequence.

We therefore conclude that appellant company, in so far at least as the provisions of act of 1907 are involved, was in position to exercise the right of eminent domain when it filed its petition and bond in the court below with notice to the landowner of its purpose to condemn. Several other grounds are set forth in the injunction bill asking for relief, but upon the record presented here they cannot be considered. Upon the main question hereinbefore discussed, the merits of the controversy are with appellant, although for other reasons indicated by the record the right to condemn may not have existed at the time the bill was filed. We do not pass on any of these questions except the one considered. They may be brought to the attention of the court below if it is so desired. Under these circumstances, and because the right to locate the line of street railway through land of appellee may not have existed when the bill was filed, we think appellant should pay the costs in the court below and here up to the present time.

[4] We agree that in the consideration of this case some confusion has arisen by reason of failure to distinguish between the purpose of a corporation as stated in the articles of association and the powers of such corporation conferred by statute. No matter what the charter contains, or what is stated in the articles of association, the powers of a corporation depend upon statutory grant. The purpose must be stated in the constating instruments, but the powers are conferred by statute. Act April 22, 1907 (P. L. 96), gave to street railway companies the right and privilege to transport light freight of the kind specified over their lines, and it is important to bear in mind that this privilege was conferred upon street railway companies incorporated to carry passengers. This is a legislative declaration that the carrying of light freight by street railways is to be considered as incidental to the general | appellant.

Decree reversed, preliminary injunction dissolved, and record remitted for further hearing on the bill, if for any of the reasons not considered here, the appellee desires to be heard in the court below; costs to be paid by

END OF CASES IN VOL. 84

« FöregåendeFortsätt »