merger of the two roads, until May 8, 1871, | scope and meaning. It authorizes the city to make against the defendants. At that time they enter into a contract with "any railroad comhad owned and operated the Northern Liberties pany whose road enters the city." These words and Penn Township Road as their own for fourteen years, according to their answer, viz: since 1857, and they have continued to do so ever since. We think it clear that what the Legislature intended by the words "main line," used in the Act of 1864, was not any previous main line, nor any line which might, at some future time, become a main line, but that which was the defendants' main line at the time of the passage of the Act in 1864. If we concede, then, that the Northern Liberties and Penn Township Road was, as the answer avers it was, a part of the defendants' main line on the 12th of April, 1864, it would follow, if they have the right under their charter to build an elevated railroad from that point without the consent of the city, that they might cross the streets in doing so. I have said if they have the right to build an elevated railroad in the city without the consent of the city. I have already endeavored to show that they have no warrant of law to occupy the streets longitudinally without the consent of the city. Whether they would have the right, without the aid of the Acts of 1874 and 1887, under the power to build branch roads from their main line into the counties through which their main line passes, to build an elevated road from a point on their main line in the city to any other point or points in the city they might select, without the consent of the city, crossing any streets which might be necessary for that purpose, may admit of serious doubt. It might well be argued that they might show a more explicit grant of authority to do that. But how ever that question must have been resolved before the Acts of June 9, 1874 (P. L. 282), and May 31, 1887 (P. L. 275), we are of opinion that, since the passage of those Acts, they have no right to build such a road without the consent of the city. The Act of June 9, 1874, enacts that the proper authorities of any county, city, town, or township are authorized to enter into contracts with any of the railroad companies whose roads enter their limits, whereby the said railroad companies may relocate, change, or elevate their railroads within said limits, in such manner as in the judgment of such authorities may be best adapted to secure the safety of lives and property, and promote the interest of said city," etc. This Act contains, it seems to us, at least by a necessary implication, a prohibition of the building, by any railroad company, of elevated roads in a city without a previous contract entered into between such company and the city authorities. It was argued that the Act applies only to railroads built at the time of its passage, but that would be a very inadequate interpretation of its 66 embrace the defendant company. We think the prohibition was aimed not only at existing roads, but all future roads which any company may design to lay within the city limits. It is so treated by the Supreme Court, in the opinion delivered by Judge GORDON in McAboy's Appeal (107 Pa. 557), in which he says: "The Act of 1874, though it may be regarded as conferring no new rights upon railroad companies, having, as in the present instance, the branching power independently of this statute, yet even as to them it may be treated as a police regulation empowering the public authorities, for the safety of the people, to control the action of such companies.' Judge MITCHELL seems to have entertained the same view in the opinion delivered by him in the case of Duncan v. Penna. R. R. Co. (94 Pa. 444). Indeed any other construction of the Act would be an interpretation which would stick in the bark, and render the Act abortive to accomplish the purpose which the Legislature plainly intended to accomplish, which was to prohibit the construction of all railroads in cities, except, as the Supreme Court in effect says in McAboy's Appeal, under the control of the city authorities. But if it could be successfully argued that the Act of 1874 applied only to existing roads already laid, what shall be said of the Act of May 31, 1887, and how can the defendants escape from that Act, which declares that "railroad companies, now or hereafter incorporated, whose route extends through or into any city of this Commonwealth, may elevate or depress the whole or any part of so much of the line of their railroad as lies within the corporate limits of such city, over or under the surface of such city, provided that the consent of said city, through its councils, to such elevation or depression, be first had and obtained. And provided also that any conditions imposed by ordinance granting such consent, regulating or restricting the carriage of freight, or as to route, manner of construction, motive power to be used, etc. etc., shall be valid and binding upon such railroad company, so accepting the same." The words of this Act are "railroad companies, now or hereafter incorporated," which shows that it was intended to apply to all future roads which might be built as well as roads built when the Act was passed, and it is not possible, by reason of its title, to restrict its operation to roads built under the Act of 1868. The effect of this Act is to prevent the construction of any elevated railroad in any city of the Commonwealth without the consent of the city. That was its plain purpose and intent, and it is the duty of all Courts of the Commonwealth to enforce it, because it is the law, and its enforcement is imperatively to us who have heard everything that could be demanded for the protection of the lives and said by the ablest counsel on both sides of the property of the people who dwell in cities. That question, that the best interests of the city and the Philadelphia and Reading Railroad Com- its inhabitants favor the building of the proposed pany, although chartered in 1833, is a corpora- road. Philadelphia cannot afford to stand still tion subject to the operation of these Acts does amid the universal activity and progress which not admit of doubt. It was so expressly deter- everywhere prevails at the present time in the mined by the Supreme Court in the case of the direction of increased facilities for trade, and Phila. and Reading R. R. Co. v. Patent (17 communication with the outside world, and WEEKLY NOTES, 199), affirming the judgment of which is characteristic of the present period of this Court. It was held in that case that the our history. Still less can she afford to pursue a Philadelphia and Reading Railroad Company narrow and obstructive policy in matters of such had by the acceptance of Acts passed subse- great public concern. But it is not for the quently to the Constitutional Amendment of interest of the city or its inhabitants, or even of 1857, authorizing the Legislature to change the the defendants themselves, that this road should charters of incorporated companies, brought be built contrary to law or otherwise than as the itself within the purview of that amendment, and subjected itself to the operation of all subsequent legislation, as well as to the Act of May 3, 1855, which enacted that all charters granted or to be granted should be deemed subject to the power of the Legislature to alter or revoke them. In the case now before us the defendants base whatever claims they have to build the proposed elevated railroad upon the Act of April 12, 1864. Claiming, therefore, the benefit of that Act they are, without doubt, subject to the legislative control given by the Constitutional Amendment of 1857, and so are clearly subject to the provisions of the Acts of June 9, 1874, and May 31, 1887. " in The conclusion of the whole matter is, that we are of opinion that the defendants may construct the proposed elevated railroad with the consent of the city, and subject to such reasonable conditions and restrictions as the city authorities may impose, in order "to secure,' the words of the Act of 1874, "the safety of lives and property, and promote the interest of the city," but that the defendants have no right to build the road in question without the consent of the city, or without subjecting themselves to the conditions imposed by the Acts of 1874 and 1887. law directs. While it is in the power of the city Opinion by THAYER, P. J. Concurring opinion by WILLSON, J., filed November 26, 1889. I cordially concur in the views which have been expressed by the President Judge in regard to the effect of the Act of May 31, 1887, in this case. Hence I entertain no doubt that the defendant corporation must obtain the consent of the proper municipal authorities to construct the With regard to the right of the city to main- proposed railroad, before the right to build it tain this bill the Court entertains no doubt what- will exist. That consent being once granted, ever. The bill can be well maintained under however, I am entirely free from doubt as to the the provisions of the Act of June 19, 1871 (P. right of the company to construct the railroad acL. 1360), and it can be maintained, I may add, cording to its plans as they have been set forth without the aid of that Act, for the city as the in the pleadings and the exhibits submitted to us. legal custodian, conservator, and protector of I am not able to perceive that any element of the streets and highways within her limits, not- uncertainty upon that point arises from the queswithstanding their absolute ownership and para- tion as to what is meant by the "main line" mount control are in the State, has a perfectly mentioned in the Act of 1864. My own opinion good standing in the Courts of the Commonwealth, as a proper party to resist any encroachment upon them, or any use of them which is contrary to law. is that the right was given by that Act to the defendant company to locate and build branches from any point upon their principal line, as it then existed or was authorized to be built, withLooking over the whole field of observation out restricting the right to such portions of the connected with this controversy, I may perhaps line as were specifically authorized by the Act of be permitted to say in conclusion, that it appears incorporation. This view, it seems to me, is strongly supported by the action of the Legis- that no Court in Pennsylvania will so interpret lature in 1865, when it modified the Act of the law in question or the rights of the defend1864 by striking out from its application the ant corporation. No possible advantage could Lebanon Valley Railroad Company, upon the ex- accrue, either to the public or to any private press reason that that company had been merged interests, from such a construction, while large into the defendant company. The legislative and wholly unnecessary expenditures and great interpretation undoubtedly was that the right to delays would thereby be enforced upon the railbranch from what had been the Lebanon Valley road company. Railroad was conferred upon the Philadelphia and Reading Railroad Company, when power was given to the latter to build branches from its "main line." If I am right in my view of what the main line referred to in the Act of 1864 was, then that line extended from the Falls of Schuylkill over the short link which had previously been built from that point to the State Road, and thence over the State Road to a point at or near Broad Street. This I say for the reason that all this portion of the railroad was then-in 1864-actually used by the defendant company as a principal or main part of its line, and it would be the most natural construction of the legislative grant to regard it as applicable to such an existing condition of things. Hence I regard it as a matter of small importance whether or not the point, at which the defendant company proposes to begin its elevated structure, is upon the main line referred to in the Act of 1864. Indeed, I may say that, for the purpose of determining the right of that company to build the road in question, after obtaining the consent of the city authorities, it seems to me altogether indifferent whether the "main line" is to be regarded as ending at the Falls of Schuylkill or at Broad Street or as extending to the river Delaware along the Old Northern Liberties and Penn Township Railroad. Nobody questions that the company defendant owns, occupies, and lawfully operates a continuous railroad from the Falls of I am, therefore, of the opinion that, whether the "main line" be held to extend to Broad Street, or no nearer in a convenient direction than the Falls of Schuylkill, the proposed elevated railroad, with the consent of councils, can be lawfully built as a part of a branch extending from either point, and consisting, in part, of a railroad already owned and operated by the railroad company. If it be said that this view is inconsistent with the fact that the resolution of the managers of the defendant company refers to the contemplated construction as a "lateral or branch railroad, leading from the main line of this company's railroad on Noble Street between Broad Street and Thirteenth Street," I should reply that the mere name given to the proposed road should not control the question as to the power to build it. It would appear to be useless, if the right exists, to compel the company to go through the form of passing another resolution in different terms. I have thought it advisable, in consequence of the importance of this subject in the controversy before us, to state my views upon it in this brief manner. C. P. No. 4. H. B. February 1, 1890. McGeorge v. Harrison Chemical Manufacturing Co., Limited. Partnership association, limited-Acts of June 2, 1874 (P. L. 271); February 18, 1875 (P. L. 3); May 1, 1876 (P. L. 89). A member of a partnership association, limited, may maintain an action against the association for a debt due by it to him. Where a partnership association, limited, has received its secretary or other officer contrary to the rules and bythe proceeds of a note made or indorsed in its name by laws of the association, it cannot set up the illegal making of the note as a defence to an action on the note. Schuylkill a point which the plaintiff concedes to be upon what it calls the main line-to the point on Noble Street at which the elevated structure complained of would begin. If, then, any branch, to be lawfully constructed by the defendant company within the limits of this county, must begin as far remote as the Falls of Schuylkill, I know of no legal reason, nor do I perceive any rational ground upon which it could be held that the railroad company, in the construction from that point of a branch which should embrace in its route all those portions which it is proposed to elevate, was debarred from using tracks already owned and operated by it, and treating them as a part of the new branch. To hold that such branch lawfully built ⚫ under an express grant of power must consist of distinct and separate tracks, when tracks already The affidavit and supplemental affidavit of deexisting would afford an economical and con- fence set up that the plaintiff was a member of venient means, in part, of reaching the desired the defendant which was a limited company terminus, would, it seems to me, be most un-under the Act of June 2, 1874, and that by the reasonable as well as harsh. I am confident rules of the company, the secretary had no power Rule for judgment for want of a sufficient affidavit of defence. Assumpsit, by indorsee on a promissory note made by Henry W. Scott, and indorsed "Harrison. Chemical Mf'g Co., Lt'd. W. Spooner, sect'y." to make or indorse any notes or instruments for ship associations, limited, and corporations, are the payment of money without the direction of that both are permitted to have and attest some the board of managers, and that the secretary of their acts by a seal; are governed by manahad not been directed by the board to indorse the note in suit. Isaac Elwell, for the rule. The question whether a partner can sue his co-partners in assumpsit does not arise here as the defendant is "partnership association" or "joint stock company" under the Act of 1874. Oak Ridge Co. v. Rogers, 108 Pa. 147. Patterson v. Tidewater Co., 12 WEEKLY NOTES, 452. Hill v. Stetler et al., 127 Pa. 162. •Edward Brady, Jr., and Sylvester Gavitt, Jr., contra, cited— Maloney v. Bruce, 13 Norris, 249. Addams's Appeal, 15 WEEKLY NOTES, 230. C. A. V. gers or directors; may sue and be sued by their association or corporation name; and the members or stockholders are not liable individually. for the debts of the concern as general partners are. The chief point of difference between them is that while a corporation cannot refuse to permit a transfer on its books of shares of its stock to any purchaser thereof, a partnership asSociation, limited, can except according to its rules. Himrod, 108 Pa. 569.) The right to have and use a seal was conferred upon partnership associations, limited, by the Act of February 18, 1875 (P. L. 3), and the right to sue and be sued in their association name, by the Act of May 1, 1876, § 3 (P. L. 89). This last cited Act removed all the objections which were urged in argument against a February, 8, 1890. THE COURT. This is partner suing the partnership association, limited, an action against the defendant as indorser of which he is a member, or suing himself, as it of a promissory note made by Henry W. Scott, is said. But after all, that objection is more in favor of the defendant dated June 11, 1889, technical than substantial. A member of two for $300, in three months after the date thereof. The chief defence is that the plaintiff is a member of the association defendant, and it is urged that he cannot sue the partnership association of which he is a member in an action at law, but must resort to a bill in equity for an account. firms may appear in an action between them, as plaintiff and defendant. (Act of April 14, 1838, P. L. 457.) So a husband joined with his wife in her suit (prior to the Married Persons' Property Act of June 3, 1887) could sue a firm of which he is a member, thus making a suit by a partA short comprehensive name or phrase de- ner against his co-partners, and by a wife against scriptive of the status, powers, and responsibili- her husband. (Freiler v. Kear, 126 Pa. 470.) ties of associations like the defendant, does not The reason is that a firm, partnership, or assoyet appear to be agreed upon. They are called ciation is one entity, and each partner or mempartnership associations, limited, in the statute ber is another entity. Suits by individual memauthorizing their formation, the Act of June 2, bers of unincorporated beneficial associations 1874 (P. L. 271). Mr. Brightly in his Digest, against the officers and members thereof, are designates them as joint stock companies. Chief numerous and frequent, although the individual Justice MERCUR, in the case of the Oak Ridge Coal Co., Limited, v. Rogers (108 Pa. 147), says it may not be improper to call such an association a quasi corporation; and Justice WILLIAMS, in Hill v. Stetler (127 Pa., at page 161), calls them joint stock associations, having some of the characteristics of a partnership and some of a corporation. When properly formed the promoters cease to act as individuals or partners, but through and in the name and upon the credit of the joint stock associations" (Id. page 162). We now have in this State partnerships pure and simple, in which each partner is liable for all the indebtedness of the firm; special partnerships under the Act of March 21, 1836 (P. L. 143), having general partners with unlimited liability, and special partners with limited liability; partnership associations, limited, composed of members; unincorporated associations, also composed of members for beneficial purposes; and corporations composed of stockhold ers. The points of similarity between partner liability of the members was abolished by the Act of April 28, 1876 (P. L. 53), and the funds of the association alone made liable for the benefits. We have no difficulty in sustaining the present action, as the Act of May 1, 1876, before cited, removes all technical objections, for, as to substantial objections there are none. The plaintiff sues, not as a partner for dividends or profits, but as a creditor for a debt due by the association, just as he can sue a corporation in which he is a stockholder. If suits such as this will enable one partner to sell out the concern, so will suits by a stranger. The objection that the secretary of the defendant association had no power to indorse the note in suit, would be of some avail, were it not admitted that the defendant received the proceeds of the note. It cannot be permitted to take the benefit of his act and then deny his authority to do the act. Rule absolute. H. B. Detwiller et al. v. Commonwealth. Hemingway et al. v. Commonwealth. Corporations-Citizenship-Stockholders of corporations-Acts of October 13, 1840; April 28, 1856; April 29, 1874-Method of voting at corporate meeting-Power of directors to declare vacancies and to fill the same. Hamilton, John A. Shawde, and Howard Mellick, against John J. Detwiller, Joseph M. Hackett, Thomas Rinek, and John Bacon, to show by what authority they claimed to exercise the offices of directors of the Farmers and Mechanics' Institute of Northampton County. The facts of the case are stated in the following opinion by Reeder, J. :— "This cause was called for trial last January, and after the conclusion of the evidence it was agreed that a juror should be withdrawn and the case submitted to the Court under the Act of April 22, 1874. The Farmers and Mechanics' Institute of Northampton County' was incorporated by the Court of Common Pleas of Northampton County, on the 25th day of April, A. D. 1856. It is provided by their charter that the members of the association shall elect fifteen of their number to be a board of directors, who shall, within ten days after their election, divide themselves by lot into A citizen of the United States, not a citizen of or three classes of five each. The first class shall resident in this State, may become a stockholder in a serve for one year, the second class for two years, company organized under the Acts of October 13, 1840, and the third class for three years from the secand April 28, 1856, unless there be some peculiar pro-ond Tuesday of January next. The mode of vision in the charter prohibiting the same. The fact that under the wording of the Act of 1856, a charter would be granted only to citizens of this State, and the further fact that the preamble to a charter recites that the application is made by citizens of Pennsylvania, do not amount to a prohibition that non-residents shall not become stockholders or members of such company. Nothing less than an explicit provision in the charter or general law can deprive the shares of stock of their negotiable character or the purchasers of their rights as shareholders. Under the general corporation law of April 29, 1874, non-residents may even become corporators. A non-resident stockholder takes his shares with all the rights and privileges which pertain to them in the hands of a citizen, and he may vote upon them, and, where no other qualification than ownership of stock is required of the directors, he may become a director. When the method of voting at a corporate meeting is not fixed by a general law, the company may make any reasonable provisions in regard to the same, which do not conflict with the laws of the United States or of this Commonwealth. A by-law of a corporation provided as follows: "When any director shall die, resign, neglect to serve, or remove out of the county, the board may proceed to supply the vacancy :" Held, that under this law the board could not create any vacancy. Questions of fact as to the existence of an actual vacancy by removal after election or neglect of duty might be settled by the board and the vacancy filled, but that is the extent of their power. They cannot settle any legal question as to the eligibility of conducting the elections and for filling vacancies by death or by resignation and the duties of the officers, shall be provided by resolutions or bylaws.' On the 11th day of January, A. D. 1887, that being the second Tuesday of January, the term of five directors expired, and the members of the corporation met for the purpose of holding an election to supply the vacancies. At that election, Asa W. Dickinson, A. S. Deichman, Shawde, and H. Eugene Hamilton each received George E. Sciple, Peter Robinson, John A. 390 votes, William R. Wilson received 388 votes, and John J. Detwiller, J. M. Hackett, and Thomas Rinek each received 232 votes and John Bacon 234 votes. Howard Mellick, one of the relators, was elected a director to serve three years at a meeting of the members of the said corporation held on the second Tuesday of January, A. D. 1886. Jas. A. Edelman, one of the respondents, was elected a director on the second Tuesday of January, 1883, and was re-elected again for a term of three years on the second Tuesday of January, 1886. He owned at that time two shares of stock. The stock was sold to Jacob Hay on the 21st day of December, A. D. 1886, and the stock was delivered together a power of attorney for the transfer of the stock upon the books of the corporation to Jacob Hay upon the same day. This was all the stock owned by James A. Edelman at that time. The transfer of this stock was not made on the books of the corporation until the 1st day of February, 1887. On that same day, viz., February 1, 1887, Mr. Quo warranto by the Commonwealth, at the Edelman purchased and had transferred to him on suggestion of Asa W. Dickinson, H. Eugene | the books of the corporation two other shares of a director. Writs of error to the Common Pleas of Northampton County. |