order and decree that the said village of Taylor- March 19, 1888. THE COURT. The first

ville be incorporated into a borough in conformity with the prayer of the petitioners (except so far as the boundaries are changed and modified by this order)." (Fifth assignment of error.)

The Delaware, Lackawanna, and Western Railroad Company then took this writ assigning for error: The action of the Court (1) in refusing to sustain the first exception; (2) in reducing the limits of the proposed borough; (3) in incorporating a farm district into a borough; (4) in holding that by excluding a portion of the farm lands, a majority of the proposed petitioners within the proposed limits were left; and (5) in entering the above decree.

William H. Jessup (Horace E. Hand with him), for exceptants.

exception to the report of the grand jury was that "the petition is not signed by a majority of the freeholders residing within the proposed borough, and the Court has no jurisdiction to grant the incorporation."

The Court below having investigated the several exceptions makes this disposition of the first: "In regard to the first there would appear to be at least some doubt. The difference in the count being so slight that the change of two or three names would change the result, and as to these there is some conflict." We are clearly of opinion that this finding of fact in regard to the first exception deprives the Court of all jurisdiction to entertain the petition or to take any further steps in the proceedings. The jurisdiction to grant incorporation to a proposed borough may not be exercised in a case which is doubtful as to the fundamental question whether a majority of the freeholders residing within the proposed limits have signed the petition. If it be doubtful whether a majority have signed, it certainly does not appear that a majority have in point of fact The Court having admitted that a majority of signed. But unless a majority have signed there the freeholders resident within the proposed is no jurisdiction to entertain the petition. There limits had not signed the petition, sought to ac- is nothing on the record after the contest upon quire jurisdiction by reducing the proposed limits, this question arose which establishes that there so as to exclude sufficient non-signing resident was a majority of freeholders who signed the freeholders to answer the statutory requirements. petition, and this defect in view of the distinct This could not be done; if there was no jurisdic-finding by the Court that there was doubt upon tion there was no case for the Court to act upon. that vital subject, is fatal to the proceeding.

In order to give the Court jurisdiction it must affirmatively appear that a majority of the freeholders residing within the proposed limits have signed the petition, and the proposed borough must not include farming lands.

Borough of Little Meadows, 28 Pa. 256; 35 Pa.

335.

Elliott v. Peirsol, 1 Peters, 328.
Youngman v. R. R. Co., 65 Pa. 286.
Brooks v. Stolley, 3 McLean, 523.
Hepburn v. Dunlop, 1 Wheat. 179.
Livingston v. Van Ingen, 1 Paine, 45.
Frederick W. Gunster (Charles H. Welles with
him), for petitioners.

A question of fact is not the subject of review here on certiorari to the Court of Quarter Sessions.

Borough of Quakertown, 3 Grant, 203.
Kirk's Appeal, 4 Casey, 185.

Spring Garden Road, 7 Wright, 144.

The statutes vest the discretion in the Grand Jury and Courts of Quarter Sessions to determine all questions of fact, and expediency in a proceeding to incorporate a town or village. An appeal does not lie from the decree of the Quarter Sessions.

Appeal of Rhoads, 5 Out. 284.

The question of the limits of the proposed borough is a matter within the discretion of the Court of Quarter Sessions, and is not reviewable on certiorari.

Borough of Quakertown, 3 Grant, 203. Borough of Sewickley, 12 Casey, 80. And since the passage of the Acts of 1851 and 1863 the extent and character of the land are not per se controlling objections.

Borough of Blooming Valley, 6 P. F. S. 66.

The Court proceeded to cure the difficulty by reducing the proportions of the territory so that there was a majority of those that were left, whose names were on the petition. But the Court, having lost its jurisdiction, had no power to make such an order, and hence it was of no effect.

The order of the Court below is reversed, the petition and all proceedings are dismissed and set aside, and record remitted at the cost of the petitioners.

Opinion by GREEN, J.
TRUNKEY and CLARK, JJ., absent.

Certiorari to the Quarter Sessions of Allegheny County.

"The first and second reasons assigned relate to the jurisdiction of the Court, and are, I take it, the material exceptions specified in the petiPetition by certain inhabitants of the borough tion. The want of jurisdiction if a valid objecof Verona and township of Penn for a public tion may be raised at any time in the proceedroad to lead from the southern end of Fourth ings. These two exceptions are to this effect Avenue in the borough of Verona, and termi- that the Court had no jurisdiction to entertain nating at a point on the public road known as the proceedings because the burgess and town Verner Hill Road, at or near the property of council alone have the authority to locate and Henry Morrow. open a highway or road, or any part thereof, The facts of the case fully appear in the opin- within the limits of the borough, and that the peion of the Court, MAGEE, J., dismissing the petition and certificate do not show that the Court tition of the supervisors of roads in Penn Town- had jurisdiction. ship, asking to have the confirmation absolute of the report of viewers, appointed to lay out the above road, set aside; that the petitioners be permitted to file exceptions, and that all proceedings be quashed. This opinion was as follows::

"When the street is wholly within the borough limits, the general road law is superseded and repealed by the general borough law-that is when the street begins and ends within the borough limits; but that is not the law with refer

nothing in these Acts (borough laws) to repeal the general law or repugnant to it' (Somerset and Stoystown Road, 74 Pa. St. 61; South Chester Road, 80 Id. 370). These authorities settle the question of jurisdiction where the road is in part only in the borough limits.

"It appears that on December 12, 1885, cer-ence to such public roads as are or may be opened tain of the inhabitants of the borough of Verona through the borough of which a part only is within and township of Penn presented their petition the borough limits. As to such road, there is setting forth that they labored under great inconvenience for want of a public road or highway to lead from the southern end of Fourth Avenue in the borough of Verona, to a point on the public road known as Verner Hill Road, at or near the property of Henry Morrow,' and Charles Davis, artist, W. H. Tomlinson, and Peter Best were "It is conceded that in point of fact the road appointed viewers to make report to March Ses- involved in this proceeding is partly in the borsion, 1886. This order to view was extended ough and partly in Penn Township, but it is conand made returnable to June Session, 1886, and tended that it does not affirmatively appear in the on June 7, 1886, the report was presented in petition and certificate, and that, therefore, the open Court and confirmed nisi, and was at Sep-road must be regarded as wholly within the bortember Session, 1886, confirmed absolutely, no exception having been taken thereto.

"An order to open having been issued, the supervisors of roads in Penn Township presented a petition to Court on the 26th of March, 1887, asking that the confirmation absolute be set aside, and that the petitioners be permitted to file exceptions and that all proceedings may be quashed, for reasons in said petition specified.

"The Court, on the presentation of the petition, granted a rule to show cause why the prayer should not be granted, returnable to April 2, 1887.

"To this rule the petitioners for the road by their counsel file certain reasons upon which they ask the rule to be discharged.

"On these papers and certain affidavits read, this case came on to be heard.

ough limits. I take it that in order to defeat the proceeding on the ground of want of jurisdiction, it ought to affirmatively appear upon the record that the road is wholly in the borough, and this cannot be said to be the case. It further seems to me that the right of the supervisors of Penn Township to be heard depends solely upon the fact that the road extends into the township of Penn, otherwise what possible interest can the supervisors of Penn Township have in the proceedings? It cannot be that the supervisors of a township can intervene because the sum of $50 has been assessed to Allegheny County. Any objection in that respect must come from the county authorities. I cannot say that the Court had no jurisdiction.

"3. This reason is that the petition for the road and report of viewers as to the termini and

route of the said road are too vague, indefinite, | assigned by the petitioners for the interference of and uncertain. I do not assent to this exception; the Court with the opening of the road in quesI regard it as not well taken. tion. I do not think that the prayer of the petitioners should be granted."

and held by residents of this Commonwealth, said tax to be deducted from the interest paid upon said evidences of debt, is unconstitutional and void, in that it violates & 1, Art. IX. of the Constitution of Pennsylvania, providing that "all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax."

the property of Henry Morrow," and asked for the appointment of proper persons to view and lay out the proposed road. Viewers were accordingly appointed, who, after complying with the requirements of the road law, as to notice, etc., proceeded to discharge the duties of their appointment, and in due time reported in favor of a pub- The nominal value of corporate loans often greatly dif lic road between the termini named in the peti-fers from their actual value; sometimes doubling the latAnd the assessment tion, giving the several courses and distances of ter, and again falling far below it. the same. Their report was regularly approved of said Act of 1885 is at such variance with the method of a tax upon the nominal value of said loans under ? 4 and width of road fixed at thirty-three feet. In of taxation outlined in 1 of said Act as to amount to a due course and without objection from any one, violation of the above constitutional provision requiring the report was confirmed absolutely and order to uniformity of taxation. open the road served on the supervisors of Penn Township in which it was located. Instead of proceeding to obey the order of Court these gentlemen then presented their petition, reciting the action of the Court, alleging want of jurisdiction to do what had been done, etc., and praying that the order confirming the report of viewers be set aside and all proceedings quashed. A rule to show cause was thereupon granted and a stay of proceedings ordered by the Court. After hearing and due consideration of the reasons assigned for revoking the order of confirmation, the petition was very properly dismissed at the costs of the petitioners.

In view of what has been said by the learned Judge of the Court below in his opinion disposing of the application, we deem it unnecessary to notice specially any of the nine specifications of error. There is no merit in either of them. Proceedings affirmed, and ordered that the costs be paid by the petitioners. Opinion by STERRETT, J.

TRUNKEY and CLARK, JJ., absent.

The facts fully appear in the opinion, infra. John F. Sanderson, deputy attorney-general, and William S. Kirkpatrick, attorney-general, for the Commonwealth.

M. E. Olmsted, for defendant.

THE COURT.

This case

April 23, 1888. was tried by the Court as provided by the Act of April 22, 1874.

It originated in an account settled May 20, 1887, by the auditor-general and State treasurer against the defendant for "tax on scrip, bonds, and certificates of indebtedness," from which settlement defendant entered an appeal to this Court, as authorized by the Act of 1811, relative to public accounts.

We find from the evidence the following facts:

1. The Delaware Division Canal Company, defendant, is a corporation of the State of Pennsylvania, chartered in 1858, and having authority to borrow money, issue bonds, and secure the same by mortgage.

2. In pursuance of this authority, defendant has issued bonds secured by mortgage to the amount of $800,000, all of which were outstanding during the year ending with the first Monday of November, 1886, and were held as follows:

By non-residents of Pennsylvania $100,000 00
By residents of Pennsylvania . . 285,000 00
By the Lehigh Coal and Navigation
Company, a corporation of the
State of Pennsylvania
By other corporations of the State
of Pennsylvania

306,000 00

109,000 00

3. No interest was paid upon the $306,000 of bonds held by the Lehigh Coal and Navigation Company, nor was any due or payable. By the terms of an agreement of lease between the two companies, those bonds are not to bear interest until the termination of the lease. Upon the remaining $494,000 of bonds interest was paid upon the first days of January and July, but the company, denying the validity of the fourth

section of the Act of 1885,* did not deduct and I case is based, is a second supplement to the Act pay into the State treasury the State tax of three of June 7, 1879, entitled "An Act to provide mills, as required by said section.

4. The nominal or par value of bonds and mortgages issued by corporations is no certain measure of their actual value which is often either above or below their par value; the actual value being dependent upon the value of the property mortgaged, the rate of interest, the date of maturity, and other conditions; some bonds upon which interest is regularly paid selling as low as fifty cents on the dollar, and others as high as one hundred and fifty. The actual and par values of mortgages issued by individuals agree more nearly than those of mortgages issued by corporations.

revenue by taxation," the first supplement being the Act of June 10, 1881. The taxing sections of these three Acts are substantially identical and are in effect the same as the taxing section of the Act of April 29, 1844. They all tax, among other things, "mortgages, money owing by solvent debtors, whether by promissory note, penal or single bill, bond, or judgment;" the Acts of 1844 and 1885, at the rate of three mills on every dollar of the value thereof; and the Acts of 1879 and 1881 at four mills.

Under the Act of 1844 and other tax laws in force, the tax on the mortgages and evidences of indebtedness of railroads and other private cor5. There are owned by residents of Pennsyl-porations, which we shall hereafter in this opinvania large amounts of bonds and mortgages is- ion style corporate loans, was levied, assessed, sued by foreign corporations not doing business and collected by the same officers, process, and in this State, and not subject to the provisions of machinery as other State and county rates and the fourth section of the Act of June 30, 1885, levies. The several assessors were required to but taxable at their actual value under the first value them as all other objects of taxation, section, the actual value of some of which bonds "according to the actual value thereof, and at is much above, and others much below, their such rates and prices for which the same would nominal or par value. separately bona fide sell." (Act May 15, 1841, P. L. 395.)

6. The settlement appealed from is, as stated therein, based upon section 4 of the Act of June 30, 1885 (P. L. 193). Tax is charged therein upon all the bonds of the company defendant except the one hundred thousand held by nonresidents of the State.

We think a brief history of prior legislation, similar to that now before us, and of judicial decision thereon, will aid us to understand and determine the questions involved in this case.

The Act of June 30, 1885, on which the settlement of account and claim for taxes in this

*This section is as follows: "Section 4. That here

An attempt was made by the Act of 1879 to change the mode of levying the tax on corporate loans. After exempting them from taxation, except for State purposes, it enacted that "All corporations paying interest on loans hereby taxed for State purposes only, shall deduct the said tax from the said interest and pay the same into the State treasury."

To this provision was added, in section 2 of the Act of 1881, a clause requiring the corporations to report annually in the month of November the amount of indebtedness upon which they had paid interest.

after it shall be the duty of the treasurer of each private corporation, incorporated by or under the laws of this Accounts having been settled against numerous Commonwealth, or the laws of any other State, or of the corporations, under these Acts, for tax on corpoUnited States, and doing business in this Commonwealth, rate loans for the years 1880 and 1881, appeals upon the payment of any interest on any scrip, bond, or certificate of indebtedness issued by said corporation to were taken by the corporations to this Court, residents of this Commonwealth, and held by them, to when it was contended on their behalf that as assess the tax imposed and provided for State purposes there was no means of assessment provided by upon the nominal value of each and every said evidence the Acts, it was still the duty of the local assesof debt, and to report on oath, annually on the first Mon- sors, in making the assessment for the years in day of November, to the Auditor-General the amount of indebtedness of the corporation owned by residents of question to value and assess corporate loans with this Commonwealth, as nearly as the same can be ascer- the other subjects of taxation in the hands of their tained; and it shall be his further duty to deduct three owners. That in discharge of this duty the asmills on every dollar of the interest paid as aforesaid and sessors, acting as officers of the Cominonwealth, return the same into the State treasury within fifteen days had made such assessments and had made due after the thirty-first day of December in each year; and his compensation for his services shall be the same that and proper returns thereof, which had been accity and borough treasurers receive for similar services; cepted and acted upon by the revenue officers of and for every failure to assess and pay said tax and make the State, and, therefore, it must be assumed that report as aforesaid, the Auditor-General shall add ten per they had performed their whole duty in the centum as a penalty to the amount of the tax; in (on) pay-premises, and that their returns were full and ment of said tax by a corporation the bonds, certificates,

or other evidences of indebtedness issued by it shall be true, not only as to all classes of subjects, but exempt from all other taxation in the hands of the holders also all objects taxable in said classes, including these loans, and that, therefore, the tax upon

of the same."