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person before the commissioners of regis- | ing every municipal election, and remain in tration and produced all proofs of his quali open session from 7 a. m. to 10 p. m. of each fications as an elector, including a certified registration day, to receive applications from copy of his naturalization papers, but they persons claiming to be entitled to be registered refused to register him as a qualified elector as voters. Every person claiming the right to of his division, assigning as their reason vote is required (section 7) to appear before that he should have produced naturalization the registrars in the district in which he lives papers on one of the three registering days. prior to every general election, and make He prayed the court to grant him an appea. answer to certain prescribed questions. All from the decision of the commissioners, and persons claiming the right to vote by reason to make such order as they might deem just of naturalization must (section 9) produce and right under the circumstances. The the proper naturalization papers, or a certified court allowed the appeal and on November copy thereof, before they shall be registered. 21, 1906. indorsed on the petition, "Name No person may be registered (section 8) unto be added," evidently meaning to orderless at least three of the registrars determthat the name of the petitioner should be ine that he possesses or will possess beadded to the registry list. By certiorari the fore the next ensuing election the qualifiboard of registration commissioners for the cations of an elector as provided in the city of Philadelphia have brought the record Constitution and laws of this commonwealth, before us for review. As to our jurisdiction and only such persons (section 17) as shall in the matter, it is settled that "the ju be registered are permitted to vote at any dicial authority of this court extends to general, special, or municipal election. If the review and corrections of all proceed any citizen (section 15) objects to the action ings of all inferior courts, except where of the registrars in accepting or rejecting such review is expressly excluded by stat any claim for registration, he may file his ute, in accordance with the Constitution." petition with the commissioners, setting Gosline 7. Place, 32 Pa. 520. After con forth the ground of his complaint, and the sidering the prior decisions, Justice Wood-commissioners, after bearing, may amend ward said, in Chase v. Miller, 41 Pa. 403: the registry of voters in accordance with their “Such, then, in general,, is the jurisdiction decision. An appeal lies from the decision of this court to correct all manner of errors of the commissioners to the court of comof inferior judicial tribunals; and that is mon pleas, but must be made not later than not to be taken away, except by express five days preceding an election. A qualified terms or irresistible implication." In a elector (section 15) who was too ill to appear recent case, also arising under the election at the polling place on any of the registralaws, Chief Justice Mitchell said: “The case tion days, or was unavoidably absent from having been brought to this court by cer- the county on those days, may petition the tiorari, the first question is our jurisdiction, commissioners at any time up to two weeks The proceeding being entirely statutory and before the general election, setting forth the without appeal, we cannot review the find- facts and praying that his name may be ings of fact or the merits of the case, but added to the register. Any person dissatisunder the general supervisory powers of fied with the decision of the commissioners the court on certiorari we are entitled to on such petition may appeal to the court of inspect the whole record with regard to the common pleas as in other cases. But, exregularity and propriety of the proceedings cept in these two instances, no provision to ascertain whether the court below ex for an appeal appears in the act. ceeded its jurisdiction or its proper legal In the present case the petitioner had not discretion." Independence Party Nomina been rejected by the registrars. He does tion, 208 Pa. 108, 57 Atl. 344.

not even aver that he ever appeared before Turning to the law governing the present them on any one of the registration days, case, we find that the act of February 17, and he expressly admits that he did not 1906 (P. L. 49), entitled "An act to provide produce to them his naturalization papers, for the personal registration of electors in or a certified copy thereof, as he was recities of the first and second classes of this quired to do as a perquisite to registracommonwealth, to make such registration / tion. He presented no petition to the coma condition of the right to vote in such cities, missioners alleging error in the action of and to provide penalties for the violation the registrars, nor does he allege that he was of its provisions, provides (section 3) for prevented from registering by illness, or the appointment for each of said cities of a unavoidable absence from the county. Unboard of registration commissioners, con der these circumstances the commissioners sisting of four members, who shall (section had no power under the act to order his 5) each year appoint four registrars for name to be added to the register, nor is each election district of the city. The regis there any right given to the court of comtrars of each division are required (section mon pleas to entertain an appeal from their 6) to meet at the polling place thereof on refusal to make such an order. The record the ninth Tuesday, Seventh Tuesday and shows an entire absence of jurisdictional fourth Saturday preceding the November facts upon which the action of the court of election, and the fourth Saturday preced common pleas could have been based. Its

proceedings are unauthorized by any of the provisions of the act of assembly.

The order of the court below is therefore reversed and set aside, and the proceedings upon the petition for an appeal from the decision of the commissioners of registration are quashed.

MITCHELL, C. w., dissents.

*

(218 Pa. 24) CHESTER CITY V UNION RY. CO. OF

CHESTER et al. (Supreme Court of Pennsylvania. April 29,

1907.) 1. STREET RAILROADS–RIGHT TO USE STREET -CONDITION OF GRANT.

A city gave by ordinance a street railway company the right to use a particular street, reserving the right to grant to any other railway company rights in the same street. The mayor required the railway company in consideration of the ordinance, to agree to arbitrate any dispute with another company to which the right to the street might be granted. Held, the company could not allege that the agreement for arbitration, not being a part of the ordinance, was not binding on it. 2. SAME-FORFEITURE OF FRANCHISE.

Where an ordinance giving a street railway company the right to use a street contained no clause of forfeiture, an agreement of the company with the mayor, at the time of signing the ordinance, to arbitrate any difficulty with another street railway company seeking to use the street, did not give the city the right to forfeit the franchise because its arbitrator was unable to agree with the second arbitrator in the choice of a third. 3. SAME-USE OF STREET.

Where a city gave a railway company by ordinance permission to use a street in question, with a provision therein reserving the right to another company to use the same street, the city cannot maintain a bill in equity to compel the first company to permit the second company to use the street; the party aggrieved in such case being the second company.

Appeal from Court of Common Pleas, Delaware County.

Bill by the city of Chester against the Union Railway Company of Chester, Pa., and the Chester Traction Company. Decree for plaintiff, and defendants appeal. Reversed.

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

W. B. Broomall, for appellants. A. A. Cochran, for appellee.

this right shall be granted making an amicable arrangement with the Union Railway Company for the running of cars over its tracks between the points named.” When this ordinance was presented to the mayor, he declined to approve and sign it until the appellant had agreed "that if at any time perinission shall be granted by the said city of Chester to any other railway company, or if such permission shall be asked of the said city by any other railway company to run over the tracks of the party of the first part on

Edgmont avenue, from Fifteenth street to the city line, and the said party of the first part and the said other railway company shall fail to agree upon the terms upon which the said other railway company shall be allowed to use the tracks of the party of the first part, then and in such case the terms and condi. tions of such use shall be determined in the following manner, to wit: The party of the first part shall appoint one person, and the other railway company asking the said permission shall appoint another person, and these two persons so appointed shall select. a third person, and the majority of the said three persons so selected shall prescribe the terms and conditions upon which the said other railway company shall occupy and use the said tracks of the said party of the first part, and such terms shall be obligatory upon the said party of the first part; and in case either party refuse or neglect within a reasonable time to appoint, the other party shall have the right to appoint in its place.” A formal agreement in these terms was exe cuted by the appellant company and the mayor and city clerk, and on the same day the ordinance was signed by the mayor and became effective. By various ordinances between 1894 and 1902, the city of Chester granted to the Media, Middletown, etc., Railway Company the right to lay tracks on certain streets, including finally Edgmont avenue, with the right to use appellant's tracks thereon. This was the origin of the present controversy.

The appellant claimed that the agreement for arbitration, not being part of the ordinance, was not binding on it, and that, even if it were, the agreement of submission was revocable. Neither claim can be sustained. Whether the mayor of the city had any authority to impose conditions of consent additional to those called for in the ordinance itself is a question that does not arise. The appellant agreed to them. The city was not under any obligation to grant the use of its streets at all, and did so only by virtue of the ordinance. The ordinance became valid by the mayor's approval, and his approval was in consideration of the agreement for arbitration. That agreement was, therefore, part of the consideration for the city's consent, and binding on the appellant.

Nor can the appellant's claim of the right to revoke the agreement of arbitration be

MITCHELL, C. J. The city of Chester, in 1893, by ordinance granted to the Union Railway Company, appellant, the right to construct and operate its railway on certain streets named. The ordinance contained conditions, none of which have any relevancy to this controversy, except the following: “The councils of the city of Chester reserve the right to grant permission to any other railroad company to run over the tracks of the said Union Railway Company on Edgmont avenue from Fifteenth street to the city line, upon the company to whom

sustained. While such agreements are in ment for arbitration by the two companies, general unfortunately under the ancient therefore, was no part of the franchise which precedents held revocable, yet, where they the city reserved the right to grant. It was are part of the condition of the municipal only a mode provided for adjusting conflictconsent, the corporation takes the consent ing rights in the future, a mode to be purcum onere, and cannot thereafter revoke or sued in the first instance because it was so repudiate any part of the condition. Ply agreed, but not exclusive of a mode to be mouth Township v. Chestnut Hill, etc., Ry. ascertained and enforced by a court of equiCo., 168 Pa. 181, 32 Atl. 19. But, on the ty, if, as heretofore said, the action of appelother hand, the ordinance of March, 1904, lant or its arbitrator was in bad faith for was far beyond the city's authority. There the real purpose of defeating an apparent was no clause of forfeiture in the original compliance. But the party aggrieved in such ordinance of consent, and even if the agree case, and therefore the party to ask for ment of arbitration could possibly be con remedy, is the grantee of the second fransidered as containing such implied power, chise which is thus interfered with. The there was no breach by the appellant. Even city has exercised its reserved right and has express powers of forfeiture must be strictly no further legal interest in the matter. followed What the agreement stipulated The Media & Middletown railway is not for was the appointment of an arbitrator by a party to this action, and its rights cannot each party, and on refusal by either the right be adjudicated in it. of the other to appoint for both. The ap The decree is reversed, and the bill dispellant did not refuse. On the contrary, it missed; each party to pay half the costs. appointed an arbitrator who met the arbitrator appointed by the Media & Middletown Company, but failed to come to an agree

(217 Pa. 599) ment with him as to the third, and thereup

KAUFMAN v. PITTSBURG & C. S. R. CO. on the Media & Middletown arbitrator as

et al. sumed to appoint another, and an award was (Supreme Court of Pennsylvania. April 22, made by the tribunal as thus constituted.

1907.) This action was entirely unauthorized, and

1. RAILROADS-POWER TO LEASE. the award a nullity. The appellant appoint

Where a railroad company is incorporated

under the general railroad act of April 4, 1868 ed an arbitrator, and thus prima facie com (P. L. 62), and acquires additional powers under plied with its agreement. If appellant or its the special act of February 21, 1872 (P. L. arbitrator was acting in bad faith, and his

142), enabling it to own and operate coal mines,

and by special act of April 5, 1873 (P. L. 546), failure to agree on a third arbitrator was a

to construct and operate inclined planes, it may mere device to escape substantial compliance lease its railroad to a railway company or with the agreement, that fact should have ganized under special act of May 25, 1871 (P.

L. 1170), with general powers. been judicially established by a bill or other

(Ed. Note.-For cases in point, see Cent. Dig. proceeding. It could not be assumed by the

vol, 41, Railroads, $ 404.] adverse party and action taken on that as

2. SAME. sumption. The award was a nullity, and the

Where a railroad company has under its ordinance of March 22, 1904, based on it, charter power to construct a railroad for an. was void for want of authority to declare a

other company to operate, and also to operate forfeiture.

a railroad for its own use, it can lease the rail

road which it operates for its own use for a But another fatal objection to the present term of years. proceeding is that the city of Chester on its (Ed. Note.-For cases in point, see Cent, Dig. own showing is not a party aggrieved. In vol. 41, Railroads, 8 404.) consenting to the occupation of its streets 3. SAME-CONDITIONS. by the appellant, it reserved the right “to The general railroad acts April 23, 1861 grant permission to any other railroad com

(P. L. 410), and February 17, 1870 (P. L. 31),

requiring the railroads of a lessor and lessee to pany to run over the tracks of the said Union

be connected, do not apply to act May 25, Railroad Company on Edgmont Avenue," 1871 (P. L. 1170), conferring on certain coretc. Under that reservation it has given per

porations chartered by the Legislature express mission to the Media & Middletown Railway,

power to merge, consolidate, or unite with any other company.

Bill and properly granted, the franchise to that company is complete and valid and enforce

burg & Castle Shannon Railroad Company able, without reference to appellant's con

and others. From a decree dismissing the sent or action. The right of the city to grant

bill, plaintiff appeals. Affirmed. permission to the second company was not The following is the opinion of Macfarlane, in any way dependent on the "amicable ar J., in the court below: rangement” between the two companies. "(1) The Pittsburg & Castle Shannon Rail. Such a construction would make the validity road Company, hereinafter called the 'rail. of the city's permission to the second com road company,' is a corporation organized pany dependent on the appellant's willing under the general railroad act of April 4, ness to come to such amicable arrangement, 1868 (P. L. 62), and having by the special act and thus put it in appellant's power to de of February 21, 1872 (P. L. 142), the right to feat the city's reserved right. The agree

own real estate and mine coal therefrom,

and, if such permission has been regularly Bill by Sibilla Kaufman against the Pitts

1.-4(1) On July 13, 1904, the railroad company

nd |

and by the special act of April 5, 1873 (P. L. occasions prior to the year 1900 passengers 546), the right to construct an incline plane. were so transported on account of accidents The plaintiff was in August, 1905, and still to the incline planes on the shorter route, is the owner of 50 shares of stock of the which from January, 1893, was used exclusaid company.

sively for passengers and freight and became "(2) The Pittsburg Railways Company, the main line of the railroad. The horseshoe hereinafter referred to as the 'railways com curve portions of the track were used in conpany,' was incorporated by a special act of nection with the coalyard as a part of the assembly May 25, 1871 (P. L. 1170), under the terminal facilities of the railroad company name of the 'Surety Contract Company,' sub in its mining and shipping of coal. sequently changed to the present name, and its principal business is that of operating leased to the coal company, at $30 a month, traction lines and passenger railways in the for the term of three years from July 1, county of Allegheny.

1904, a lot which had been used as a dump "(3) The Pittsburg Coal Company, herein. for refuse, and the coal company erected after referred to as the 'coal company,' is a thereon a laboratory for its use and the use corporation under the laws of the state of of the railroad company. New Jersey, having its principal office in “(8) For some time prior to any negotiathe city of Pittsburg, Allegheny county, and tions for the lease in this case the coal comis engaged extensively in the mining and sell pany had erected telephone wires, at its ex'ing of coal in the said and adjacent counties; pense, along the right of way of the railroad, and it is the owner of 7,756 shares of the and this line was used by the coal company stock of the Pittsburg & Castle Shannon and the railroad company without charge to Railroad Company, out of a total of 9,628 the latter. shares.

“(9) The coal company has, and has had, "(4) The board of directors of the rail no agreement or understanding with the railroad company, 10 in number, is with one road company for the use of the horseshoe exception composed of officers and directors curve portion of the tracks, and has not, at of the coal company, and the railroad com any time, used these tracks or any part therepany has been for several years controlled of, and it does not own, control, or operate in and managed by the coal company.

any way any mines or other property on or "(5) The executive officers of the railroad near the line of the railroad company. company, its superintendent, engineer, and "(10) The railroad company was in August, accounting officers, were officers in a similar 1905, and had been for several years previous, capacity of the coal company, which charged | insolvent. Its coal property was valuable, the railroad company for their services a and was capable of being operated with profit, reasonable amount, and the operating ex but the railroad had for a long time been penses of the railroad company were, in this operated at a loss of more than $3,000 a respect, much less than they would have been month, which was almost an offset to the if independently officered.

earnings of the coal business of the com“(6) The railroad operated by the railroad pany. company extends from Arlington Station, "(11) During the months of July and AuScott township, Allegheny county, to a point gust, 1905, the railroad company began neon Bailey avenue in the Thirty-Second Ward gotiations with one Baxmyer for the lease of in the city of Pittsburg, and then by an in the railroad, and a meeting of the stockcline plane with the road running from holders of the railroad company was called Bailey avenue to Carson street in the city of on August 16, 1905, for the purpose of conPittsburg. It also owns and operates coal sidering a proposition for the leasing or sellmines in Scott township. Prior to January ing of certain of its property, and there was 1, 1893, the railroad ran by a horseshoe then presented to the stockholders resolu. curve track north of Washington avenue, in tion authorizing the execution of a lease, the Thirty-Second Ward, in the city of Pitts and it was then stated that the proposed burg, via a coal tunnel and coal incline to lessee was the railways company, and that Carson street in the Thirtieth Ward, Pitts the proposed lease was in pursuance of a burg, where there was and is now located resolution of the board of directors, made a coalyard of the railroad company. About on July 21, 1905. Objections were made by the last-mentioned date the company con some of the stockholders, including the plainstructed a shorter and more direct line di tiff, and a verbal offer was made to take a verging from the former route at a point | lease at the rent of $20,000 per annum. The near Washington avenue, in Montooth bor meeting adjourned to August 17th, at which ough, and by incline planes reaching Carson time William Kaufman, acting on behalf of street at a point adjoining the coalyard. Up- a principal whose name be refused to dison the completion of the new short line the close, but with whom the plaintiff had no horseshoe curve track, coal tunnel, etc., were privity, but who was, some time after the exused solely for the transportation of coal ecution of the lease, disclosed to be Robert from the mines of the company to the yard, C. Hall, a broker and promoter, of the city and were not used for the transportation of of Pittsburg, offered in writing that he, Kauffreight and passengers, except on several man, would, on or before August 24th, bid at

least $17,500 for the lease in the same form did not connect with nor intersect any other as that submitted, and as evidence of his good railroad nor physically with the road or faith he deposited three bonds of $1,000 each. railway of any street railway company, and The meeting was adjourned to August 24th, the railways company did not own, control, at which time Kaufman did bid $17,500 per lease, or operate a railroad physically conannum for the lease for a term of 99 years, nected with that of the railroad company. and for a further term of 99 years at $20,000 The railways company's tracks are situated, per annum. This bid was in writing. The with reference to the railroad company's said bid was not submitted for the considera tracks, at a number of points, as follows: tion of the stockholders, for the reason that At Carson street within 60 feet, at which the identity of the principal was not dis point passengers bave been for several years closed, although demanded, and it appeared transferred between the respective companies on the bid that there was no corporation com under the terms in an agreement; on Bailey petent to take the lease; and it was known avenue, within 4 or 5 feet; near Arliugton by the directors and by the plaintiff and avenue the railways' tracks cross the railmost of the stockholders present that the rail road above grade; the Washington avenue ways company was ready and willing to exe line parallels the railroad for more than a cute the lease, and that it was a strong cor quarter of a mile, at a distance from 20 poration, of a good credit, and capable of to 60 feet; at another point the lines are 150 carrying out the terms of the lease.

feet apart, and the intervening land is leas"(12) The action of the coal company as a ed by the railways company; from Arlington majority stockholder, and of the officers of to Castle Shannon the lines parallel for about the railroad company, in voting for the lease half a mile, at a distance from 25 to 200 feet; and in subsequently executing it, was pru- and in Castle Shannon a spur of the railroad dent and in good judgment and was advan extends to within 10 feet of the railways' tageous to all of the stockholders, and the tracks. At all but one of these points tbe refusal of the Kaufman bid was in good faith transshipment of passengers from one road and in the exercise of good judgment. It to the other is easy and convenient. developed upon the trial of this case that Mr. Hall had no connection with or control

"Conclusions of Law. over any corporation capable of taking a "(1) There being no fraud or undue advanlease, and his purpose in desiring to acquire tage, the lease is not void on that ground. the lease was simply as a speculation.

“(2) The lessor has not violated any duty "(13) At the last-mentioned meeting ar to the commonweath. election was had upon the proposed lease.

“(3) The lessee has the right to take the The coal company cast its stock in favor of

lease. the resolution, and out of a total of 9,628

'(4) The lessor has the right to make the shares 8,153 shares were cast in favor to 66

lease. against the resolution, the affirmative vote

“(5) It is not necessary under the charter being composed of the stock of the coal com

of the lessee that the lines be mechanically pany and its officers, directors, and employés, connected, and it is sufficient that they are in with the exception of 350 shares, and of the

proximity so as to afford convenient transfer 66 shares, 50 were owned by the plaintiff of passengers. and 16 by E. F. Hays.

"(6) The bill should be dismissed, at the "(14) Neither the coal company nor any costs of the plaintiff.” of its officers nor any of its subsidiary com Argued before MITCHELL, C. J., and panies or their officers have received or will

BROWN, ELKIN, and STEWART, JJ. receive any pecuniary or other benefit or advantage in consideration of voting its stock

Wm. Kaufman and E. F. Hays, for apin favor of the lease, except such benefits

pellant. David A. Reed and Charles M. Johnand advantages as accrue equally to all of the

ston, for appellees. stockholders of the railroad company.

"(15) The lease dated August 25, 1905, was ELKIN, J. The answer to the third propexecuted for the railroad company by its pres osition contained in appellant's statement of ident on the morning of August 25th, and by the question involved will control all the maits secretary in the evening of that day, and terial questions raised by this appeal. Does was executed by the railways company on Au the charter of the defendant railway company gust 26th; and as early as 12:25 p. m. August authorize it to take the lease, the execution 25th, notice was served upon the railways of which is sought to be enjoined by appelcompany by plaintiff, requiring the defend lant, and, if so, will the lease be held valid ant not to execute the lease or to pay out for that reason, even though the charter of any money on account thereof.

This bill was the railroad company did not in express filed on August 30th and served the same terms confer the power to enter into such a day. The railways company entered into contract? possession, and since that time has been oper The defendant railroad company is a corating the portion of the railroad leased to it. poration organized under the general rail

"(16) On or before September 1, 1905, the road act of April 4, 1868 (P. L. 62); and railroad of the defendant railroad company by the special act of February 21, 1872 (P.

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