Com. ex rel. Supervisors of South Abington Towhship v. Providence & Abington Turnpike & Plank Road Co.

Opinion by

A difficulty meets us upon the threshold of 1 his case,to ascertain what la ws govern this corporation and were before the justice on the adjudication. Were they general or special laws ? It general, how are wo to know it, and *131if general and we can take judicial notice of them, can we take judicial notice of the fact that this corporation was created under the general laws ? This is necessary tor us to-determine, because this whole proceeding was based on the act of 1878 (P. L. 85) which is a supplement to the act of 1874, (P. L. 85) which provides in clause seven that “the provisions of this section (7) shall apply to all turnpike roads in existence in this Commonwealth governed and controlled by general laws.” W"e have examined carefully the transcript and procedings and find no description of this turnpike company as a corporation created either under the general or special laws of this state. Courts may take judicial notice of general laws (Greenleaf on Ev., Vol. 1, Sec. 5, note 2) and may presume the correctness of judicial proceedings (Ibid Sec. 19) but can we presume of such correctness when the record leaves us in doubt in regard to which class of laws the proceedings were under, and if they were not under a general law the proceedings are necessarily defective, by reason of want of jurisdiction ? We think not. The jur~ isdiction of the court must appear on the face of the record and especially in a ca^e of this character partaking of summary proceedings, should this appear. In proceedings of this nature the record must show enough by way of description to indicate that this turnpike company was governed and controlled by general laws.

This disposes of the first three exceptions, and we must sustain the certiorari and reverse the judgment of the. justice. We are strenuously urged to dispose of the other exceptions, which we do as follows:

The fourth and fifth exceptions, viz: That the justice selected persons tor viewers that he knew contributed or had promised to contribute money to prosecute this suit, are not sustained by any evidence.

The sixth exception, that the proceedings do not show that the poi’tion of the road alleged to be defective is in the township of Abington or in what place it is, touches the question of regularity, and while it is *132proper to enter the fact upon the record, it would be presumed to have been formed of proceedings even otherwise regular, the portion of road is sufficiently designated to inform the company where to repair..

The same holds true with reference to the seventh exception. It would be proper to state that he is the nearest justice, but alter a hearing it seems to us, unless the testimony shows to-the contrary, it would he presumed the proceedings were regular and this court could not enter into an exact measurement in regard to the location of the office of the justice.

In regard to the eighth exception we think- the record shows that the viewers selected were freeholders and that the law would presume, alter hearing, that they were of the neighborhood.

The ninth exception we sustain undet the act of 20th March, 1810, section 22. The precept should not differ from other precepts required to be issued in the name of the Commonwealth.

We also sustain the tenth exception. The return must show an attested copy served, as well as a true copy. Bank vs. Perdriaux, Brightly 67.

In this connection we would state that in proceedings of this character, under laws requiring corporations to fulfill the objects of their incorporation, and where the objects of their incorporation are so intimately connected with the public convenience, we deem it important that courts should give a liberal construction to the acts of assembly regulating their conduct. We do not consider it necessary in order to protect the rights of turnpike companies that we should hold proceedings to such a line of strictness as is indicated by the argument ot the defendant’s counsel. While they are in the nature of summary proceedings they are still proceedings for the benefit of the corporation, calling them to a proper care in the exercise of rights conferred by the commonwealth, and protecting the people against injury by neglect of those rights. We think a substantial compliance with the *133requisites of tbe law is all that is required. The legislature necessarily has reserved to itself, under its police, power to regulate corporations deriving their charters from the commonwealth, the right to pass laws which requiie citizens to exercise their rights in a particular íorm. 11 a city or munieipalty deriving its power from the State may legislate over citizens within its borders, and include corporations as subject to reasonable and proper regulations under.penalties, certainly the soverign power of the State may so legislate as to compel turnpike companies to keep their roads in repair. We think, therefore, that clause seven of the act of 1874 and the act ot 1878 are binding on corporations created under general laws. The difficulty in this case is our inability to discover that these defendants are so incorporated. The justice’s proceedings recite that.they are under the act of 1878. It is therefore unnecessary for us to consider whether these proceedings can be sustained under the act of 1849.

The proceedings ot the justice are reversed.

NOTES OF RECENT DECISIONS IN TI1E SUPREME COURT OB' PENNSYLVANIA.

W. bought property at an Orphans’ Court sale, took possession, paid half the purchase money, and became bound lor the payment of the other halt in one year. He took out policies of insurance upon the property, containing a condition that if the interest ot the assured be any other than the entire, unconditional, and sole ownership for the use and benefit of the assured, it must be so represented to the company, and expressed in the policy, otherwise the policy to be void. The exact nature of his interest was not specified in the policies. The property was destroyed by fire before the final payment of purchase *134money, and receipt ot deed. In an action against the insurance company to reeover the insurance:

Held, That W.’s title, though an equitable oue, nevera theless vested in him the entire, unconditional, and sole ownership, subject to the payment of the balance of purchase money, and that he was entitled to recover. — Millville Ins. Co. vs. Wilgus.

To render evidence of a contemporaneous parol agreement admissible to vary materially or contradict a writ" ing. it must be alleged that'‘upon the faith of the parol agreement the written instrument was signed.

“We cannot agree that a supplemental affidavit is confined to an explanation of the original, and cannot set up a different defence; such a. course, however, is suspicious, and requires that the new defence should be closely scrutinized.” — Callen vs. Lykens.

Where part of the capital of a national bank is invested in a building used for banking purposes, and the bank pays into the State treasury the tax of one per cent., prescribed by Act of Assembly, upon the par value of aTl its shares, the building cannot be taxed for county purposes, although the cashier occupies the part of the building not used for banking as a residence. — Lancaster Co. vs. Lancaster Co. National Bank.

The notes of the testimony of a witness taken before an auditor, without any proof of their genuineness or accuracy, are not depositions and are inadmissible in evidence as such. — Matthewson vs. Wilson.