tate have been established except one, and nothing exists upon which a charge of fraud or dishonesty can be successfully based. Price's Estate, 81 Pa. St. 263; Merkel's Estate, 131 Pa. St. 613, 18 Atl. Rep. 931. The commissions are too large, however, having been calculated in part upon the accountant's own debt to the estate, which cannot be allowed, (Landis v. Scott, 32 Pa. St. 504; Bedell's Appeal, 85 Pa. St. 398; Muth's Estate, 6 Pa. Co. Ct. R. 597,) and must be reduced to $400. We direct that the accountant pay two-thirds of the costs of both audits, amounting in the whole to $288.03+$32.18

$320.21, as reported by the auditor, and the other one-third be deducted from the fund. "The distribution account will be as follows:

Balance upon the face of the account

Surcharge of note, $245, and interest, $79.62

$3,715 87

Surcharge of note, $1,813.32, and

interest, $228.16

324 62 2,041 48 87 48 50 00 $6,219 45

Cr. by $909.93, and interest, $114.50 1,024 43

-Of which we decree $1,688.06, or one-third part thereof, to Aaron J. Hoffer; $1,688.06 to Mary Ann Earnest; $1,688.06 to James G. Fox, guardian of Mary and Flora Thomas, one-half to be in trust for each of said wards respectively."

John E. Fox and Casper S. Bigler, for appellants. Weiss & Gilbert and Robert Snodgrass, for appellee.

PER CURIAM. All that can be profitably said on the question presented by the specifications of error will be found in the opinion of the learned judge of the orphans' court. We find nothing in the record that calls for either reversal or modification of the decree, and it is affirmed on the opinion of the court below. Decree affirmed, and appeal dismissed, with costs to be paid by appellants.

COMMONWEALTH v. THACKRA
MANUF'G CO.

(Supreme Court of Pennsylvania. July 19, 1893.)

TAXATION-EXEMPTION MANUFACTURING CORPORATIONS EMPLOYMENT OF CAPITAL IN OTHER BUSINESS.

Act 1889, (P. L. 431,) § 21, exempts from taxation the capital stock of corporations "organized exclusively" for manufacturing pur

poses, and which are actually "carrying on manufacturing within the state." Held, that a corporation chartered for the purpose of "manu facturing, buying, selling, and dealing in" certain commodities, and actually engaged in buying and selling as well as manufacturing, is not wholly exempt, but the amount of capital employed otherwise than in manufacturing is taxable, as that part of the charter which provides for "buying, selling, and dealing" is not authorized by any statute.

Appeal from court of common pleas, Dauphin county; John B. McPherson, Judge.

Proceedings by the commonwealth of Pennsylvania against the Thackra Manufacturing Company for the purpose of assessing for taxation the capital stock of defendant. Defendant claims to be within the exemption of Act June 1, 1889, (P L. 431,) § 21, which provides "that the provisions of this section shall not apply to the taxation of the capital stock of corporations, limited partnerships, and joint-stock associations, organized exclusively for manufacturing purposes, and actually carrying on manufacturing within the state, except companies engaged in the brewing or distilling of spirituous and malt liquors, and such as enjoy and exercise the right of eminent domain." From the judgment rendered, plaintiff appeals. Affirmed.

Following is the opinion filed in the court below by McPherson, J.:

"This case was tried without a jury under the provisions of the act of 1874. We find the facts to be as follows:

"(1) The defendant is a corporation of this commonwealth chartered in July, 1887, under the general corporation act of 1874, for the purpose of 'manufacturing, buying, selling, and dealing in lamps, gas, and electric fixtures and art metal work.' P. L. 1889, p. a16. Its capital stock is $200,000.

"(2) During the tax year ending the first Monday of November, 1890, it declared no dividend, and its capital stock was accordingly appraised at $200,000, upon which the tax of three mills now in question was laid under the twenty-first section of the revenue act of 1889.

"(3) During the said tax year all of defendant's capital stock, except the sum of $7,000, was employed in the business of manufacturing lamps, gas, and electric fixtures and art metal work in the city of Philadelphia; and the said sum of $7,000 was invested in similar articles bought from others in order to be sold by the defendant. "(4) It is not engaged in the brewing or distilling of spirits or malt liquors, ard does not enjoy and exercise the right of eminent domain."

"Conclusions of Law.

"The defendant's charter contains two distinct powers, namely, to manufacture, and also to buy, sell, and deal as a merchant. These are not incident to each other, or so necessarily connected that the grant of one carries with it a grant of the

other. The power to manufacture, of course, implies a power to sell the article thus produced; but the power both to buy and to sell-to buy goods in order to sell them afterwards, and to do this habitually and as a business, thus becoming a merchant or dealer-is not a necessary incident to the business of manufacturing. Manufacturers constitute a separate class from merchants or dealers, (Com. v. Campbell, 33 Pa. St. 385; Com. v. Gas Co., 2 Lanc. Law Rev. 41,) and, although the two characters may be united in one person, they do not merge. If the defendant, therefore, is legally authorized by its charter to be both a manufacturer and a merchant, it cannot be said to be 'organized exclusively for manufacturing purposes,' (Com. v. Wm. Mann Co., 150 Pa. St. 64, 24 Atl. Rep. 601; Com. v. Westinghouse Electric & Manuf'g Co., 151 Pa. St. 265, 24 Atl. Rep. 1107, 1111,) and must be held to be taxable on the basis adopted by the accounting officers.

"Fortunately for the defendant, however, the mercantile clause in its charter gives it no lawful authority, and, being simply void, must be treated as if it did not exist. No act of assembly authorizes the incorporation of merchants or dealers, and therefore the apparent grant of power to carry on the business of dealing or of buying and selling is apparent only, and not real. It needs no argument or citation of authority to support the proposition that a valid corporate power thus to carry on the business can only be given by virtue of a statute. It follows of necessity that the mercantile words drop out of the charter, and the defendant is left with the single power to manufacture. The case is thus on all fours with Com. v. Wm. Mann Co., and as in that instance, so here, the defendant is taxable only on so much of its capital stock as was invested in its mercantile business.

"Our conclusions are:

"1. The defendant is a corporation organized exclusively for manufacturing purposes, and actually carrying on manufac turing within the state.

"2. It is taxable upon the $7,000 of capital stock invested as described in paragraph 3. "The commonwealth is entitled to recover as follows: Principal, $21.00; interest at 12 per cent. from November 10, 1891, to February 6, 1893, $3.13; attorney general's commission, $1.05; total, $25.18,-for which amount we direct judgment to be entered if exceptions are not filed according to law."

W. U. Hensel, Atty. Gen., and Jas. A. Stranahan, Dep. Atty. Gen.. for the Commonwealth. Lyman D. Gilbert, John H. Weiss, Silas W. Pettit, and John R. Read, for appellee.

PER CURIAM. All that can be profitably said on the controlling question in this

case will be found in the opinion of the learned trial judge. We affirm the judg ment on that opinion.

COMMONWEALTH ex rel. ATTORNEY GENERAL v. ORDER OF VESTA. Appeal of KENNEDY.

(Supreme Court of Pennsylvania. July 19, 1893.)

RECEIVERS-APPOINTMENT-DISSOLUTION OF COR

PORATIONS.

1. Under Act April 4, 1872, (P. L. p. 46,) on judgment of ouster against a corporation, the supreme court, or a judge thereof alone, has power to appoint a receiver therefor, and a court of common pleas is without jurisdiction therein.

2. Act April 26, 1893, providing that a court which has rendered judgment of ouster may appoint a receiver for a corporation previously dissolved, "the affairs of which have not been settled and adjusted," does not authorize the appointment of a receiver when the corporation has made an assignment before the proIceedings in quo warranto had begun, and the assignee has entered on his duties under direction of a court of competent jurisdiction.

Appeal from court of common pleas, Dauphin county; J. W. Simonton, Judge.

Complaint having been made that the Order of Vesta was illegally organized, the order made a general assignment to Charles Kennedy, who gave bonds, and entered on his duties. The assignment was recorded in Philadelphia, under direction of the common pleas No. 4, of Philadelphia. On relation of the attorney general a judgment of ouster was entered against the Order of Vesta, and on petition of the attorney general in the court of common pleas, Dauphin county, the Commonwealth Guarantee, Trust & Safe-Deposit Company of Harrisburg was appointed receiver, and the assignee was ordered to turn over all assets in his possession to the receiver. From this order he appeals. Reversed.

The following is the act of April 26, 1893, providing for the appointment of a receiver in cases where corporations have been dissolved by judgment of ouster upon proceedings of quo warranto: "Section 1. Be it enacted by the senate and house of representatives of the commonwealth of Pennsylvania in general assembly met, and it is hereby enacted by the authority of the same, that whenever any corporation incorporated under the laws of this commonwealth shall be dissolved by judgment of ouster upon proceedings by quo warranto in any court of competent jurisdiction, the said court, or in vacation any one of the law judges thereof, shall have power to appoint a receiver, who shall have all the powers of a receiver appointed by a court of chancery to take possession of all the estate, both real and personal, thereof, and make distribution of the assets among the persons entitled to receive the same according to law. The

powers of such receiver may continue as long as the court deems necessary for said purposes, and he shall be held to supersede an assignee of the corporation in possession. Sec. 2. The provisions of this act shall also apply to any corporation that has been heretofore dissolved by judgment of ouster upon proceedings of quo warranto in any court of competent jurisdiction, the affairs of which have not been settled and adjusted."

J. Howard Gendell and John G. Johnson, for appellant. W. U. Hensel, Atty. Gen., Jas. A. Stranahan, Dep. Atty. Gen., John Hampton Barnes, and M. E. Olmsted, for the Commonwealth.

MITCHELL, J. A receiver is not a common-law officer, and his functions have no relation to the title to the exercise of a franchise, which is the sole question raised upon the quo warranto. No authority existed, therefore, for the appointment, in the present case, unless it can be found in express statutory provision. This is claimed, first, by virtue of the act of April 4, 1872, (P. L. p. 46.) By the first section of that act, whenever a corporation is dissolved by judgment of ouster on quo warranto, in any court of competent jurisdiction, the property and assets pass to the officers of the corporation, as trustees for the stockholders and creditors. By section 2 the supreme court, or any judge thereof sitting at nisi prius, may, upon petition of any stockholder or creditor, appoint a receiver, who shall have all the powers of a receiver appointed by a court of chancery, to take possession and make distribution of the assets. Two things are entirely clear upon the face of this act: First, that the regular and ordinary course of administration of the assets is by the officers of the corporation, as trustees; and, secondly, that the power to supersede this mode, by the special appointment of a receiver, is in the supreme court, without regard to the court which rendered the judgment of ouster. Whether this power is an exercise of original jurisdiction, which, as held by the court below, was taken away from the supreme court by the present constitution, or whether, as argued by the appellant, (citing Schlecht's Appeal, 60 Pa. St. 172,) the appointment of a receiver, and conferring on him the necessary powers, is so far in the nature of an injunction as to be within the excepted cases in section 3, art. 5, where a corporation is party defendant, we need not consider, for in neither case did the power devolve upon the court of Dauphin county. Under the act of 1872 the appointment of a receiver is no part of the proceedings in the quo warranto. It is not to be in the same court, nor by the same parties, but in the supreme court, upon petition of a stockholder or creditor. The petition is substantially a bill in equity, and if it is original jurisdiction taken away from this court, then it devolved upon the court

of common pleas having jurisdiction of the persons of the officers or of the property of the corporation. The court of Dauphin county had neither. None of the property was in that county, nor were any of the officers either resident or even served with process there. The court, therefore, had no jurisdiction over the defendant's trustees, or to make any order divesting the title of appellant. Its jurisdiction in regard to the parties plaintiff was equally defective. The act gives the court authority to proceed upon petition of a stockholder or creditor. The commonwealth, upon whose motion the receiver was appointed, was neither. It had obtained the judgment for which it had asked in the quo warranto, and its interest ended with the end of that proceeding. It is true that two letters were filed from parties claiming to be members of the Order of Vesta, which the court appears to have treated as petitions. But they had none of the necessary attributes for such purpose. They were mere informal letters, from illiterate persons, who clearly had no idea that they were making themselves parties plaintiff to a litigation, nor any such intent. The letters were not sworn to, and contained no averments of fact upon which the court could properly act, even if they had been set out in due form. Their entire insufficiency for any purpose is manifest upon consideration of the result of a contrary judgment. Had the court decided that no sufficient case was made for appointment of a receiver, and dismissed these letters, with costs against the writers, such a decree would not have borne a moment's examination. It would seem as if the learned court below, impressed with the fact that the corporation defendant was claiming and exercising an unlawful and dangerous power, had sought a remedy, though at the expense of some stretch of its jurisdiction. Even for so laudable a purpose, however, this is not a safe mode of administering the law. The attempt to sustain the appointment of a receiver under the laws relating to the insurance department is not made by the learned court in its opinion, and does not require discussion. At the time of such appointment the court had no jurisdiction, in any form, to make it.

Subsequently to the appointment the learn ed attorney general, seeing the untenable ground upon which it rested, prepared, and the legislature, at his request, as is frankly admitted in this paper book, passed, the act of 26th April, 1893, and on motion the court reappointed the same receiver. The passage of a general statute to effect a particular case-however desirable the remedy may be, and however proper the motives of its promoters-is nevertheless a delicate and dangerous kind of legislation. The attention of the draughtsman being concentrated on the requirements of the special case, the proper safeguards of general legislation are

necessarily in some danger of being overlooked. The objections made to the pres

ent act show that it has not been able to escape criticism in this particular. Whether an act requiring a court to enlarge and continue, for a new purpose, a suit which has ended, is not an invasion of the judicial power; whether, for such new purposes, new parties can be brought in, and their rights determined in a summary way, by a tribunal not having original jurisdiction over them or their property; and whether any court can be so far invested with a special jurisdiction as to authorize it to take parties or property out of the control of another court, of co-ordinate powers,-are grave constitutional questions, which we are not obliged to consider now. The application of the act to the present case depends on the second section, which extends its provisions to corporations previously dissolved, but "the affairs of which have not been settled and adjusted." These words should receive a reasonable construction, in accordance with the intent of the act, and the principles of law. The general purpose of the statute is to provide for the administration of the assets of a corporation dissolved by judgment of ouster, without the necessity of a separate proceeding, as required by the act of 1872. The first section is not retroactive, and the second is only intended to make it so to the extent of providing for cases otherwise without remedy, except the doubtful one under the act of 1872. It does not, in terms, cover cases already in other courts, and an intent to do so will not be presumed. Few evils can befall any judicial system, greater than conflicts of jurisdiction among its courts. The law-abiding sense of our people-the greatest safeguard of our institutions-rests upon their just confidence that the decisions of their courts are right, and that for occasional and accidental errors there is due, orderly, and legal remedy. A conflict between courts as to jurisdiction over persons and property strikes at the root of such public confidence, besides subjecting the individual suitor to the serious danger of disobedience of conflicting orders. From the scandals of such conflicts our system has been happily free, but the experience of some of our neighboring states warns us to watch closely for the first signs of danger. The purpose of the second section, as already said, was to provide a remedy where none already existed, and in accordance with this purpose it was not made applicable to cases where the affairs of the corporation have been settled and adjusted. The legislative intent was, clearly, to prevent the reopening of cases once settled, and the avoidance of possible conflicts of adjudication in the same matters. This object equally requires the exclusion from the operation of the act of cases already in course of ad

judication by a competent court. The same evils would arise from including them; the same legislative purpose requires them to be excluded; and the reasonable construction of the words, "the affairs of which have not been settled and adjusted," is that they apply to, and include, cases in course of settlement by a court of competent jurisdiction. This construction avoids all possibility of conflict, and secures the regular and orderly administration of justice in accordance with the general intent of the statute.

It

In the present case the assignment to the appellant was made and recorded, the court of common pleas No. 4 of Philadelphia had appointed and approved surety, and the appellant had given bond, and entered on the performance of his duties, all before the commencement of the proceedings upon the quo warranto. There was nothing which the receiver, or the court appointing him, could do, which could not be equally well done, if not done already, by the assignee, and the court having control over him. was clearly a case to which the act of 1893 was not meant to apply. Though this ca is not within the statute, yet the proceedings involved in appeal No. 36 make it proper to say that even in future cases, to which the act will apply, the direction that the receiver "shall be held to supersede an assignee of the corporation in possession" will not authorize the court appointing the receiver to make summary orders upon an assignee who is under the jurisdiction of another court. Rights have been acquired, and obligations assumed, by the assignee, the surety, and the creditors, in accordance with law, and the parties are entitled to have them settled in the tribunal under whose jurisdiction they attached. The receiver must go into that court for an account and order to turn over the property by the assignee.

It was intimated at the argument that there was a misunderstanding, if not a breach of agreement, by the officers of the corporation, as to the making of the assignment, and the appointment of counsel to direct its management. With that we have nothing to do. If there are any grounds to vacate the assignment, or remove the assignee, they must be presented to the court which has obtained jurisdiction over both. The assignee is entitled to select his own counsel, and, if other parties are not satisfied that their interests are being properly cared for, they must employ their own counsel, as in other cases. The court will see that the assignee does his duty, according to law, and, as the responsibility is upon him, he is entitled to his own adviser, in whom he has confidence. The decree of February 23, 1893, appointing a receiver, and all subsequent orders, are reversed and vacated, for want of jurisdiction.

OVERSEERS OF WALKER TP. v. DIRECTORS OF THE POOR AND HOUSE OF EMPLOYMENT OF PERRY COUNTY.

(Supreme Court of Pennsylvania. July 19, 1893.)

REMOVAL OF PAUPERS-APPEAL-TIME OF TAKING. Where an order for the removal of paupers is made on the overseers of a district on January 29, 1892, and the next court of quarter sessions commences on February 1, 1892, an appeal to the April sessions is too late, under Act June 13, 1836, § 19, requiring an appeal to the next court of quarter sessions after the order is made.

Appeal from court of quarter sessions, Juniata county.

Appea! by the directors of the poor and house of employment of the county of Perry from an order removing a pauper to the Perry county poorhouse from the poor district of Walker township, Juniata county, and petition of Walker township poor district to strike off appeal. Upon decree striking off appeal in court below, appeal by the directors of the poor and house of employment of the county of Perry to this court. Affirmed.

The following is the opinion of the court below:

"On December 23, A. D. 1891, on the complaint and application of the overseers of the poor of Walker Twp., Juniata Co., Pa., to C. B. Horning and Adam H. Weidman, two justices of the peace of Juniata county, an order of removal was granted, removing one Martin Miller, a pauper, from the said poor district of Walker township, to the county of Perry, which was adjudged by the said justices to be the last place of legal settlement of the said Martin Miller. On or about the 20th day of January, A. D. 1892, David Diven, one of the overseers of the poor of Walker Twp., served this order of removal on John R. Boden, the steward of the Perry county almshouse, by giving to him the original order of removal, and informing him of the contents thereof. Mr. Boden asked Mr. Diven to take the order of removal along, and give it to John Freeland, one of the directors of the poor and house of employment of Perry county. Mr. Diven then requested Mr. Boden to send the order of removal by mail to said John Freeland, and, as the testimony shows, he agreed to do so. Mr. Boden testifies: 'I sent the order to Mr. Freeland. I sent the order by mail. That would be either Thursday or Friday.' John Freeland testifies on cross-examination: 'I cannot remember when I received the order from Mr. Boden. At that time we only received mail from the poorhouse once a day. I get my mail at Newport. Sometimes I get my mail regularly, and sometimes I do not. Generally, I got it regularly. I was rational all the time I was sick. I do not remember just when I took sick. Do not know how long I kept the order before v.27 A.no.1-2

I took it to our attorney. Our January meeting in 1892 occurred on the 29th day of that month. I was present at that meeting of the board. In the presence of the whole board and steward, I said to the steward that I had not seen our attorney yet in regard to the Martin Miller case. I then said: "What does it mean? Did they bring the boy?" The steward replied that they had not brought him. Mr. Boden told me the reason why they had not brought the pauper Martin Miller was because they could not catch or get him.' On redirect examination he testified: 'Martin Miller was never, to the best of my knowledge, delivered at the poorhouse under the one commitment.' The 20th day of January, 1892, was Wednesday, and Mr. Freeland, in all probability, received the order of removal not later than January 23, 1892, as he tes tifies there was a daily mail between Loysville and Newport. At all events, his own testimony clearly establishes the fact that he had received the order of removal prior to the 29th of January, 1892. The next quarter sessions of Juniata county commenced on Monday, February 1, A. D. 1892, and did not adjourn until at least the 4th day of February. A. D. 1892. The succeeding term of the · court of quarter sessions commenced April 25, 1892. During that term, on the 29th day of April, 1892, the directors of the poor and house of employment of Perry county filed an appeal from said order of removal. On the same day the overseers of Walker Twp. obtained a rule to show cause why this appeal should not be dismissed because not taken to the next court of quarter sessions.

"That an appeal is too late unless taken to the next court of quarter sessions is well settled. Sugar Creek Overseers v. Washington Overseers, 62 Pa. St. 479; Directors of Westmoreland Co. v. Overseers of Conemaugh Tp., 34 Pa. St. 231; Bradford Tp. v. Keating Tp., 27 Pa. St. 275; Cherry Tp. v. Marion Tp., 96 Pa. St. 528. In this case Martin Miller was not delivered at the Perry Co. poorhouse at the time when the order of removal was served, nor does it appear that he has ever been delivered there. It was argued that the act of June 13, 1836, contemplates an actual, physical removal, and not a constructive one, where possible. The 16th section of said act provides for the removal of two classes,-one where the person has become chargeable to the district complaining and applying for the order of removal; and the other where the person sought to be removed is likely to become chargeable to such district. In either case either the poor district to which the person is removed, or the person removed, may appeal, if they think themselves aggrieved, to the next court of quarter sessions. As was said by Lowrie, J., in Bradford Tp. v. Keating Tp., 27 Pa. St. 277: "The office of the order is twofold: First, like that provided for in the sixth section of the poor law, it re