the reason that the tax is assessed upon the total gross receipts within the state of Pennsylvania, without regard to the fact, contained in the reports of the company, of payment of a portion of said receipts to various railroad companies for transportation of the business upon which such gross receipts were collected, contrary to the provisions in section 7 of the act of June 7, 1879, and section 23 of the act of June 1, 1889, providing for the adjustment of tax in such cases between the corporations. (2) The said settlement is further erroneous, for the reason that double taxes are received by the commonwealth upon that portion of the said gross receipts paid out for transportation, as set out in the first ground of objection. A third specification was filed, which, however, does not apply to the facts of this case, or the period included in the settlement appealed from. The only questions, therefore, which can be considered in this case, are those raised by the two specifications above quoted. Delaware, L. & W. R. Co. v. Com., 66 Pa. St. 64. The provisos in section 7, Act June 7, 1879, (P. L. 117,) and section 23, Act June 1, 1889, (P. L. 431,) which are made the ground of the first specification of appeal, are identical, and are as follows: 'Provided, that in any case where the works of one corporation, company, joint stock association, or limited partnership are leased to and operated by another corporation, company, association, or limited partnership, the taxes imposed by this section shall be apportioned between the said corporations, companies, associations, or limited partnerships, in accordance with the terms of their respective leases or agreements; but for the payment of said taxes the commonwealth shall first look to the corporation, company, association, or limited partnership operating the works; and upon payment by the said company, corporation, association, or limited partnership of a tax upon the receipts, as herein provided, derived from the operation thereof, the corporation, company, joint stock association, or limited partnership, from which the said works are leased, shall not be held liable under this section for any tax upon the proportion of said receipts received by it as rental for the use of said works.' The sections of these acts in which this proviso is found enact 'that * every express company * incorporated or unincorporated, doing business in this commonwealth shall pay to the state treasurer a tax of eight mills upon the dollar upon the gross receipts of said company received from express business done wholly within this state.' The provisos are expressly limited to any case where the works of one corporation, company, joint stock company, or limited partnership are leased to and operated by another corporation, company, association, or limited partnership,' and the exemption from taxation is

strictly limited to 'any tax upon the proportion of said receipts received by it as rental for the use of said works.' The defendant is not a corporation or company from which any works are leased, and none of its receipts taxed in the settlement appealed from have been received by it as rental for the use of its works; and it is therefore manifest that these provisos do not exempt any part of its gross receipts from taxation, and the first specification of objection, cannot therefore be sustained.

"It is further claimed in the second specification that the taxation of all defendant's gross receipts, not deducting an amount equal to the sum paid by it for express transportation, will result in illegal double taxation. The subject of double taxation has recently been considered by each of the members of this court in opinions which will be found in a note to Com. v. Westinghouse Air Brake Co., 151 Pa. St. 281, 24 Atl. Rep. 1111, 1113, and it is not necessary to repeat what is there said. It is shown by the authorities there cited that the double taxation forbidden by the constitution requiring equality or uniformity of taxation is such as would require the same person or the same subject of taxation to contribute twice to the same burden, while other subjects of taxation belonging to the same class are required to contribute but once; and it was held in Com. v. Tioga R. Co., 145 Pa. St. 38, 22 Atl. Rep. 212, adopting the opinicn of this court, by Judge McPherson, that where a railroad company had paid tax on all its gross receipts, including the amount paid by it to the defendant in that case for the use of its railroad, all the gross receipts of defendant, not deducting the amount received by it from the former company, were taxable, and that this was not double taxation, because both taxes were not levied upon the same subject, nor to be paid by the same person. The receipts of one company were paid to it for transportation; the receipts of the other were paid to it for tolls and trackage. In this case the sums paid by defendant to the several railroad companies, and which formed part of the gross receipts of these con:panies, were paid for the services rendered by them in transporting express matter for defendant; all defendant's gross receipts were received for the services rendered by it to its customers in receiving express matter, and delivering it to the persons to whom it was consigned. In Express Co. v. Robinson, 72 Pa. St. 274, the court say that express companies receive a larger compensation, because they contract for a personal delivery of goods intrusted to them. It could not be seriously contended that if defendant had transported the express matter for which it paid freight to the railroad companies by its own servants, and in its own vehicles, it could have deducted the cost of so doing from its taxable gross receipts, or that it could have done

so if it had hired the vehicles for the transportation by the month or year. It did not receive any part of the sum paid to it by its customers as the agent of the railroad companies, but all of its gross receipts were for services rendered by it. We think the fact that the taxation here imposed does not come within the provisos referred to above tends strongly to show that the legislature intended the whole of defendant's gross receipts to be taxed. We must assume that the provisos express the full in tention of the legislature, and that, if it had intended any further limitation of the letter of the acts, it would have so said. The reason for the provisos as they stand can be readily seen. The company owning a railroad, which it has leased to another, is not with respect to such railroad engaged in business, and does not receive from its railroad any gross receipts, but only net income. We are clearly of the opinion that the tax charged in the settlement appealed from in this case is not in any proper sense of the term 'double taxation,' and that, therefore, the second specification cannot be sustained.

"Conclusions of Law.

"1. Defendant is not exempted from taxation on any part of its gross receipts, taxed in the settlement appealed from, under the facts of this case, by the provisos to section 7, Act June 7, 1879, and section 23, Act June 1, 1889.

"2. The taxation of all defendant's gross receipts under the facts of this case is not illegal double taxation.

"3. The settlement appealed from in this case is legal and valid."

J. H. Barnes, for appellant.

STERRETT, C. J. An examination of the record in this case has fully convinced us that there is nothing, either in the learned trial judge's findings of fact, or in the legal conclusions drawn therefrom, of which the defendant has any just reason to complain. The company's gross receipts from its express business transacted wholly within the state, during the period included in the settlement appealed from, appears to have aggregated $437,657.81. During the same period, considerable sums were paid by it to railroad companies for transporting its express matter. Some of said companies were paid a fixed sum per annum for all transportation services, others were paid a fixed rate per hundred pounds of express matter carried for defendant, and others were paid a sum equal to an agreed percentage of defendant's gross receipts from its express business done on their respective roads. All the railroad .companies that carried express goods for defendant, and were compensated for that service in one or other of the modes mentioned, have paid all the taxes which accrued in respect of their own individual gross earnings, includ

*

*

*

ing the amounts paid them, respectively, by defendant company. On these undisputed facts, the company defendant contends that it is taxable only on so much of its gross receipts as remains after deducting therefrom the amounts paid as aforesaid to other companies for transportation services. If the acts of June 7, 1879, and June 1, 1889, under which the tax in controversy is claimed, contemplated a tax on net receipts, this contention should prevail. But they do not. On the contrary, they expressly declare "that * every express company incorporated or unincorporated, doing business in this commonwealth shall pay to the state treasurer a tax of eight mills upon the dollar upon the gross receipts of said company received from express business done wholly within this state." The tax is thus laid, not upon net earnings or upon gross earnings, less the amount paid other companies for transportation services, but upon the entire gross receipts of the defendant's express business done wholly within this commonwealth. construed in Philadelphia & R. R. Co. v. Com., 104 Pa. St. 82, the term "gross receipts," has been construed as equivalent to "gross increase" or "gross earnings." The defendant might, with almost equal propriety, claim the right to deduct office expenses and cost of local delivery service. As has been clearly shown by the learned president of the common pleas, the provisos in section 7 of the act of June 7, 1879, and section 23 of the act of June 1, 1889, providing for adjustment of tax between corporations in certain cases, have no application to the facts of this case. Neither of defendant's agreements with other companies for transportation services brings it within the terms of said provisos. The court was also right in holding that, under the facts in this case, the taxation of the whole of said gross receipts is not illegal double taxation. We find nothing in either of the specifications of error that calls for reversal or modifica tion of the judgment. Judgment affirmed.

MCCOLLUM, J., not present.

Oct. 2.

As

In re MULLIGAN'S ESTATE. Appeal of CATTELL. (Supreme Court of Pennsylvania. 1893.) ASSIGNMENT FOR BENEFIT OF CREDITORS-COMMISSIONS AS EXECUTOR.

An assignment for benefit of creditors, of the goods, chattels, and property of the assignor, does not pass to the assignee a claim of the assignor against a decedent's estate for commissions as executor.

Appeal from orphans' court, Philadelphia county; Jos. C. Ferguson, Judge.

Accounting by James Mulligan, Jr., as ex ecutor of the will of James Mulligan. Henry S. Cattell, as assignee for benefit of creditors,

MCCOLLUM, J. The testator, after directing that his funeral expenses should be promptly paid, and that $1,000 should be expended for masses for the repose of his soul, bequeathed unto the St. John's Orphan Asylum, St. Vincent's Home, and the Catholic Home, Eighteenth and Race streets, each the sum of $500. To his wife, Elizabeth, he bequeathed one-third of the balance of his personal estate absolutely, and the net income of one-third of his real estate during her natural life. To his son, James, he bequeathed his entire business then "conducted and carried on" by him in the city of Philadelphia and in the state of New Jersey, and all his rights, title, and interests in any firm or business with which he was connected in said city or elsewhere, "under and subject, however, to the above devise" to his wife. He then devised and bequeathed the residue of his estate to his son, James, and his daughter. Rose, their heirs and assigns. "in equal parts, share and share alike," and appointed his son, James, sole executor of his will. We agree with the learned auditing judge that under this will the testator's daughter, Rose, is not entitled to share in the business bequeathed to her brother, James, or the proceeds arising from a sale by him of the testator's interests therein. We think, also, that the personal property not specifically bequeathed is primarily liable for the debts, and that, under the residuary clause of the will, James and Rose can only take what remains after such debts and the general legacies are paid, and their mother has received the share of the personal estate bequeathed to her. 2 Williams, Ex'rs, 1360; Nichols v. Postlethwaite, 2 Dall. 131; Tucker v. Hassenclever, 3 Yeates, 294; McGlaughlin v. McGlaughlin, 24 Pa. St. 20. It is agreed by all the parties interested that the amount of the personal estate, exclusive of the business interests specifically bequeathed to James, is but $8,607.58, and it appears that the sum of the debt and legacies chargeable against it is $9,094.58.

It is manifest,

therefore, that there is no balance for division under the residuary clause, and that live-sixths of the fund for distribution represents proceeds of the business interests bequeathed to James.

We agree with the learned orphans' court that the appellant, as assignee for the benefit of creditors, is not entitled to commissions on the estate administered by his assignor. It was decided in Adams' Appeal, 47 Pa. St. 91, that the commissions of an executor were not attachable in his own hands, or in the hands of his coexecutor, and the decision was placed distinctly upon the grounds that

the policy of the law and the interests of the estate demanded that such commissions should be exempt from attachment. In delivering the opinion of the court, Agnew, J., said: "It would be incalculably mischievous if the interests of estates and of legatees and distributees were to be retarded and inperiled by the attacks of creditors upon the accounts of the executors or adminis trators in order to reach the commissions. It would make the main interests of the estate subservient to collateral claims, and its effect would be to diminish the interests of the executors or administrators in making speedy and effcctual efforts to settle the estate by taking away their compensation." This commission is unlike a legacy or distributive share, which, by virtue of the act of July 27, 1842, (P. L. 436,) may be attached It is before any settlement of the estate. uot in any seuse an interest in the estate, and there is no fixed standard by which it can be measured. Whether it shall be allowed or refused is a question which usually arises on the claim of the executor or administrator on final settlement, and is affected by various circumstances and considerations not applicable to the claim of the heir or legatee. It is true, as contended by the appellant, that some things are assignable which are not attachable; as, for instance, a policy of life insurance, which, although payable to the legal representatives of the assured, may be assigned, but cannot be attached, during his life. Day v. Insurance Co., 111 Pa. St. 507, 4 Atl. Rep. 748. If, however, an assignment by a debtor of "all his goods, chattels, and property" for the benefit of his creditors includes a claim for commissions on the unsettled estate of a decedent, and enables the creditors, through their trustee, to intervene in the settlement of his accounts as executor, it would seem to be open to the objections which were deemed fatal to the proceedings in Adams' Appeal, supra. It is the intervention of the creditors of the executor for the purpose of appropriating compensation for his services that is objectionable, and, speaking for myself, against the policy of the law. It matters not to the estate or the parties in interest therein whether such intervention is founded upon an assignment for the benefit of creditors or upon an attachment. In either case it "makes the main interests of the estate subservient to collateral claims," and constitutes an obstruction to the due and orderly execution of the trust. But we do not rest our refusal to award to the appellant commissions on the estate of the decedent on the bare ground that a claim for them: is not assignable for the benefit of creditors. In this case there is nothing on the record which shows that the executor claimed, or intended to claim, commissions, or that they were earned before the assignment. He did not expressly include them in his assignment,

and he was not bound to claim them for himself or his creditors. The bulk of the estate administered was connected with, and applicable to, the debts of the business bequeathed to him. After deducting the general legacies from the fund for distribution, he is, under the will, entitled to two-thirds of the balance, and his mother is entitled to one-third of it. In the absence of evidence that he claimed commissions by including them in his assignment, or otherwise, and in presence of his refusal to claim them, it is reasonable to conclude that he did not at any time intend to appropriate one-third of her share as compensation for his services in the settlement of the estate. His action in this respect cannot, under the circumstances, be regarded as fraudulent or unjust. We hold, therefore, that the appellant did not, by the conveyance to him of the goods, chattels, and property of the executor, acquire a right to commissions on the estate of the decedent. In conformity with the foregoing views, the first specification of error is sustained, and the second specification is overruled. The order awarding to Rose F. Cooney $3,246.55 is reversed; $6,493.55, being two-thirds of the balance for distribution after deducting legacies, is awarded to Henry S. Cattell, assignee of James Mulligan, Jr.; and the decree of the orphans' court, so modified, is affirmed, at the costs of the appellee.

BRADBURY v. KINGSTON COAL CO. (Supreme Court of Pennsylvania. Oct. 2, 1893.)

MASTER AND SERVANT-DEFECTIVE MACHINERY.

In an action for injuries causing the death of an employe, it appeared that, while defendant's engineer was lowering into the mine a cage containing decedent and other workmen, a cotter pin broke, whereby the engineer lost control of the throttle. He then undertook to stop the engine by means of the reverse lever, but he accidentally pulled the lever too far, and reversed the engine, instead of stopping it. Deceased attempted to jump on a landing as the cage moved past it, and was killed. The other men remained in the cage, and were not injured. The cotter pin was of the kind in general use, and had been duly inspected, but no defect was discovered, though it had been in use for seven years. similar pin on the same engine was without defect at the time of the trial, after 11 years' use. Held, that the accident was not caused by defective machinery. Sterrett, C. J., dissenting.

A

Appeal from court of common pleas, LuJerne county; C. E. Rice, Judge.

Action by Rowena Bradbury against the Kingston Coal Company for alleged negligence causing the death of William Bradbury, plaintiff's husband. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

H. W. Palmer, for appellant. Edward A. Lynch and William H. Hines, for appellee.

GREEN, J. The plaintiff's husband lost his life by falling down the vertical shaft of a coal mine operated by the defendant. The manner and occasion of his fall were thus: He and two others, all of them workmen in the employ of the defendant, stepped upon the cage used for the purpose of lowering the men to the mine. When they had descended a few feet, the engineer at the mouth of the shaft, discovering that he had lost control of the throttle valve, undertook to stop, and did stop, the further descent of the cage. In order to do this he pulled the reverse lever for the purpose of shutting off the steam, so that the large drum which held the descending rope attached to the cage would stop. To do this successfully he should only have pulled the reversing lever to the center notch in the ratchet. and at that point the steam would have been shut off which caused the drum to revolve, and thereupon it would stop running; but unfortunately he pulled the lever, without intending to do so, a little past the center notch, and this opened the way for the steam to enter the opposite end of the steam chest, and the effect of that was to produce a reverse motion of the drum, which started the cage upwards. The engineer, who was examined for the plaintiff, thus describes the occurrence: "Question. What did you notice after you lowered them five or ten feet? Answer. I noticed I had no control of the throttle valve. Q. Felt it getting loose, and that you had no control of it? A. No control of it. Q. What did the engine do, was there a reversal or not? A. I used my reverse lever in place of the throttle valve. I could shut the steam off with the reverse lever, and that would stop the steam from going onto the piston.

*

Q. You got hold of the reverse lever, did you? A. I had hold of the reverse lever at the same time. Q. At the same time that you noticed something wrong with the throt tle valve? A. Yes, sir. Q. Did you reverse the lever? A. I pulled the reverse lever back to the center notch. Q. What effect did that have on the action of the machinery and car? A. Providing I could have put it Q. What was done there? A. By pulling the lever to the center I pulled it over the center, and gave it the other way, and that projected the cage upwards. Q. In reversing the engine, turning that reverse lever over, if you had got it in the notch, the cariage would not have started up at all? A. No, sir. Q. But, because you pulled it by the notch, that sent it up? A. Yes, sir. Q. That was accidental? Yes, sir; accidental. My intention was to get it into the notch to shut the steam off the engine. Q. And pulling it by the center, so it let the steam in the other end, was accidental? A. Yes, sir. Q. You didn't mean to do that? A. No, sir. * 串 Q. You shoved the reversing lever a little past the center? A. I pulled it over the

A.