by the Allegheny Valley Railway Company as October 17, 1898. DEAN, J. The borough of insufficient, who also excepted because although Verona was incorporated by special Act of the the viewers were appointed under the Act of Legislature May 10, 1871; by this Act the legisMay 16, 1891, P. L. 75, the proceedings were not lation regulating the municipal affairs of Birinaugurated in conformity with the provisions of mingham borough, of the same county, was exthis Act, and also that this Act is not applicable tended to Verona. One of the Acts which thus to the opening of streets in the borough of Verona, the exclusive jurisdiction being conferred on the Quarter Sessions by the Act of April 8, 1848. became the law for the new borough, is that of April 8, 1848, the first section of which provides that when the borough authorities consider it necessary for the accommodation of the public The Court dismissed the exceptions on the that a new street shall be opened they shall have ground that the ordinance being adopted under power to open the same, determine its location, the Acts of April 8, 1848, and April 21, 1873, the plan and limits; that a plan thereof shall be deCourt of Common Pleas had jurisdiction under posited in the office of the recording regulator the Act of May 16, 1891. of said borough for public examination and in The railway company took this appeal, assign-spection, notice thereof to be given in two newsing as error the dismissal of its exceptions. papers published in Allegheny county, to all in W. R. Blair, (with him W. Scott and G. B. terested; that any person suffering damage may Gordon), for appellant. apply to the next Court of Quarter Sessions of the county for appointment of viewers and the same proceedings shall be had as under the gen It has been held by this Court in two cases that the power of the borough of Verona is to be found in the Act of 1848 and in the Act sup-eral road laws of the Commonwealth; and the plemental thereto of April 21, 1873. Verona v. Railroad Co., 152 Pa. 368. The Act of 1873 is merely supplementary to and does not repeal the provisions of the Act of 1848. borough council as soon as they have caused payment of the damages to be made may cause the street to be forthwith opened; providing further that if damages so assessed be not paid within one year, then the proceedings shall be null and Appeal of the Borough of Verona, 108 Pa. 83. void. By special Act of April 21, 1873, the borThe proceedings under the Acts of 1848 and ough authorities of Verona were authorized to 1873 are so different from the Act of 1891 and the open any street included in the general plan of ordinance opening the street being conditioned the borough, fixed by ordinance of September upon the performance of certain conditions pre-11, 1872, providing, however, that no such action cedent, and not an absolute taking of the proper- should impair the right of any person who had ty, there was no opening of the street as contem- applied for damages because of the adoption of plated by the Act of May 16, 1891, and no jurisdiction in the matter in the Common Pleas under that Act. West Chester Alley, 160 Pa. 89. J. P. Hunter, for appellee. The municipality, having elected to enact its ordinance opening the street under the Act of 1873, it need not continue the proceedings under the provisions of that Act and the Act of 1848, but may proceed under the Act of 1891. the plan; and that in all cases where damages had been assessed under the general or any other plan, the same should be paid by the borough within one year, and in default thereof the street should be vacated. The property owner alone could petition for the assessment of damages, and if all the requirements of the Act were strictly complied with by the borough, he was bound to move at the next Court of Quarter Sessions. Hanover Borough's Appeal, 150 Pa. 202. The general plan thus enacted into an express Seaman v. Washington Borough, 172 Id. 474. law, had plotted on it, Railroad avenue, a street Beltzhoover v. Beltzhoover, 173 Id. 213. located in large part on the right of way of the The borough could not make application for Allegheny Valley Railway Company; it extended appointment of viewers under the Act of 1848, from James street to Plum Creek, a distance of for the Act only provides for the assessment of 2400 feet. On October 24, 1894, the borough damages on the application of property owners, adopted an ordinance opening this street, accordbut the ordinance itself having provided "that ing to its location on the general plan, and prothe said portion of the said Railroad avenue shall vided for notice of the ordinance by publication be opened according to the location and specifi- in the newspapers, as required by the special Act; cations, etc.," it was clearly an act of appropria- the ordinance further directed that the street tion by the municipality which made the proceed- should be actually opened to travel, as soon as ings to properly be taken under the Act of May damages sustained by owners of land were paid 16, 1891. to them. The borough then presented its peti tion to the Court of Common Pleas of Allegheny propriation of the land to public use and opening, County, setting out, that under and by virtue of must under the special Acts be taken first; this is the ordinance, the street had been opened, that to be immediately followed by assessment of private property had been taken and injured and damages, then payment, and then opening. Unpraying for the appointment of three freeholders der the Act of 1891 security for payment of damas viewers to assess and report the damages, as ages can be given, and then entry be made beprovided by the Act of 16th of May, 1891. The fore assessment and payment. The Court of viewers were appointed and found that the bor- Quarter Sessions has jurisdiction under the speough had taken three acres of the railway com- cial Acts; the Court of Common Pleas under the pany's land, its pump house and frame passenger Act of 1891. The cases cited by counsel for apstation and assessed the damages at $6900. Other pellee: Hanover's Appeal, 150 Pa. 202, and Beltzdamages claimed by the company, such as tracks, hoover v. Beltzhoover, 173 Pa. 213, do not rule freight warehouse and platform, were refused be- this case, for no question of the exercise of cause these improvements had been constructed power under a special Act, was present in those after notice to the company of proceedings for cases; the Borough of Verona has never come opening the street. Exceptions were filed by under the operation of the general borough Act; both parties to the assessment, which the Court it still owes its being to the special Acts. And overruled and confirmed the report. The rail- while conceding that the Act of 1891 is a general road company brings this appeal, alleging that Act, conferring culmulative powers on all munithe proceedings were partly under the general cipalities, and repealing neither general nor speAct of 1891, while they should have been wholly cial prior Acts, yet it by no means follows, that under the special Acts of 1848 and 1873, and con- a municipality can select such provisions of the sequently the Common Pleas had no jurisdiction. two Acts as suit its interest or convenience and That the special Acts relating to this borough tack them together in one proceeding, in one provided special proceedings for opening streets Court, to determine what damage it has caused which are different from and repugnant to the a property owner. The argument that the remgeneral Act cannot be doubted. We have de- edy provided by the Act of 1891 is more concided in two cases: Borough of Verona's Appeal, venient than that of the special Acts, as by the 108 Pa. 83, decided in 1884, and Verona Borough former all the damages along the line of the prov. Railroad, 152 Pa. 368, decided in 1893, that the posed street can be assessed at one view, and municipal powers of this borough are conferred by by the latter, only those of the petitioning propthe special Acts of 1848 and 1873. In fact the min-erty owner, is a forcible reason for adopting that utes of the council show, that in this proceeding remedy, but not a good one for adopting parts it relied on no other power, for in the ordinance of both remedies. We are of opinion that while of October 24, 1894, it resolves to open the street there is no repugnancy in the object of the legisaccording to the plan of September 11, 1872, lation, each aiming to secure damages for the which had become by legislative enactment of property owner, and promote public improve1873 the borough plan; the mere perusal of the ments, by a proceeding for that purpose, neverAct shows it was only a supplement to that of theless there is such a repugnancy in the modes 1848. As we decided in the appeal of the borough, of proceeding as will warrant no attempt at mix108 Pa. 83, that the special legislation provided ing or blending them in one. The appellee or a special procedure in such cases, we are of opinion this procedure is so different from that provided in the Act of 1891 that the two cannot be blended. Under the special Acts the proceeding commences by councils fixing the location of the street, next the adoption of a plan, next the depositing of it in the regulator's office, next application by owner or person interested for assessment of damages by viewers appointed by the Court of Quarter Sessions, then the actual payment of the damages and lastly the opening of the street. The Act of 1891 provides that on petition of a majority of property owners for the street councils may at once proceed to open it to the public, then the damages are to be assessed The passage by a borough council of a resolution by viewers appointed by the Court of Common awarding a contract for street lighting, is not a legPleas. All the steps preliminary to the actual ap-islative, but a ministerial act in the nature of a the property owner must adopt wholly the one or the other, from beginning to final decree. The decree is reversed and the proceedings set aside at costs of appellee. Jan. '98, 25. Supreme Court. W. D. N. February 17, 1898. Seitzinger v. Borough of Tamaqua et al. Boroughs-Councils-Effect of election—Authorizing loan-Lighting--City of third class—Act May 23, 1889, P. L. 277. business transaction, relating to the management of fused the injunction and dismissed the bill, which the municipal affairs of the borough. was assigned as error upon appeal. A city of the third class incorporated under the Act of May 23, 1889, P. L. 277, has the right to enter into a contract for lighting its streets for a term of five years. J. O. Ulrich, (J. W. Ryon with him), for appel lant. After the election which increased the borough indebtedness for the purpose of establishing a McKeesport v. Railway Co., 2 Pa. Super. Ct. 242, borough electric light plant, councils had no distinguished. power to act otherwise than instructed by the vote of the inhabitants, and it was beyond their power to enter into a contract for electric lightpurposes. A borough council has the right to make a contract for the lighting of its streets by a company, notwithstanding a borough election has authorized ing a loan for the purpose of erecting a light plant. Supervisors v. U. S., 4 Wall. 435. Minor v. Mechanics Bank, 1 Peters, 46. Appeal of Jacob R. Seitzinger, plaintiff, from fendants. Millerstown v. Bell, 123 Pa. 151. Borough of Milford v. Milford Water Co., 124 Penna. Globe Gaslight Co. v. Scranton, 97 Id. 538, Larimer St. Ry. v. Larimer Ry. Co., 137 Id. 533. The bill alleged, inter alia, that the borough of Tamaqua had entered into a contract with the Edison Electric Illuminating Company for supplying electric light in the streets of the borough for five years from January 1, 1896, at $6000 a year; that there had not been any ordinance empowering the borough to make such a contract, nor was any resolution to such effect passed, transcribed in the ordinance book, presented to the burgess, advertised, or published according to law; that at an election held in February, its streets for a longer period than one year. 1895, the question of increasing the debt of the borough by $25,000 for the purpose of erecting a borough electric light plant of its own was sub L. C. & N. Co. v. Inter-County St. Ry. Co., 167 The borough cannot make a contract to light McKeesport City v. Pass. Ry. Co., 2 Pa. Super. A. W. Schalck, for the borough of Tamaqua, mitted to the electors and the measure received appellee, (with him H. B. Graeff, for the Edison a majority of votes, and that, after the electors Electric Illuminating Company). had decided that the borough should own its own plant, it became the duty of the councils to A resolution of borough council directing the opening of a street laid down in the general plan carry the decision into execution. The bill pray-of the town has the same force as an ordinance ed that the borough might be enjoined from en- for that purpose. tering into a contract with the company defend- Ake v. Mason, 101 Pa. 17. ant and a decree that no bills for indebtedness incurred by the operation of the resolution passed by councils should be approved or paid. ated. Councils may by a simple resolution approve and ratify even the unauthorized acts of its agents The separate answer of the borough of Tama- or committee, and bind the city to pay the debt, qua, defendant, admitted the facts as set forth in even though contracted in disregard of an ordithe plaintiff's bill, but denied the illegality or in-nance prescribing how such debts might be crevalidity of the contract, and set up that the contract was for the best interests of the borough; that the entering into it was not a matter of Boroughs being expressly authorized and relegislation and did not require the enactment of quired by the Act of 1851 to secure light and a formal ordinance, duly recorded and published, water for the use of their inhabitants necessarily in order to make it valid, and to authorize the have the implied power to contract with others borough authorities to enter into the contract, to supply the municipality with the same. and that it was deemed inexpedient to establish a lighting plant. A separate answer was also filed by the Edison Illuminating Company, of Tamaqua. Silsby Co. v. Allentown, 153 Pa. 319. Hummelstown Borough v. Brunner, 17 Pa. C. C. 140. Reuting v. Titusville, 175 Pa. 520. Where the charter commits the decision of a Upon hearing, the Court, SAVIDGE, P. J., re-matter to the council, and is silent as to the mode, the decision may be evidenced by a resolution, to duly advertise it. We have carefully examined and need not necessarily be by an ordinance. Dillon's Municipal Corps., sec. 307. and considered all the Pennsylvania cases cited by the appellant in support of his contention pertaining to the resolution and have failed to dis City of Crawfordsville v. Braden, 14 L. R. A. cover in them any warrant for it. It is a conten 273. Fisher v. South Williamsport, 1 Pa. Super. Ct. 386. Water Co. v. Waymart Borough, 4 Id. 211. The provision in Article IX., section 5, of the Act of May 23, 1889, P. L. 277, requiring the controller to certify upon a contract which involves an appropriation of money, the estimated amount of expenditure thereunder for the ensuing fiscal year, does not interfere with the right of the municipality to make a contract for lighting streets for a term of years. Black v. City of Chester, 175 Pa. 101. tion which overlooks the fact that the passing by a borough council of a resolution awarding a contract for lighting streets is not a legislative but a ministerial act "in the nature of a business transaction relating to the municipal affairs of Shaub v. Lancaster City, 156 Pa. 362; Straub v. the borough": Millvale Boro., 162 Pa. 374; City of Pittsburgh, 138 Pa. 356, and Howard v. Borough of Olyphant et al., 181 Pa. 191. In Black et al. v. Chester City et al., and in Metropolitan Electric Company v. City of Reading, 175 Pa. 101 and 107, the sole question raised was stated thus: "Has a city of the third class incorporated under or governed by the Act of May 23, 1889, P. L. 277, the right to enter into October 17, 1898. MCCOLLUM, J. On Sep- a contract for lighting its streets for a term of tember 2, 1895, the borough of Tamaqua con- five years?" The decision of the question detracted with the Edison Electric Illuminating pended upon the construction of the Act referred Company for the lighting of its streets for the to in it. We held that such cities may lawfully term of five years commencing on the first of make such a contract. As bearing on the quesJanuary, 1896. On the 27th of January, 1896, a tion whether prior to the Act of 1889 cities and bill in equity was filed by Jacob R. Seitzinger, boroughs, not expressly or by implication repraying, inter alia, that the borough be restrain- stricted to contracts for one year by the statutes ed by injunction from carrying out its contract under which they were incorporated or by other with the company. To this bill the borough statutes applicable to the government of them, promptly prepared and filed a complete answer. could lawfully enter into contracts for a term of The hearing on the rule for a preliminary injunction was on bill and answer and the rule was dismissed. The final hearing was also on bill and answer and resulted in the dismissal of the bill. years, we referred to City of Erie's Appeal, 91 Pa. 398, and Wade et al. v. Oakmont Borough et al., 165 Pa. 479. In each of the cases cited the contract in question was for a term of years and in each it was decided that "if the contracts of It is contended on the appeal from the decree municipal corporations do not overreach their dismissing the bill that it is not within the lawful current revenues no objections can be lawfully power of the borough to enter into a contract made to them." We may add, as showing the for lighting its streets for a period of more than trend or consensus of opinion on this subject, one year, and that even if it has such power the that in Metropolitan Electric Company v. City vote to increase its indebtedness for the purpose of Reading, supra, the learned counsel for the apof establishing an electric plant is a bar to the pellant presented a list of thirty-four cities and exercise of it. It is also claimed that if the above boroughs in Pennsylvania which had then entercontention is overruled there is still another ob-ed into contracts for lighting the streets for terms jection to the contract which is fatal to its valid-exceeding one year, which list appears in 175 Pa. ity. The objection is that the contract was not on page 109. preceded by an ordinance, or by a resolution Our attention has been called to the decision in transcribed in the ordinance book and duly ad- McKeesport City v. Railway Co., 2 Pa. Superior vertised. It is admitted, however, that the con- Courts, 242, as affording support to the appellant's tract was preceded by a resolution which was contention in this case. We do not so interpret "duly approved and signed by the chief burgess it. The suit was brought to recover license fees of the borough" and that it was entered into in or taxes on street railway poles. It was based on pursuance of and in accordance with said resolu- an ordinance enacted by the select and common tion. The sufficiency of the resolution thus ap- councils of the city on the 8th of August, 1892, proved is not questioned by the appellant and and approved by the mayor on the fourth day his only ground of attack upon it is the alleged thereafter. Under and by this ordinance the railomission to record it in the ordinance book and way company was required to pay to the city an 239 annual license tax of one dollar for each pole employé, to put up an iron hanger for holding erected or maintained by it on any of the city's some shafting necessary to effect some repairs. highways. The company refused to pay the tax, Before the plaintiff had left the platform, after thus imposed, on the ground that under and by putting up the shafting, the hanger broke and virtue of prior ordinances it was exempted from the plaintiff was thrown to the ground and resuch taxation for a period of fifteen years. The ceived the injuries for which this action was imposition of the tax was an exercise of the police brought. There was evidence that Davis was the power of the city and this is a power of which superintendent of the mill, and that he knew the a municipality can not divest itself for any period hanger was defective. of time by ordinance or contract. It follows that The case had been tried before and had been the ordinances under which exemption was reversed on appeal, see 174 Pa. 369, and at the claimed were not available as a defence to the suit trial now in question a witness, one Trainer, beon the ordinance imposing the tax, and so the ing absent after being subpoenaed, and the plainCourt held. There is no analogy between ordi- tiff having declined to continue the case, the nances and contracts in derogation of the police stenographer's notes of the testimony of the said power of a city and ordinances and contracts re- witness, given by him when called by defendant lating to its business affairs. The ordinances at the former trial, were allowed by the Court to under which exemption was claimed in McKees-be read to the jury by the plaintiff. port v. Railway Company, supra, were of the (First asformer class, while the contract in question in the case at bar is of the latter. We agree with the learned Court below that the vote to increase the indebtedness of the borough for the purpose of establishing an electric light plant there is not a bar to or impairment of its right to enter into a contract for lighting its streets, and that the contract in question cannot, in view of the uncontradicted answer to the bill, be regarded as improvident or opposed to the best interests of the community affected by it. Decree affirmed and appeal dismissed at the cost of the appellant. Jan. '97, 235. Supreme Court. W. D. N. February 7, 1898. Giberson v. Patterson Mills Co. signment of error.) The Court charged: "If you find therefore, that Mr. Davis was the general superintendent of the whole business, and that he was the general manager of all the machinery, then, I charge you that he was not, technically speaking, a mere agent, he was the viceprincipal, or stood in place of the principal, this is what the law calls a vice-principal, as distinguished from a mere agent. Now, understand me, if you find from the evidence that Mr. Davis was the general superintendent of the whole business, and was the general manager of all the machinery, then, I charge you, that any want of care in him, any negligence of duty, is a want of care and negligence of duty in the corporation, because he is the vice-principal of the corporation, the corporation is the principal. A general manager is not the mere agent, he is the vice Negligence Fellow servant--Evidence-Steno-principal, and stands in the place of the corporation." (Third assignment of error). grapher's notes. In an action to recover damages for personal in The defendant asked for binding instructions juries the question of the status of one engaged with in its favor, which the Court declined. (Twelfth the plaintiff in the work which resulted in his in-assignment of error). jury as a vice-principal or fellow servant is, under Verdict for $1100. Defendant appealed, assignproper instructions from the Court, in the province ing error, inter alia, as above stated. of the jury. On the trial of a cause the stenographer's notes of the testimony of a witness at a former trial may be admitted in evidence when the correctness of the notes is not impeached. Broomall with him), for appellant. The admission of the stenographer's notes of the testimony of the witness Trainer taken at the former trial was error. notes of the testimony of a witness, taken at a Official stenographer's former trial of the same issue, are not a deposition, and, if the stenographer is not sworn, they are not properly proven notes of the examinaThe facts of the case appearing from the evi-tion as required by section 9, of the Act of May dence at the trial, before CLAYTON, P. J., were as 24, 1887, P. L., page 199. Appeal of the Patterson Mills Company, from the judgment of the Common Pleas of Delaware County, in an action of trespass wherein William Henry Giberson was plaintiff. follows: On February 10, 1893, the plaintiff, who was employed by the defendant as a carpenter, went, together with one Taylor who was also an Smith v. Hine, 179 Pa. 203. The defendant should have had binding in |