Weinman v. Wilkinsburg & E. L. P. Ry. Co. , 118 Pa. 192 ( 1888 )

Opinion,

Me. Justice Williams :

The assignments of error raise two questions for consideration. The first of these relates to the constitutionality of the act of assembly under which the defendant claims to exercise the powers of a corporation. The second is over the sufficiency of the alleged undertaking to pay, upon which the suit is brought.

The- title of the act of 1879, under which the defendant company was organized, is as follows : “ An act to provide for the incorporation and for the government and regulation of street railway companies now incorporated, or which may hereafter be incorporated in cities of the second and third class in this commonwealth.” Its provisions follow the title, and relate only to the incorporation, government and regulation of street railway companies in cities of the second and third class. The-subject of this statute is therefore street railway companies, which is a subject for general legislation; while the statute professes to deal only with a limited number of these railways, and these are selected by reference to their location in certain cities. Under the guise of a general law we have here one winch is special, because it relates to a few members of the general class of corporations known as street railway companies ; and local because its operations are confined to particular localities, viz., cities of the second and third class. The provisions of the constitution which forbid local and special legislation cannot be brushed aside so easily.

It is urged that this statute is sustainable under the decisions of this court, recognizing the power of the legislature to classify the cities of the commonwealth for purposes of municipal government; but those cases rest upon a very different principle from that involved in the present case. For purposes of local government the state is subdivided into counties, townships, and other municipal and quasi municipal corporations. Each class of these subdivisions has purposes to subserve that are peculiar to it, and needs to be invested with the powers necessary to that end. Generally speaking, all the members ■of each class have the same local functions to perform. Classification therefore upon this basis has been recognized, and a statute relating to all the townships, all the school districts, or all the members of any particular class of the municipal divisions of the state has been held to be constitutional.

It has been found desirable to divide cities into classes upon the basis of their population. The needs of a great city with •a half million or more of people are somewhat different in many respects from the needs of a city with ten thousand. The organization of their local governments and the management of their municipal affairs will be quite unlike. Each ■of these classes requires legislation peculiar to itself; but such legislation must be applicable to all the members of the class to which it relates, and must be directed to the existence and regulation of municipal powers and to matters of local government. The supposed classification in the act of 1879 is of a very different character.

The act provides for the incorporation and government of •■street railway companies, but it does not affect all such companies. It selects such companies as may be located in cities •of the second and third class, and makes special provision for them, while all other street railway companies remain under the operation of the general law. This is just what the constitution declares shall not be done; and this court has had occasion to enforce the constitutional prohibition in several cases. In Davis v. Clark, 106 Pa. 377, a statute came up for examination which undertook to deal with mechanics’ liens in counties whose population was less than two hundred thousand. This was held to be a local law. It was not an attempt at the classification of counties for any purpose of local government, but an effort to provide a lien in one part of the state under circumstances which would not entitle the mechanic to one under the general law.

Again, in Morrison v. Bachert, 112 Pa. 328, a similar question arose, and Justice Paxson, delivering the opinion of the court, made this distinct declaration: “ It is our purpose to adhere rigidly to that instrument (the constitution) that the people may not be deprived of its benefits. It ought to be unnecessary for this court to make this judicial announcement, but it is proper to do so in view of the amount of legislation which is periodically placed on the statute book in entire disregard of the fundamental law.” Neither the rule nor the purpose of this court to apply it in any proper ease is therefore in doubt.

But we do not see how the defendant in this case can raise this question. He is a stockholder in the defendant company. He has been, if he is not still a director. He is not dealing with it as a stranger, but as a member who has participated in its organization and claimed and exercised authority under and by virtue thereof. It will not do for him now to deny the rightful existence of this company as to himself and his own stock subscription, which he has affirmed as to all others. As to him we must treat this corporation as having a legal organization and a right to call upon him to fulfil his engagement as a subscriber to its stock.

This brings us to the only other question raised. The evidence shows that one Sutton was a member of the firm of Weinman & Co., and that he was a promoter of this street railway company and a subscriber for twenty shares of its capital stock. He was also a member of the first board of directors. Soon after the organization of the company Sutton, being about to remove from the city, took his partner, Weinman, with him to a meeting of the board of directors, and desired that his firm should be accepted in lieu ’ of himself as a subscriber for the twenty shares of stock standing in his name; and that his partner, Weinman, should be permitted to take his place in the board. The resignation of Sutton and the election of Weinman as a director in Iris stead then took place, and were duly entered upon the minutes. Thereafter Weinman took upon himself the duties of a director, attended and took part in the meetings of the board, and among other things favored the collection of the subscriptions to the capital stock of the company. When called upon to pay on the shares by virtue of the ownership of which he was made a director, he objects that no formal written undertaking has ever been made by Weinman & Co. for the payment of Sutton’s subscription, and because no transfer of the shares was made by Sutton to the firm upon the books of the company. But the transaction was not a sale of stock by Sutton to the firm, for he had not paid for it. What was alleged by the plaintiff below was that there had been a substitution of one subscriber to the stock in the place of another, by an arrangement to which the plaintiff Sutton and Weinman & Co. were parties. The question for the jury was whether Sutton had been released from his subscription and Weinman & Co. accepted as subscribers for the twenty shares of stock in his stead by the agreement of all the parties to be affected. There was evidence from which such an agreement could be properly found by the jury. It was submitted to them by the learned judge of the court below Avith fairness, and they have found the fact in favor of the plaintiff. We find no error in the rulings at the trial, and the

Judgment is accordingly affirmed.