Smith v. Altoona & Philipsburg Connecting Railroad

37 A. 930, 182 Pa. 139, 1897 Pa. LEXIS 782

Opinion

Opinion by

Mr. Justice Dean,

All the facts in this case appear in the case stated. On them the learned judge of the court below entered judgment for plaintiff, and defendant appeals. The appeal raises but two questions :

1. Had the sheriff authority, and was it his duty, to execute his writs by going outside the boundaries of Clearfield county to the principal office of the corporation in the city of Philadelphia, and there make demand?

2. If he had such authority, does the law authorize him to charge fees for service of each writ and mileage thereon?

The first question is answered by an interpretation of the act of June 16,1836. For it is conceded that, if the sheriff was not authorized by that act to go to the general office of the corporation outside his bailiwick to make demand, he had no such authority at common law nor by any other statute.

The 72d section of that act enacts: “ All executions which shall be issued against a corporation shall be executed in manner following, to wit: 1. The officer charged with the execution of such writ shall go to the banking-house or other principal office of such corporation, during the usual office hours, and demand of the president or other chief officer, cashier, treasurer, secretary, chief clerk or other officer having charge of such office the amount of such execution with legal costs.”

While detached personal or other property of the corporation, after demand thus made, could be seized and sold on the writ, the franchises and corporate property necessary to the operation of a public or quasi-public corporation could not be. By the 73d section, however, on return of nulla bona as to the whole or part by the sheriff, the court was authorized to appoint a sequestrator to sequester the goods, chattels and credits, rents, issues and profits, tolls and receipts, from any road, canal, bridge or other works, property or estate of such corporation. This enabled the execution creditors to reach the franchise and earnings of the company, the incorporeal hereditament; but, as an indispensable prerequisite, demand at the principal office was enjoined. The end sought is so obvious that no argument can obscure it. The proceeding authorized would take from the owners the entire corporate property and place it in possession of a trustee for creditors; before such a result, the complete transfer of property from the owner to his creditor was effected, every principle on which “ remedy by due course of law” is based, required reasonable notice to the owner; and very properly, the notice to be effective, must be to those officers who have been intrusted by the stockholders with the management of the property; in the ease of all carrying corporations, the corporate property might be in several counties, and the principal office in but one; no matter in which county the judgment may be entered, to answer its purpose, the notice should be served on those officers having the management of the property, and the act expressly assumes that they will be found at the principal office, without regard to its location. And so stood the law until the act of April 7,1870, which authorized a special fi. fa. to issue from the court only on application, commanding the sheriff to levy on personal, mixed or real property, franchises and rights of such corporation, and sell the same. The levy to extend to and cover the property, franchises and rights of such corporation, in any and every county of the commonwealth, wherever the same might be. The levy and sale to have same effect as though the property was located in the county where the writ issued. This superseded the proceedings by sequestration under the act of 1836, and it has been so decided in many cases, from R. R. Co.’s Appeal, 70 Pa. 355, in 1871, the year after the passage of the act, down to Bank v. Columbus Tanning Co., 170 Pa. 1, decided only one year ago. But the act of 1870 left untouched the preliminary proceedings directed under the 72d section of the act of 1836 ; before sale of the property and franchises of the corporation under the act of 1870, demand must have been made at the principal office of the company, and return made by the sheriff, after which the special fi. fa. commanding a sale could issue. In Guest v. Water Co., 142 Pa. 610, our Brother McCollum very clearly shows, that the proceeding by special fi. fa. under act of 1870, was only a substitute for that provision in the act of 1836, which authorized sequestration. To the same effect are Mausel v. Railway Co., 171 Pa. 606, and Reynolds v. Reynolds Lumber Co., 169 Pa. 626, and other cases.

Now it must be conceded, that at common law the sheriff would have had no authority to go outside the territorial limits of Clearfield county and serve or make demand on this writ at the office of the company in Philadelphia. And it must be further assumed, that the intention of the legislature to abrogate the common law by a statute must plainly appear, more plainly indeed than its intention to repeal a prior statute. As stated by Judge Endlich, in his work on “ Interpretation of Statutes,” section 127, “ All statutes in derogation of the common law, or out of the course of the common law, are to be strictly construed.” But, even strictly construed, in view of the subject and purpose of the act of 1836, it seems to us clear that the legislature intended to enlarge the territorial jurisdiction of the sheriff in executing this particular writ. Without a restatement of the distinguishing features of public and private corporations, fully noticed in Foster v. Fowler, 60 Pa. 27, it is sufficient to say that this defendant, a railroad company, is a public corporation, which by law must have an office within the state ; and a corporation whose functions so immediately concern the public that any interruption in the exercise of them must greatly inconvenience and damage the public; and further, being purely a common carrier, under its grant or franchise it could lawfully hold little or no property not indispensable to the exercise of its franchise. Prior to the act of 1836, the general property of such a corporation could be taken in execution and sold the same as the property of an individual, but under the decision in Ammant v. Turnpike Co., 13 S. & R. 210, it was, in substance, decided that without a court of chancery there could be no appropriation by the creditor of the franchise; and the hardship to the creditor in permitting the corporation to go on exercising its franchise by the collection of tolls, and perhaps accumulating profits, at the same time contracting debts which it refused to pay, was remarked on by Chief Justice Tilghman, who suggested the remedy was exclusively for the legislature, and at the same time expressed the hope that the legislature would afford such remedy by statute. We have no doubt this was the very mischief intended to be done away with by the act of 1836, and the franchise which before that time could not be reached by the creditor was placed within his grasp. And the remedy was confined to public corporations alone, because, from the very nature of their organization and functions, the mischief which demanded statutory remedy was peculiar to them. In fact, as stated by Judge Noyes, who rendered the judgment in the common pleas in Bank v. Tanning Co., 170 Pa. 1, it was doubtful if there was a private business corporation in existence in 1836. Therefore, the intention of the act of 1836 was to create a distinct and appropriate method of procedure, wherebjr sequestration could be had of the earnings of public corporations for the benefit of their creditors, without disturbing them in the exercise of their corporate operations. But it was not intended that the corporate property should be immediately taken from the possession of tbe corporation officers and turned over to a sequestrator; detached property, not necessary to conducting its public business, might be "seized; but of this, as already noticed, there probably would be little or none. The sheriff was directed to serve and make demand of his writ at the principal office of the corporation, and then make return to the court if his writ remained unpaid in whole or in part; and then came the appointment of the sequestrator. It is obvious that in most cases demand at the principal office had no graver consequences than the service of a rule to show cause why a sequestrator should not be appointed. The method of procedure accomplished the same end which would have been attained by a court of chancery in England, when the creditor sought the aid of that court in the collection of his debt against a public corporation.

The return by the Sheriff that his writ was unpaid, while it did not, beyond question, establish the insolvency of the corporation, did establish that all the property of the corporation was out of the reach of tbe creditor, except the franchise, and now the way was opened to get at that by sequestration; and sequestration could not be had until after demand at the principal office; nor, can the special fi. fa. instead of it, under the act of 1870, issue without the precedent service of fi. fa. and demand at the principal office, issued under act of 1836. The whole proceeding is harmonious, appropriate and, from the circumstances, well adapted to effect the purpose. It is highly favorable to the corporation, and somewhat burdensome to the creditor, but counsel for this appellant argues that the sheriff had no authority to go beyond the limits of his county; that it was his duty, if he found no principal office of the company within that county, to return his writ nulla bona, and thereupon it was the duty of the court to direct the special fi. fa. for the sale of the franchise and property of the corporation under the act of 1870. Under such limitation of the authority of the sheriff there might have been a seizure and sale without the knowledge of the company; it might then very well have argued that such could not have been the intention of the act of 1836, but that the sheriff should have gone outside of his county for service of the writ at the principal office. The literal reading of the act does not limit the authority of the sheriff to any less territory than the boundaries of the commonwealth. It is not a case where by implication the authority is enlarged beyond the express language, but one where we are asked to say that by implication the authority is restricted within county hounds. Having in view the old law (the common law), the mischief and the remedy, we hold that the act of 1836, relative to fi. fas. issued on judgments against public corporations, authorizes the sheriff to serve his writ and make demand at the principal office of the corporation, wherever the principal office may be situated within the commonwealth.

The complaint of appellant, because of the taxation of fees and mileage on each writ, is not sustained. The act known as the “ Fee Bill Act,” expressly says that the officer “ shall have travelling expenses on each writ for each mile travelled.” While it is decided that, where a number of writs between the same parties are executed at the same time hy the officer, but one mileage is taxable, yet, as held by the learned judge of the court below, following Terry v. Gregg, 26 P. L. J. 94, this has no application to this case, where in each there is a different plaintiff.

The judgment is affirmed.