complainants to enter and lay pipes in certain to the regularity of the complainants' charter, or streets named. The answer to the bill and the return to the mandamus are alike in substance, and set forth that the complainants' rights must be exercised in subordination to the regulations of Councils, and that Councils not having made any regulations on the subject the complainant cannot act at all. Silas W. Pettit (John R. Read with him), for the complainant and relator. The Legislature of the State has the sole and absolute control of its highways, including the streets of its municipalities. Under the letters patent issued under the Act of 1874, this company has the power to lay its pipes without waiting for municipal authority or regulation. Pittsburgh v. Fuel Gas Co., C. P. 1, Allegheny Pew v. Patton, Id. Sept. T. '83, No. 448. the warrant for it in the Act of 1874. How far the purposes of this company are authorized under the section providing for gas, lighting, and heating companies, is a question that has not been raised or argued in this case, and we therefore leave it and other similar questions open for consideration hereafter if the city should think proper to raise them in the appropriate way before a competent tribunal. Assuming, therefore, that the complainant is properly chartered under section 34 of the Act of 1874, we have to consider its authority under that charter. The company claims the right to lay its pipes without reference to the city's consent; the city claims that the company can do nothing until such consent has been expressly given. Neither of these extreme positions can be sustained. The statute gives in express words "the right to enter upon any public street, lane, alley or highway, for the purpose of laying down pipes, altering, inspecting and repairing the same." This right the city cannot take away by express prohibition, nor, à fortiori, can it do so by mere inaction. But on the other hand, though the powers given by the statute are large The Board of Highway Supervisors can only (if we may express our personal convictions, consider applications, ordinances, and resolutions unfortunately and dangerously large to be comreferred to them after they have been approved mitted to any five persons who may choose to by Councils. The prohibition against opening come together and assume them as a corporation) the streets without a permit from the Commis- yet they are not without limitation. sioner of Highways implies the power in that section of the Act expressly subjects the comofficer of granting such permit. Hence the right pany to the restriction of "doing as little damto compel him to grant it by mandamus is clear. age to said streets, lanes, alleys, and highways, Commissioners v. City, 7 Phila. 298. and impairing the free use thereof as little as Lamb v. Lynd, 8 Wright, 336. possible, and subject to such regulations as the In re Henry B. Tener, 39 Leg. Int. 4. Councils of such borough, town, or city may Commonwealth v. Smedley, 14 WEEKLY NOTES, 402. adopt in regard to grades, or for the protection Robert Alexander, Assistant City Solicitor and convenience of public travel over the same." (Charles F. Warwick, City Solicitor, with him), And independent of this language the law would for the respondents. tion of such a grant to the general police powers imply the same thing from the necessary subjecof the municipality. Streets and roads are public highways under the control of cities and towns subject to the paramount authority of the Commonwealth. Southwark R. R. Co. v. City of Philadelphia, II Commonwealth v. Central Passenger R. R. Co., 2 City of Philadelphia v. West. Union Tel. Co., 2 The authorities should not therefore be enjoined from preventing this company from tearing up the streets without any legal authority whatever. Application was made to the Commissioner for a permit March 18, 1884. The day before an ordinance had been passed which took away his power of granting permits, and vested it in the Board of Highway Supervisors. No application has been made to this Board. June 21, 1884. THE COURT. (After stating the facts as above.) No question was raised and none therefore is intended to be here decided as The same It is clear, therefore, that this company has the right to lay its pipes in the streets, but subject to the regulation of the city. This may be exercised either by the direct action of Councils in the particular case, or by general ordinances Councils have not yet taken any direct action on covering the subject matter. It is admitted that the matter, though they may do so hereafter, and it remains therefore to inquire what general regulations there are which cover the subject. Two ordinances are set up by the city, that of 28th February, 1860 (Ord. 1860, p. 96), prohibiting any person from removing the pavement of any street without first obtaining a permit from the Department of Highways, and that of March 18th, 1884, creating a Board of Highway Supervisors. Both of these are applicable. The first is plain and presents no difficulty in itself, but the second, owing to an unfortunate error in | opportunity of seeing), which contains, after the engrossing and printing it, raises a question as to clause "it shall be the duty of all departments," its own construction and its effect on the preced- etc., the words "before approving the same, to ing ordinance of 1860. submit such applications to the Board for their The first section provides: "That for the pur-action." In engrossing the official copy for sigpose of preventing frequent and unnecessary openings in street pavements, and to promote system and economy in repaving over breaks made for underground work, there shall be created a Board of Highway Supervisors." Section 2 provides for the membership and constitution of the Board. nature by the Presidents of Councils and the Mayor, these words were unfortunately omitted. From the general intent of the ordinance to establish uniformity and economy in the whole system of opening and repaving the streets, and from the provision that heads of departments are to continue to receive applications and the Board Section 3. "The Board, thus constituted, to pass upon them, we are of opinion that the shall meet at least once in two weeks to consider authority of the Board is not confined to matters all applications, ordinances, and resolutions that specially referred to it by Councils, but is general may be referred to them, after the same has been over the whole subject, and includes all openings approved by Councils, and they are hereby of the public highways, with the exceptions of granted authority to prescribe and enforce such repairs by the Passenger Railway companies on regulations and rules as they may adopt govern- streets which they are charged with the duty of ing the time and manner in which all street ex- keeping in order, and the necessary opening of cavations shall be made, and the time and method streets by the water and gas departments for the of repairing over the same." purpose of repairing breaks, etc. These are not Section 4. "It shall be the duty of all depart-applications" received by the departments, ments, and heads or engineers of departments, and therefore do not come literally within receiving applications to make openings in the public streets for any purpose, this Board shall decide the exact location, the manner and the time of making such openings, which decision shall be final." Two questions arise on the construction of this ordinance. First, is the Board to consider all applications to make openings in the streets, or only such as may be referred to it by Councils? And secondly, how far does the authority of the Board, whatever it may be, affect the authority of the Highway, or other departments, under the ordinance of 1860? the language of section 4; they did not require a permit under the ordinance of 1860; and it is not to be supposed that Councils meant to compel these matters, often of emergency, to be submitted to a Board that is only required to meet once in two weeks. These, therefore, are exceptions to the authority of the Board of Highway Supervisors, which is otherwise universal and paramount. On the whole case, therefore, we are of opinion:. The difficulty arises from the omission already referred to in section 4. By this section it is made the duty of all departments, etc., receiv- Secondly. That the complainants' application ing applications to make openings in the public for a permit should be received by the Chief streets" to do something-what they are to do is Commissioner of Highways, the respondent, omitted—and then the "Board shall decide the and submitted by him to the Board of Highway exact location," etc. Here is a plain break in Supervisors; and a peremptory mandamus will the language of the paragraph, though we think | be awarded, if necessary, to enforce such action there is enough left to indicate the general inten- on his part. tion. It is plainly contemplated that the heads of departments are to continue as before to receive applications, and it is equally plain that the new Board is to pass finally on the exact location, manner and time, etc. It necessarily follows that the departments receiving the applications are to submit them to the Board for its judgment. This construction we think necessarily results from the general scope of the ordinance and the language used, notwithstanding the gap in section 4, and we are confirmed in this view by reference to the original draft of the ordinance (still in the hands of the committee, and which, though not judicially before us, we have had the Thirdly. That thereupon it will be the duty of the Board of Highway Supervisors to consider and approve such application, under such regulations as the public interests of the city in the free use of her highways may require. Fourthly. That until the Board of Highway Supervisors shall have approved the complainants' application, the Mayor and police are not exceeding their proper authority in preventing the opening of the streets, and the injunction prayed must for the present be refused. Opinion by MITCHELL, J. FELL, J., absent in Quarter Sessions. J. D. B. Jr. Common Pleas—Law. C. P. of Mercer Co. February 17, 1884. Brown & Co. v. Baker. The form of action is trover, and the facts found by the jury, from which it is claimed defendant was guilty of a conversion of plaintiffs' property, are as follows. [His Honor here recited the facts ut supra.] Was this misuser of plaintiff's property a conversion by defendant, and did he thereby become responsible for its loss, although that hapBailment Trover and conversion-Livery-sta-pened by inevitable casualty? In Story on ble keeper and hirer-What amounts to Bailments, 9th ed., sec. 413, it is said: "There conversion of hired team-Deviation from is on the part of the hirer an implied obligation, specified route-Destruction of team by accidental fire. Where one hired a team of horses and wagon from a livery-stable keeper to go to and return from a particular place by a specified route, and he deviated from said route in going and returning by a roundabout way, and stopping at another place, where the team was destroyed not only to use the thing with due care and by an accidental fire: Motion for judgment, on special verdict. This was an action of trover and conversion, by L. D. Brown & Co. against Reuben Baker, for the value of a team of horses, harness, buggy, etc. On the trial, the jury found a special verdict, setting forth the following facts: On December 5th, 1883, the defendant hired from plaintiffs a team of horses, carriage, and other articles to go from Greenville, Mercer County, Penna., to Cochranton in Crawford County, Penna., by a certain road, making a distance of twenty-two miles, and to return in a day or two; instead of going to Cochranton by the road spoken of, defendant drove to Utica, a distance of twenty-five miles, and from thence the next day to Cochranton, a further distance of eight miles; instead of returning direct to Greenville, defendant drove from Cochranton to Evansburg, distant from Cochranton thirteen miles and from Greenville sixteen miles. The property was destroyed at Evansburg by an accidental fire which consumed the stable in which the property was at the time. The jury assessed the damages at $340. week, the hirer has no right to use them a month. And it may be generally stated, that if the thing is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss afterwards occurs, although by inevitable casualty, he will generally be responsible therefor. In short such misuser is deemed at the common law a conversion of the property, for which the hirer is generally held responsible to the letter, to the full extent of the loss." This doctrine has its origin in the nature of bailment, which is "a delivery of goods in trust upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee" (2 Bl. Com. 451), or "a delivery of goods to another person for particular use" (2 Bl. Com. 395); or it is "a delivery of a thing in trust for some special object or purpose, and upon a contract expressed or implied, to conform to the object or purpose of the trust.” (Story on Bailment, sec. 2.) The doctrine proceeds upon the idea, not of contract, but of trust; not of an intention on the part of the bailee actually to convert the property to his A. F. Henlein, E. P. Gillespie, and E. S. own use, but of his wilful disregard of the obTempleton, for the plaintiffs, cited Lucas v. Trumbull, 15 Gray, 306. May 6, 1884. THE COURT. The question to be determined is, whether the plaintiffs are entitled to judgment for the amount of damages assessed by the jury, under the facts specially found in the verdict in this case. ject or purpose of the trust; not that the misuser, -for instance driving the horse beyond the place named in the contract— is conclusive evidence of the bailee's intention to convert the animal to his own use, but rather upon the ground that such use of the property is so substantial an invasion of the owner's rights, and so inconsistent with the idea of an existing bailment, that the bailee cannot reasonably object to the bailor's treating the bailment as terminated thereby, or to his proceeding against the bailee for a conversion. (Wentworth v. Mc contended for by Judge MONCURE, it is not necessary to consider in this case, for had the property hired by defendants from plaintiffs not been at Evansburg, it could not have been destroyed there by the accidental burning of the stable. Duffie, 48 N. H. 406.) For, while the bailee | be found with the position." (Id., page 176.) has a special property in the thing, his property Whether the true doctrine is that stated by Judge in it is qualified and limited by the object or STORY in its broadest meaning, or modified as purpose for which it was delivered, and the bailor is as much the owner as he was before, although temporarily out of possession. Therefore, when the bailee disregards the reasonable limit of his right, and wilfully steps beyond it, he invades the dominion of the bailor. "The circumstance that the property is in the hands of This case is one of hardship wherever the loss the bailee with license of the owner to use for may fall. The defendant, no doubt, had no one purpose, gives no right to use it for another; intention of injuring the property he had hired and the invasion of the owner's right of property or of wronging its owners, still less of actually is as complete when the bailee goes beyond his converting it to his own use. What he did, license and duty as if the control over the prop-good men often do without a thought of harm; erty were usurped without any bailment." after starting on his journey he found occasion (Woodman v. Hubbard, 25 N. H. 71.) It fol- to change his course and to drive the hired team lows that by such misuser the bailee becomes to other places than that he had expected to guilty of a conversion of the thing bailed, for visit. This, under the terms of the hiring as "a conversion consists in an illegal control in found by the jury, he had no right to do, howthe thing converted, inconsistent with the plain-ever innocently he did it. Without regard to tiff's right of property." (Woodman v. Hub- the intention with which it was done, it was in bard, 25 N. H. 71.) effect a misuser; and, although not an actual, it was, as we have seen, a technical conversion of the property. While our own reports do not disclose any cases very similar to the one under consideration, the general doctrine as stated has elsewhere Therefore, as the jury have found that the debeen applied to cases almost identical with this. fendant hired the property which is the subject In Lucas v. Trumbull (15 Gray, 306), it was of this suit, to go from Greenville to Cochranton stated: "If one hires a horse to go to a certain by a certain road; and that defendant, without place and drives beyond that place, it is a con- the consent of plaintiffs, changed his course and version of the horse, and the hirer is liable for drove elsewhere than to Cochranton, particularly all damages subsequently occurring, although to Evansburg, which was not on the road speciarising from the fault of the horse" (cases fied, but was seven miles out of a direct road above cited and Wheelock v. Wheelwright, 5 between Greenville and Cochranton, and where Mass. 104). In Isaak v. Clark (2 Bulst. 306), the property was destroyed by accidental fire; the doctrine is illustrated by facts similar to and as this accident and consequent loss could those in this case, and the reason given is "be- not have happened had the terms of the hiring, cause that he by his wrongful act hath now de-as found by the jury, been observed, it follows, stroyed the privity of the first bailment by doing contrary to it;" and in Coggs v. Bernard (2 Ld. Raymond, 915) the same doctrine is laid down upon similar facts, and the reason given is, because he has made use of the horse contrary to the trust upon which he was lent to him, and it may be if the horse had been used no otherwise than he was lent that the accident would not have befallen him." according to the authorities referred to, that defendant became liable for the loss of the property, although that occurred through inevitable casualty. Therefore it is ordered that judgment be entered for plaintiff on the verdict. Opinion by MEHARD, P. J. C. P. No. 2. June 9, 1884. Appeal of Henry C. Lea. Act of April 29, 1844-Taxation-Works of art and antiquities not taxable as furniture." "household In the case of Harvey v. Epes (12 Gratt. 153), MONCURE, J., contends that the misuser, of itself, would not constitute a conversion of the property to the use of the bailee, whereby he would immediately become responsible to the owner for its value in event of its destruction, whether occasioned by such wrongful act or not; but in discussing the general principle as laid down by STORY in his work on Bailment, sec. Appeal from Board of Revision of Taxes. 413, says: "If he merely intended to say that The petition set forth that petitioner was the the hirer is responsible for loss when it is occa-owner of certain paintings, engravings, and sioned by the misuser, though inevitable casualty works of art and antiquities, which were bought be the proximate cause of the loss, no fault can as such, and not for the purpose of being used as furniture, and which are not thus used, but | own purpose it may contribute to the idea of which nevertheless had been assessed and re- furnishing. turned as "household furniture," and had been decided to be such by the Board of Revision. From this decision the petitioner appealed under the provisions of the Act of March 14, 1865, § 1 (P. L. 320, Purd. 1375, pl. 123). John G. Johnson, for appellant. The fundamental notion of an article of furni-conducting and managing household affairs. ture is its utility. Certainly a man might buy Pictures are certainly not "designed originally pictures for no other purpose than to ornament and chiefly for use in conducting and managing his rooms, but so he might buy books. It would household affairs." They are clearly not furnibe putting a forced and unnatural construction ture in the artist's, or even in the dealer's hands, on the words of the Act (and taxing Acts should as a table or a bureau would be in the hands of be strictly construed) to hold that the Legislature the manufacturer; nor would they probably be meant to include objects of art. so considered, if bought and stored away in a Robert Alexander, Assistant City Solicitor closet or lumber room. Indeed, this view seems (Charles F. Warwick, City Solicitor, with him), | to have governed the assessors in the present matter, as we are informed that they did not Furniture includes everything which contrib- assess as furniture, paintings, etc., hung in a utes to the comfort and adornment of the house. separate room or gallery intended for display Carpets are not commonly spoken of as furni- only. Why then do they become furniture if ture, yet they are always so considered for tax-hung in a parlor or other room not reserved exing purposes. All the cases are collected by clusively for them but devoted to other houseJudge SHARSWOOD in "The expression, household furniture," says SAWYER, J., in Towns v. Pratt (33 N. H. 345), "must be understood to mean those vessels, utensils, or goods which are designed in their manufacture originally and chiefly for use in the family, as instruments of the household, and for contra. Hoopes's Appeal, 10 Smith, 220. Johnson, in reply. Hoopes's Appeal was the case of a will. The rule there is to make the language as comprehensive as possible. In tax cases precisely the opposite rule obtains. Towns v. Pratt, 33 N. H. 345. June 28, 1884. THE COURT. This case presents but a single question of the narrowest kind, though of some practical importance. The word "furniture" is undoubtedly susceptible of use in a sense that will include paintings, engravings, and works of art and curiosity, used in the ornamentation of a house. Worcester's Dictionary gives a very pertinent example from Addison," there are many noble palaces in Venice; their furniture is not very rich, if we except the pictures." But is this its general, ordinary, and popular meaning, which the Legislature had in mind when it used the words "household furniture," in describing the articles it meant to tax? Webster's principal definition is as follows: "Whatever must be supplied to a house, a room, or the like, to make it habitable, convenient, or agreeable; goods, vessels, utensils, and other appendages necessary or convenient for housekeeping; whatever is added to the interior of a house or apartment for use or convenience." This fairly represents the ordinary meaning of the word, and it does not include the idea of mere ornament. Ornamentation is not furniture, though incidentally to its hold uses? Only, if at all, because in the progress of civilization and the development of the refining influences of art, there are now but few households, however humble, that are restricted to the bare necessities of life, and that have not some little contribution to the gratification of taste. In this sense pictures may be called furniture, but this is not the popular sense of the word, nor is it the sense in which the Legislature intended to use it. It lacks the idea of household utility that makes the basis of the definition of household furniture. The legal decisions that can afford us light on this question are few. The case of Towns v. Pratt, in 33 N. H. 345, has been already quoted. There the words household furniture were held not to include a trunk, though used to keep clothes in, nor a small, mahogany "cabinet box," by which, say the Court, "we understand an article designed in its material and workmanship rather for ornament than use, ministering to the taste of the owner, rather than the necessities or convenience of the household." On the other hand, there is a class of cases arising under wills, in which pictures, statuary or ornaments are frequently included under the term furniture. These, however, are peculiar, and rest upon the intention of the testator. A good example of this class is Richardson v. Hall (124 Mass. 237), where there was a devise of the homestead, with all the household furniture, plate, jewelry, books, etc., showing an intent, as COLT, J., says, "that the house should remain the family's place of residence, and that they should keep up the same establishment and the |