Fairley v. Smith.

dence, thus obtained by the witness, and without any proof outside the paper of its trustworthiness and recognition, as such, by business men dealing in cotton. There must be a new trial and it is so

ordered.

Error.

Venire de novo.

CASES

IN THE

SUPREME COURT

OF

PENNSYLVANIA.

O'MALEY V. BOROUGH OF FREEPORT.

(96 Penn. St. 24.)

Municipal corporation - ordinance.

A borough invested by the legislature with all powers necessary "for the well ordering and better government" thereof, may enact an ordinance requiring sales of coal to be by weights and measures, and imposing a payment of five cents a load for the weighing thereof and the use of the borough scales.*

GORDON, J. This case was determined in the court below on a demurrer to the bill, hence in this court it must stand or fall on the face of the bill. So far as we can discover, nothing has been put in issue by the pleadings but the power of the borough to make

• See Long v. Taxing District (7 Lea, 134), 40 Am. Rep. 55.

O'Maley v. Borough of Freeport.

an ordinance, such as the one in controversy. The counsel for the plaintiff, in his argument, inter alia, contends for a strict construction of the ordinance; that it is operative only upon those who both sell and deliver coal within the borough limits. If however for argument's sake we admit of a construction so exceedingly strict as this, nevertheless by the bill it does not appear but that the plaintiff both sold and delivered his coal within the borough limits. The argument thus assumes facts not found in the case. Moreover the plaintiff bases his complaint not upon any improper construction of the ordinance itself, nor upon the fact that it lacks applicability to his case, but upon the broad ground that the borough council had no power to make a regulation such as this. But a proposition of this kind is refuted by the act of incorporation itself. The seventh section of that act expressly confers upon the municipal authorities all powers necessary "for the well ordering and better government of said borough."

That the power here conferred is sufficiently comprehensive to cover every regulation necessary for the government of the borough and protection of its citizens cannot, we think, be doubted. The only limitation of this power is, that it must be exercised in a reasonable, lawful and constitutional manner. If these limitations are not transgressed courts cannot interfere with the ordinances of this municipality, for to the burgess and council must be left a reasonable discretion, and for the proper and wholesome exercise thereof they are accountable, not to the courts, but to the people whom they represent. Fisher v. Harrisburg, 2 Gratt. 291. Does then the ordinance complained of come within the limitations above named? We think with the learned judge of the court below that it does. Indeed we cannot understand how any one can take exception either to the reasonableness, lawfulness or constitutionality of a regulation requiring people to buy and sell by lawful weights and measures rather than by guess. A proposition such as this is too plain for discussion; it is determined at once by the application of the ordinary principles of fair dealing and common

sense.

Again the allegation that the charge of five cents per load for weighing and the use of the public scales is in the nature of a tax, and therefore not within the charter powers of the borough, is unsound. Such charge is not a tax any more than is a charge for the use of a stall in a market-house, or for a stand upon a public

Baltimore & Ohio R. R. Co. v. Sulphur Spring Independent School District. street. It has less the character of a tax than an ordinance compelling occupants or owners of houses bordering on certain streets to keep their sidewalks clear from snow. It is no more of a tax than is a charge for the use of a public sewer, and yet all the abovementioned impositions have been held not to be an exercise of the taxing power, but as in the nature of police regulations. 1 Dill. Mun. Corp. 424; Fisher v. Harrisburg, supra; Wartman v. Philadelphia City, 9 Casey, 202. But in the case in hand, in the åbsense of the fact that the plaintiff or his customers had scales of their own on which his coal could be weighed before delivery, the charge was but a reasonable compensation for the services of the borough in doing that which he at all events was bound in good faith to do.

Decree affirmed at costs of appellant.

BALTIMORE AND OHIO RAILROAD COMPANY V. SULPHUR SPRING INDEPENDENT SCHOOL DISTRICT.

In an action for injury to a school-house, caused by the bursting of a culvert constructed by a railway company, the company is not liable if it appears that the injury was caused by an extraordinary flood, and the culvert was sufficient to pass the water at ordinary stages.*

A

CTION for injury to real estate by negligence. The head-note and opinion show the case. The plaintiff had judgment

below.

Markle & McCullogh, for plaintiff in error.

Hazlett & Williams, John F. Wentling, and James S. Moorhead, for defendant in error.

GREEN, J. [Omitting a minor consideration.] We are also of opinion that the court erred in their answers to the plaintiff's second and third points. In affirming the first point, the court ruled that:

* See Phil, etc., R. Co. v. Anderson (94 Penn. St. 351), 39 Am Rep. 787.
VOL. XLII

67

Baltimore & Ohio R. R. Co. v. Sulphur Spring Independent School District.

"If there was negligence on the part of the defendant concurring with the act of God, at the time plaintiff's loss was sustained, then defendant is liable, and the jury are not bound to inquire whether the loss would have happened if the defendant had not been guilty of negligence." As we understand this point, it practically declares that although the act of God alone, without any negligence of the defendant, would have caused the injury, the jury were not at liberty to consider that fact, if in reality there was negligence on the part of the defendant concurring with the act of God. In other words, no matter how terrible, extraordinary and unprecedented were the storm and flood, so that they alone caused the injury, yet if there was concurring negligence of the defendant, although it did not produce the injury, and its absence would not have prevented it, still the defendant would be liable. The same idea is repeated in the plaintiff's second point, that if the defendant's negligence in any degree caused the loss, they would be liable. Now small pebble in one of the culverts would in some small degree i pede the course of the water, yet the doctrine of this point. which the court affirmed, would make the defendant liable for the entire injury, even though a huge avalanche of water were suddenly launched upon the stream and hurled with irresistible force upon the embankment and culvert in question. Such is not the law. This is the very highest possible degree of care, greater even than is required of railroad companies in the carriage of passengers. The correct doctrine on this subject was expressed in the case of the Pittsburgh, Fort Wayne & Chicago Railway Co. v. Gilleland, 6 P. F. Smith, 445, to wit: A railroad company in constructing its road and works is bound to bring to their execution the engineering knowledge and skill ordinarily known and practiced in such works. There is no liability on the part of a railroad company for not constructing a culvert so as to pass extraordinary floods. On page 452, AGNEW, J., delivering the opinion of the court, says: "In the present case, then, if the culvert was so unskillfully and negligently constructed as to be insufficient to vent the ordinary high water of the stream, the railroad company building it would have been liable for the injury thereby caused. The apparent facts indicate the duty. The stream though small, must find a vent, or overflow the adjacent land and undermine the railroad. Its size. the character of its channel and the declivity of the circumjacent territory which forms the watershed, indicated the probable quan