barred from filing exceptions by the terms "final and conclusive;" the Chief Justice declaring it to be "unnecessary to decide whether a party shall be permitted to except after a plain and clear agreement not to file exceptions," and Brackenridge Justice adding that "if the defendant had agreed not to file exceptions he would have been bound," and that "it is a question of 5,000 00 intention." 59,797 89 4,166 67 $102,297 90 So far had the Judges of the Supreme Court gone, when the present parties made a submission under the Act of 1705, stipulating that the award should be "final. and conclusive, and subject neither to appeal, exception or stay of execution." The language used amounts I think to a clear agreement not to file exceptions, and the question is thus fully presented:-Are the Court bound by such an agreement to dismiss every excep tion? and if not, then will they give any, and if any, what 468 00 effect to the agreement. 1,000 00 3,276 61 233 21 141 92 $5,119 74 The following able opinion involves principles interteresting to the profession of the law, and particularly to our own community. The dictum of Judge Brackenridge was not called for by the case, and was probably qualified in his own mind by the character of the exceptions before him;and certainly, if construed without any qualification, would not have concluded him, had the question been directly presented for adjudication in a subsequent cause. And when Chief Justice Tilghman and Judge Yeates both expressly waive a decision of it as unneces sary in that case, the question must now be regarded as an entirely open one. It is proper then to recur to the language of the act. "In all cases where the plaintiff and defendant having accounts to produce one against another, shall by themselves, or attornies, or agents, consent to a rule of Court for referring the adjustment thereof to certain persons mutually chosen by them in open Court, the award or report of such referees being made according to the submission of the parties, and approved of by Horton In the District Court for the City and the Court, and entered upon the record or roll, shall Stanley. S vs. County of Philadelphia. have the same effect, and shall be deemed and taken to be as available in law as a verdict given by twelve men; and the party to whom any sum or sums of money are thereby awarded to be paid, shall have judgment or a scire facias for the recovery thereof as the case may require, and as is herein before directed concerning sums found and settled by jury." A liberal and repeatedly recognized construction of the Act has extended its benefits beyond the cases specifically mentioned, and as a general rule it may be asserted, and that every cause of action is now deemed to be within its scope. This suit was entered to September Term, 1833. The parties filed an agreement in writing submitting "all matters in varia nce in the above case to the deci-sylvania sion of James Caldwell, Joseph Randall, and Albert G. Pearson, the award of whom, or majority of whom, to be final and conclusive, and neither subject to appeal, exception or stay of execution." It is to be observed that this law is peculiar to Penn Hence the learning of the English books does not directly apply to the present enquiry. The effect of an award under the act is different from that of an award of common law, either where, in case no suit had been entered, an action lies on the report or on There was an award for the plaintiff. The defendant the submission, or where, in the instance of a suit instifiled exceptions. The case is now before the Court up-tuted, obedience to the award made under a submission on a motion of the plaintiff's counsel to dismiss the exceptions, without an enquiry into their merits, upon the ground that the defendant has agreed that there should be no exception. It is conceded that the submission was under the Act of Assembly of 1705.—(5 S. & R. 51.) by rule of Court, may be enforced by attachment; and it differs also from the effect of an award under the statute of 9 and 10, William 3d, by which a submission in cases not in Court might, by being properly filed of record, be placed on the same footing as if there had previously been a cause depending. The distinguishThe general character of this Act has been very of-ing fature of our act is that it confers upon the award ten considered, and many of the principles which go- the character of the verdict of a jury, upon a condition vern the Courts upon applications to set aside awards precedent, to wit, that the award be first approved of made under it, are too firmly established to be again by the Court. the subject of discussion. Thus where there has been corruption or misbehaviour in the referees, or plain and obvious mistake in the proceedings, either in matter of fact or matter of law, the Court will set aside the award. In the case however of Messina vs. Hertzog, 5 Binn. 387, the submission was not merely in terms under the Act of 1705, but there was an additional agreement that the award should be final and conclusive. The Court decided after argument, that neither party was This approbation is far from being a matter of course. In many instances, the duty of the Judges can be discharged only upon a conscientious view of the law and justice of the case. Can an authority thus imposed upon the Court be absolutely taken away by parties who appeal to a law which confers on them its advantages only upon condition that this very authority shall exist and be exerted? Can the parties claim the benefit of this proceeding, and yet renounce the very condition upon which that REPORT ON THE SUBJECT OF FINANCE. In conformity to the requisition of an act of Assem bly, requiring the State Treasurer to make an annual report on the subject of finance, passed the 16th day of March, 1832, the following report is respectfully submitted: benefit is to be obtained? As a question of imperative obligation on the Court, I have no doubt whatever in relation to it. A party acting under this law must re- To the Honorable the Senate and House of Representatives cognize its injunctions, and when he demands the proof the Commonwealth of Pennsylvania. cess of the Court to enforce a judgment under it, he Gentlemen: must submit to the preliminary requisition without which the act expressly says the judgment shall not be entered. Parties, it is true, may waive many legal rights: but they cannot exact a surrender of jurisdiction on the part of the Court, nor compel Judges to accept a release from a responsibility which the law of In preparing this report, the State Treasurer has the land imposes upon them for public purposes. The considered, that the intention of the law under which approval by the Court is not placed at the option of eith-it is made, would be best complied with, by confining er or both of the parties. The requisition of the law looks it to those subjects connected with the condition of the to the general purity of the administration of justice,Treasury and finances of the State, necessary to support and is plainly designed, if that object demands it, to control the parties. So far I have viewed the question in the aspect of the alleged positive and controlling character of the agreement in regard to the Court. It remains to be considered whether, while the Court deny its force as stripping them absolutely of their power, the agreement may not yet have an important influence upon their judgment on the point of confirming or setting aside the report. The words "final and conclusive," in an agree ment, it has been shown, present no bar to the filing of exceptions. When however the parties superadd the words "and neither subject to appeal, exception or stay of execution," they certainly intend something more than a mere submission under the act of 1705; and considering the propriety of holding parties to mutual agreements when not prohibited by law, and the interest of the public not merely ut sit finis litium, but that there should be as little litigation as conveniently may be brought before the Courts, I believe it to be our duty to give as much effect to such agreements of references as the act of assembly will possibly allow. It may not perhaps be practicable to lay down a rule to meet every difficulty that may present itself, but I would say generally, that the Court should look in such cases rigorously to the character of the reasons for setting aside reports. The parties having selected their tribunal, and clothed it with all the power which the law will permit them to confer, should be held strictly to their contract of reference in every instance in which all has been fairly and honestly done according to the true spirit of the agreement. Some illustrations may be given. Fraud practised by either party on the referees, or corruption or misbehaviour in the referees themselves, would vitiate every transaction, and the agreement of the parties could not have been intended to require the Court to sanction such conduct. Again effect is to be given to awards only, says the act of 1705, when they are made according to the submission of the parties. If then the referees upon a submission of one matter report upon a totally distinct matter, showing a plain deviation from the original intention of the parties, neither party shall be permitted to avail himself of an advantage which never could have been honestly contemplated. them. Each case in short must be resolved into a question of intention. All matters intended to be submitted to the referees shall be concluded by their fair decision upon Whatever might be the opinion of the Court upon the same subject, yet where there has been no violation of the spirit of the contract,where the matters intended to be decided have been decided in good faith, no interference with the award will be permitted. After the delivery of the above opinion, the Court proceeded to an examination of the exceptions filed and upon the ground that they were not embraced in the views which had been exhibited, dismissed them and confirmed the report.-National Gazette, the faith and credit of the Commonwealth; respectfully Loans not pertaining to canals and rail roads, Debts due by appropriations to turn- Union canal stock, per act of 1833, Making an aggregate of $1,840,000 00 362,783 00 200,000 00 120,000 00 17,775,648 88 $20,298,431 88 2. Of the Public Property of the Commonwealth, viz. Bank stock, Turnpike stock, Schuylkill and Codorus Navigation 2,108,700 00 2,081,592 43 350,000 00 431,800 00 60,000 00 $5,032,092 43 4. Total disbursements of the financial year 1833. Temporary loan, per act of 27th Part of loan per act of 16th February Loan per act of 27th March, 1833,do. Balance in the Treasury, 1st November, 1833, 598,680 00 100,000 00 1,311,307 00 530,000 00 The results of the foregoing statements and estimates exhibit the financial condition of the Commonwealth, in a flourishing and creditable state, and is calculated to inspire confidence in the present healthful condition, and future prosperity of the State. The receipts into the Treasury, during the past financial year, have enabled the Government to meet the demands on it, for all ordinary expenditures-to pay large portions of appropriations to miscellaneous objects, as they were called for-to refund to the Canal Treasury $135,896 16 taken to meet the deficiency of interest on the public debt, the 1st August, 1832: and to pay the interest on all the loans borrowed, for the purpose of internal improvement, leaving a balance in the Treasury, at the end of the fiscal year, of $367, 423 30. If, as is confidently believed, the estimates of receipts into the Treasury for the current fiscal year, shall prove correct, and the amount of revenue thus estimated, be realized, the Government will be enabled to meet all 755,444 C1 the demands on it for ordinary expenditures-to pay the estimated amount of appropriations to miscellaneous objects, now authorized which will be probably required-to pay the interest, as it falls due on the whole amount of the public debt, and to pay $380,000 of the stock loan of 1824, redeemable on the 1st May, 1834, thus reducing so much of the public debt, and leave in the Treasury, on the 1st November, 1834, a balance of $32,667 02 exclusive of premiums which may be received for future loans. 501,363 47 3,796,794 48 367,423 30 5. Estimates of receipts and expenditures, at the State Treasury, during the financial year ending 31st of October, 1834, exclusive of future loans, premiums on future loans, and appropriations which may be made to miscellaneous objects.—( See statement B.) The annual estimates of the receipts into the Treasury, from the ordinary sources of revenue, are made by a careful comparison with those of previous years, and varied by such information, as the State Treasurer is able to collect, of all matters having a bearing on the probable amounts to be derived, from the various items of which the estimates are composed. It frequently happens, that a deficiency occurs in some of the items, but in others there is a correspond. ent increase, so that in the aggregate, the amount of revenue received, most generally corresponds with the estimates. It is difficult to form an estimate of the amount to be derived from the receipts for patenting lands, which lately have been more fluctuating, than most of the other sources of revenue. They were during the last year much below the receipts of previous years, and the advance in the estimate of the present year, is predicat 6. Estimated expenditures for the financial year, ending ed on the fact, that the law extending the time for bring 31st October, 1834, viz. Balance of loan, per act of 16th February, 1833, for canal and rail road pur. poses, Interest on loans for canal and rail road purposes, and to pay lock-keepers and toll collectors, Penitentiaries, and other miscellaneous objects,-(See statement C.) For ordinary expenses of Government, To pay part of the stock loan of 1824, which is redeemable 1st May, 1834, Balance in the Treasury, on the 1st 1,229,354 44 951 700 00 175,857 06 385,605 00 S80,000 00 3,122 516 50 $32,667 02 A tabular statement, (marked C,) is appended to this report, exhibiting the appropriations and balances of appropriations by former acts, and estimates of the probable amount of those appropriations, which will be required during the current fiscal year. Estimates of the probable condition of the Treasury, on the 1st February and August next, the periods fixed for the payment of interest on the public debt, will be found in the report of the Commissioners of the Internal Improvement Fund, and is consequently considered unnecessary to be introduced into this report. ing suits, expires in April next; a circumstance which it is believed, will increase the payment from this source into the Treasury the current fiscal year. The advance in the estimate of receipts from the tax on bank dividends, is founded on the fact, that several new banks which have not heretofore paid any thing on account of this tax, will make their dividends this year, on which this tax is assessed. There is a small advance on the estimates of the receipts derived from tavern licenses and shop tax, from the circumstance, that the usual amount of revenue derived from these sources, was not paid into the Treasury within the last financial year, which will be brought into the revenues of the present year. There are balances of the revenues, derived from the tax on county rates and levies, and on personal property, of the assessments of 1832, and a considerable portion of the assessments of 1833, together with the tax on unseated lands, (but little of which, if any, has come into the Treasury,) which will be received during the year 1834, all which, together with what will be received from the assessments of 1834, justifies, it is believed, the opinion. that the estimates of these sources of revenue will be rather increased than diminished. The revenue derived from auction duties, was, during the last year, much below the receipts of previous years, owing it is believed, to cash payment of duties on foreign merchandize, being exacted, and the failure of one and death of another of the principal auctioneers of the city of Philadelphia. Upon the belief that their places will be speedily supplied, is founded the advance on the estimate of this item of revenue. The estimates of the receipts from the tolls on canals and rail roads, belonging to the State, is sanctioned by the Commissioners of the Internal Improvement Fund, and by the opinions and judgments of the Canal Commissioners. On the correctness of the estimate of the receipts into the Treasury from this source, will much depend, whether the gratifying results exhibited in the foregoing statements will be realized. As the duty was first imposed on the State Treasurer, to make an annual report, on the subject of finance to the Legislature, at the last session, his attention was directed to the point, how far the public works were to be regarded and likely to prove valuable sources of revenue, and his views of the subject were therein fully exhibited. The experience of the past year fully confirms, in his judgment, the correctness of those views, and he is not aware of any untoward event of a character to change the favourable opinions he then entertained and expressed, of the future productivenesss of the public works. The tolls of the past fiscal year amounted to $151,419 61, falling short of the estimate of the receipts from this source, $48,580 39, a deficiency which arose from the interruption of the navigation of the canals, in consequence of the great flood which occurred in May last, the like of which had not been experienced for forty years past. The interruption to the navigation of the canals by this extraordinary flood, had a disastrous effect, particularly on the Delaware and Branch canals; notwithstanding these adverse circumstances, the receipts of tolls into the Treasury for the last fiscal year, have amounted to the sum stated: viz. $151,419 61. And it cannot be doubted, but that for the causes above stated, the tolls would have greatly exceeded the amount of the estimate; causes which are not within the range of prudential calculation, and which are not to be expected to occur in the ordinary course of nature. and support this estimate, the estimate has been made by the Commissioners of the Internal Improvement fund, and the Canal Commissioners, after a careful and cautious investigation of all the circumstances having a bearing on the subject; and is submitted to the Legis lature by the State Treasurer, with all the confidence of certain conviction, on his part, of its fairness and reasonableness In estimating the future productiveness of the public works, their intimate connection with those of the state of Ohio is viewed as a matter highly important. Fortu. nately, within a short period, the serious attention of the citizens of the commercial metropolis of the state has been awakened to the absolute necessity of this connection, to sustain and support its prosperity-and in the excitement produced, has had the most salutary effect, of originating measures, which cannot fail to insure their speedy union, a consummation which will verify the most sanguine calculations, of the most ardent friends of internal improvement of the state. By a fortunate coincidence, forty-seven miles of the Columbia rail road, is made to form a part of a great line of communication, by a continuous rail road from New York to the city of Washington, a great part of which, is now constructed, and all of which will be in use, within a short period of time, a circumstance which will greatly increase the productiveness of this part of the Pennsylvania improvements. These topics, which have been briefly referred to, have been deemed proper, to illustrate the subject, on which it has been made the duty of the State Treasurer to make an annual report to the Legislature. The public works, the extraordinary expenditures incurred to execute them, and the probable amount of revenues to be derived from them, constitute the most important items of the finances of the Commonwealth. These statements are submitted, under a proper sense of the responsibility which necessarily attaches to the importance of the subject; and in their correctness and reasonableness, the State Treasurer feels confirmed by his own investigations and reflections. If these statements and views are not founded in illu sion and deception, it is certainly a gratifying considera The estimate of the receipts from tolls, for the curtion, that notwithstanding the gloomy forebodings, rent fiscal year, is based on the experience of the past year, taking into consideration the adverse circumstances stated, the great extent of canals and rail roads which will be open in the spring, for navigation and travel, and on the important fact, that the great thoroughfare between Philadelphia and Pittsburg, will have the ad. vantage of an entire line of rail road and canal completed, on the opening of the spring. which predicted the embarrassment of the State, and the insolvency of the Treasury, an opposite state of things is presented; and if, in the incipient stage of the public works, under the many adverse circumstances attending them, the finances of the Commonwealth exbibit so flourishing an aspect, an earnest is afforded of the future prosperity of the State, when the public works will be in a situation to develope the rich and va rying resources of the State, still dormant. And should the estimated amount of revenue to be derived from the public works, during the present year, be realized, and crease, the highly interesting and gratifying truth is presented, that, inasmuch as $500,000 00 will pay the interest, at five per cent. on ten millions of dollars, it is a virtual reduction of the public debt, created for the purposes of internal improvement, FROM UPWARDS OF SEVENTEEN MILLIONS OF DOLLARS TO SEVES!! Whatever disappointments have heretofore taken place, in the calculations which have been presented, from time to time, of the extent of canals and rail roads which will be prepared for use, there can no longer ex-permanent, leaving out of view its certain future inist a doubt of the fact, that there will be completed and fit for use the ensuing season, five hundred and fourteen miles of canal, and one hundred and eighteen miles of rail road, which information, will be furnished by the Canal Commissioners, in their annual report. If,in the unfinished state of the public works, enjoying a limited and partial operation, subject to the interruptions to which new works of the kind, are ordinarily exposed, and visited by two most extraordinary floods, such as have not occurred within a period of forty years before, the increase of tolls, in the two last years has been from $45,550 58 to $151,419 69, it cannot be considered as extravagant to estimate the receipts of tolls from the public works, during the current fiscal year at $500,000 00, when the great line of communication, will be in active operation, and in addition to it, the Columbia rail road will have a single track completed and in use. A comparison of the increase of tolls, on the canals of other states, particularly the canals of New York and Ohio, in the incipient stages, with the progressive increase of tolls of the canals of this state, will sustain It is with some degree of pride, that the State Treasurer adverts to the fact, presented in the exhibit of the state of the Treasury, at the end of the fiscal year 1834; from which it appears, that there will then remain a balance in the Treasuary of $32,667 02, after paying all ordinary expenses of the Government, all miscellaneous appropriations now authorized by law, which will probably be required, the interest on the public debt, and in addition, pay off a portion of the public debt falling due within that year, viz: $380,000 00 of the stock loan of 1824. At the last session of the Legislature, a law was pass. ed authorizing the Commissioners of the Internal Improvement Fund, to apply so much of the funds appro priated to the construction of the public works,as might Interest on loans not pertaining to canals, Conveying convicts and fugitives, Appropriations, &c. per statement C. be necessary to meet the deficiency of interest, due on 103,725 00 300 00 100 00 2,000 00 9,000 00 175,857 06 7,480 00 951,700 00 380,000 00 3,122,516 50 32,667 02 $3,155,183 52 Appropriations and balances of appropriations, unpaid 1st November, 1833, with an estimate of the amount likely to be called for, during the year 1834. Estimate for 1834. Springhouse, Northamp- $15,000 00 Lycoming and Potter, Waynesburg, Greencas- Indiana Philadelphia, Brandywine, 6 09 69 63 3,620 04 25 95 12,500 00 $2,898 62 ary, 1833, $1,229,354 44 Premium on the same, 166,085 78 Lands and land office fees, Auction commissions, 65,000 00 16,000 00 98 37 Chambersburg and Bed Auction duties, 100,000 00 Dividends on bank stock, 140,000 00 New Alexandria and Con Dividends on bridge, navigation and turn pike stock, Little Conestoga, 22 04 Tax on certain offices, 14,500 00 Derrstown and Northum- 4,607 50 Fees of the Secretary's office, Tavern licenses, 55,000 00 600 00 Milesburg and Smeths- Retailers do. 65,000 00 Gettysburg and Hagers State maps, 100 00 Collateral inheritances, town, 20,000 00 30,000 00 burg Bridge, Turnpike Militia and exempt fines, Road, 1,600 00 Mount Pleasant and Pitts Increase of county rates and levies, 205,000 00 Juniata Bridge, 1,000 00 Robbstown Bridge, Columbia Bridge, Bridge over Ten Mile 2,787,760 22 Creek, per act of 1833, 1,000 00 1,000 00 Add balance in the Treasury 31st October, 1833, Williamsport, per act 15,000 00 Jefferson College, $1,000 $3,155,183 52 per annum, from 1st May, 1832, (for 4 years, 2,000 00 1,000 00 PAYMENTS. per annum, from 4th April, 1831, (for 4 Expenses of government, 213,000 00 Dickinson College, 3,000 00 3,000 00 Militia expenses, 20,000 C0 Warren Academy,per act Pensions and gratuities, 30,000 00 of 1832, 2,000 00 |