
    Commonwealth ex rel. v. Towanda Water Works.
    In proceedings by quo warranto against a water company, incorporated under tbe Act of April 29,1874, \ 34, paragraph 2, authorizing the incorporation of water companies for the supply of pure water, the information, filed in the common pleas of Dauphin county, in the name of the attorney general, averred that the water supplied by the defendant company was impure, unwholesome, etc., and claimed a forfeiture of the franchises. The answer denied these averments. The jury found a special verdict that the water furnished was “ wholesome, but not pure,” subject to the reserved points whether the court had jurisdiction and whether a judgment of ouster should be entered. The evidence as to the quality of the water was contradictory. The court below held that, in the absence of any application to the court of the proper county, under the Act of 1874, to require the corporation to furnish water less impure, and of any finding that the defendant wilfully or negligently failed to do its duty, and in view of the contradictory evidence, judgment should be entered for the defendant. Held that the judgment should be affirmed.
    Simonton, P. J. — The Act of June 14,1836, $ 1, as extended by the Act of April 7,1870, confers jurisdiction upon the court of common pleas of Dauphin county. And the Act of April 29,1874, giving a remedy to any citizen using the water, upon application to the court of the county where the company’s business is located, does not diminish or enlarge the remedy of the commonwealth. The Act of 1874 implies, at least, that a failure to furnish pure water is not ground of forfeiture.
    May 29, 1888.
    Error, No. 4, May T. 1888, to C. P. Dauphin Co., to review a judgment on a special verdict in an action of quo warranto, at April T. 1886, No. 630. Trunkey, J., absent.
    This was a proceeding on behalf of the Commonwealth, at the suggestion of the Attorney General, to enforce an alleged forfeiture of the rights and franchises of the Towanda Water Works.
    The substance of the pleadings is stated in the opinion of the court below.
    Upon the trial, the jury found a special verdict as follows:
    “By letters patent, granted on Dec. 1,1879, the Towanda Water Works was created a body corporate and politic, under the name of Towanda Water Works, pursuant to the Act of April 29, 1874, and said letters patent were duly recorded, etc., and thenceforth the said Towanda Water Works became and was a corporation upon the terms and for the purposes named in said certificate and letters patent, a copy of each of which is made a part hereof, with like effect as if herein set forth at length. Upon said incorporation, the said Towanda Water Works, for the purpose of supplying the ‘public generally of said borough and vicinity with water, laid certain mains and pipes to and within said borough for the purpose of conducting water heretofore, to-wit: Dec. 1, 1882, and from time to time since said date and up to the time of filing said information, has, by the means aforesaid, furnished such of the inhabitants of said borough and vicinity as chose to take the same with water. The water so as aforesaid conducted and furnished was and is wholesome, but not pure. The jury aforesaid do further say that they are ignorant in point of law whether their verdict upon the facts herein stated should be for the plaintiff or for the defendant. If, upon the facts found, the court he of opinion their verdict should be entered for the plaintiff, they do find for the plaintiff. If, upon the facts found, the court should be of. opinion their verdict should be entered for the defendant, then they find for the defendant.
    “ The above verdict is taken subject to two reserved questions: 1. Has the court jurisdiction of the cause. 2. Does the verdict warrant a judgment of ouster.”
    Upon this verdict the court subsequently entered judgment for the defendant, in the following opinion, by Simonton, P. d.:
    “ The Attorney General, on behalf of the Commonwealth, presented a suggestion to the court setting forth the fact of the incorporation of the company defendant under the Act of 1874, § 34, which relates to the incorporation, powers, and duties of gas and water companies; and averring that, under the powers conferred on it by such incorporation, it had, from time to time, up to the time of the filing of the information, furnished such of the inhabitants of the borough of Towanda and vicinity, as chose to take the.same, with water; with the further allegation ‘ that the water so as aforesaid conducted and furnished, was and is impure, unwholesome and polluted and unfit for use by the said inhabitants and public generally, and injurious and dangerous to the lives and health of the said inhabitantsand claiming a forfeiture of defendant’s corporate rights and franchises.
    “In response to this allegation, defendant pleaded ‘that the water so supplied by it is pure, wholesome, unpolluted and fit for use by the public of the borough of Towanda and county of Bradford ad jacent thereto, and is not injurious or dangerous to the lives and health of the said inhabitants of said borough and county.’ Whether there were any other pleadings, we do not know, but the case was tried before a jury on the issue raised by the suggestion and pleas as above cited. The jury found, by special verdict, that the water furnished by the defendants ‘ was and is wholesome but not pure.’ We are asked, on this verdict, by the Commonwealth, to enter judgment of ouster; and by the defendant to enter judgment for it.
    “We have no doubt the court has jurisdiction of the cause. But it is by virtue of the Act of 1836, relating to the writ of quo warranto, and the Act of 1870 enlarging the jurisdiction of the court of common pleas of Dauphin county; and does not depend at all upon the Act of 1874 under which water companies are chartered. That Act gives a remedy to any citizen using the water, to whom pure water is not furnished, by authorizing him to apply to the court of the proper county, to which is given power to compel the corporation to correct the evil complained of.
    “ The remedy of the Commonwealth is neither diminished nor enlarged by that Act, and the substantial question now before us is whether, on general principles, this corporation, chartered for the purpose of furnishing water to the citizens of Towanda and vicinity, has forfeited its charter by furnishing water which is not pure, but is nevertheless wholesome, and therefore must be taken to be not injurious or dangerous to the lives and health of said citizens.
    “ There can be no question that judgment of ouster may be rendered against a corporation, either for a non-user or a misuser of its corporate powers. But a forfeiture will not be declared for every failure to perform its duty. The failure or breach of duty must be substantial. ‘ To work a forfeiture, there should be something wrong; and not only a wrong, but one arising from wilful abuse, or improper neglect. . . . There must be an abuse of trust somewhat of such a nature as would render a trustee liable to forfeit his station, on complaint of his cestui que trust, if the question stood in the relation between them. Corporations are political trustees. Have they fulfilled the purposes of their trust, or acted in good faith with a view to their fulfilment? is the question to be asked when they are called on to forfeit their charters either for acts of commission or omission.’ Mr. Justice Cowan in People v. Bristol and Rensselaerville Turnpike Co., 23 Wend. 236.
    . “The Act of 1874 makes it the duty of the defendant to furnish pure water. The jury have found that the water furnished was not pure. But they have, at the same time, found that it was wholesome. If wholesome, it cannot be injurious to the health of those using it. The finding as a whole must be taken to mean that the water is not altogether pure, but is not so impure as to be unwholesome.
    “ The jury have not found that the failure to furnish pure water was wilful. Nor were they asked by the Commonwealth so to find. The evidence as to the impurity of the water was conflicting. The case was not argued to the jury, nor were any instructions asked from the court.
    “ The Act of 1874, giving a remedy to the citizen to compel the corporation to furnish pure water, does not oust the jurisdiction of this court on behalf of the Commonwealth. But it does provide a means of compelling the corporation to furnish pure water, if it can. And the term ‘ pure ’ cannot be taken in an absolute sense, as such water can rarely, if ever, be found. The Act of 1874 also implies, at least, that a failure to furnish pure water is not ground of forfeiture. In Attorney General v. Petersburg & Roanoke R. R. Co., 6 Iredell L. 456, Chief Justice Ruffin said: ‘With respect to the duties arising by implication from the nature of the franchise, and the interest of the public in their due and continued performance, we should be inclined to hold that only such acts or omissions would be destructive of the charter, as concern matters which are of the essence of the contract between the state and the corporation.’ We are not prepared to say that this defendant, by furnishing water not absolutely pure, but yet wholesome, without any wilful act or default found by the jury, has committed a breach of the essence of its contract with the state; and, in view of the verdict as a whole, we decline to enter a judgment of ouster.
    “ It is contended for the Commonwealth that the finding of the jury that the water furnished is wholesome should be treated as surplusage, and disregarded because the Act of 1874 does not make use of this word, but simply requires the corporation to furnish cpure’ water. We do not think this position can be sustained.
    “ The term ‘ pure ’ is certainly relative, and the term wholesome qualifies the impurity and negatives the further charge in the suggestion and writ that the water is deleterious to health. Nor is the verdict as a whole ambiguous. It simply declares that the water, while not pure, in the abstract, is not so impure as to be unwholesome.
    “ In the absence of any application to the court of the proper county to require the corporation to furnish water less impure, and of any finding that defendant wilfully or negligently failed to do its duty, and in .view of the contradictory character of the evidence as to the quality of the water, we think the defendants are entitled to a judgment in their favor on the special verdict, and we therefore direct such judgment to be entered.”
    
      The assignments of error specified the action of the court, 1, in entering judgment for the defendant, on the points reserved, and, 2, in not entering a judgment of ouster against the defendant.
    
      John F. Sanderson, Deputy Attorney General, with him W. S. Kirkpatrick, Attorney General, and John N. Calif, for plaintiff in error.
    The court has jurisdiction of the subject matter of a writ of quo warranto under the Act of 1836, § 2, Purd..l408. And of the person of the defendant under the Act of April 7, 1870, § 1, P. L. 57. Com. v. Wickersham, 90 Pa. 311; Com. v. Pa., Slatington and New England R. R., 14 W. N. C. 60; Mahonoy Mutual Assessment Life Asso. v. Com., 14 W. N. C. 370.
    Wherever the objection goes, not to the judicial power of the court, but to the manner in which the case came before it, the objection is waived by appearance and plea. Staever v. Gloninger, 6 S. & R. 63; Schenley v. Com., 36 Pa. 29.
    By the Corporation Act of 1874 it is provided (clause 3, page 94) that the said corporations shall at all times furnish pure gas and water, and any citizen using the same may make complaint of impurity or deficiency in quality or both to the court of common pleas of the proper county by bill filed, and after hearing the parties touching the same, the said court shall have power to make such order in the premises as may seem just and equitable, and may dismiss the plaintiff’s bill, or may compel the parties to correct the evil complained of. ,,
    The fact that a private citizen is given a remedy, under the Act of 1874, for the direct injury to himself upon a contract, express or implied, with a corporation entitling him to a supply of pure water, does not oust the Commonwealth, by implication, of her remedy against the corporation for forfeiture of its franchise by misuser. Com. v. Commercial Bank, 28 Pa. 386; People v. Bristoll & Rensselaerville Turnpike Co., 23 Wendell, 222; People 
      v. N. Y. Cent. & Hudson River R. R., 28 Hun, 543; Taylor on Private Corporations, § 455; Murphy v. Farmers Bank of Schuylkill Co., 20 Pa. 415.
    A private corporation created by the Legislature may lose its franchises by a misuser or a non-user. Terrett v. Taylor, 9 Cranch, 51; Morawetz, 1st ed., § 640; Taylor on Corporations, § 457; Com. v. Commercial Bank, supra; Mumma v. Potomac Co., 8 Pet. 287; Angell & Ames on Corporations, p. 660; Atty. Gen. v. Petersburg & Roanoke R. R., 6 Iredell, L. 461.
    In the present case, express averment and finding of wilfulness are unnecessary. The statute requires the corporation to furnish pure water, and the intent of the corporation is immaterial. Wilfulness is material only where the acts are in their nature occasional, and are frequently repeated.
    The failure to furnish pure water and consequent breach of charter and forfeiture for misuser sufficiently appear by the special verdict. The word “ pure ” in the Act is not used in a chemical, but in a legal sense, to denote water of a character fit for all the purposes of public and domestic use. The verdict means impure in the legal sense. The finding that the water is wholesome, is immaterial and surplusage, and should be disregarded.
    Instances are numerous where words have been disregarded, when found in a verdict, for being superfluous. Watkins v. Building Asso., 97 Pa. 514; Cavene v. McMichael, 8 S. & R. 441; Fisher v. Kean, 1 Watts, 259; Bickham v. Smith, 62 Pa. 45; Duane v. Simmons, 4 Yeates, 441; O’Brien v. Palmer, 49 Ill. 72; State v. Knight, 46 Mo. 83; 3 Salkeld, 376, Title, Verdicts; Hinks v. Clerk, 2 Levintz, 253; Tuley v. Mausey, 4 B. Mon. 5; Cope v. Kidney, 19 W. N. C. 304.
    A verdict, like an award, ought to have in it something final and conclusive. The wording of it must not be such as of itself to create disputes. Martin v. Martin, 17 S. & R. 431; Diehl v. Evans, 1 S. & R. 367; Hunter v. Commonwealth, 2 S. & R. 298; Rex v. Woodfall, 5 Buroughs, 2669. See, also, Manning v. Monaghan, 23 N. Y. 539; Peterson v. U. S., 2 Wash. C. C. R. 40; Hall v. York, 16 Texas, 18.
    Whatever is not found in a special verdict is to be considered as not existing. Vansyckel v. Stewart, 77 Pa. 124; Loew v. Stocker, 61 Pa. 347; Scott v. Cook, 1 Duval, Ky. 314.
    
      J. C. McAlarney, John R. Read and Silas W. Pettit, not heard, for defendant in error.
    Upon the facts, as developed on the trial, there was clearly no cause for the forfeiture of the charter.
    Forfeitures are not to be allowed, except under express limitation or for a plain abuse of power by which the corporation fails to fulfill the design and purpose of its organization. Especially are the courts inclined to look with disfavor upon such forfeitures when the law has provided other sufficient remedies. High on Extraordinary Remedies, §§ 648,9; State v. Commercial Bank, 10 Ohio, 535; State v. Farmer’s College, 32 Ohio St. 487; Harris v. R. R., 51 Miss. 602; People v. Turnpike Co., 2 John. 190.
    Manifestly, the term “ pure water ” in the Acts of Assembly is a comparative one only. The issue was whether the water was so impure as to be unwholesome.
    Oct. 1, 1888.
   Gordon, C. J.,

If the term “pure water” as found in the Act of 1874, is to he taken in the absolute sense, then is that Act absurd and useless, for we all know that the only possible way to obtain pure water is by distillation. Water is an absolvent and a solvent, so that it can neither pass over the earth nor pass through the atmosphere without contracting impurity. How, then, could the Towanda Water Works deliver “pure water” to the inhabitants of Towanda, when such was not to be found in the heavens above or in the earth beneath ? But even comparatively pure water is hard to be obtained in large quantities; for, in populous sections of the country, where water works are mostly needed, neither rivers nor smaller streams can be kept entirely clear of sewage. Melting snow contaminates them, and rains fill them with mud. The very mountain streams are not free from pollution, nor even the springs that flow from the rocks. These are matters of common observation, and we do not need experts to inform us of them. If we are not to frustrate utterly the Act of Assembly, we must construe the word “ pure water ” to mean wholesome, ordinarily pure. We must use it as it is used by the world at large, and not in its abstract or chemical sense. It is only in this manner that we can reach the legislative intent, and make the Act economically valuable. Under this rule, the rule of sound common sense, we can entertain no doubt of the rectitude of the judgment of the court below.

The judgment is affirmed. J. C. S.  