text:
    McCall’s Appeal.
    M. bequeathed a certain fund to her executors, in trust to pay the income to G. for life, and after his death to pay the income to W. until he attained the age of twenty-five years, and on his arriving at that age to pay to him the principal; but if he should die before he reached that age without wife or issue surviving him, then the principal was to go to the eldest child of P. W. died at the age of thirty-seven, in the lifetime of G.; Held, that the legacy vested in W. when he attained the age of twenty-five years, and that the fund was payable to his executor.
    February 8th 1878.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the decree of the Orphans’ Court of Philadelphia county: Of January Term 1876, No. 108.
    This appeal was from the decree of the court confirming the report of the auditor of the account of George Read and Henry McCall, trustees under the will of Margaret A. McCall, deceased. The will of said decedent, which was duly proved in 1860, contained, among others, the following provision :—
    “ To my executors, and to the survivor of them,' I give the sum of two thousand dollars in trust, to invest and' keep the same invested, and pay the interest and income thereof to my nephew, George C. McCall, during his life, and after his decease, to pay interest and income thereof to his nephew, William C. McOali, until he arrives at the age of twenty-five years; and on his arriving at twenty-five years of age, to pay over to him the principal sum of two thousand dollars, with any accumulation thereon.- But if the said William C. McCall shall die before arriving at twenty-five years of age, without marrying or leaving child or children him surviving, then I give the said sum of money to the eldest child of my nephew, Peter McCall; and in event of his not having any child then living, I give the same to the children of his late brother, John G. McCall, if more than one, in equal shares. But if the said William C. McCall shall die under the age of twenty-five years, leaving a child or children, I give the said sum of money to his child or children him surviving, in equal shares.”
    William C. McCall died a.t the age of thirty-seven years, in April 1868, unmarried and without issue, in the lifetime of George C. McCall, who died five years after, in May 1873. .
    Before the auditor, the fund in controversy was claimed by Edward Green, executor of the said William C. McCall, deceased, and by Edith McCall, the eldest child of Peter McCall, living at the death of George C. McCall.
    The auditor, James V. McDonough, Esq., reported as follows:—
    “ It is clear that if William C. McCall took a vested estate under the will, then the fund before your auditor should be awarded his executor, and Miss Edith McCall has no interest now in said fund ; neither has she any interest now in said fund, if the bequest to her under the said will was contingent upon William C. McCall dying under the age of twenty-five years.
    “ The words of the will are, ‘ But if the said William C. McCall shall die before arriving at twenty-five years of age, &c., then I give the said sum of money to the eldest child of my nephew, Peter McCall.” Your auditor finds that the contingency of William C. McCall’s dying before arriving at the age of twenty-five is attached to the substance of the gift .to Miss Edith McCall, and as that contingency never occurred, no interest in the said legacy ever vested in her: Lamb v. Lamb, 8 Watts 184; Donohue v. McNichol, 11 P. F. Smith 73; 2 Redfield on Wills 593; Seibert’s Appeal, 1 Harris 501.
    “ Passing now to the main question of contention, whether or not the interest of William C. McCall was vested, your auditor finds from said clause that the prevailing idea in the mind of the testator was to provide for George C. McCall, and for William C. McCall and his children, by making a provision for the former during his life, with a remainder after his decease to William C. McCall. The only contingency mentioned by the testatrix, upon the happening of which the said fund was to go to any other person than said William ,C. McCall or his children, is, ‘ if he shall die before arriving at twenty-five years of age, without marrying or leaving child or children him surviving;’ and as, in construing this will, we must endeavor to effect the intention of the testatrix, is it not fair to presume that the testatrix intended, if that contingency did not occur, the estate was to vest in William C. McCall ? As William C. McCall did not die till after he had arrived at twenty-five years- of age, the contingency named by the testatrix can never occur; so that the estate is vested in William C. McCall, or else as to that the testatrix died intestate.
    “ It was contended before your auditor that the estate was not vested in William C. McCall—
    “ 1. Because there is no separate and independent gift to him, but an implication„arising solely from a direction to pay.
    “ 2. That the direction is to pay the interest and income to him until his arrival at twenty-five years of age, then to pay him the principal.
    “ 3. That the direction is to pay over to himself.

      “ If we look at the words of the will, we find that the bequest is, ‘ I give the sum of $2000 in trust, &c.,. to pay the interest and income to my nephew, George C. McCall, during his life ; and after his decease to William C. McCall, until he arrives at the age of twenty-five years, and on his arriving at twenty-five years to pay over to himself the principal sum.’ This is not merely a direction to pay — it is a direct gift to trustees upon certain trusts ; and the words ‘ to pay’ are the usual words defining the duty of the trustee, and created an estate in George C. .McCall for life, and a vested remainder in William C. McCall, subject to be divested upon his death before arriving at the age of twenty-five years. The mere fact that one estate under a will is provided to take effect after the termination of an intervening one, will not have the effect to prevent both estates becoming vested at the moment of the decease of the testator, the one in possession, the other in prospect or remainder: 2 Rédfield on Wills 593. In King v. King, 1 W. & S. 205, C. J. Gibson says, on p. 207: When the enjoyment of an entire fund is given in fractional parts at successive periods which must eventually arrive, the distinction betwixt time annexed to payment and time annexed to the gift becomes unimportant. In such a case it is well settled that all the interests vest together. Thus a legacy to one for life and to another at his death, goes to the legal representatives of the latter, should he not live to take it himself.’ To the same effect is McGill’s Appeal, 11 P. F. Smith 46. But Provenchere’s Appeal, 17 Id. 463, is in effect our very case. A testator gave a fund in trust to pay the income to' his daughter-in-law during her widowhood, and after her decease or marriage, to hold the same for the use of my grandchildren, A., L., F., share and share alike, the income to be applied to their maintenance and education, and the capital, to .be paid to them as they respectively attain the age of twenty-one years.’ Two of the said grandchildren having attained their majority, intermarried and died before the death of the daughter-in-law, the first named legatee for life. Held, that the legacies vested in the grandchildren at the death of the testator, and the administrators, of the deceased grandchildren were awarded their proportion of the fund at the death of the lega tee for life. In this connection it may be well to notice that the only devises over are, first, if William C. McCall shall die before arriving at twenty-five years of age, without marrying or leaving child or children him surviving, then to the eldest child of Peter McCall, Esq.; and second, ‘ if William O. McCall shall die under the age of twenty-five years, leaving a child or children, then to said child or children.’ These bequests over are by all the authorities conclusive, as to the interest having absolutely vested in William C. McCall, upon his attaining the age of twenty-five years, and only the time of enjoyment being postponed to the death of the legatee for life. Where the devise is to a person when or if he shall live to attain a certain age or at a certain age, this standing alone would be contingent; yet if it he followed by a limitation over if he shall die before a certain age, this is regarded as explanatory of the nature of the estate, which it was intended the devisee should take upon arriving at the age named, i. e., that it should then become absolute and indefeasible. The interest, therefore, in such cases, is held to vest upon the decease of the testator. Where the devise over is made dependent upon the first devisee dying before he comes of age, or without issue, or any similar event, it is considered that the devise is equivalent to a provision that the first donor shall take an immediate vested interest, liable to be defeated by the happening of the contingency named; or if it do not happen, the estate then to become absolute and indefeasible: 2 Redfield on Wills 603. The devise of the legal estate vesting the inheritance in trustees, who are required to convey the estate according to the directions of the will, can make no possible difference from one where the interest is provided to take effect directly, without the intervention of trustees.’ Id. 604. ‘ The fact that the testator makes no provision in regard to the disposition of the estate, provided the event named for the devisee coming into full possession never occurs, shows very satisfactorily that it was not in the mind of the testator to create a contingent estate, since the very fact of doing so would suggest the propriety of some provision for the disposition of the estate, in the event of that contingency not happening, as no one making a will would purposely leave property undisposed of.’ Id. 606 and 607. This same doctrine is the basis of the decision in Mutter’s Estate, 2 Wright 314, and in Burd v. Burd, 4 Id. 182. In the latter case Lowris, C. J., p. 185, says: The relevant clauses are very evidently intended to effect an entire disposition of the residue of his personal estate, and yet he leaves a part of it undisposed of, if this legacy was not from the first vested. This is a very influential consideration.’
    “The recently published case of McClure’s Appeal, 22 P. F. Smith 414, leaves us without any doubt that this legacy should be considered vested. That was a devise to the testator’s wife for her life, of his real estate, and At my wife’s decease, m'y real estate to be sold and equally divided amongst my nephews and nieces,’

      naming them. One of the nieces married and died intestate without issue, leaving surviving her her husband, anterior to the decease of the testator’s widow. It was held the real estate was converted by the will to personalty, the interests of the nephews and nieces vested at the decease of the testator, and that the husband of the deceased niece was entitled to her share. Williams, J., in delivering the opinion of the court, says, on page 418, ‘When the fund, which is the subject of the legacy, is given to another person beneficially for life, or until the legatee arrives at a particular age, or until certain debts are paid, the legatee will take an immediate vested interest in the subject, since such bequests are in the nature of remainders; the rule as to which is, that the interests of the first and subsequent takers vest together. Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other interest, the vesting will not be deferred till the period in question.’ See, also, Biddle’s Appeal, 19 P. E. Smith 190; Stehman’s Appeal, 9 Wright 398; McGill’s Appeal, 11 P. E. Smith 46. As to the second objection, ‘ that the direction is to pay the interest and income to William C. McCall, until his arrival at twenty-five years of age, then to pay him the principal,’ it need only be said that this evidences an intention in the testatrix to provide for the maintenance of William C. McCall, and in the words of Roberts’s Appeal, 9 P. E. Smith 72, “is an indication of 'an intent to make him the beneficiary of the corpus of the legacy. ’ And since he did attain twenty-five years, the estate became absolutely vested, abundantly appears by the authorities previously cited, to which may be added Schriver v. Corbeau, 4 Watts 180.
    “As to the third objection, ‘That the direction is to pay over to himself.’ The absolute estate in personal property will always vest by a gift to a person without using the words heirs, executors or assigns. In the case of King v. King, 1 W. & S. 205, it is true the words ‘ or their heirs’ were used; but it is clear, from a careful perusal of the decision, as Judge Sharswood says in Provenchere’s Appeal, that the decision was made irrespective of those words, and their only effect was to rather embarrass. The doctrine announced is, p. 207 : ‘ A legacy to one for life and to another at his death, goes to the legal representatives of the latter, should he not live to take it himself.’ The same objection made here was also made in Provenchere’s Appeal, 17 P. E. Smith 463, but the fund was awarded to the administrator of the beneficiary, Sharswood, J., in his opinion, disposing of it, on p. 469. The same objection could have been made in McClure’s Appeal, 22 P. E. Smith 414, as the interests were given merely to the beneficiaries by name, and was necessarily passed upon, as the husband of a deceased beneficiary was awarded her proportion of the fund.

      “Your auditor therefore finds that the interest-of William McCall was vested in him at the time of his decease, and awards the principal fund, together with the interest thereon since the date of the death of George C. McCall, after the accountant’s commissions are deducted and the expenses of the audit, to Edward Green, executor of William C. McCall, deceased.”
    Edith McCall filed exceptions to this report, which the court. dismissed, and confirmed the report, from which decree she took this appeal.

      John Oadwalader, Jr., for appellant.
    — A legacy is contingent when there is no express gift of it previously to the time appointed for its payment: Roper on Leg. 566; Batsford v. Kebbell, 3 Ves. 363; Moore v. Smith, 9 Watts 403; Cooper v. Scott, 12 P. F. Smith 139. The exception to this rule that when the intermediate interest is given to another for life, the person to whom the absolute property is limited will take an immediate vested interest, oh the ground that legacies in remainder vest at the same time as the particular estates previously given, does not apply, however, where the interest or dividends only of the property is bequeathed for life, and the context of the will shows that no interest in the principal was intended to pass until after the determination of the life estate: Roper on Leg. 589; Williams on Ex’rs 778; Billingsley v. Wills, 3 Atk. 219; Pope v. Whitcombe, 3 Russ. 124; King v. King, 1 W. & S. 207.
    Under this will Miss McCall, the testatrix, directed the payment of 'the interest and income only of the fund to George C. McCall for life, and made ho disposition of the capital until “after his decease.”
    The uncertainty as to the ultimate objects of the testator’s bounty has always been considered as strongly indicative of an intention that the limitations over were contingent.
    In these cases, which it is contended rule this one, the ultimate objects are all certain.
    If we look at the whole will the intention was to provide against the legacy passing in any event to one not of her name and blood, and that the respective persons to be benefited should be living át the time designated for the payment of the capital; namely, after the decease of George C. McCall.
    It is not consistent to suppose that the testatrix desired to give a vested interest to William C. McCall, whether he survived the period at which it was payable or not, when she was unwilling to give such an interest to his children, or to the oldest child of Peter McCall, or to the children of John G. McCall; in all of which latter cases the objects were left uncertain until the time of payment arrived, and this, as has been shown, rendered their interests contingent upon their surviving that period.

      The courts have always disregarded strict rules of construction where the clear intention of a testator could be ascertained independently of them.

      W. Wynne Wister, Jr. and Oadwalader Biddle, for appellees.
    —Whatever principle may be deduced from the English cases relied on by the appellant, it is clear there were particular circumstances in each which exercised a controlling influence upon the decisions. But under these very cases it is clearly laid down, that the mere bequest of the interest of a fund to the legatee for life, will not prevent the vesting of the legacy in remainder, unless there is also a clear controlling intent to that effect, to be gathered from the context of the will :■ Roper on Leg. 589. There is not the slightest intimation that the testatrix intended the death of the tenant-for-life, to be the period for determining survivorship. But if there could be any doubt arising under the English authorities, the cases in Pennsylvania must be held decisive of the present controversy : Provenchere’s Appeal, 17 P. F. Smith 466; McClure’s Appeal, 22 Id. 417.
    February 18th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— We think the legacy vested in William C. McCall, for the reasons so well set forth by the auditor.

Decree affirmed, with costs, to be paid by the appellant, and her appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Pannell versus The Commonwealth.
    1. In a trial for murder, where it is endeavored to be shown that the prisoner was insane, the proof thereof must be by satisfactory and fairly preponderating evidence, but it is not necessary it should be so conclusive as to remove all doubt.
    2. In a capital case, where it is likely the jury, to the injury of a prisoner, may have misunderstood a doubtful instruction of the court on any material question, this court will reverse, even though the language of the instruction is modified by appropriate language in other portions of the charge.
    3. Where a witness has testified in chief, that he was acquainted with the prisoner, and had seen and conversed with him many times, and had not discovered anything which led him to believe he was insane, it is error to refuse to permit the witness to be asked on cross-examination, “whether he saw enough in his intercourse with the prisoner, to warrant him in expressing an opinion as to his sanity or insanity.”
    4. In view of the fact that murder can be committed by none other than a person of sound memory and discretion, in a trial for murder, where the insanity of the prisoner is endeavored to be shown, it would seem that the proper form to put the question to witnesses would be, “ was he of sound or unsound mind,” rather than, “ did you or did you not discover anything that led you to think he was insane.”

      5. The knowledge and experience of medical experts is of great value in questions of insanity, and where evidence has been given of their observation, experience and skill, sufficient to enable them to form intelligent opinions and they have testified to these opinions, it was error for the court to charge the jury ; “ we question very much whether you will realise much, if any, valuable aid from them, in coming to a correct conclusion as regards the responsibility for crime by this prisoner.”
    February 11th and 12th 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Oyer and Terminer of Lancaster county: Of May Term 1878, No. 102. Certified from the Middle District.
    Indictment of James E. Pannell for the murder of his wife, Anna E. Pannell. Plea, “ not guilty.” The evidence produced at the trial disclosed the following facts : Pannell was born in Maryland in 1843. He lost both of his parents at an early age and was taken by an uncle in Lancaster county, Pennsylvania, who cared for and educated him as a son. As he grew towards manhood he became dissipated and reckless, and finally was discarded by his uncle, upon whom he had forged a check for $1500. After an absence of several years he returned to Lancaster in 1875 and early in 1876, when at a religious revival made the acquaintance of Anna E. Hedricks, to whom, after making some inquiries about her, he paid his addresses, and in April 1876 they were married. They "went to housekeeping in a house procured by Pannell and for a time lived, to all appearances, pleasantly and happily together, the prisoner, during this time, working as a carpenter, having during his wanderings obtained some knowledge of that trade. In May 1876, it appeared there was a quarrel between them, the mind of Pannell seeming to be possessed with an idea that his wife was unfaithful to him, It appeared also that he was on some occasions irritable and quarrelsome, and upon others kind and loving. At this time the prisoner was employed on the Centennial grounds in Philadelphia, and made weekly visits to Lancaster. Upon one of these visits, on July 4th and 5th 1876, he again quarrelled with his wife, during which he struck her and threatened to kill her, and was only prevented from doing her more serious injury by the interference of her mother. On the evening of the same day he again made threats that he would murder her. He seemed at this time very much depressed in spirits, and on leaving took a part of his wife’s clothes with him and expressed the hope that he would be killed by the cars on his way to Philadelphia; that his heart was broken and his family broken up, and Anna would not live with him any more. He returned to Lancaster on the 20th of July and went to the house, in the third story of which Mrs. Hedricks, his mother-in-law, was living, having moved in his absence. He slept that night on a lounge in the apartments of the family who occupied the lower stories of the house, and next morning took breakfast with Mrs. Hedricks, and afterwards went to see his wife, who was then employed as a dining-room girl at the Keystone Hotel. His object in seeing her, it seemed, was to effect a reconciliation, for on his return he remarked to Mrs. Hedricks, “ he had seen Anna and she told him she wouldn’t make up with him.” He dined with Mrs. Hedricks on that day, and requested her to remain in the house, as Anna was coming that evening. Anna came about half-past eight o’clock, and after some conversation in regard to her little brothers, said, “ Mother, I have something to tell you.” The prisoner then took a chair and sat down beside her and the children. The deceased then again remarked, “ Oh, mother, I have something to tell you.” The prisoner then said to her, “ I must tell you something. I want to talk a little business to you this evening.” She replied, “ Pannell, I feel good this evening, and I didn’t come here to quarrel or make any fuss with you. I tell you now as I told you to-day, I’ll freely forgive you for all you have done to me, and I have made up my mind I will never live with you again.” The prisoner then arose and replaced the chair whence he had taken it and then went to the window and looked up and down the street. He then returned and standing close by the side of the deceased, said to her, “ Anna, you look beautiful. Anna, we will make up to-night or we will part for ever,” and as he used the last words he discharged a pistol at her, the ball of which lodged in her left cheek. He then withdrew a few feet and reloaded the pistol, and approaching near to the deceased, again shot her in the head. The deceased never spoke after the second shot and died early on the following morning. After the shooting the prisoner attempted to escape by going-out on the balcony of the third story and sliding down a post to the second story, where he was arrested. When arrested he begged the officer “ not to let the crowd handle him roughly.’' When asked by the officer what he had been doing he said, “ I killed her, God damn her ! it was just what she ought to have;” and when asked why he had shot her twice, replied, “ I shot to kill the God damned whore,” and when told she was dead, said, “ she ought to be in hell long ago.”
    The defence alleged that the prisoner was insane. It was claimed that he had hereditary insanity, and to support this claim evidence was offered to show that his mother was insane and committed suicide. There was evidence by members of his family and neighbors, that in early life there were indications that he was of unsound mind. The testimony of those who knew him for the period immediately preceding the murder, concurred, however, in the opinion that there was nothing in the prisoner’s conduct to induce tha belief that hé was insane. The evidence of the medical experts in regard to his insanity was about equally balanced.
    At the trial, before Patterson, J., the Commonwealth put the following question in chief to a number of her witnesses : “ In all the intercourse you had with the prisoner, during the period of your acquaintance, with all your observation of his conduct, manner and appearance, did you or did you not discover anything that led you to think that he was insane ?”
    These questions were permitted under objection, and formed the subject of numerous assignments of error.
    One of these witnesses for the Commonwealth, having testified that he was acquainted with and had had frequent association with the prisoner, and that he did not discover anything which led him to think he was insane, was asked, on cross-examination, “ Did you or did you not, from all that you have related concerning this defendant, discover anything upon which you could base an opinion as to whether he was sane or insane ?” The witness replied: “ I saw nothing that would lead me to believe that he was insane.” He was then asked, “ Did you or did you not see enough in your intercourse with this defendant to warrant you in expressing your opinion as to his sanity or insanity, your attention not having been called to the fact?” The objection to this question was sustained, and exception sealed.
    Among the points presented by the prisoner was the following:
    If the jury believe that at the time the homicide was committed the defendant, James E. Pannell, was insane, he must be acquitted.
    Ans. “ This point the court answers in the affirmative, as an abstract proposition, but add, that the jury must be satisfied, by satisfactory and conclusive proof, of the insanity of the defendant. The party alleging insanity must prove it, and the burthen of proof is upon the defence, to convince you that the mind of the defendant was deranged, and so deranged as to make him irresponsible. If the jury so believe, from all th^ evidence in the case,- then defendant must be acquitted.”
    In their general charge, the court, inter alia, said, [“We had almost concluded to leave the question of insanity to you, with the comments of the able counsel for the Commonwealth and the counsel for the prisoner, and simply remark that- it is a question of fact for you to determine from the evidence, and if made out beyond a reasonable doubt, it is a good defence, and must acquit the prisoner.] * * * The law presumes sanity. In all criminal trials, the person charged with the commission of the offence must be taken to be of sound mind until the contrary is shown, and, therefore, to make insanity a good defence, it must be proven to the satisfaction of the jury.
    “ The burden of the proof rests upon the defendant. Hence, you have seen that, under the rules of evidence, the court have admitted, and both the parties, pro and con, in this trial, have availed themselves of the opinions of distinguished medical writers; indeed, of medical science, in the calling of witnesses, termed experts ; gentlemen of the medical profession, who have studied the human system, and the symptoms which are supposed to determine the presence of insanity; and also a number of other witnesses, not professional, who knew the prisoner, and saw and had personal contact with him, had conversations with and made their own observations of him.
    “ When you look at the medical testimony called on the one side and the other, you discover a diversity of views, and directly opposite professional opinions. There is not any more diversity amongst the other witnesses called to testify, than there is difference between the experts themselves. This is not unusual, and especially in cases like the present, when insanity is pleaded as the extenuation. * * * [Now, whilst the medical witnesses may be paramount, and their opinions, in many instances, greatly superior to that of other witnesses in aiding a jury to come to a correct conclusion in many kindred subjects arising in criminal causes, the nature of their profession having directed their attention to the subjects, yet, in the case now trying, we question very much whether you will realize much, if any, valuable aid from them, in coming to a correct conclusion as regards the responsibility for crime by this prisoner.
    “ You must be satisfied from the evidence that this was a case of insanity, and therefore you must form your own opinion, and as ordinary men of the world, as men seeking the truth. You may be as well qualified to form an opinion as any other on this subject-matter.”]
    The court then proceeded to review the different theories and classifications' respecting mental diseases, and in another portion of the charge said :—

      “ [Now, whether all or any of those conditions existed in the prisoner at the time of the killing, is simply a question of fact, to be established, if possible, by conclusive and satisfactory evidence. The accused acting under those conditions of mind, is assumed to have been an ¿revoluntary agent or actor.] That must be proven to your satisfaction before you can acquit.”
    The verdict was “guilty of murder in the first degree.” After sentence the prisoner took this writ, assigning forty-six errors. Among them were those assigned to the admission of evidence as above noted, the answer to the defendant’s point, and the portions of the chai’ge in brackets, which are the only assignments passed upon by this court.

      S. II. Reynolds and William Aug. Atlee, for plaintiff in error.—
    “ Did or did you not discover anything that led you to think he was insane?” We contend that this question indicates to the witness the difficulty he must find in having any such thought; the use of the word “ anything,” indicates to him that there is nothing to lead the mind in that direction, and the whole question indicates to the witness that the answer which it is wished he should make is “No.”
    Another objection to the question is that the witness has not stated facts to enable him to form an opinion. The rulé of the admission of testimony of non-experts undoubtedly is that the witnesses must state facts and circumstances sufficient to enable them to form an opinion, and then, having thus given the jury an opportunity to test the soundness of their opinions, they may give their opinions. But “ facts and circumstances are to be sworn to as the groundwork of the opinions offered:” Bricker v. Lightner’s Executor, 4 Wright 199.
    To instruct the jury that they must be satisfied beyond a reasonable doubt of the prisoner’s insanity is erroneous: Meyers v. Commonwealth, 2 Norris 131. Conclusive is equivalent to reasonable doubt. It admits only of the construction that there must be no doubt in the minds of the jury : Hiester v. Laird, 1 W. & S. 245.
    It is argued, however, that the jury could not have been misled by this language, because the whole charge was such that they must have gathered from it that the court instructed them that “ the evidence need be only satisfactory to themthat they could not have been wrongly impressed, and that, therefore, under the doctrine of Green v. Commonwealth, 2 Norris 75, the error was cured. We contend, however, that in the four times in which the court alludes to this subject their instruction was so strong that none of the language of the context can qualify it.
    Ordinary men of the world cannot be so well qualified to form an opinion on such a subject-matter as insanity as those who have devoted more years to its examination, treatment and study, than most of the members of the jury have lived. Diseases of the brain are hidden ; at the same time they may be simulated. It takes the skill and experience of the medical man in some cases to discover the disease or detect the simulation. Some phases of insanity are discoverable of all men; extreme cases are patent to every eye; but there are others not so patent, which the ordinary observer cannot see, and he cannot be so well qualified to pronounce an opinion on the case as the experienced physicians who have had more than twenty years’ acquaintance with the patient. The value of such testimony is recognised in Pidcock v. Potter, 18 P. F. Smith 842.

      J. B. Amwahe, M. Brosius and J. W. Johnson, District Attorney, for the Commonwealth.
    — The measure of proof required to warrant an acquittal on the ground of insanity is definitely determined and declared in a series of cases in the last five years, ending with Commonwealth v. Meyers, 2 Norris 141, which says, ■“ it must be satisfactory, such as flows fairly from a preponderance of the evidence.” This measure of proof has been stated in various forms of expression: Ortwein v. Commonwealth, 26 P. F. Smith 421; Lynch v. Commonwealth, 27 Id. 207; Brown v. Commonwealth,, 28 Id. 123. To make the opinion of a witness that a person is insane, competent evidence, he must state some facts fairly indicative of insanity: Rambler v. Tyron, 7 S. & R. 90; Dickinson v. Dickinson, 11 P. F. Smith 404. The question whether the witness is qualified to testify as an expert is to a large extent within the discretion of the judge trying the cause, and a court of review will not interfere, except in a clear and strong case: Pidcock v. Potter, 18 P. F. Smith 342; Del. & Chesapeake Steam Towboat Co. v. Starrs, 19 Id. 36; Sorg v. First German Congregation, 13 Id. 156; Dole v. Johnson, 50 N. H. 452.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

Forty-six errors are assigned. Many of them were not pressed on the argument, and have no special merit.

The killing of Anna O. Pannell by her husband, the plaintiff in error, is not questioned. The sole ground of defence urged to secure an acquittal, or to lessen the grade of the crime, was the unsound mind of the prisoner. "We cannot say that there was not much evidence tending to prove him to be of unsound mind. If, several of the witnesses were believed, the opinion of his insanity was not first entertained after the commission of tjiis act, but existed, and was expressed, many years prior thereto. It was claimed that he had hereditary insanity. To sustain this view evidence was given that the mother of the prisoner was of unsound mind and committed suicide.'

The only plea being that of insanity, and some eight or ten witnesses having testified to facts in support of that plea, it was rather an unfriendly remark of the learned judge, when he said to the jury, near the commencement of his charge, “should it become necessary in your judgment to consider the evidence bearing upon the plea of the prisoner, and by which it is claimed he is entitled to palliation or excuse.” In its effect it was equivalent to saying, should it become necessary for you to consider whether he has any defence. As he had no other defence, the jury may well have considered that the judge expressed a doubt whether they should deem the evidence of sufficient importance to consider it.

The homicide occurred some three months after the parties were united in marriage. At times he appeared to doubt the faithfulness of his wife. Sometimes he was irritable, cross and quarrelsome. At others he was loving and kind towards her. The defence rested on hereditary taint, his own conduct and appearance for many years, and bis fickle and unreasonable conduct toward his wife. It was not claimed that his insanity was of that type which is manifested in the paroxysmal or frenzied action of a maniac ; but that, in a more subdued form, his mind was dethroned. This distinction was not very prominently presented in the charge, and the omission so to do may possibly have misled the jury; yet it' is not so clear as to require us to say there was positive error therein. The assignments, from the 5th to the 25th inclusive, excluding the 9th, 21st, 22d, 23d and 24th, are designed to present this distinction. They cover objections to the form in which the question was put to the witnesses on the part of the Commonwealth. It was, “ Did you or did you not discover anything that led you to think he was insane?” It was contended the word “insane” implied a higher degree of mental alienation than was necessary to exculpate the prisoner, and that the form of the question indicated the answer desired. In view' of the fact that murder can be committed by none other than “a person of sound memory and discretion,” it may be that the better form would be, “ Was he of sound or unsound'mind?” Yet, inasmuch as the witnesses’ understanding of what constituted insanity, as well as what constituted unsound mind, can be ascertained on cross-examination, we do not see that the rights of the prisoner were prejudiced by the use of the word insane; nor do we think the question was so leading as to make it objectionable.

The disallowed question covered by the 9th assignment was put under these circumstances: The witness had testified in chief to his acquaintance with the prisoner; that he had seen him many times, and conversed with him, and did not discover anything which led him to believe the prisoner was insane. It did not appear that his attention had ever been called to observe or notice whether he was insane.

So on-cross-examination he was asked whether, from all he had related, he discovered anything on which he could base an opinion as to whether the prisoner was sane or insane. Avoiding any answer as to whether he discovered anything on which he could base an opinion that the prisoner was sane, he replied that he saw nothing which led him to believe the prisoner was insane. Then in view of the fact that, the witness’s attention had not been called to observe the condition of the prisoner’s mind, he was asked whether he saw enough, in his intercourse with the prisoner, to warrant him in expressing an opinion as to sanity or insanity. Substantially the question was whether he had scrutinized him with sufficient attention to form an intelligent opinion in regard to the condition of his mind. As the weight to be given to the opinion of the witness depended much on this fact, there was error in disallowing the question.

The 26th, 34th and 36th assignments present the question, to what degree or extent must the insanity of the prisoner be proved in order to acquit him ? The court was asked to charge, “if the jury believe that at the time the homicide was committed the defendant was insane, he must be acquitted.” The court answered this in the affirmative as an abstract proposition, but added “that the jury must be satisfied by satisfactory and conclusive proof of the insanity of the defendant.”

That the proof of insanity must be satisfactory, and not merely doubtful, to justify an acquittal, is undoubtedly correct; but we do not know any case in which it has been held that it must be conclusive. To require it to be absolutely conclusive, is asking for too high a degree of certainty. It is not necessary that the proof of insanity should be so conclusive as to remove all doubt. It may be established by satisfactory and fairly preponderating evidence : Ortwein v. Commonwealth, 26 P. F. Smith 421; Lynch v. Same, 27 Id. 207; Brown v. Same, 28 Id. 123; Meyers v. Same, 2 Norris 131. It is contended on the part of the Commonwealth that, conceding the word “conclusive” is objectionable as thus used, yet, inasmuch as the court in several other parts of the charge said the evidence need be satisfactory only, the general effect of the charge did no injury to the prisoner. To this we answer, an examination shows the same objectionable language, substantially, used in other places. Thus in the portion of the charge covered by the 34th assignment, in commenting on the evidence tending to prove insanity, the court said: “ If made out beyond a reasonable doubt, it is a good defence and ought to acquit,” thereby clearly indicating that-any'less degree of proof was not sufficient.

Again, in the 36th assignment, after presenting the different kinds and phases of mental diseases, the court said, “Now, whether all or any of those conditions existed in the prisoner at the time of the killing, is simply a question of fact, to be established, if possible, by conclusive and satisfactory evidence.” The jury might have understood the court to here say that it was not possible to establish insanity otherwise than by conclusive evidence. The effect of the language we have quoted is so far modified by the use of appropriate language in other portions of the charge, that in a case not capital, we might not feel required to reverse. In this case, where the life of a human being is at stake, he has a right to demand that the case shall be submitted to the jury under no doubtful instruction on a vital question. It is impossible to tell whether the jury acted on the opinion that satisfactory and preponderating evidence was sufficient to establish insanity, or whether “conclusive” evidence so strong as to establish it “beyond a reasonable doubt” was necessary. These assignments are sustained.

The language of the court covered by the 35th assignment was certainly calculated to detract from the weight proper to be given to medical testimony. Much that was said in regard to such testimony was wholly unobjectionable, and entirely correct; but there was error in adding, “ yet in the case now trying we question very much whether you will realize much, if any, valuable aid from them in coming to a correct conclusion as regards the responsibility for crime by this prisoner.” Four medical witnesses had testified to the effect that the mind of the prisoner was unsound. They were all educated men, and of large experience in their profession. Two of them had resided near the father of the prisoner. They had knowledge of the mental disease of his mother, and had known the prisoner personally for several years. Their means of observing him and of forming an intelligent opinion as to the condition of his mind had been most ample. To their full observation as men, they had applied their scientific knowledge as experts, and testified to the result. The other two had testified as experts only, predicated on the assumed truthfulness of the facts testified to by others.

It is well settled that the knowledge and experience of medical experts is of great value in questions of insanity. They are like' those of experts in all other branches of science and of art. Evidence had been given of the observation, experience and skill of these medical experts, sufficient to enable them to form intelligent opinions, and they had testified to those opinions. We cannot understand on what principle the learned judge said to the jury that in this case he questioned very much whether they would realize much, if any, valuable aid from their testimony. True, the jury were not bound to adopt the conclusions of the experts ; yet they should have been instructed to give a careful consideration to the testimony of those who had made the diseases of the human mind a special study. In a former part of the charge the jury was told that “ great respect should be paid to the opinion of that class of witnesses,” followed by other remarks equally correct. Yet, when the court came to apply the testimony to the case trying, its effect was almost destroyed. We see no especial circumstances in this case to justify taking from the evidence of these medical witnesses that consideration to which the testimony of experts is generally entitled.

As the case is to go back for another trial, it is not necessary to discuss the assignment relating to the taking of the verdict, nor to matters subsequent thereto. In so far as the other assignments are not covered by what we have said, they are not sustained.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Trunkey Paxson, J.,

text:
    Perkins et al., Commissioners for the erection of Public Buildings, versus Slack et al., Members of the Select and Common Councils of the City of Philadelphia.
    1. The Act of August 5th 1870 constituted certain citizens commissioners for the erection of public buildings in the city of Philadelphia, and after authorizing them to make all needful contracts for the construction of said buildings, enacted that “ the said commissioners shall make requisition upon the councils of the city, prior to the first day in December in each year, for the amount of money required by them for the purposes of the commission for the succeeding year, and said councils shall levy a special tax sufficient to raise the amount so required.” Sect. 2, art. 15, of the new constitution, which went into operation in January 1874, provides : “ No debt shall be contracted or liability incurred, by any municipal commission, except in pursuance of an appropriation previously made therefor by the municipal government.” In November 1876, the commissioners made a requisition for $1,500,090 for 1877, which the city councils refused to raise, and the commissioners then applied fur a mandamus to compel them to levy a tax for that amount: Held, that while sect. 2, art. 15, of the constitution prevented the commissioners after 1874 from making any contract until an appropriation to pay therefor had previously been made, it did not repeal the obligation imposed upon councils to annually raise the amount required by the commissioners, and councils are bound to levy the tax or otherwise raise the amount.
    2. Sect. 20, art. 3, of the new constitution, providing that the legislature shall not delegate to any special commission any power to interfere with any municipal improvement, is prospective only and does not apply to special commissions existing before the adoption of the constitution.
    February 12th and 13th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1878, No. 19.
    This was a petition for a mandamus, filed by Samuel C. Perkins and others, a majority of the commissioners for the erection of the Public Buildings, in the city of Philadelphia, against Amos M. Slack and others, members of the Select and Common Councils of said city. The petition, in substance, set forth that by Act of Assembly, August 5th 1870, Pamph. L. 1871, p. 1548, certain persons therein named, together with the Mayor of the city of Philadelphia and Presidents of the Select and Common Councils ex officio, were constituted commissioners for the erection of public buildings, with power to fill vacancies or increase their number; that the commissioners and their successors proceeded to make contracts for the erection of the buildings, and that a large portion of the said buildings was already constructed, although they were not finished; that by the said act the commissioners were required and authorized to make requisition on the councils, prior to December 1st of each year, for the amount of money required for the succeeding year, and the councils are by the same act required to levy a special tax sufficient to raise that amount, and that the mayor and all other city officials were required to aid in the execution of all that the commissioners might require; that, in accordance with the act, the relators, on November '29th, made due requisition upon the councils for $1,500,000, the amount required for the succeeding year; that the defendants, the members of the Select and Common Councils, refused to levy any tax to raise the amount so required, or to make any appropriation out of the annual tax; concluding with a prayer for an alternative mandamus to levy a special tax to raise the amount required, or show cause why they should not do so.
    An alternative mandamus issued, and the return of the respondents, inter alia, set forth :—
    1. That the relators were not creditors of respondents, but their mere agents.
    2. That under the constitution and the Act of Assembly, the respondents were vested with a discretion in the levying of the taxes.
    3. That under the law of the Commonwealth, the respondents have no' authority to levy such special tax.
    4. That by the constitution, the commissioners are forbidden to contract any debt, or incur any liability, except in pursuance of an appropriation previously made therefor by councils, and that it nowhere appeared that the requisition was to provide for sums due under contracts made prior to the enactment of said prohibition, or that any appropriation whatever was made by councils.
    5. That it did not appear when or what contracts were made, or whether the requisition was for money to be paid under contracts then made or only contemplated.
    6. That if there were any contracts binding on the city, there was a full and adequate remedy at law for their enforcement.
    To this return the relator demurred, and the court, Biddle, J., refused the prayer for the mandamus and entered judgment for the respondents on the demurrer. In an opinion filed, after a reference to the cases of City v. Fox et al., 14 P. F. Smith 183, and The City of Philadelphia v. Field, 8 Id. 320, the court, inter alia, said:—

      “ In the year 1870, the legislature passed the act whose provisions are now in question, ‘ To provide for the erection of all public buildings required to accommodate the courts, for all the municipal purposes within the city of Philadelphia, &c.’ By this act the legislature decided that we must have new public buildings. They' then selected certain citizens by name, whom they entitled, ‘ Commissioners for the Erection of Public Buildings.’ This body they made perpetual by authorizing them ‘ to fill any vacancies which may happen by death, resignation or otherwise” And as soon as the location was determined, they were ‘ to advertise for proposals, and make all needful contracts for the construction of said buildings as soon thereafter as may be found practicable, which contracts shall be valid and binding in law upon the city and upon the contractors, when approved by a majority of the said board of commissioners ; and the said commissioners shall make a requisition on the councils of said city, prior to the first day of December in each year, for the amount of money required by them for the purposes of the commission for the succeeding year, and said councils shall levy a special tax sufficient to raise the amount so required; provided, that said councils may at any time make appropriations out of the annual tax in aid of the purposes of this act.’ And it is further made ‘ the duty of the mayor, the city treasurer, and of all other officers of the city, and also the duty of the councils of the city of Philadelphia, to do and perform all such acts in aid and promotion of the purposes of this Act of Assembly as said councils may from time to time require.’
    “ A body not chosen by the taxpayers, nor removable by them, nor accountable to them, are here authorized to levy upon them any sum of money they may at their discretion require.
    “No appeal was taken to the courts to raise the question of the constitutionality of this law, for it was deemed to contain no principle which had not already been ruled upon by the court of highest resort, not only in the cases which we have already referred to, but still more strongly in the City of Philadelphia v. Henry, where the question of the erection of public buildings, under the Act of April 2d 1860, was involved. It is not going too far to say, however, that the act tried to the uttermost the law-abiding character of our citizens, and there was a fixed determination among them that, if the organic law authorized such legislation, and deprived them of the protection of the courts, it should no longer exist. This feeling, with other subjects of discontent, found vent here in the demand for a new constitution. A convention was subsequently called, and the result of their labors was our present constitution, which went into effect on the 1st of January 1874.
    “ The question before us then is, what bearing, if any, have the provisions of this new organic law upon the question presented for our decision ? If they have no bearing, and we are to be guided by the constitution and laws as they existed before their adoption, the petitioners’ right to this writ, we think, would be incontrovertible. It is quite clear that there was no power then which could prevent the legislature from conferring on any one named man, and his heirs, all the functions vested in the mayor and councils of Philadelphia. In regard to the erection of new commissions, the constitution speaks with no uncertain sound. By section 20, article 8, it decrees, ‘ That the General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes, or perform any -municipal function whatever.’
    “ While thus protecting the city from legislation of this character, which they evidently condemned, the question must naturally have presented itself how far the convention would modify what already existed, so that they might, during their own lives, relieve the municipality from the evils which they so clearly recognised, and which, for the future, they so carefully guarded against. The result of their deliberations accorded with the conservative spirit with which they approached all existing organizations.- By article 15, section 2, it is provided, £ no debt shall be contracted or liability incurred by any municipal commission, except in pursuance of appropriations previously made therefor by the municipal government.’ While the application of this provision to the present commission is not denied, it is contended that its only effect is to require the commission, in the future, to wait till the money is actually in hand before they incur any liability ; that their power over the councils is still unimpaired. We put, however, no such limited construction upon its great constitutional provision; we regard it, as we believe the makers of the constitution regarded it, as a part of the system which they adopted to relieve the city of what, in section 20, they call £ the power to make, supervise, or interfere with any municipal improvement, property, money of effects.’ We believe the purpose was to subordinate these commissioners to those whom the people had chosen to represent them, and whom they considered the legitimate functionaries to carry on the municipal government.
    ££ The objection that councilmen may fail to do their duty by making the proper appropriations, is of no moment. So may the-legislature. So may Congress.. The case is supposable, of course,, and faction may retard or obstruct, but in all human affairs discretion must he lodged somewhere, and the only question is this, is it not safer in the hands of the immediate representatives of the' people, than in the many-headed subordinates beneath them ? It was this spirit which actuated the convention, and we will not do them the injustice to suppose that, while they provided safeguards for future generations, they were forgetful of their own. We do not believe that when they said No debt shall be contracted, or liability incurred, by any municipal commission, except in pursuance of an appropriation previously made therefor by the municipal government,’ their only thought was to make their creditors more secure. We believe that it was designed to prevent the contraction of improvident debts, not to make their payment more easy. It would be a novelty to construe an instrument, made to correct existing acknowledged evils, so that they might be prolonged as long as possible, or to suppose that past legislation has any sacredness which requires that the provisions of a new constitution must be construed to conform to it. The existing organic provision, repealing everything inconsistent with it, is the law .of this commission, and while its existence may not be destroyed, nor its former contracts impaired, from January 1st 1874, it could neither make a contract nor incur a liability without the approval of councils, as evinced by their previously making an appropriation therefor. As it devolves on councils first to make the appropriations, it is within their discretion to. determine when and how they shall be made.- The prohibition to the commission to incur no liability ‘ except in pursuance of an appropriation previously made therefor by the municipal government,’ means, as we understand it, that after councils shall have decided upon the amount to be appropriated, and have fixed the time of payment, the commission can, ‘ in pursuance’ thereof, or in conformity therewith, make their contracts and expenditures.
    “ While formerly the commission were authorized to make a requisition and enforce it, they are now forbidden to do anything except to present their estimates, like the other departments of the city, and when an appropriation is made, to act in pursuance of its provisions.
    “ Holding, therefore, that the discretionary power is now vested in the councils of Philadelphia, ,in regard to levying these taxes, which we have no authority to coerce, the prayer for a mandamus is refused.”
    The refusal of the prayer for the mandamus, and the entering of judgment for respondents on the demurrer, were the errors assigned by the relators, who took this Avrit.

      George Biddle and George W. Biddle, for plaintiffs in error.—
    Prior to the adoption of the present constitution the legislature had the poAver to create the Building Commission and invest it with the powers conferred by the Act of 1870 : City of Philadelphia v. Fox, 14 P. F. Smith 169; South Street Bridge Case, City of Philadelphia, v. Field, 8 Id. 320. This court has decided that the operation of article 3, section 20, of the new constitution, was intended to be prospective only, and does not apply to existing commissions: Lehigh Iron Co. v. Supervisors of Lower Macungie Township, 31 P. F. Smith 482; Indiana County v. Indiana County Agricultural Society, 4 Norris 357. There is nothing in the new constitution which limits the power of the legislature to require municipalities to perform any functions towards their citizens which the legislature deems proper to impose, provided this power is exercised only by general laws. In 1870 it was equally competent for the legislature by a special law to exercise such poAver; and we have seen that such exercise of legislative authority, prior to the adoption of the present constitution, is not repealed by the latter instrument. The conclusion, therefore, is that the obligation imposed by the Act of 1870 is valid and subsisting. It is contended, however, that a more extended sense is to be given to the language of section 2 of article 15 of the constitution, and that it was intended not only that no city department .should incur debts and so bind the city, without a previous appropriation, but that all legislative control over cities should be taken away; that no obligation which involved expenditure could any longer be imposed upon a city, because it could not be carried out by the proper department, “except in pursuance of an appropriation previously made therefor by the municipal government.” To concede this, it must be admitted that the municipal government has the sole discretion'as to appropriating, independent of any control of the state, and yet what is to prevent the legislature from compelling a municipality to perform a,ny function for wh'ich the state has chartered it, by first requiring the city to make the necessary appropriation, and then requiring the department to perform the function ?
    The assumption that no municipal government can now be compelled to make the proper appropriations for any municipal function, is wholly at variance with the law as it stood prior to 1874; and .it is not contended that any other part of the present constitution, except the section now under consideration, warrants it. The meaning and purpose of this section will best be understood by reading it in connection with the other provisoes in the constitution affecting cities.
    These provisoes guarded cities from improvidently running into debt without at the time providing for the means of payment. All illegitimate expenditures, not properly part of the city government, were cut off. No debt could be created unless a sinking fund was likewise created to meet it, and a limit was put to the indefinite increase of debt. It had been found, however, that cities might run into debt indirectly, by the various municipal departments or commissions, without which a corporation cannot act, running into debt for supplies or other purposes, -and then saddling the debt on the city, which had had no opportunity of directly voting on the subject. The constitution, while it had, by section 20 of article 8, •forbidden, in the future, th‘e creation of any special commission, left the legislature free to continue already existing commissions, e. g.,the Water Department, Board of Gas Trustees, Park Commission, &c., or, by general legislation, to create new ones, such as a Board of Health, Board of School Controllers, &c.
    To prevent these agents of municipalities thus incurring debts, without a previous appropriation therefor by the municipal government itself, various Acts of Assembly had been already passed. But it was deemed important to make this principle apply to all municipal'bodies by incorporating it into the fundamental law of the state. Hence the proviso in section -2 of article 15. The former state of the law, the abuse to be remedied and the new proviso intended to remedy it, when examined together, show precisely the meaning and extent of the language of the latter. It 'is a rule of action to be observed by municipal departments and commissions when acting as agents for the city government.
    It is not a new rule as to many of the large cities of the state; almost the same'language has been used before and construed by this court. There is no reason for supposing that the convention used it in any new or different sense.
    To hold, as the court below has done, that by this language the convention intended to take away from the state all legislative control over its own municipalities, is to repeal every act heretofore enacted imposing a duty or burthen upon any city, county or borough, whether to build new public county buildings, as in Commonwealth v. Marshall, 3 W. N. C. 182; or new city public buildings, as here; or to make appropriations for the conservation of the public health. Many sections in the Municipal Corporations Act of 1874, if this view be correct, are unconstitutional, and all power of the state government to compel municipal bodies to make appropriations to construct necessary public works, or to pay for the proper administration of their various functions, has gone.

      O. JE. Morgan, Jr., Assistant City Solicitor, J. Noward Gtendell, Assistant City Solicitor, William Nelson West, City Solicitor, and-Z7. Spencer Miller, for defendants in error.
    — We contend that section second of article 15 of the new constitution is applicable and operative; that modifying the Act of 1870, organizing this commission, and restricting the commission organized under it, this clause took effect to prevent their making any new contract without first obtaining from councils an appropriation sufficient to meet it. The meaning and result of this section is, that not only against the commissions which now exist, but against the legislature itself, cities shall control their own expenses, and that such a case as that of the South Street Bridge shall hereafter be impossible.
    It is this result of the act which his honor, Judge Thayer, supports and carries out in the case of The Park Commissioners v. The City, 2 W. N. C. 126, and which his honor, Judge Biddle, disregarding all minor points, so earnestly contends for in his opinion in this case.
    The relators do not allege that such a commission has vested rights protected by the constitution. It is a mere arm or instrument of the government. The legislature might at any time have repealed the act, or modified the powers and duties of the commissioners : Commonwealth v. Thompson, 3 W. N. C. 196. They might have made the city superior to the commission. A fortiori could the people do it in convention ? and this is what they have done. The power of the city to limit its own expenditures is now established.

      The constitution also contains a clause, the object of which is to prevent the establishment of future commissions. Knowing that, as in this case, existing commissions might have made contracts which rendered it dangerous to destroy them indiscriminately, those already created were left to stand, but this limit was put to their power they could not spend money without the consent of the city.
    What words could have expressed their idea more positively and clearly than those used ? They do not give the power or duty of appropriating to the commission ; they gave it to the city. It is meant as a check on the commission, or it means nothing. If it is to be a check on the commission, the city must have a discretion, and this discretion may obstruct or arrest the progress of the commission. This is all that we contend for.
    The object of this clause, say the counsel for the relators, was to prevent the city from running into debt to pay for this improvement. But.how could it have this effect if their construction is sound ? If the legislature can force a city to build, and force it to make appropriations and contracts for the purpose, what good is attained ?
    The word “appropriation” does not refer to the source from which the subject of the appropriation is to come, but the object to which it is to be dedicated, and means that until' councils have first designated by an appropriation what shall be done no debt shall be contracted.
    [Chief Justice Agnew. — In your opinion, is the 15th article ipso facto a repeal of that clause of the Act of 1870, which makes it the duty of councils to levy a tax or make an appropriation ?]
    It modifies it, but we do not contend goes 'so far as to work its repeal.
    [Chief Justice Agnew. — Do you not think councils were bound to appropriate under this Act of 1870, before the adoption of the new constitution ?]
    I do. -
    [Chief Justice Agnew. — Then does not the constitution repeal the Act of 1870 ?]
    We do not think our case requires us to go that far.
    March 11th 1878.
   Mr. Justice Trunkey

delivered the, opinion of the court,

On every hand it-is admitted that the Act of Assembly of August 5th 1870, providing for the erection of public buildings in the city of Philadelphia, is constitutional and is law, except so much as has been repealed by section 2, article 15, of the new constitution. It ought to be as generally conceded that courts have no power to repeal a statute, and that all denunciations of it as a scheme to obtain money from the people, without consent of their immediate representatives, or as a measure that tries to the uttermost the law-' abiding character of the citizens, may he properly considered by a constitutional convention, or the legislature, but not by a tribunal whose sole duty is to ascertain and say what the law is. Where the expression of the lawgiver is clear, even if the object of the law be odious, no construction can nullify it. In such case it will be strictly construed. To elude a statute bv a pretence of respect for the intention of its makers, and falsely interpret what has no need of interpretation, is the basest form of its violation. A statute can be repealed only by an express provision of a subsequent law, or by necessary implication. These and other long-received rules should not be thrust aside because they are trite.

The Act of 1870 constituted certain citizens, with power to fill vacancies, commissioners for the erection of public buildings in the city of Philadelphia, and required them to organize, procure plans, employ secretary, treasurer, solicitor, architects and assistants, and do all other acts to carry out the intention of the statute. The location of the buildings was to be determined by a vote of the electors at the general election in October 1870. Within thirty days thereafter, the commissioners were to advertise for proposals, and, soon as practicable, make all needful contracts for the construction of said buildings, which contracts should be valid and binding upon the city. “ The said commissioners shall make requisition upon the councils of the city, prior to the first day in December in each year, for the amount of money required by them for the purposes of the commission for the succeeding year, and said councils shall levy a special tax sufficient to raise the amount so required.” “ Said councils may at any time make appropriations out of the annual tax in aid of the purposes of this act.” The amount to be expended by said commissioners is strictly limited to the sum required to satisfy their contracts for the erection of said buildings and for the furnishing thereof. “ It shall be the duty of the mayor, the city controller, city commissioners, and city treasurer, and of all other officers of the city, and also the duty of the councils of the city of Philadelphia, to do and perform all such acts in aid an’d promotion of the intent and purpose of this Act of Assembly as said commission may from time to time require.” Such are the terms of the act.

The section of the constitution relied on as abrogating the statute is, No debt shall be contracted or liability incurred by any municipal commission, except in pursuance of an appropriation previously made therefor by the municipal government.” Obviously this prevents new contracts until appropriations to pay for them shall have been made. The commissioners cannot expend money in excess of the sum appropriated — the indebtedness of the city shall not be increased beyond the means provided for payment. To that extent is the statute modified or repealed. Necessary implication can go no farther. There is no positive repugnancy between that section of the constitution and the other provisions of the statute. Saving that all liabilities incurred shall be in pursuance of previous appropriations by the municipal government, the provisions of the constitution and statute can stand together. The commissioners make the requisition for the work, for its execution is theirs ; the councils appropriate the means, and then only can contracts be made to bind the city. Had the*act required the municipal government, instead of the commissioners,-to erect the buildings, followed by an amendment directing that government to first make appropriations for the work, and contract no liability in excess thereof, no one could understand the amendment as curtailing the powers or duties of the government in any other respect. Equally clear is it that every duty imposed by the Act of 1870, upon the commissioners and upon the councils and officers of the city, continues in full force, excepting the one modification. To read the law is to know that all power and discretion, in the erection of the public buildings, have been intrusted to the- commissioners, and the power and duty of making appropriations and raising the money have been imposed upon the councils.

The will of the law-making power appears in plain and distinct expression. Nevertheless, it may be-well, for a moment, to consider the context of the constitution and the expressed object of its framers, as bearing on the true meaning of section 2, article 15. Confessedly, section 20, article 3,.avoids no law relative to any commission created prior to 1874. The reports of the debates show much discussion of the subject, repeated attempts to amend that section so as to annul all laws creating such commissions, denunciations of various -commissions, including the building commission of Philadelphia, and a persistent refusal by the convention to insert a word which would abolish then existing commissions, or limit the powers which had been given them. Section 2, article 15, was little discussed, no one speaking against it. Doubtless its mover and a few others believed it broad enough to throttle all commissions. In itself it is in harmony with other provisions of the constitution relating to municipal indebtedness, and, as already seen, has potency to prevent incurring liabilities in advance of the means provided for payment. Its scope and just bearing must have been understood by the strong majority of the convention which had so steadily rejected amendments, designed to destroy commissions, to section 20, article 3. That majority included able lawyers, who well knew that no statute or part thereof, not positively repugnant, would be repealed by implication. It cannot be inferred the convention intended what, on full discussion, was refused. More easily may it be inferred that an unskilled hand missed its object. When the convention intended a repeal of existing laws, it was done in no ambiguous or uncertain phrase. For instance, article 3, section 21, forbidding tbe enacting of acts relating to personal injuries, declares, “ such acts now existing are avoided.” Section 22, upon another subject, contains an identical clause. Section 2, article 9, declares certain tax laws void, and section 1, article 16, provides that certain charters and grants shall have no validity. Moreover, section 2 of the schedule expressly continues in force all laws not inconsistent with the constitution. Now, as formerly, the legislature have supreme control over all municipal corporations, subject only to expressed constitutional limitations. Formerly, a special law could be made for every city, now the power must be exercised by general laws. Thus additional reason appears that the Act of August 5th 1870 is still valid.

That statute being the law to the parties, the case is not difficult. The learned judge below was of opinion that if that act were not made nugatory by the new constitution, the right of the petitioners to the writ of mandamus would be incontrovertible. In Park Commissioners v. The City of Philadelphia, 2 W. N. C. 124, it was said: “ That the relators are entitled to this remedy, and that the city councils, and all other municipal officers and agents, are amenable to it in cases where a clearly defined duty is imposed upon them by law, and which duty does not in any way reflect upon the exercise of official discretion, has been often determined, and is too clear to admit of the least doubt.” After a careful review of the Acts of Assembly relating to the Park Commissioners, it was said: “ None of these laws gives the commissioners authority to make requisitions upon the councils for loans ; on the contrary, there is a plain purpose that the city shall retain control over the subject.” There the rule was correctly held, but it distinctly appeared that the law vested the discretion in the city government, and not in the Park Commissioners. The rule was well stated and applied in Commissioners v. The City of Philadelphia, 7 Phil. R. 298. The conclusion to be deduced from the authorities is, that where power is given to public officers, either in peremptory or permissive form, whenever the public interest calls for its exercise, they are bound to act. If the power be judicial or discretionary, the court will not control their deliberation or coerce their discretion. They may be ordered to do their duty, but must be left free to act according to the dictates of their own judgment. But when a ministerial act is to be done, a specific duty or act is enjoined, and there is no other specific remedy, performance will be compelled by mandamus.

The petition of the relators sets forth the Act of Assembly ; the organization of the commission and entering upon their duties; the construction of a large portion of the buildings which are unfinished; the requisition upon the councils for $1,500,000, made November 29th 1876, and the neglect and refusal of the councils to levy any tax or make any appropriation, or otherwise aid in promotion of the purposes of said act, as required.

The return of the respondents makes no suggestion that the facts alleged in the petition are untrue. Six assignments of cause against the writ are given, and have been considered. But little more need be said in reference to the points they suggest.

The first avers that the writ cannot issue at the suit of the relators, who are mere agents of the respondents. In this the facts are not as assumed. The commissioners were not appointed by, are not subject to the control of, or dismissal by, and are not required to settle their accounts with, the councils. They have no private interest in the premises which are not in common with other citizens. To them has been committed a public trust which they cannot, if they would, transfer to another body, without legislative action. They entered upon the duties of their office, have made contracts, have expended vast sums of money in construction of a large portion of the buildings, which are, at present, unfinished. The councils have refused an appropriation; the work stops. The duties of the councils are sharply defined in the Act of 1870. While they disobey, the law is inoperative and construction suspended. When the commissioners are thwarted in the performance of their "duties, by neglect of councils to perform theirs, they may sue out the writ in the public interest.

The second assignment avers that councils are vested with a discretion in levying taxes and appropriating money ; and the third that they have no power to levy a special tax for the expenses of the current year, commencing January 1st 1877. Whatever discretion is given them under other statutes, for other purposes, matters not in reference to their duty under the Act of August 5th 1870. In argument it was urged they had no power to levy a special tax, because it was not done on the first day of December. It is sufficient to say that the presumption is that they refused to do their duty because of a belief that it was permissive and not absolute. Were it possible that they purposely neglected a known duty, the statutory command remained to appropriate the money and raise it by a special tax or out of the annual tax. Mistake or perfidy may delay, but cannot defeat the law. The law remaining, the duty continues and does not expire with the year-1877. The chief object of the law is construction of public buildings, a work suspended by neglect of councils to do a specific act, and that act is still required to be done, and when done suspension ceases.

The last three assignments refer to contracts of the commissioners. Nothing in the statute, as modified by the section in the new constitution, requires, as a precedent condition to the duty of councils to make the appropriations, specific information to be given of contracts made, prior to 1874, or of those contemplated which cannot be made except in pursuance of an appropriation.

Upon consideration of the whole case we are impelled to the conclusion that the learned judge erred in refusing the mandamus. The return shows no cause against it. There is no averment that the sum required is unreasonable and unnecessary for the purposes of the statute,- nor of any fraud or abuse of powers by the commissioners.

It may be well to remember that the commissioners are not irresponsible nor outside the pale of the law. Should they abuse their trust, fraudulently incur -liabilities, or attempt to charge the city for anything not within the purview of the act, the courts are open for prevention, redress or punishment. The law of the land, which has the means to compel a recalcitrant public officer to do his duty, provides for his restraint when he is proceeding to violate it, and for redress, or his punishment, when he has defrauded the public.

Concerning legislation to vest powers in special commissions, the people have said they will have no more of it; and, at the same time, defused to avoid existing laws giving such powers. The authority that enacts may repeal. But while a statute is in force, no opinion of its wisdom or policy, of any judicial or ministerial officer, or private citizen, will justify or excuse its violation.

The judgment refusing the writ is reversed, and judgment for the Commonwealth, and peremptory mandamus awarded. The record is ordered to be remitted for the enforcement of this judgment.

Paxson, J.,

filed the following dissenting opinion, in which Sharswood, J., concurred :—

Whatever we may think of its wisdom, no one at the present day doubts the legality of the Act of 5th of August 1870, Pamph. L. of 1871, p. 1548, creating the building commission. That question may be considered at rest. It follows that if said act remains in full force and unimpaired, the relators are entitled to their mandamus. But since its passage the fundamental law of the state has been changed, and two provisions introduced therein which seriously affect said act. Section 20 of article 8 of the constitution provides that, “ The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or intei-fere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes, or perform any municipal function whatever.” This command is addressed to the legislature, and speaks for the future only. It was not intended to derogate from the powers granted to special commissions created prior to the adoption"of the constitution. Then we have section 2 of article 15, which is as follows : “ No debt shall be contracted or liability incurred by any municipal commission, except in pursuance of an appropriation previously made by the municipal government.” This section was evidently intended to operate directly upon commissions existing at the time of the adoption of the constitution. Such construction is apparent from its terms. That it was so intended by the framers of the constitution clearly appears from an examination of the debates of the convention, vol. 6, p. 232-4. Public attention had already been drawn to the fact that irresponsible commissions, imposed upon the city by the legislature, and yet clothed with absolute control over the purse of the city in the prosecution of their work, were repugnant to our whole theory of government. It was known to the convention that the public buildings, at Broad and Market streets, had been projected upon a scale of magnifience better suited for the capítol of an empire than the municipal buildings of a debt-burdened city ; and that the time might come when their further prosecution would become an oppression upon the taxpayers too grievous to be born, unless the councils, the immediate representatives of the people, should have a power of control over the amount to be annually expended. The result has fully vindicated the wisdom of the convention. What then is the effect of this section of the constitution upon the Act of 1870 ? I agree that it does not repeal the act. It does not abolish the commission ; it permits the erection of the buildings to go on nnder their direction. Nay, more, I do not think it affects so much of the act as makes it the duty of councils to provide the means for their completion. But I think it equally clear under this section that it is for councils to say to what extent the means shall be supplied, excepting in so far as contracts have been made by the 'commission prior to the adoption of the constitution. That is to say, no new contract can be made by the commission after the adoption of the constitution until an appropriation to pay therefor shall have been previously made by councils. In other words, the effect is to give the control of the purse to the city, instead of the building commission. It was conceded upon the argument that the constitution has modified the Act of 1870 so far as to prevent the commission entering into any new contract without an appropriation, and that the greater part of the sum demanded was for new work not contracted for prior to the adoption of that instrument. This much is clear. But it was urged that because it is still the duty of councils to make appropriations, they are bound to appropriate any sum the commission may demand. I am unable to see the force of this reasoning. It is admitted the constitution prohibits the making of any new contract without a previous appropriation. True, say the building commission, we cannot make a contract, but we have the right to compel councils to appropriate whatever sum we demand and then we can contract. This view, in my judgment, is in direct conflict with the letter and spirit of section 2 of article 15 of the constitution, and its adoption by this court practically expunges said section from that instrument. For, if it. does not apply to existing commissions, it cannot apply at all, as the creation of any such special commission is prohibited for the future. I do not think the framers of the constitution or the people who adopted it intended a vain 'thing when they introduced this section. In view of the importance of this question I deem it my duty to place upon record my respectful but earnest dissent from the judgment of the majority of the court.


author: Mr. Justice Sharswood

text:
    Olmsted’s Appeal.
    A court of equity has no jurisdiction to enjoin proceedings of the Commonwealth to have an escheat of an estate declared, where, if the escheat should be found by the inquest, every question presented could be decided upon a traverse.
    February 13th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas, No. 3, of Philadelphia county: In equity. Of January Term 1878, No. 134.
    Bill in equity, filed by William E. Naile, against Henry C. Olmsted and George N. Watson, which set forth that Henry Sell, being seised in fee of certain real estate, died on May 18th 1842, leaving a will dated November 2d 1841, with two codicils, dated respectively, November 2d 1841, and April 29th 1842, which were duly admitted to probate. By this will and codicils he devised certain real estate to a trustee, to pay the income to certain parties for life, and upon their death to sell and divide the proceeds among his surviving brothers and sisters and the issue of any deceased. By the second codicil, the testator revoked the bequest in remainder to his brother Charles, and directed that the share intended for him should be given to the testator’s adopted daughter, Cecilia Erben. Henry Sell left surviving him seven brothers and sisters, who are still living. Cecilia Erben died July 26th 1852, a minor, intestate, unmarried and without issue. The last of those having a life interest in the real estate before referred to, died October 20th 1876, and thereupon the trustee sold the real estate as directed in the will of Henry Sell, and has filed his account as trustee, accounting for the proceeds in the Orphans’ Court, where it now remains unadjudicated. On May 9th 1877, the defendant, George N. Watson, filed with the auditor-general an information, alleging the death of Cecilia Erben, intestate and without known kindred, upon which information a commission has issued to the defendant, Henry C. Olmsted, as deputy escheator, under which he was about to proceed- according to law.
    The bill charged that the Commonwealth has no right whatever to the said estate as escheated:—
    1. Because more than twenty-one years elapsed between the death of Cecilia Erben and the beginning of the proceedings for an escheat.

      2. Because there is no adequate provision made by law for the escheat of the said property, the same being an interest held in trust.
    The bill prayed for an injunction to restrain the defendants from further proceedings in the escheat.
    The defendants, in their answer, admitted the facts alleged in the bill, but denied the right of the plaintiff to the relief prayed for:
    1st. Because, although true that more than twenty-one years-elapsed between the death of the said Cecilia Erben and the commencement of any proceeding or inquisition for an escheat, the interest of the said Cecilia Erben, in the property described in the bill, did not vest in her until the 20th day of October 1876.
    2. Because it appears, from the bill of complaint, that the interest of the said Cecilia Erben, upon the 20th day of October 1876,. became a vested interest, freed and discharged from all trusts whatsoever.
    3d. That by the Act of Assembly of 29th of September 1787, and other acts relating to escheats, adequate provision is made for the escheat of the said interest of the said Cecilia Erben, in the property described in the bill.
    After hearing upon bill and answer, the court below, Ludlow, P. J., delivered the .following opinion:—
    “It seems to us that the proceedings to escheat the estate of Cecilia Erben are premature.
    “The trustee under the will of Henry Sell, deceased, has filed his account in the Orphans’ Court of this county, and the said account now remains in that tribunal, subject to its jurisdiction and decree! It is impossible for us now to say what distribution that tribunal may make of a portion of the fund now in the hands of this trustee; indeed we do not know what the condition of the fund is, or what course may be taken in relation to the final distribution of the whole estate.
    “Apart from the difficulties pointed out by the court in West’s Appeal, 14 P. F. Smith 195, where a trust estate does in fact escheat, we prefer to restrain the defendants in this bill until at least the cause has been disposed of by the Orphans’ Court of the county.
    “ Injunction continued until further order of the court.”
    This decree was assigned for error by the defendants.

      It. O. Dale and H. Q. Olmsted, for appellants.
    — Admitting that the Commonwealth will never be entitled to recover any of the fund no^v in the custody of the trustee, it does not follow that an injunction can ‘ be properly granted restraining the Commonwealth from proceeding to establish an escheat of the estate of Cecilia Erben. The finding of the inquest in favor of the Commonwealth will not conclude the plaintiff from contesting any subsequent proceeding taken on behalf of the state to obtain the fund from him; it will only place the Commonwealth in a position where she will be entitled to be a party to proceedings to test her right to this particular fund. As the finding of the inquest in favor of the Commonwealth can do the trustee no irreparable harm, he has no equity upon which to ask for this injunction. It is to be noticed that this case is entirely distinguishable from West’s Appeal, 14 P. F. Smith 186, and West v. Pennsylvania Railroad Co., Id. 195 ; in that in these the plaintiff’s equity consisted in the fact that these proceedings for an escheat were calculated greatly to injure the credit of the Savings Fund, and that as the depositors were a class of persons easily alarmed, irreparable injury would ensue if a panic once seized them. This was the equity upon which that case rested, and was clearly sufficient in a case where it was manifest that the proceedings for an escheat would result in nothing to sustain the injunction. But as no such equity exists in this case, entirely apart from the general merits of the Commonwealth’s case, the granting of this injunction was erroneous.

      Alfred I. Phillips and P. Qoppee Mitchell, for appellee.
    — It is true that the trust is no longer active, and any one who can establish a right to Cecelia Erben’s interest could demand the money, and sue for it, in a common-law action; but until some one so steps in, the trust has enough life in it to keep the trustee under the jurisdiction of the Orphans’ Court. He is still liable to be surcharged for neglect or mismanagement, and must account to the true owner, whoever it may be, and, until such owner is found, may be deemed to hold the legal title for the purpose of protecting the fund. There is no certain knowledge that Cecilia Erben has not some heirs- or kindred who might now claim, and who should not be bound by the proceeding under the Act of 1787, and it w'as for this protection of a possible unknown owner that the court held the Act of 1869, providing for the escheat of trust estates, inoperative, in the cases of West’s Appeal, and West v. Pennsylvania Railroad Co., supra; and precisely the same difficulties as to possession which apply in attempting to escheat a remainder, are also applicable to the escheat of a cestui que trust’s interest.
    March 18th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

This was heard at first as an appeal from a preliminary injunction in the court below, and we sustained the appeal and ordered the injunction to be dissolved. Since then the parties have agreed by writing filed that the decree below was a decree made upon final hearing upon bill and answer, and we are requested to make a final disposition of the case.

We are of the opinion that the complainant below showed no ground for the interposition of a court of equity to enjoin the proceeding of the Commonwealth to have an escheat declared of the estate of Cecilia Erben. Admitting all that is alleged that she did. not die seised or possessed of any estate, or that if she did, that the. lapse of more than twenty-one years since her death bars ■ the proceeding under the Act of December 16th 1869, Pamph. L. 187 0, p. 1372, there is nothing in all this to confer jurisdiction upon, a court of equity. The complainant invokes no special equity — he alleges no irreparable damage. Upon the same principle as contended for in this case, every suitor in a court of common law could be enjoined, and every case, at the option of the defendant, drawn into a court of equity. If the escheat should be found by the inquest, every question here presented could be decided upon a traverse.

West’s Appeal, 14 P. F. Smith 186, and West v. Penn. Railroad Co., Id. 195, were entirely different. It was there held that the funds attempted to be reached by the proceedings were not within the purview of the Acts of Assembly relating to escheats, and that the proceedings Avere illegal both in their object and mode. Besides, danger of irreparable damage to both the institutions interested was manifest.

Decree reversed, and now bill dismissed Avith costs.