author: Mr. Justice Moschzisker, Mr. Chief Justice Fell,

text:
    Commonwealth ex rel., Appellant, v. McAfee.

      Constitutional law■ — Judges—Election law — Constitution of Pennsylvania, art. IV, sec. 8, art. V, sec. IS — Constitutional amendment of 1909 —Schedule of constitutional amendment of 1909 — Acts of April SO, 1874, P. L. 118, and March 2,1911 — “ Vacancy.”

      1. Under art. V, sec. 15, of the constitution, the Act of April 30, 1874, P. L. 118, and the constitutional amendment of 1909 with its schedule, an election cannot be held in November, 1911, to fill the office of a judge of the court of common pleas or orphans’ court whose term expires on January 1, 1913.
    2. The second section of the act of March 2, 1911, which provides that “all judges of the courts of the several Judicial Districts, Associate Judges and County officers holding office at the date of the approval of said amendments, whose commissions expire on the first Monday of January in an odd-numbered year, shall continue to hold their offices until the first Monday of January in the following even-numbered year,” is unconstitutional, inasmuch as it is an attempt to extend the constitutional terms of judges beyond the limit fixed by the constitution.
    3. Where a judicial term ends on the first Monday of January, 1913, a vacancy will exist which must be filled by the governor under art. IV, sec. 8, of the constitution.
    4. The suggestion that judges whose terms expire in odd-numbered years shall have successors elected at the municipal election which will occur fourteen months before the expiration of their respective terms is open to the constitutional objection that it will lead to a classification which would destroy uniformity in the election of the common pleas judges by dividing such judges into two groups, the members of one to be elected fourteen months, and of the other two months, before the expiration of the terms of their predecessors. Such a classification is not a natural one, nor is it one made imperatively necessary by existing conditions.
    5. The word “vacancy” as applied to an office has no technical meaning. An existing office without an incumbent is vacant. There is no basis for the distinction that it applies only to an office vacated by death, resignation or otherwise. It may be applied to an office when it is first created, and has been filled by no incumbent; and a vacancy may exist by reason of the expiration of the term.
    Mr. Chief Justice Fell and Mr. Justice Brown dissent.
    Argued April 24, 1911.
    Appeal, No. 10, May T., 1911, by plaintiff, from order of C. P. Dauphin Co., Commonwealth Docket, 1911, No. 16, dismissing petition for mandamus in case of Commonwealth ex rel. Norris S. Barratt v. Robert McAfee, Secretary of the Commonwealth of Pennsylvania.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for mandamus.
    Kunkel, P. J., and McCarrell, J., filed the following opinion:
    This cause has been submitted to us without argument, with the suggestion that we shall enter a judgment pro forma, so that the question may be speedily and authoritatively settled by the Supreme Court. However, we prefer to state our reasons for our judgment.
    The relator is a judge of the court of common pleas, No. 2, of Philadelphia, in the first judicial district of Pennsylvania. He was duly elected for the constitutional term of ten years, commencing on the first Monday of January, 1903, and ending on the first Monday of January, 1913.
    By the constitutional amendment of November 2, 1909, the election of judges can take place only in odd-numbered years. The act of April 30, 1874, provides that the term of judges "shall commence on the first Monday of January next succeeding their election.” The relator contends that as the year immediately preceding the termination of his term, is an even-numbered year, in which no election for the office of judge can lawfully be held, the appropriate time for the election of his successor is in the present year, 1911, and he accordingly filed a petition for the printing of his name upon the ballot for the June primary, 1911, with the secretary of the commonwealth, requesting him to certify his name for printing upon the primary ballot. The secretary of the commonwealth has refused to so certify and the relator now asks that he be directed to comply with his request.
    Upon the presentation of the relator’s petition the respondent made answer, waiving issuance of the alternative writ, admitting all the facts alleged in the petition and claiming that his refusal to certify relator’s name, as requested, is entirely legal. The question, therefore, is one of law.
    The constitutional and statutory provisions relative to the subject are as follows:
    1. Article'V, sec. 15, of the constitution: "All judges required to be learned in the law, except the judges of the Supreme Court, shall be elected by the qualified electors of the respective districts over which they are to preside, and shall hold their offices for the period of ten years, if they shall so long behave themselves well.”
    2. Act of April 30, 1874, P. L. 118: "That the terna of office of judge of the Supreme Court and other judges learned in the law hereafter elected shall commence on the first Monday of January next succeeding their election, and they shall be commissioned accordingly.”
    3. Constitutional amendment of article VIII, sec. 3, adopted November 2, 1909: “All elections for judges of the courts of the several judicial districts .... shall be held on the municipal election day, namely, the Tuesday next following the first Monday of November in each odd-numbered year, but the General Assembly may by law fix a different time, two-thirds of all the members of each House consenting thereto; Provided, That such election shall always be held in an odd-numbered year.”
    4. Article IV, sec. 8, of the constitution: “He (the Governor) shall nominate, and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint a secretary of the commonwealth and an attorney general during pleasure, a Superintendent of Public Instruction for four years, and such other officers of the Commonwealth as he is or may be authorized by the Constitution or by law to appoint; he shall have power to fill all vacancies that may happen, in offices to which he may appoint, during the recess of the Senate, by granting commissions which shall expire at the end of their next session; he shall have power to fill any vacancy that may happen, during the recess of the Senate, in the office of Auditor General, State Treasurer, Secretary of Internal Affairs or Superintendent of Public Instruction, in a judicial office, or in any other elective office which he is or may be authorized to fill; if the vacancy shall happen during the session of the Senate, the Governor shall nominate to the Senate, before their final adjournment, a proper person to fill said vacancy; but in any such case of vacancy, in an elective office, a person shall be chosen to said office on the next election day appropriate to such office according to the .provisions of this Constitution, unless the vacancy shall happen within two calendar months immediately preceding such election, in which case the election for said office shall be held on the second succeeding election day appropriate to such office.”

      5. Schedule to constitutional amendment of November 2, 1909: “All judges for the courts of the several Judicial Districts .... holding office at the date of the approval of these amendments, whose term of office may-end in the year 1911, shall continue to hold their offices until the first Monday of January, 1912.”
    6. Act of March 2, 1911, in its second section, provides as follows: “All Judges of the courts of the several Judicial Districts, Associate Judges and County officers holding office at the date of the approval of said amendments, whose commissions expire on the first Monday of January in an odd-numbered year, shall continue to hold their offices until the first Monday of January in the following even-numbered year.”
    This second section of the act of March 2, 1911, just quoted, is an attempt to extend the constitutional terms of judges beyond the limit fixed by the constitution and is therefore of no validity for that purpose: Commonwealth v. Sheatz, 228 Pa. 301.
    The question to be determined is, Can the successor of a judge whose term ends on the first Monday in January, 1913, be lawfully elected at the November election 1911?.
    The present contention arises solely from the operation of the constitutional amendment limiting judicial elections to odd-numbered years. Several theories are suggested for the adjustment of conditions to this limitation. One is that the act of April 30, 1874, has either been entirely repealed by the amendment of the constitution in 1909, or has been so modified thereby, when the term ends in January of an odd-numbered year, as to permit an election in November of the last preceding odd-numbered year.
    The Act of April 30, 1874, P. L. 118, provides that the terms of all judges learned in the law “shall commence on the first Monday of January next succeeding their election.” There is no language in the amendment limiting the election to odd-numbered years which indicates any intention to either repeal or'modify the act of 1874, fixing the commencement of judicial terms. The relator’s term continues until the first Monday of January, 1913. To permit the election of his successor in 1911, nearly fourteen months before the commencement of the official term, would be in disregard of the provisions of this statute and would be without precedent in Pennsylvania so far as we are advised. To so hold would result in confusion and uncertainty, because if after the election of a successor to the relator in 1911, the relator should die or resign a vacancy would be created, which would be filled by executive appointment and that would be followed by another election. It is within the limits of possibility that some person other than the relator might be elected in November, 1911, and then in the event of the death or resignation of the relator before the end of his present term, the vacancy would be filled by executive appointment until the first Monday in January, 1914, followed by an election in 1913. Thus we would have the situation of the governor’s appointee in office until the first Monday in January, 1914, with the successful candidate at the election of November, 1911, claiming the right to the office on the first Monday of January, 1913. The same undesirable situation might likewise arise as to the judicial terms expiring in 1915,1917 and 1919. Surely a conclusion leading to such complicated and confusing results ought, if possible, to be avoided.
    Another theory is that the schedule to the amendments of 1909, providing that judges whose terms expire in the year 1911, “shall continue to hold their offices until the first Monday of January, 1912,” is to be construed as inferentially extending all judicial terms expiring in January of odd-numbered years to the first Monday of January in the next succeeding even-numbered year. We have no power to read into the schedule to the amendments of 1909 the extension of any judicial terms. The schedule only extends terms expiring in 1911. We must assume that the people did not intend to extend any other terms else they would have so specifically stated. The expression of one thing in the constitution necessarily excludes things not expressed: Page v. Allen, 58 Pa. 338; Etter v. McAfee, 229 Pa. 315.
    In our opinion there is ample provision in the constitution itself for the adjustment of the present conditions to the limitation of judicial elections to odd-numbered years. If an election cannot legally be held in November in the year immediately preceding the termination of a judicial term on the first Monday of January of any odd-numbered year, a vacancy will exist which can be filled by executive appointment under art. IV, sec. 8, of the constitution, supra, and this appointment will necessarily be followed by an election either on the first or second succeeding election day appropriate to the office, that is, in November of the first or second succeeding odd-numbered year. Thus without any new statutory enactment, or strained construction of any existing constitutional or statutory provision the new constitutional limitation of judicial elections can be put into successful operation. It is quite unnecessary to seek for some method other than that which the people have expressly provided in their fundamental law to meet the results caused by the adoption of the late constitutional amendments. Especially is this so when the conclusive inference is, from the schedule extending terms expiring in 1911 to the first Monday in January, 1912, that the people purposely omitted to extend other judicial terms, but left them to the operation of the provisions of the constitution itself.
    We conclude that ample remedy for the present situation is provided by art. IV, sec. 8, of the constitution.
    For these considerations thus hastily and perhaps imperfectly stated, we are of opinion that the relator is not entitled to the relief sought by his petition and the same is now dismissed at his costs.

      Error assigned was the order of the court.

      John G. Johnson, for appellant.

      D. T. Watson and John C. Bell, attorney general, with them Ernest C. Irwin, for appellee.
    May 17, 1911:
   Opinion by

Mr. Justice Moschzisker,

■ The objection to the act of March 2, 1911, is that it extends for the period of one year the terms of all judges whose commissions expire on the first Monday of January in odd-numbered years. In Com. v. Sheatz, 228 Pa. 301, referring to a term fixed by the constitution, we said, “The term of office fixed by the constitution is expressly limited to a definite number of years, and it is not within the power of the legislature, directly or indirectly, to extend it beyond the prescribed period. . . . There is an implied prohibition against the right of the legislature to add to the term where the constitution has expressly prescribed the duration of the tenure. ... It is not within the power of the legislature to ... . extend the term of the office and prevent a vacancy. . . . Holding over .... is not a new or another term but a prolongation of the elected incumbent’s term. . . .” Article 5, sec. 15, of the constitution provides that all common pleas judges shall hold their offices for the period of ten years. The schedule adopted by the people to put into effect the amendments of 1909 declares: “All judges for the courts of the several judicial districts .... holding office at the date of the approval of these amendments .... whose term of office may end in the year 1911, shall continue to hold their offices until the first Monday of January, 1912.” This schedule is a temporary part of the constitution. “It is only when the constitution fails to deal with a subject that the general assembly may legislate upon it:” Com. v. Sheatz, supra. Here, the constitution has dealt with the subject in hand so far as the judiciary is concerned, and the act of 1911 attempts to add provisions to the schedule upon the very matter covered therein. It may be that the draftsman of the schedule thought that he had provided against every ^contingency, but the words used cannot be construed to mean, that from 1911 on ad libitum the terms of all judges whose commissions might expire in an odd-numbered year shall be extended for a period of twelve months. If such was the idea it should have been expressed. While the maxim expressio unius est exclusio alterius cannot be applied so as to deprive the legislature of distinct powers not limited or taken away by the constitution itself, yet it is properly applicable in the construction of any particular part of the constitution as limiting the legislative power over the subject therein provided for. In Page v. Allen, 58 Pa. 338, with this thought in mind, we said, “The expression of one thing in the Constitution, is necessarily the exclusion of things not expressed;” and in Etter v. McAfee, 229 Pa. 315, we applied the maxim in construing the amendment of 1909 to the effect that the first election of a state treasurer for the full term of four years should be held in 1912, and we there ruled that the provision excluded a construction which would permit an election before that time. The schedule adopted in 1909 having expressly dealt with the matter, but having omitted to extend the terms of judges other than those whose commissions expired in the year 1911, the legislature, in the face of the constitutional provision definitely fixing such terms and the implied prohibition against their extension, cannot supplement the schedule in violation of such prohibition, even as a temporary expedient. Hence, the act of 1911, so far as it concerns the terms of the judges, is unconstitutional and void.

The suggestion that the difficulty can be solved by holding that the judges whose terms expire in odd-numbered years shall have successors elected at the municipal election which will occur fourteen months before the expiration of their respective terms, is likewise open to constitutional objections. Article V, sec. 26, of the constitution provides that, “All laws relating to Courts shall be general and of uniform operation.” Classification must not only rest upon a plain distinction in the subjects classified, but it must always have a substantial reason back of it amounting to more than a mere convenience. The suggested solution leads to a classification which will destroy uniformity in the election of the common pleas judges, and its effect is permanently to divide such judges into two groups, the members of one to be elected fourteen months, and of the other two months, before the expiration of the terms of their predecessors. The arrangement would be contrary to the long-established public policy of our state which allows but a short time to intervene between an election and the assumption of office. This policy has strong practical reasons back of it, particularly in the case of a judge elected from the bar, who, after being set apart for judicial work, should not be obliged or permitted, during such a considerable period, to practice his profession for a livelihood. However, these practical reasons would not. constitute insurmountable objections if the proposed classification were a natural one, or one made imperatively necessary by existing conditions. In other words, if the amendments of 1909 left the matter in such a position that the only alternative was to accept the classification, and there was nothing in the constitution plainly forbidding it, then, ipso facto, the classification and its effect would be there, and the general assembly could enact proper legislation with reference to it, or, possibly, it might be of sufficient force to annul prior legislation in conflict therewith, such as the Act of April 30, 1874, P. L. 118, which provides that the terms of office of all judges shall commence on the first Monday of January next succeeding their election. But the division is not a natural one; heretofore the only classification of judges known to our law has been founded upon differences in the work performed. The question remains, is it a necessary one; for under all our cases a new classification will not be permitted unless there is an apparent reasonable necessity to support it. A classification, for the purpose of applying a different rule or remedy as between persons in the same general category, cannot be held to be necessary, or permissible, if the situation impelling it is already provided for in our organic law; and the learned court below has held such to be the case in the present instance, taking the view that the non-elections of successors will create vacancies which it will be the right and duty of the governor to fill. If the constitution gives the governor the power to fill such a vacancy as is here under consideration, since the people failed to say so in words or by necessary implication, we cannot assume that they intended by the amendments of 1909 to change the established rule regarding the time for the election of any of the judges; on the contrary, we must assume that, they anticipated the natural legal consequences of their omission to provide for the contingency before us, and that they intended the creation of vacancies and the exercise of the executive prerogative to fill them by interval appointments. The question is, Does the constitutional provision vesting the governor with the right to fill vacancies apply to the condition which will arise in the event of the expiration of the term of the relator without the prior election of a successor? The proper determination of this case depends upon the answer to that question.

After looking at the matter from every standpoint, ,we are brought to the conclusion that the view of the court below is the correct one, and that the question must be answered in the affirmative. Article IY, sec. 8, of the constitution as amended in 1909, provides, “He (the Governor) .... shall have power to fill any vacancy that may happen .... in a judicial office .... But .... a person shall be chosen to said office on the next election day appropriate to such office. ...” The constitution expressly gives to the people the right to choose judges by election, and it gives to the chief executive the right to fill vacancies. This latter right exists whether the vacancy occurs during a term for which an incumbent has been elected or at the expiration thereof, if there is no one to fill the office. The non-election of a successor, whether it be through a neglect of the people or a failure of the law to afford a proper opportunity, creates a vacancy. “The word 'vacancy’ as applied to an office has no technical meaning. ... An existing office without an incumbent is vacant. . . . There is no basis for the distinction that it applies only to an office vacated by death, resignation, or otherwise:” 8 Words & Phrases, 7259. Fortunately we are not without our own construction of this word. An interesting dissertation on its meaning will be found in Walsh v. Com., 89 Pa. 419. There a new county had been erected. The act provided that, ''The Governor was required immediately to appoint and commission the officers for the new County, who should continue in office until the next general election,” and, at such election, ''the qualified electors shall elect” county officers. The then constitutional provision was that the governor might ''fill any vacancy that may happen .... in any elective office. . . . But .... a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such general election, in which case the election for such office shall be held at the next succeeding general election.” The governor appointed Walsh less than three months before the date of the ''next general election,” and the relator was elected to the same office at that election. “He contended that the design of the Legislature .... was to bridge over the interval between the creation of the County and the next election, by directing the Governor to appoint the new officers;” and “He relied on the second section of the fourteenth article of the Constitution, requiring that 'all vacancies not otherwise provided for, shall be filled in such manner as may be provided by law’ . . . .” We held that, “the word 'vacancy’ aptly and fitly describes an office when it is first created and has been filled by no incumbent,” that the law had created a vacancy in the office in question within the meaning of the section of the constitution which vested the governor with the right to fill vacancies, that the governor derived his right of appointment from the constitution irrespective of the statute, that this constitutional right could not be abridged or interfered with by the legislature, that the statute would have to be construed with reference to the constitution, that it was not to be supposed that the legislature intended to run counter to the organic law even to bridge over the interval between the erection of the county and the next general election, and that the governor’s appointee would hold the office until the qualification of a successor elected at the second general election. The meaning of the word “vacancy” was again under consideration in Com. v. Dickert, 195 Pa. 234, and it was there ruled that in case of a failure to elect a successor to the incumbent of the office in question “ a vacancy exists by reason of the expiration of the term.” In Com. v. Sheatz, 228 Pa. 301, the state treasurer elect died before qualifying, and at the expiration of the term of the incumbent there was no one to fill the office. We held that there was a vacancy and that the governor had the right to appoint. By the light of these cases, the learned court below was right in the view that the inevitable effect of the amendments of 1909 will be to cause the offices of all common pleas judges whose terms expire on the first Monday of January in odd-numbered years to become vacant, and that it will be for the governor to appoint incumbents to serve until successors are chosen by the people at the next appropriate election.

The argument that the solution arrived at will postpone the popular choice is of no avail against constitutional provisions adopted by the people themselves: Walsh v. Com., supra; Etter v. McAfee, supra; nor is the objection that it will make some of the judges appointive and others elective sound in law, for limited interval appointments to elective offices have always been part of our system, and none of these appointments will be for more than one year. The solution works no permanent division in the ranks of the judges, as the situation when thus dealt with is but a temporary one which will cease to exist after the expiration of the term of the last of the present incumbents in 1919. In the meantime the positions of thirty-nine of the 131 judges of the commonwealth may be affected, unless the people by another amendment should extend their-terms or provide that judges can be elected in any year.

The people may have supposed that the schedule of 1909 comprehended all possible contingencies and made all necessary provisions to carry the constitutional changes into effect without disturbing their right to elect immediate successors to the judges then in office. But the difficulty is, if such was their intention, they failed to say it, or so to express themselves that the legislature, without violence to other fixed constitutional mandates, could carry out their wishes in that respect. In construing any part of the constitution we are not at liberty to disregard other applicable provisions, or to supply words omitted, in order to work out a thought which the people themselves had the opportunity to give expression to had they so desired, nor can we ignore the authority of our own prior decisions. We must take the law as we find it, and we are constrained to hold that the relator’s term cannot be extended by act of assembly; further, that his successor cannot be lawfully elected in the year 1911. To permit either would disregard constitutional inhibitions and read that into the organic law which cannot be found therein; while to follow the rule laid down by the learned court below, is to conform to the constitution as it is written and as it has been heretofore construed by this court. It neither takes from nor adds to the constitution, but simply accepts a remedy there supplied in plain and, under our decisions, unambiguous, language.

The assignment of error is overruled and the judgment of the court below is affirmed.

Mr. Chief Justice Fell,

dissenting:

The term of office of the relator as a judge of a court of common pleas will expire on the first Monday of January, 1913. His successor in office cannot be elected in 1912. The question raised by this appeal is whether he should be elected in 1911, or in 1913. The constitutional and statutory provisions relating to the subject are these: (a) art. V, sec. 15, of the constitution of 1874 provides that: "All Judges required to be learned in the law, except the judges of the Supreme Court, shall be elected by the qualified electors of the respective districts over which they are to preside and shall hold their offices for the period of ten years.” (b) The Act of April 30, 1874, P. L. 118, fixing the time when the terms of judges shall commence, provides: "That the term of office of Judges of the Supreme Court and other Judges learned in the law hereafter elected shall commence on the first Monday of January next succeeding their election.” (c) The constitutional amendment adopted in 1909 provides: "All elections for Judges of the courts of the several Judicial Districts . . . . shall be held on the municipal election days, namely, the Tuesday next following the first Monday of November in each odd-numbered year, but the General Assembly may by law fix a different time, two-thirds of all the members of each House consenting thereto; Provided, That such election shall always be held in an odd-numbered year.” (d) To avoid inconvenience in carrying into operation the amendment of 1909, the schedule provides: "All judges of the courts of the several judicial districts .... holding office at the date of the approval of these amendments whose term of office mav end in the year 1911, shall continue to hold their offices until the first Monday of January 1912.” (e) On March 2,1911, an act was passed that provides that: "All Judges of the courts of the several judicial districts .... holding office at the date of the approval of said amendments, whose commissions expire on the first Monday of January in an odd-numbered year, shall continue to hold their offices until the first Monday of January in the following even-numbered year.” (f) The constitution of 1874 empowers the governor to fill vacancies in judicial offices "happening by death, resignation or otherwise” by appointment to continue until the first Monday of January next succeeding the first general election that should occur three or more months after the happening of such vacancy. One of the amendments adopted in 1909 changes the period for which an appointment shall be made, by extending it until a successor shall be chosen “on the next election day appropriate to such office” according to the amendment making the election in odd-numbered years.

The learned judges of the common pleas in dismissing the petition for a writ of mandamus held that the act of 1874 is unrepealed and unmodified by the amendment of 1909 and that its provision fixing the commencement of judges’ terms “on the first Monday of January next succeeding their election” prevents an election in 1911; that the schedule to the amendments of 1909 did not by implication extend judicial terms; that the act of March 2, 1911, was an attempt to extend the terms of judges beyond the limits fixed by the constitution and is therefore invalid. Their conclusion was that an election cannot, under the amendment, be held in 1911, and that on the first Monday of January, 1913, a vacancy will exist which must be filled by the governor. This conclusion is accepted as correct by the majority of my brethren, but I cannot agree with them.

The situation with which we have to deal may be the result of an oversight; but this is by no means clear, for the words of the amendment have but one meaning, and the people deliberately adopted it. The constitution provides that all judges of the courts of common pleas shall be elected for a term of ten years, but nothing in the amendment changes this by the remotest implication. Judges are still to be elected for a term of ten years, and the amendment merely provides that all of them must be elected in odd-numbered years. This means that the election for judges shall hereafter be biennial. The framer of the amendment of 1909, knew that if it should be adopted it would go into effect immediately upon its adoption, and, therefore, there could be no election of judges in 1910, and vacancies would exist in some districts for the period of one year, 1911. In view of this the schedule consistently provided that all judges holding office at the date of the adoption of the amendment whose term would end in the year 1911, should continue to hold office for one year longer. As there could not have been by the terms of the amendment, an election for judges in 1910, and the first election of them would occur in 1911, the terms of those expiring in January, 1911, were extended one year. This is as far as the schedule goes, and nothing could be plainer than the expressed intention of the people that after the first Monday of January, 1911, all judges must be elected in odd-numberéd years and each for a term of ten years.

But if we assume there was an oversight in limiting the extension of terms to those that would end in 1911 and in not applying it to all terms that would end in odd-numbered years, it does not follow that there will be a vacancy. If an adequate provision exists for the election of a successor in each case whose term will commence with the expiration of the term of his predecessor, there will be no vacancy. This provision is found by reading together, as we should, the amendment and the act of 1874. The amendment requires an election in an odd-numbered year, the act provides that the term of office shall commence on the first Monday of January next succeeding the election. When judges could be elected at any annual election, the appropriate time to elect was in November of the year immediately preceding the end of their terms. Now that they are to be elected biennially only, and in odd-numbered years, the appropriate time to elect is in November of the odd-numbered year, nearest the end of their terms. This will give effect to both the constitutional and statutory provisions and to the declared purpose of the people that judges shall be elected by them and that appointments to the office of judge shall be limited to the filling of vacancies happening by death, resignation or otherwise during the term for which a judge was elected. The act of 1874 must yield to the constitution in so far as it is inconsistent with the latter. The amendments are self-operating and no legislation is needed to give them effect. To sustain the decree of the common pleas will make more than one-third of the judges of the commonwealth appointive for a period of years. It is inconceivable that there was an intention to divide the judiciary of the state into classes by establishing a system making a part elective and a part appointive.

That there are practical objections to the election of a judge fourteen months before the beginning of his term of office is of course to be conceded, but the people have so willed, and it is not for courts to set their will aside. Their intent, as expressed in the amendment, is free from all ambiguity, and I can see no justification for the substitution by implication of a different intent, not suggested by a word in the amendment. Unwise legislation is bad enough, but worse than it is its attempted correction by the courts. One is wrong in practice; the other is radically wrong in principle. It is not for courts to say what the law should be but what it is and to leave its correction to those on whom that duty devolves.

Brown, J., concurs in this dissent.


source: Caselaw Access Project

author: Me. Justice Elkin,

license: Public Domain

text:
    Commonwealth ex rel., Appellant, v. Vandegrift.

      Corporations — Meetings—Withdrawal of stockholders — Quorum—Bylaws — Election of chairman — Election of officers.

    1. If a corporate meeting is once organized and all parties have participated, no person or faction can then, by refusing to vote or by withdrawing, thereby defeat the organization, or render the subsequent proceedings invalid.
    2. The stockholders who attend the meeting and then without cause voluntarily withdraw are in no better position than those who voluntarily absent themselves in the first instance.
    3. The duty of holding an annual election of a corporation is imposed by statute, and the time and place for holding it are fixed by the by-laws. The duty as to the time and place of holding the election is quite as imperative as the provision relating to the amount of stock necessary to constitute a quorum.
    4. Even a majority of the stockholders of a corporation cannot capriciously withdraw, after a corporate meeting is legally organized, for the very purpose of breaking a quorum, and then ask the courts for relief on the ground that a quorum was not present when the act complained of was done. Where there is a legally constituted meeting, the acts of a majority of those present are the acts of the corporation, though such majority is less than a majority of the total number of stockholders or shares.
    5. In the absence of statute or by-laws otherwise providing the stockholders may select a chairman to preside at the annual meeting by a viva voce vote. A stock vote is not required to give validity to • the meeting; but even where a stock vote is demandable, a request therefor coming after the organization has been effected is too late.
    6. A by-law of a corporation was as follows: “The holders of a majority of the stock issued shall constitute a quorum for the transaction of business at any regular or special meeting. If no quorum be present at any meeting so called a less number may meet and adjourn from time to time until a quorum be present.” Held, that there was nothing in the by-law which authorized a portion of the stockholders to withdraw from a meeting in order to break a quorum.
    7. A corporation had 2,081 shares issued and outstanding at the date of an annual meeting. A chairman was elected at the meeting by a viva voce vote. Subsequently certain of the stockholders demanded that a stock vote should be taken for the chairman, and when this was refused withdrew in order to break the quorum. Before their withdrawal there were 1,887 shares represented in person or by proxy. After the withdrawal of these members, a vote was taken for officers, and all of the shares, numbering 992, then present were voted for the officers elected. Held, that the election was valid, and that the withdrawing members had no standing to maintain quo warranto proceedings against the officers elected to deprive them of their offices.
    ’Argued Jan. 9, 1910.
    Appeal, No. 246, Jan. T., 1911, by plaintiffs, from order of C. P. No. 1, Phila. Co., Dec. T., 1909, No. 5,073, in entering judgment for respondents in case of Commonwealth ex rel. Jerome H. Sheip et al. v. Asa W. Vandegrift et al.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Quo warranto. Demurrers to respondents’ answers to information.

      Magill, J., found the facts to be as follows:
    This matter is before the court on demurrer by relators to answers filed by respondents to an information for quo warranto. The answers in question are responsive and under oath, and by the demurrers filed the statements contained therein are admitted to be true. Upon the pleadings it appears that an annual meeting of the stockholders of the Philadelphia Veneer & Lumber Company, Incorporated, was held January 20,1910, at the time and place prescribed by the by-laws, which meeting was attended by eleven stockholders owning 1,887 shares of a total issue of 2,081 shares. Four of the relators, Jerome H. Sheip, S. S. Roller, Stanley S. Sheip and Charles H. Runkel, were present at the meeting.
    Article X, sec. 3, of the by-laws of the corporation provides, “The holders of a majority of the stock issued shall constitute a quorum for the transaction of business at any regular or special meeting. If no quorum be present at any meeting so called, a less number may meet and adjourn from time to time, until a quorum be present.” A quorum was present at the meeting which was duly organized, and at which Asa W. Vandegrift, one of the respondents, was elected chairman. As shown by the answer, after the election of the chairman, Stanley S. Sheip, one of the relators, requested that a new election for chairman of the meeting be had by stock vote. He was informed by the chairman that his request was too late as the meeting had already elected its chairman, and thereupon, without appealing from the decision of the chair, or taking any other method of questioning the ruling, said Stanley S. Sheip, Jerome H. Sheip, S. S. Roller and Charles H. Runkel, the relators, withdrew from the meeting, having previously notified the chairman that unless they were permitted to have a new election by stock vote on the question of chairman, they would withdraw for the purpose of making no quorum, and prevent the further transaction of business. After the relators above named had withdrawn from the meeting those remaining proceeded to an election, and respondents were elected to the several offices as set forth in the information and answer, the chairman having first appointed a judge and two tellers to conduct the election, who were duly sworn, etc., at which election, as shown by the answer, 992 votes were cast for each of the candidates, being a majority of the total number of shares represented at the meeting at the time of organization, but less than a majority of the whole number of shares issued. It is evident that the difficulty arose through the efforts of two factions of the stockholders to secure control of the offices of the corporation, and the relators, Jerome H; Sheip, S. S. Roller, Stanley S. Sheip and Charles H. Runkel, clearly appear to have withdrawn from the meeting for the sole purpose of preventing an election, ,and having done so, they subsequently called a special meeting of the stockholders on February 11, 1910, for the purpose of electing officers, and at an election held on that date by themselves, and acting through proxies for other stockholders, elected themselves as officers of the corporation. This meeting was called by them, or some of them, upon the assumption that they, at the time of the call for the special meeting, continued to be directors of the corporation by virtue of their election in the previous year, and that they held over as such directors by reason of the alleged fact that the directors elected at the meeting of January 20, 1910, were not duly and properly elected.

      Error assigned was in entering judgment for respondents.

      Alex. Simpson, with him Francis Shank Brown and Ira Jewell Williams, for appellants.
    — If a majority withdraw so as to leave no quorum the minority have no power to act: Brown v. District of Columbia, 127 U. S. 579 (8 Sup. Ct. Repr. 1314); Dingwall v. Common Council of Detroit, 82 Mich. 568 (46 N. W. Repr. 938); State v. Porter, 113 Indiana, 79 (14 N. E. Repr. 883); Lockwood v. Bank, 9 R. I. 308; Damon v. Granby, 19 Mass. 345.

      The cases cited by respondents are those in which a quorum was present, though not voting, whereas here admittedly no quorum was present; or were cases where the question was whether or not a majority could elect at a different place than that provided by law.'

      Frederick J. Shoyer, with him Henry Arronson, for appellees.
    — The appellants should have acted at the meeting of January 20,1910, which was the legal meeting of the corporation. Preliminaries of organizing this meeting were proper and legal: Landers v. Frank St. M. E. Church, 114 N. Y. 626 (21 N. E. Repr. 420); Stebbins v. Merritt, 64 Mass. 27.
    The minority have a right to insist that the stockholders meet and elect directors on the day fixed by the by-laws: Oldknow v. Wainright, 2 Burrows, 1017; Rex v. Miller, 6 T. R. 268; State v. Chute, 34 Minn. 135; Forsyth v. Brown, 13 Pa. C. C. Rep. 576; s. c. 33 W. N. C. 72.
    The majority cannot arbitrarily withdraw after organization: Com. v. Patterson, 158 Pa. 476; Haskell v. Read, 68 Neb. 107 (96 N. W. Repr. 1007); Baird v. Bank of Washington, 11 S. & R. 411; Juker v. Com. ex rel., 20 Pa. 484.
    May 23, 1911:
   Opinion by

Me. Justice Elkin,

This is a proceeding by quo warranto to test the right of respondents, or either of them, to hold the respective offices of president, vice president, secretary and treasurer, and director of a certain corporation named in the suggestion for the writ. The controversy grows out of alleged irregularities in holding the annual meeting of stockholders for the purpose of electing a board of directors. If this meeting was regularly organized in the first instance with a quorum present, and subsequently some of the shareholders for the purpose of breaking the quorum and preventing an election at the time and place fixed by the bylaws, capriciously and without just cause withdrew, the decision of the questions raised by this appeal under the great weight of authority must be adverse to the contentions of appellants. The by-laws of the corporation in question provide, inter aha, as follows: “The holders of a majority of the stock issued shall constitute a quorum for the transaction of business at any regular or special meeting. If no quorum be present at any meeting so called a less number may meet and adjourn from time to time until a quorum be present.” It is argued for appellants that the by-laws of a corporation, when duly enacted, are written into the charter and are a part of the fundamental law of the corporation, binding not only upon the corporators and the corporation, but upon those dealing with it. With this proposition we can have no quarrel because it is settled law under the authority of our own cases: Millward-Cliff Cracker Co.’s Estate, 161 Pa. 157; Wayne Title & Trust Co. v. Electric Railway Co., 191 Pa. 90; Worthington v. Electric Railway Co., 195 Pa. 211. It is contended that the legal effect of the by-law under consideration in the present case is to require not only a majority of the stock issued to be represented when the meeting is organized, but that no business can be transacted if at any time after the organization and during the course of the meeting a sufficient number of shareholders withdraw to reduce the number of shares remaining below the amount necessary to constitute a quorum. In other words, that the plain meaning of the by-law is that no corporate act can be done except at a time when a majority of the stock issued is present. The second provision of the bylaw is called to our attention for the purpose of strengthening the argument. If no quorum be present a less number may meet and adjourn from time to time until a quorum is secured. This provision of the by-law, it is argued, must be read in the light of the ordinary rules of parliamentary practice, which means that if at any time the number present becomes less than a quorum, there is no power to do anything except to adjourn until a quorum be present. As correct statements of general principles of law, many of these propositions cannot be gainsaid. The validity of a corporate act is as a general rule tested by the requirements of the by-laws, and when there is a positive direction to do an act in a particular way or in some specific formal manner, failure to observe the requirements imposed by the by-laws, may and as a rule does render the act invalid. In the present case several things must be taken into consideration in disposing of the questions raised. In the first place, the by-laws do not provide how many shares of stock shall be required to be voted in order to make a valid election of members of the board of directors. The by-laws only provide how much stock shall be present at the meeting to constitute a quorum. As an illustration, there were 2,081 shares issued and outstanding in the present case at the date of the annual meeting. To constitute a quorum it was necessary to have at least 1,041 shares present, and if there had only been that amount of stock represented, 521 shares would have been sufficient to carry the election of each director. The learned court below has found as a fact that 992 shares were voted for each of the respondents. Appellants undertake to show by the figures that this was an erroneous finding. The discrepancy may be explained upon the theory that some shares were voted when the ballot was taken that had not been noted at the convening of the meeting. However, in the view we take of the case, the discrepancy pointed out is immaterial. Whether respondents received 992 or a less number of votes, they received not only a majority of the votes represented by the stock voted, but the entire vote of all the shares participating in the election. When appellants withdrew from the meeting and refused to participate in the election, they forfeited the right to have their stock counted in the election of a board of directors. They must stand or fall on the ground that they had the legal right to withdraw and refuse to participate in the meeting, and when they did so withdraw, thus leaving less than a majority of all the stock issued remaining when the final ballot was taken, the election of the respondents was invalid because a quorum was not then present. This brings us to the pinch of the case. When the meeting convened, 1,887 shares out of 2,081 were represented in person or by proxy. This was 846 shares more than were required to constitute a quorum. A majority of all the stock issued being represented, it was clearly the duty of those present to organize the meeting and proceed with the election. This was done. The president called the meeting to order and directed the secretary to note those present and the number of shares represented either in person or by proxy. He then stated to the meeting that the first business in order was the nomination and election of a chairman. Two nominations were made, one by the relators and the other by the respondents. A motion to close the nominations was then made and carried.' Without objection from anyone the meeting proceeded to elect a chairman by a viva voce vote with the result that Mr. Vandegrift was declared elected. There was no call for a division or a poll of the vote. After the chairman had been thus declared elected, one of the appellants requested that a new election by stock vote be held. The chairman announced that the request came too late, as the meeting had already been organized. No appeal was taken from the ruling of the chairman, but the stockholder who made the request stated that if a new election of a chairman by stock vote was not allowed, the faction represented by him would withdraw for the purpose of breaking a quorum and to prevent any further business being transacted. In accordance with the suggestion made they did withdraw and refused to participate in the election of a board of directors at that meeting. Before withdrawing they were notified that the election of directors would be by stock vote. After their withdrawal, the meeting having already been organized, those stockholders who remained proceeded in a regular and orderly manner with the election. A judge and two tellers were appointed and duly sworn to perform their duties according to law. Nominations were made in the regular way and a stock vote by ballot taken with the result that 992 shares were returned as having been voted for each of the appellees, who were declared duly elected directors.

The case therefore turns upon the question of the right of the appellants to withdraw from the annual meeting under the circumstances hereinbefore referred to for the purpose of breaking a quorum. Fortunately, we are not left in the position of groping our way in the dark for an answer, but have the light of credible authority as our guide. 2 Cook on Corporations (6th ed.), sec. 606, among other things, says: “After the meeting is organized the majority cannot withdraw and organize another meeting. Where a part of the stockholders secede from the meeting and hold another on the pretext of disorder, but in fact by reason of a previously designed plan, the election by the seceders is not legal.” 1 Thompson on Corporations (2d ed.), sec. 910, states the rule in the following language: “If a meeting is once organized and all parties have participated, no person or faction can then, by refusing to vote or by withdrawing, thereby defeat the organization or render the proceedings invalid, and neither can seceders organize another meeting and hold a valid election. Even a majority cannot withdraw after the meeting is organized and hold a valid election.” 1 Savidge on the Formation and Management of Corporations in Pennsylvania, sec. 725, expresses the view that, “It seems after a meeting of a corporation is organized, the majority cannot withdraw and organize another meeting unless it be done in good faith to escape disorder.” Mr. Justice Merche in' the Appeal of Gowen, 10 W. N. C. 85, speaking for this court, said: “Those who voluntarily absent themselves from a meeting duly called for an election must recognize the validity of an election regularly made by those who do attend. Such absentees present no ground for relief from their misfortune or their folly.” Stockholders who attend a meeting and then without cause voluntarily withdraw are in no better position than those who voluntarily absent themselves in the first instance. In Com, ex rel, Langdon v. Patterson, 158 Pa. 476, Mr. Justice Mitchell in discussing the rights of stockholders to organize a meeting under facts somewhat similar to those in the case at bar, said, inter alia: “The call to withdraw was not to all the stockholders, or even to all desiring an orderly and legal election, but to the party of the relator, and was so understood, both by themselves and the others. It was without any justification in law, and there was no sufficient evidence to submit to the jury in that behalf.” In the present case there was no justification in law for the withdrawal and the call was, not to all the stockholders, but to the party of the relators. There was no disorder of any kind and as we see it nothing to be gained by the withdrawal except to break a quorum, and this is not a sufficient cause. Even the majority after the regular and legal organization of the meeting, did not have the right to capriciously and without justifiable cause withdraw for the declared purpose of breaking a quorum in order to prevent an election. In this connection, it is worthy of comment, that the duty of holding an annual election is imposed by statute, and the time and place for holding it, are fixed by the by-laws. The duty as to the time and place of holding the election is quite as imperative as the provision relating to the amount of stock necessary to constitute a quorum. It was not only the privilege of appellants to participate in the annual election of directors but it was a duty imposed by law upon them. They should have remained in the meeting to exercise their privileges and perform their duties. When they did not do so but without sufficient cause withdrew, they are not in position to complain about the acts of those who remained and performed their duties in a regular and lawful manner.

A stockholder, not voting, cannot get relief from the courts if he voluntarily refrain from voting, if he had an opportunity, and his claim of right to vote was not excluded: State v. Chute, 34 Minn. 135. In the case at bar the right of appellants to vote their stock at the election for directors was not denied. They could have remained in the meeting and voted their stock for candidates of their own selection. In the Argus Printing Company case, 1 N. D. 434, the court in discussing this question, said: “A minority must have a right to insist, after a meeting is organized, the majority shall not withdraw from it and organize another meeting at which the minority must appear or lose their rights. Once concede the right, and there is no limit to the number of wrecked meetings which may, at the caprice of a majority, precede the transaction of any business.”

We have given due consideration to the very able argument of learned counsel for appellants, and have examined with an open mind all of the authorities and decisions relied on to support it, but have not been convinced of the wisdom or necessity of applying the no quorum rule to the facts of the present case. In our opinion the sounder and safer rule, as above indicated, is that even a majority cannot capriciously withdraw after the meeting is legally organized for the very purpose of breaking a quorum, and then ask the courts for relief on the ground that a quorum was not present when the act complained of was done. Where there is a legally constituted meeting, the acts of a majority of those present are the acts of the corporation, though such majority is less than a majority of the total number of stockholders or shares: 6 Am. &Eng. Ency. of Law (2d ed.), 1004. In the present case there was a legally constituted meeting when the chairman was elected because several hundred shares more than a majority of all the stock issued, as the by-law required, was present before an organization was attempted.

When no provision is made in the by-laws for a chairman, the meeting itself should proceed to select one. It frequently happens that provision is made for the president to preside at the stockholders’ meeting, but when no such provision is made, a chairman may be selected by the stockholders at the organization of the meeting. The chairman so selected need not necessarily be a stockholder, nor is there any particular formality required in his selection. The ordinary parliamentary usages apply to meetings of this character: 1 Thompson on Corporations (2d ed.), sec. 905. In discussing this question, the supreme court of Massachusetts said: “There is nothing in the nature of the office, which requires him to be a stockholder, although from convenience the usage is to elect one of the stockholders to perform the duty. But his duties, like those of a clerk, are merely ministerial, and can in no way affect the validity of the doings of the corporation or the rights of those claiming under them:” Stebbins v. Merritt, 64 Mass. 27. In the absence of a statute or by-law otherwise providing, stockholders may select a chairman to preside at the annual meeting by a viva voce vote. A stock vote is not required to give validity to the meeting. In the present case even if a stock vote was demandable, the request coming after the organization had been effected, was too late.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Standard Soap & Oil Company, Appellant, v. Printz Degreasing Company.

      Appeals — Assignments of error — Findings of fact — Decree.
    Where on an appeal in an equity case all the assignments of error are directed to findings of fact, and not one to the decree, the decree will be sustained. If the decree is correct, it is- of little moment what led up to it.
    Argued Jan. 9, 1911.
    Appeal, No. 294, Jan. T., 1910, by plaintiff, from decree of C. P. No. 5, Phila. Co., March Term, 1908, No. 4,962, dismissing bill in equity in case of Standard Soap & Oil Company v. Printz Degreasing Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for specific performance and for an injunction.

      Errors assigned were (1-38) all to dismissal of exceptions relating to findings of fact and conclusions of law, but none to the final decree dismissing the bill.

      Jacob Singer, with him David Bortin and Emanuel Furth, for appellant.

      Gordon A. Block, with him Clinton O. Mayer, for appellee.
    May 23, 1911:
   Opinion by

Mr. Justice Brown,

The main prayer of the bill filed by the appellant in the court below was for the specific performance of a contract with the appellee. Under two facts found by the learned chancellor he concluded that the appellee was justified in canceling the contract and dismissed the bill. If these facts were properly found the decree inevitably followed. Counsel for appellant realized the burden that rested upon them in asking that the findings of fact by the court below should be reversed, and thirty-eight assignments of error have been filed. Only four were needed for a reversal of the decree, if the court erred in passing upon the right of the appellee to terminate the agreement and to enforce the provisions of its tenth clause. Though the numerous assignments complain of. the court’s findings and of what was not found, not one is to the decree, and it cannot therefore be disturbed. We have repeatedly referred to the mistake of multiplying assignments of error. As a rule, when they are unduly numerous, they are “suggestive of firing at random in the bushes in the hope that a stray shot may produce a favorable result:” Clay v. Western Maryland R. R. Co., 221 Pa. 439. Of the numerous shots fired in this case not one has hit the decree. It has escaped all of the assignments, and we must, therefore, assume it to be correct: Johnston’s Estate, 222 Pa. 514. If it is " right, it is of little moment what led up to it: Fullerton’s Estate, 146 Pa. 61; and, as it is the wrong from which the appellant suffers, if it was improperly made, it must be assigned as error: Seltzer v. Boyer, 224 Pa. 369. The appeal is dismissed at appellant’s costs, and the decree affirmed, without prejudice to its right to bring an action at law for the recovery of the $300 paid on February 20,1907, for fifty tons of oil which were never delivered.


author: Mr. Justice Moschziskeb,

text:
    Bockelcamp v. Lackawanna & Wyoming Valley Railroad Company, Appellant.

      Evidence — Books—Time book of employer.

    1. A time book of an employer is not admissible in evidence to show the hours that an employee had worked on a'particular day, where it appears that the book was made from time slips, and the time slips are not produced or accounted for, and the witnesses who made the entries are not produced.

      Negligence — Damages—Earning capacity — Charge of court.

    2. In an accident case where it appears by the plaintiff’s own testimony, that although unable to perform the same kind of physical labor that he did before the accident, he occupied thereafter a better position and was earning a higher salary, it is reversible error for the court to charge as follows: “Inasmuch as it is testified that this is a permanent injury, and it is not contradicted, you can consider then what would be the loss of his earning capacity, whether it is totally destroyed or partially destroyed. ... It is a very difficult question for a juror to decide and it is in the nature of a guess.”
    3. Any allowance for future losses due to an impairment of earning capacity must be capitalized and brought down to its present worth. Jurors should never be told that any of their deliberations are in the nature of a guess, for-such a remark is practically a suggestion to them that matters submitted for their determination can be decided without mature judgment and deliberation.
    4. Where it appears that a person has suffered physical injuries which impaired his power to do the kind of work which he performed before the accident, but it also appears that after the accident he performed another kind of work at higher wages, the latter fact will not prevent the jury awarding him damages for permanent injuries, but it is a fact that the jury may consider on the question as to the extent to which his earning power had been affected.

      Negligence — Railroads—Passengers—Duty of care — Alighting from train.

    5. A railroad company is bound to exercise the “strictest vigilance” in receiving and conveying a passenger to Ms destination, and it is its duty to stop its trains at stations a reasonable length of time to permit passengers to alight.
    6. If a passenger is actually seen in the act of alighting by the men in charge of the train, or if under the circumstances of the particular case he should have been seen, then there is the duty to allow him time to alight completely before starting the train, and a failure so to do would be negligence.

      Negligence — Charge of court.

      7. In an accident case the trial judge should give careful instructions on the testimony, and in so doing he should deal with the number of witnesses on each side, their respective interests, opportumties for observation, and such other matters as affects the weight of the evidence.
    Argued Feb. 22, 1911.
    Appeal, No. 28, Jan. T., 1911, by defendant, from judgment of C. P. Lackawanna Co., March T., 1908, No. 1,064, on verdict for plaintiff in case of John Bockelcamp v. Lackawanna & Wyoming Valley Railroad Company.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before O’Neill, J.
    At the trial it appeared that- plaintiff, a man fifty-two years old, was injured on August 26, 1906, while alighting from a train at South Scranton station of defendant company.
    At the trial the time book of the Delaware, Lackawanna & Western Railway Company, the plaintiff’s employer, was admitted in evidence under the following objection:
    Mr. Torrey: Objected to as not properly proven. Our understanding and information is that the time was differently kept on Sundays from what it was on other days and we think it important that the person who kept the time or the time slips should be produced and not secondary evidence.
    Mr. O’Malley: This is offered for the purpose of corroborating the plaintiff, Bockelcamp, and the witness, Berry.

      Mr. Torrey: Objected to as incompetent and not the best evidence.
    The Court: Objection overruled. Exception noted for defendant at whose request a bill is sealed. [2]
    Mr. O’Malley: State to the jury how many hours your time book shows were taken in for Mr. Bockelcamp on that date.
    “A. Seventeen hours on the 26th of August.”
    The court charged in part as follows:
    [Inasmuch as it is testified that this is a permanent injury and it is not contradicted, you can also consider then what will be the loss of his earning capacity, whether it is totally destroyed or partially destroyed. You must also consider whether or not he will endure pain and suffering for the remainder of his life by reason of this injury and to what extent, because it does not necessarily follow, even though he may endure pain, that it will be the same degree of pain at all times or continuously, it may appear for a time and then it may disappear. It is said that there is no way of measuring pain. This is true. Nevertheless the law allows the jury to take that into consideration in rendering compensation to one injured in this manner and under these circumstances. You may consider as a circumstance in the case the number of years that the plaintiff is likely to live in measuring the loss of his earning capacity. Upon this point evidence has been introduced of what is known as the expectancy of life tables, sometimes called the Carlisle tables, and under these tables the expectancy of life of a man of the plaintiff’s age would be nineteen years and a half. You are not, of course, to assume that he will live these nineteen years, he may live much less, he may live possibly longer, yet you are permitted to use this table in assisting you in arriving at a conclusion in ascertaining the amount of damage which he may sustain by the loss of his earning capacity permanently.] [9]
    It is in evidence in this case that while the plaintiff earned $75.00 or $80.00 a month prior to his injury and that he was employed as a machinist, since his injury he has entered into employment with the same company, not exactly in the same capacity, but more in the nature of a foreman or superintendent over others engaged in the same department in which he was previously engaged, and that he received the same amount of money or something more; the scale of wages in that class of labor having increased he received the benefit of it in his monthly wages. You must consider this circumstance as an element in the case in measuring the loss of his earning capacity. His trade or occupation before the injury is the one which should guide you primarily, which would be the occupation he probably would have continued in if he had not met with this injury. He may continue in the same employment he is now in or he may at any time lose it, and then if he was to seek employment in the same occupation which he had heretofore followed, if you believe his story and the story of the physicians as to his injury, he would not be as fit to perform the duties of a machinist as he had been before the time of this injury. It is a very difficult question for jurors to decide and is in the nature of a guess. [10]
    Verdict for plaintiff for $15,000, upon which judgment was entered for $6,000, all above that amount having been remitted. Defendant appealed.

      Errors assigned were various rulings and instructions as shown above and indicated in the opinion of the Supreme Court.

      H. B. Gill and James S. Toney, of Welles & Toney, for appellant.

      Everett Warren, of Warren, Knapp & O’Malley, with him Houck & Benjamin, for appellee.
    May 23, 1911:
   Opinion by

Mr. Justice Moschziskeb,

John Bockelcamp was seriously injured while alighting from a train on the defendant’s road. The train in question consisted of two cars and was operated by a third rail electric system. The case was submitted to the jury, and the plaintiff recovered a large verdict, upon which, after a substantial cut, the court below entered the judgment from which this appeal has been taken.

The plaintiff contended that the train had stopped at a regular station for discharging passengers and that he had immediately attempted to alight, but that, without giving him sufficient time, the train started while he was in the very act of stepping to the ground. The defendant claims that the plaintiff carelessly stepped from a moving train before it had come to a stop. The evidence was conflicting and the case was for the jury; but the assignments question the propriety of certain rulings of. the trial judge and the manner in which the issues were submitted.

The second specification complains of the admission in evidence of a time book belonging to the plaintiff’s employers purporting to show the hours that the plaintiff had worked on the day of the accident. Since it was not a book of original entries and the absence of the time slips from which it was made up was not sufficiently accounted for or the witnesses who made the entries produced, the evidence should not have been admitted. While we sustain this assignment, if it were the only error in the case, we should not consider it of sufficient importance to require a reversal.

The ninth and tenth specifications relate to the charge concerning the plaintiff’s loss of earning capacity. The trial judge, inter alia, said: “Inasmuch as it is testified that this is a permanent injury and it is not contradicted, you can consider then what would be the loss of his earning capacity, whether it is totally destroyed or partially destroyed.” The permanent destruction of earning capacity was again referred to, and, after calling attention to the facts in the case concerning the employment of the plaintiff before and after the accident and the wages earned, the trial judge submitted the issue to the jury, saying: “It is a very difficult question for jurors to decide and it is in the nature of a guess.” These instructions are faulty in several particulars.- The plaintiff’s own testimony shows that he returned to his old employer, and that, although he is unable to perform the same kind of physical labor that he did before the accident, he now occupies a better position and is earning a higher salary. Therefore there is nothing in the evidence to justify the suggestion' that his earning capacity has been permanently destroyed, much less “ totally destroyed.” (See Goodhart v. Penna. Railroad Co., 177 Pa. 1, at p. 16.) Furthermore, the jury’s attention should have been .called to the fact that any allowance for future losses due to an impairment of earning capacity must be capitalized and brought down to its present worth. Finally, the use of the word ‘ ‘ guess ” ought to have been avoided. Jurors should never be told that any of their deliberations are in the nature of a guess, for such a remark is practically a suggestion to them that matters submitted for their determination can be decided without mature judgment and deliberation. These specifications of error are sustained.

The twelfth specification complains that the trial judge said to the jury, “Neither did I intend you to understand that if the plaintiff continued in the occupation that he now is in as foreman that you could not also, notwithstanding that fact, find him entitled to some damages for the loss of his earning capacity.” This was not error. Should the plaintiff remain in the position which he now occupies, and continue to earn at least as much as he was capable of earning prior to the accident, it would be strong evidence tending to show that he had not suffered any serious impairment of his earning capacity; but the jury had a right to consider the evidence showing his physical condition and the character of work which he performed both prior to and since the accident, and if this justified the conclusion that as a result of the accident his future earning power had been reduced, they could award him damages accordingly. As was said in McLaughlin v. Corry, 77 Pa. 109, “. . . . the true measure of damages .... would be the plaintiff’s actual permanent loss of earning power, occasioned by the accident. What he gets from his present employers by way of wages cannot go in mitigation of damages . . . .; but what he earns from any source may, with other things, be considered as going to prove what his earning powers actually are.” The assignment is overruled.

The thirteenth specification complains of the following instruction: “It is the duty of a carrier of passengers like the defendant in this case not only to exercise the strictest vigilance in receiving and conveying the passenger to his destination, but also to set him down safely at his station or the termination of his journey and if they fail in this and the plaintiff is injured, without fault upon his part, then he is entitled to recover.” The use of the phrase “strictest vigilance” is amply supported by our cases: N. J. R. R. Co. v. Kennard, 21 Pa. 203; Meier v. Penna. R. R. Co., 64 Pa. 225; Pittsburg & Connellsville R. R. Co. v. Pillow, 76 Pa. 510; Penna. R. R. Co. v. White, 88 Pa. 327; Phila. & Reading R. R. Co. v. Boyer, 97 Pa. 91; Fredericks v. Northern Central R. R. Co., 157 Pa. 103; Englehaupt v. Railroad Co., 209 Pa. 182; N. Y., L. E. & W. R. R. Co. v. Daugherty, 11 W. N. C. 437; and while language found in certain of these cases apparently justifies these instructions as a whole, yet consideration will show that the duty of the carrier is stated too strongly when it is said that, if a railroad fails to set a passenger down safely at a station, he is entitled to recover. It is the duty of a railroad to stop its trains at stations a reasonable length of time to permit passengers to alight: Penna. R. R. Co. v. Kilgore, 32 Pa. 292; Leggett v. Railroad Co., 143 Pa. 39; Raughley v. West Jersey & S. R. R. Co., 202 Pa. 43; Hatch v. Phila. & Reading Ry. Co., 212 Pa. 29; Brooks v. Phila. & Reading Ry. Co., 218 Pa. 1; Englehaupt v. Railroad Co., supra; Walthour v. Penna. R. R. Co., 40 Pa. Superior Ct. 252. Of course, if the passenger is actually seen in the act of alighting by the men in charge of the train, or if under the circumstances of the particular case he should have been seen, then there is a duty to allow him time to alight completely before starting the train, and a failure so to do would be negligence. The trial judge practically so instructed the jury in affirming points submitted by the defendant; hence we do not sustain this assignment.

The seventeenth specification complains that the charge as a whole is inadequate, and that the trial judge gave undue prominence to the testimony of the plaintiff’s witnesses and minimized the evidence for the defense. We do not sustain this assignment, but we take occasion: to say that at the next trial, if the testimony is the same, it would be well to call the attention of the jury to the number of witnesses for the defense who testify to facts showing or tending to show that the plaintiff stepped off a moving train. In accident cases, where a strong sympathy naturally goes out to a physically injured man, the trial judge should give careful instructions on the testimony, and in so doing he should deal with the number of witnesses on each side, their respective interests, opportunities for observation, and such other matters as affect the weight of the evidence.

The third specification complains of a portion of the charge which states that, if through the negligence of a railroad a car is permitted to move while a passenger is trying to get off, the company is responsible for any injury which he may sustain. These instructions, standing alone, can justly be criticised because of the omission of any reference to the duty of the passenger; but, as this was cured in subsequent instructions, the assignment is overruled.

The first, fourteenth, fifteenth and sixteenth specifications, which allege error in not giving binding instructions for the defendant, and in refusing judgment non obstante veredicto, are all overruled.

The fourth, fifth, sixth and eleventh specifications cover alleged mistakes in recitals of testimony; as these may not occur at the next trial, it is unnecessary to discuss them. The assignments are dismissed.

The seventh and eighth specifications complain of general instructions, in which we see no reversible error; they are overruled,

For reasons before indicated, the second, ninth and tenth assignments are sustained, and, the judgment is reversed with a venire facias de novo.


author: Mu. Justice Potter,

text:
    Gillan v. West, Appellant.

      Husband and wife — Actions—Promissory note.

    1. A wife cannot bring suit upon a promissory note against her husband during coverture.
    2. In an action by the administrator of a married woman against the husband of the deceased on a promissory note, it is proper to exclude the period of the wife’s coverture in ascertaining the time at which the presumption of payment upon the note arose.
    Argued March 6, 1911.
    Appeal, No. 270, Jan. T., 1910, by defendant, from judgment of C. P. Franklin Co., Sept. T., 1909, No. 101, on verdict for plaintiff in case of Arthur W. Gillan, Administrator of Clara A. Funk, deceased, v. Thomas H. West, Guardian of Jacob R. Funk.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note under seal. Before Kooser, P. J., specially presiding.
    At the trial it appeared that Clara A. Funk and Jacob R. Funk were husband and wife, and that the latter made the note in suit, dated April 1,1881, in the sum of $3,500, payable to Clara A. Funk. Mrs. Funk died on April 13, 1893. In December, 1906, Jacob R. Funk was adjudged a weak-minded person and Thomas H. West was appointed his guardian. The action was brought on June 11, 1909. There was evidence that Mr. and Mrs. Funk lived together until the wife’s death.
    Plaintiff presented this point:

      If the jury believe from the evidence that plaintiff’s intestate, Clara A. Funk, was the wife of Jacob It. Funk, the ward of the defendant, from the date of the note sued on, April 1, 1881, until April 13, 1893, the date of her death, then, under all the evidence in the case, your verdict should be for the plaintiff. Answer: We affirm that point. [1]
    Defendant presented this point:
    That under all the evidence in this case the verdict must be for the defendant. Answer: This point we decline to affirm. [2]
    Verdict and judgment for plaintiff for $9,530.50. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      Walter K. Sharpe, with him O. C. Bowers, W. T. Omwake and Irvin C. Elder, for appellant,
    cited: Peters’s App., 106 Pa. 340; Hess v. Frankenfield, 106 Pa. 440.

      Charles Walter, of Walter & Gillan, with him D. Watson Rowe, for appellee,
    cited: Small v. Small, 129 Pa. 366; Foulk v. Brown, 2 Watts, 209; Fidelity Title & Trust Co. v. Chapman, 226 Pa. 312; Cannon v. Hileman, 229 Pa. 414; Marsteller v. Marsteller, 93 Pa. 350; Riner v. Riner, 166 Pa. 617; Amole’s App., 115 Pa. 356.
    May 23, 1911:
   Opinion by

Mu. Justice Potter,

The substantial question raised by this appeal is as to the right of the wife to bring suit upon a promissory note against her husband during coverture. This question was distinctly answered in the negative in Small v. Small, 129 Pa. 366. And the ruling was followed in Kennedy v. Knight, 174 Pa. 408, where it was said in an opinion approved by this court, that on the authority of Small v. Small, supra, the principle that a married woman cannot bring suit against her husband while they are living together, is to be regarded as firmly established. It was also held in the same case that the statute of limitations does not run against the claim of the wife during coverture. In the Act of June 8, 1893, P. L. 344, sec. 3, it is expressly provided, that a married woman may not sue her husband, except “in proceedings for divorce, or in a proceeding to protect or recover her separate property whensoever he may have deserted or separated himself from her without sufficient cause, or may have neglected or refused to support her.” As the present case falls within none of these exceptions the trial judge was entirely right in excluding the period of the'wife’s coverture, in ascertaining the time at which the presumption of payment upon the note in question arose. The assignment of error is overruled, and the judgment is affirmed.