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

      Municipalities — Controllers—Cities of the first and second class — CW-tracts — Public officers.

    The discretionary power of controllers in cities of the first and second class does not extend to the revision of lawful contracts made by other departments within their proper sphere. If the contract be on its face regular, and the requirements of the statutes in connection therewith have been fully met, the controller is without choice in the matter; it becomes at once Ms duty in such cases to number the contract according to its date, charge it against the proper item of appropriation, and certify it accordingly. He cannot object merely because the specifications on which a bid was based were uncertain and ambiguous, or because of alleged collusion in connection with the bidding.
    Argued May 23,1906.
    Appeal, No. 108, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1906, No. 162, refusing mandamus in case of Commonwealth, ex rel. Welsbach Street Lighting Company of America v. John B. Larkin, Controller of the City of Pittsburg.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Reversed.
    Petition for mandamus. Before MacFarlane, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing mandamus.

      Charles E. Morgan and A. A. Patterson, of Lyon, McKee & Mitchell, with them William Findlay Brown and Joseph M.

      Swearingen,

    June 27, 1906:
    for appellant, cited: Com. v. George, 148 Pa. 463; Com. v. Philadelphia, 176 Pa. 588 ; Com. v. Pittsburg, 204 Pa. 219; Com. ex rel. v. Brown, 13 Pa. Dist. Rep. 53; Black v. Chester City, 175 Pa. 101; Ry. Co. v. Griest, 12 Pa. Dist. Rep. 282.

      C. Y. Breck and Wallace & Watson,

    for appellee, cited: Com. v. Philadelphia, 176 Pa. 588; Com. v. Pittsburg, 204 Pa. 219 ; Dechert v. Com., 113 Pa. 229; Com. v. George, 148 Pa. 463 ; Com. v. Pittsburg, 34 Pa. 496 ; Com. v. McKissick, 4 Dall. 292; Com. v. Cochran, 1 S. & R. 473 ; Com. v. Mitchell, 2 P. & W. 517; Pennsylvania R. R. Co. v. Canal Commissioners, 21 Pa. 9; James v. Bucks County, 13 Pa. 72; Treasurer of Jefferson County v. Shannon, 51 Pa. 221; Com. v. Henry, 49 Pa. 530 ; Com. v. Fitler, 136 Pa. 129; Press Pub. Co. v. Pittsburg, 207 Pa. 623 ; People v. Campbell, 72 N. Y. 496 ; Board of Education v. Runnels, 57 Mich. 46 (23 N. W. Repr. 481) ; People v. Thompson, 99 N. Y. 641 (1 N. E. Repr. 542) ; People v. Wood, 35 Barb. 653 ; Parrott v. Bridgeport, 44 Conn. 180.
   Opinion by

Mr. Justice Stewart,

The powers and duties of controllers in cities of the first and second class, with respect to the certifying of municipal contracts, are practically identical. Therefore what was said by this court in the ease of Com. ex rel. Century Company v. Philadelphia, 176 Pa. 588, applies here. While it is there said that the duties of a controller are partly discretionary, there is nothing in the opinion warranting an inference that his discretion extends to the certifying of municipal contracts on their face regular and legal. On the contrary, it is there expressly held, that his discretionary power does not extend to the revision of lawful contracts made by other departments within their proper sphere. If the contract be on its face regular, and the requirements of the statutes in connection therewith have been fully met, the controller is without choice in the matter ; it becomes at once his duty in such cases to number the contract according to its date, charge it against the proper item of appropriation, and certify it accordingly. No opinion or so-called discretion of the controller can justify him in withholding his certificate from such a contract. This is the doctrine of the case, so clearly expressed that it admits of no question. It is, however, all predicated of a legal contract. Where statutory prerequisites have not been observed, the contract would be without validity, not a legal contract; and the withholding of the certificate in such case would not be a matter of discretion with the controller, but a positive duty.

In the present case there was an ordinance regularly passed providing for the letting of the contract for the furnishing of light to the city of Pittsburg in its streets, boulevards, alleys and parks. The ordinance carried with it an appropriation of $100,000 for the purpqse above expressed. The requisites of the statute with respect to advertisement, proposals, acceptance of bids, etc., were all complied with, and the contract as drawn was approved by the city solicitor, and executed by the mayor and director of public works on béhalf of the city, and on behalf of the other contracting. party by the president of the company. The controller having refused to certify the contract, the present proceeding was begun to compel him so to do. In his answer to the petition for a mandamus — which latter recited all the proceedings by the city authorities in this connection, and the terms of the contract between the parties —the controller seeks to justify'his refusal on the following grounds : (1) that the proposals were for naphtha street lights, whereas the ordinance and specifications called for incandescent mantle lights; (2) that the proposals contained no provision for furnishing lamps and posts as required in the seventh paragraph of the specifications; (3) that the specifications exceed the authority of the ordinance, which was limited to the furnishing of incandescent mantle lights, while the specifications provided also for furnishing lamps and posts; (4) that the proposals were based upon specifications so vague, uncertain and ambiguous that no legal contract could be founded thereon. Because of these alleged variances and defects the answer avers that the contract was not a legal one, and that therefore no duty rests on the controller to certify it. It cannot be said of any one of the objections here urged that it has an adequate basis of fact to support it.

The ordinance calls for incandescent lights, without defining the character of the light beyond what the words used mean and fairly imply. The proposals were not for anything different than that expressed and defined in the ordinance; the language of the proposal is: “ For naphtha street lights . . . . using incandescent mantles,” of a given candle power.

The proposal was “ to furnish all materials, tools and labor required to furnish the above-named light in streets in accordance with the plans, specifications and instructions of the Director of Public Works.” It would hardly occur to anyone not seeking a pretext to avoid the contract, that under this proposal there could be any question as to the obligation on the party making it, to furnish the lamps and posts required under the seventh paragraph of the specifications.

As much may be said with respect to the averment that the specifications exceed the authority of the ordinance. The latter is not limited as the answer avers, to the furnishing of incandescent mantle lights, but, as declared in section one of the ordinance, the authority was “ to let a contract for furnishing light to the city of Pittsburg on its streets, boulevards, alleys, by-ways and parks with incandescent, mantle lamps.” Whatever would be necessary to accomplish the purpose of the ordinance, that is to say lighting the city of Pittsburg with the particular light indicated, would obviously and necessarily be included in the authority given.

The objection that the contract is illegal because the specifications on which the bid was based were uncertain and ambiguous, is the expression of an opinion which the respondent has a perfect right to entertain, but which we cannot be expected to seriously consider. Should questions arise in consequence of this alleged conflict or ambiguity, the courts may be trusted to meet and solve them.

No more can the collusion charged in connection with the bidding be made the subject of inquiry in this proceeding. The one question in the case is, shall the controller be required to certify this contract ? It is his duty to certify all municipal contracts which have been entered into under and in compliance with statutory requirements. We have said this is such a contract. The fraud alleged does not go to the regularity of the contract — and by regularity we mean conformity to the positive requirements of the statute. The powers and duties of the controller are purely statutory; and when one holding the office asserts the right to avoid or ignore a duty plainly enjoined, nothing can vindicate such right short of a statutory provision equally explicit with that which enjoins the duty. If the facts with respect to the collusion be as stated in the answer, they furnish sufficient basis for a proceeding at the suit of the city or of a defrauded taxpayer to set aside the contract, as was done in Mazet v. Pittsburg, 137 Pa. 548, and, as the record shows, is now being attempted with respect to this contract in the courts of Allegheny county; but until the contract be judicially declared illegal by reason of the alleged fraud, it is not for the controller to assert its invalidity in justification of a refusal on his part to certify a contract which stands clear of all other objection.

The fact that these very questions are now before the courts for determination in a pending proceeding involving the legality of the present contract, can have no bearing on the question here to be decided. The controller may be required to certify the contract without in any way affecting the rights of the parties in the other proceeding. Iiis certificate can in no way protect the fraud, if any were perpetrated in connection with the contract; this and all other questions touching the validity of the transaction would be just as widely open for'investigation with the certificate attached as they would be without it.

Judgment reversed and mandamus directed to be issued, unless other and legal grounds be shown why it should not.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Millcreek Township, Appellant, v. Erie Rapid Transit Street Railway Company.

      Street railways — Roads—Consent—Condition subsequent — Impossibility of fulfillment.

    Where a township has granted a franchise to a street railway company to lay its tracks on a public road, with a condition subsequent that when required by the township it should remove its track from the side to the center of the road, the township cannot, after the construction of the road, declare a forfeiture of the franchise, where it appears that it was impossible for the company to fulfill the condition by reason of the refusal of the landowners abutting on one side of the road to give their consent to the construction of the railway in the center of the road.

      Argued May 23, 1906.
    June 27, 1906 :
    Appeal, No. 128, Jan. T., 1906, by plaintiff, from decree of C. P. Erie Co., Feb. T., 1905, No. 7, on bill in equity in case of the Township of Mi^lcreek v. Erie Rapid Transit Street Railway Company, and Henry F. Walton, Receiver.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Walling, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court.

      John S. Billing, with him Henry E. Fish, for appellant.

      Dwight M. Lowrey, with him Alfred R. Haig, Henry C. Thompson, Jr., William F. Harrity and S. A. Davenport, for appellees.
   Per Curiam,

It is found by the court below that the defendant company with the consent of the road authorities of the plaintiff township laid its tracks upon the south side of the highway and has operated on them as a street passenger railway since 1901. Further, that the consent of the said authorities was with a reservation of the right to require the company “ at any time to remove its tracks from the side of said road to the center thereof,” and that the road authorities in pursuance of this reserved right have directed the company to so remove the tracks. The defendant having failed to obey the direction, this bill was filed, inter alia, for a mandatory injunction to make the removal. The answer of defendant set up among other things that it had not been able to secure the consent of the property owners on the north side to the change of the location of the tracks to the center of the road.

It is conceded that the franchise to build the road could not be exercised until the consent of the township authorities had been obtained, and that such consent, having been given on condition, was ineffectual without performance of the precedent condition. The consent of the abutting landowners on the south side of the highway was also a legal prerequisite to the location of the tracks on that side without regard to any agreement the township and the company might make, and had the company failed to obtain such consent its grant would not have been available, for failure of performance of a condition precedent, even by reason of its impossibility, defeats the grant. But in the present case the condition was performed, the consent obtained and the road constructed and operated for more than three years in compliance with all the legal requirements. The obligation to move the tracks to the middle of the road, though valid and binding, was part of a condition subsequent, as to which the rule is different. Impossibility excuses failure of performance, and defendant has set up a legal impossibility in the refusal of the property owners to consent and the absence of any legal means of compelling consent.

The learned judge below made a careful decree enjoining the performance of certain car service prayed for, and ordering the defendant to remove its tracks from the south side to the center of the road “as soon as it may lawfully be done.” This was all that the appellants were entitled to ask.

Decree affirmed.


author: Mr. Justice Stewart,

text:
    Kaylor v. Cornwall Railroad Company, Appellant.

      Negligence — Railroads—Master and servant — Brakeman—Choice between dangers.

    In an action by a brakeman against a railroad company, his employer, to recover damages for personal injuries, it appeared that the plaintiff, in the performance of a duty absolutely necessary, started to alight from a moving train by means of an iron ladder attached for this purpose to the side of a freight car. While so attempting he was carried violently against a telegraph pole which was fifteen inches from the side of the car. The evidence established that except for the telegraph poles on one side, both sides of the car were alike under ordinary conditions, with respect to convenience and safety in alighting. It appeared, however, that the company had been relaying its tracks, and had deposited the old rails on the side of the track on which there were no poles. The plaintiff knew of this fact, and also saw at the time of the accident that the rails were covered with snow. He testified that it was the additional danger resulting from the rails being concealed by the snow that determined him to attempt to alight from the other side, since the danger there was open and exposed and was susceptible of some sort of measurement. Held, that the case was for the jury, and that a verdict and judgment for the plaintiff should be sustained.

      Evidence — Witness—Hearsay.
    Where a witness who was about to repeat something that the plaintiff said to him, was interrupted by an objection which prevented him from answering, the Supreme Court will not consider whether the evidence sought to be elicited from him was or was not competent.
    Argued March 26, 1906.
    Appeal, No. 222, Jan. T., 1905, by defendant, from judgment of C. P. Lebanon Co., June T., 1903, No.-9, on verdict for plaintiff in case of John Kaylor v. Cornwall Railroad Company.
    Before Mitchell, C. J., Fell,Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ehrgood, P. J.
    On January 16, 1903, the plaintiff, a brake man in the employ of the defendant, while in the act of descending on a side ladder from the top of a moving box car, was carried violently against a telegraph pole and seriously injured. It appeared that the pole was only fifteen inches from the. side of the car. There were no telegraph poles on the other side of the track, but old fails had been deposited there near the track, and on the day of the accident were covered with snow. The plaintiff testified that it was the presence of these rails on one side of the track that induced him to attempt to alight on the side where the telegraph poles stood.
    When Dr. A. B. Gloninger was on the stand he was asked on redirect examination the following question:
    “ Q. In reference to the plaintiff’s mental condition as to testimony ? ”
    Mr. Shirk: Objected to; the doctor has fully gone into that.
    The Court: The doctor has fully testified as to his condition.
    “ Q. I want to ask the physician whether this plaintiff is likely to receive a suggestion from another man’s mind and being led in his testimony. He has had this patient under surveillance for the last two years and knows his exact mental condition; he knows if he is permitted to testify he can do so.”
    Mr. Shirk: Objected to as irrelevant and incompetent; the credibility of the witness is for the jury or for the court under the evidence.

      The Court: We will permit him to answer that question.
    Witness: If I may be allowed, this man was unconscious for four days. When he got awake—
    Mr. Shirk : This is objected to as not responsive to the question.
    The Court: This is an explanation, I presume, of the answer.
    Witness: When he got awake this scene was pictured in front of him. That is the point I wanted to make that was ■not brought out before, which I feel that I ought to tell. That man was struck by that pole because he saw it, and he told me when he got awake—
    Mr. Shirk: Objected to as incompetent.
    Mr. Light: It goes to the question whether it was not really a part of the res gestee, because the plaintiff, if he had made statements at the time of the accident, certainly it would be competent for another man to testify as to what he had said; and if at a period of four days after the accident, when he first recovered consciousness, he makes a statement, it strikes me it almost comes down to the very time of the accident.
    The Court: We will exclude that.
    Mr. Shirk: This part of the picture I ask to have stricken out as incompetent evidence.
    Mr. Shirk: This part of it which he speaks that this plaintiff was struck by a telephone pole, because the whole thing came before his eyes on the fourth day after he got awake, that this was done at that time, and that is not competent evidence what the man said at that time or what visions he had.
    The Court: We will overrule that motion to strike out; exception to the defendant. [5]
    The defendant requested the court to charge the jury as follows :
    1. That under all the evidence in the case the verdict of the jury must be in favor of the defendant.
    2. From the plaintiff’s evidence, and under the uncontradicted evidence in the case, during at least two years before the accident, the plaintiff passed the telegraph pole at which he claims he was injured, at least four times a day on an average, while working as a brakeman on the road; that he was employed for about nine months before that time as a trackman upon the section along which the telegraph pole was erected and by which he alleges he was struck while going southward on a moving train in the performance of his duties as brakeman on the railroad; that as such trackman his duties were to assist in the repairing of the railroad tracks and the telegraph lines ; that while far away from the pole, with which he alleges he came in contact, it was visible to him while going in the direction the train was running at the time of the accident; that under these circumstances, as testified by the plaintiff, and under the uncontradicted evidence in the case, the plaintiff must be held as a matter of law to have assumed the risk of dangers incident to the situation and location of said telegraph pole, and the verdict must be in favor of the defendant.
    8. The plaintiff was guilty of contributory negligence at the time of the accident complained of.
    4. Under the plaintiff’s own testimony, the cause of the injury was one that was open, permanent and visible in its character, and of which the plaintiff assumed the risk when he entered and continued in defendant’s service for about two years in the capacity in which he was employed, namely, that of brakeman, and that the injury was the result of the plaintiff’s own negligence in not paying proper attention to the risk which he incurred in the performance of the act in which he was engaged at the time of the injury.
    All of the above points were refused. [1-4]
    Verdict and judgment for plaintiff for $6,000. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them; and (5) ruling on evidence, quoting the bill of exceptions.

      Howard C. Shirk, for appellant.
    Plaintiff assumed the risk: Phila. & Reading R. R. Co. v. Schertle, 97 Pa. 450; Titus v. R. R. Co., 136 Pa. 618; Pittsburg & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276; Augerstein v. Jones, 139 Pa. 183; Kehler v. Schwenk, 144 Pa. 348; Reese v. Hershey, 163 Pa. 253 ; Dooner v. Del. & Hudson Canal Co., 171 Pa. 581; Bellows v. Canal & R. R. Co., 157 Pa. 51; Fulford v. Lehigh Valley R. R. Co., 185 Pa. 329; Fletcher v. Traction Co., 190 Pa. 117; Kelly v. R. R. Co., 11 Atl. Repr. 659; Lovejoy v. Boston & Lowell R. R. Corporation, 125 Mass. 79.

      November 2, 1906 :
    Plaintiff was guilty of contributory negligence: Kelly v. B. & O. R. R. Co., 11 Atl. Repr. 659; City of Erie v. Magill, 101 Pa. 616.

      Warren G. Light, for appellee.
    The master is bound to furnish and maintain suitable instrumentalities for the duties required of his servants, and if he does not, he is liable for injuries from his neglect: Penna. & New York Canal & R. R. Co. v. Mason, 109 Pa. 296 ; Philadelphia & Reading R. R. Co. v. Huber, 128 Pa. 63; Trainor v. Railroad Co., 137 Pa. 148; Lillie v. American Car & Foundry Co., 209 Pa. 161; Weller v. Mfg. Co., 28 Pa. Superior Ct. 102; Stoltenberg v. R. R. Co., 165 Pa. 377 ; Patterson v. Pittsburg, etc., Railroad Co., 76 Pa. 389.
    The plaintiff in entering the service of the defendant companyas a brakeman did not assume the risk of being struck by the telephone and telegraph pole: Brossman v. R. R. Co., 113 Pa. 490.
    The plaintiff cannot as a matter of law be charged with contributory negligence under the facts of this case: Bradwell v. Ry. Co., 139 Pa. 404; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Penna. R. R. Co. v. Kilgore, 32 Pa. 292; Penna. Canal Company v. Bentley, 66 Pa. 30; Mallory v. Griffey, 85 Pa. 275; Baker v. Gas Company, 157 Pa. 593.
   Opinion by

Mr. Justice Stewart,

In disposing of the assignments of error which relate to the court’s refusal to give binding instructions in favor of the defendant, it is only necessary to advert to a feature of the case, overlooked in the argument, yet quite sufficient in itself to have compelled a submission of the case to the jury. Since the several propositions advanced upon the argument in support of these assignments were framed without reference to this important and qualifying feature of the case, they may be regarded as abstract, requiring no discussion here. Whether a presumption of negligence arises from the mere fact, disassociated from all others in the case, that the telegraph pole with which the plaintiff came in contact was so erected and maintained that between it and the top of the car upon which the plaintiff was engaged, there was a space of only fifteen inches; or whether, having shown so much, the burden still rested on the plaintiff to show actual negligence, were not the questions the court had to consider in ruling on the points submitted. As much maybe said of the other question so pressed upon our attention, viz: whether the danger in connection with this pole, since it was apparent and obvious, was not a risk incident to plaintiff’s employment and voluntarily assumed. Further facts in the plaintiff’s case left these considerations without any determining significance.

The plaintiff, a brakeman in defendant’s employ, was, immediately before the accident occurred, in his proper place on top of a freight car. To discharge a duty which required promptness and alacrity on his part, viz : to turn the switch and signal approaching trains, — a duty so important in its relation' to the safety of the public and his coemployees, that no peril to himself, arising out of the usual and ordinary conditions, would have excused his disregard of it — he attempted to alight from the moving train, by means of an iron ladder attached for this purpose to the side of the car. While so attempting he was carried violently against a telegraph pole at the side, with the result that he was seriously injured. A like ladder was on the other side of the car where no telegraph poles were to be encountered. Except for these telegraph poles, both sides, under ordinary and usual conditions, were alike with respect to convenience and safety in alighting. There was no rule or regulation requiring the one to be used rather than the other, the employee being free to choose either, determining for himself according to conditions existing at the time. On the day of the accident, when the plaintiff reached the point where he attempted to alight, he encountered unusual and extraordinary conditions, which, according to his testimony, put him to the choice between two methods of alighting, both of which were manifestly dangerous. The defendant company at this point had been relaying its tracks, and had deposited the old rails which had been replaced, in _ the open space at the side of the track on which there were no poles. Plaintiff knew this fact, for on a previous occasion, when these rails were under his observation, he attempted to alight on that side, had fallen on them, and been injured by them. When the accident here complained of' happened, the rails were covered with snow, and the hazard of alighting on that side was thereby very considerably increased. Plaintiff distinctly testified that it was this danger, resulting from the rails being concealed then by the snow, that determined him to attempt the other side, since the danger there being open and exposed, was susceptible of some sort of measurement. In view of this testimony it became a question, not whether the telegraph line in its construction at that point, corresponded to the standard observed and adopted by railroads generally along curves such as was here, but whether, in view of the peculiarly hazardous duties required of the plaintiff at this point, and the use to which defendant had appropriated the other side of the track, making it also a dangerous place to alight upon from a moving train, it was negligence in the defendant to maintain a telegraph pole at this particular point, which at the height of the car was only fifteen inches removed therefrom. If by so doing the plaintiff was subjected to dangers which in good faith the defendant ought to have provided against, it was negligence; but this question could only be determined upon a consideration of all the facts of the case, and these were for the jury to find. Careful instructions as to the application of the law to the facts were required for a proper determination; and these were given. There was no error in refusing the binding instructions prayed for.

The record gives no support to the remaining assignment of error. Whether the evidence sought to be elicited from the witness, Dr. Gloninger, would or would not have been competent, need not be considered. The record shows that the witness was interrupted in his answer to the question by a timely objection which prevented him from repeating anything that had been told him by the plaintiff.

The assignments of error are overruled and the judgment is affirmed.


text:
    Fellbush v. Fellbush, Appellant.

      Deed, — Will—Equity pleading — Equity practice — Responsive answer — Evidence.

    Where, a bill in equity to rescind, an instrument in writing, in form a ■ deed, and delivered to the grantee, on the ground that in fact it was a will, sets forth facts sufficient to rebut the presumptions arising from the form of the paper and its delivery, but these facts are specifically denied in the answer, and there is nothing in the paper itself from which it can be conclusively inferred that it was a will, and no evidence is taken to support the averments of the bill, the suit should be dismissed.
    Argued. April 9, 1906.
    Appeal, No. 204, Jan. T., 1905, by defendant, from decree of C. P. Luzerne Co., Feb. T., 1904, No. 4, on bill in equity in case of Justus Fellbush v. Frances Fellbush and Frances Fellbush, Guardian ad litem of Lewis Fellbush et al.
    Before Mitchell, C. J., Mesteezat, Pot-tee, Elkin and Stewakt, J J.
    Reversed.
    Bill in equity to cancel a paper, in form a deed, but alleged to be a will.
    The facts are stated in the opinion of the Supreme Court.
    The case was originally heard before Dunham, P. J., specially presiding, who recommended a decree dismissing the bill. Exceptions to the adjudication were sustained by Lynch, P. J., and a decree of cancellation entered.

      Error assigned was the decree of the court.

      M. J. MuThall, for appellants. —
    The paper is a deed: Knowlson et ux. v. Fleming, 165 Pa. 10 ; Cable v. Cable, 146 Pa. 451; Waugh v. Waugh, 84 Pa. 350; Eckman v. Eckman, 68 Pa. 460 ; Wilson v. Carrico, 140 Ind. 533 (40 N. E. Repr. 50) ; Cates v. Cates, 135 Ind. 272 (34 N. E. Repr. 957) ; West v. Wright, 115 Ga. 577 (41 S. E. Repr. 602) ; Shackelton v. Sebree, 86 Ill. 616.

      W. Alfred Valentine, with him G. Fred Lazarus, for appellee.
    An instrument vesting no present interest in property, but passing title after death of the maker, is a will: Frew v. Clarke, 80 Pa. 170; Coulter v. Shelmadine, 204 Pa. 120; Habergham v. Vincent, 2 Ves; Jr. 204; Turner v. Scott, 51 Pa. 126; Siegel v. Lauer, 148 Pa. 236.
    November 2, 1906 :
   Opinion by

Mr. Justice Stewart,

This case presents a somewhat unusual feature in that, in its final determination in the co'urt below, the pleadings and findings by the judge who heard the case in the first instance,were entirely disregarded, and a conclusion was reached, expressed in the final decree, which rests solely upon judicial construction of the written instrument, the subject of the contention. The plaintiff alleged in his bill that a certain instrument by him executed, in form a deed of conveyance, duly acknowledged and recorded, was a will; that he had so understood it when he executed it; that he had given it into the possession of the party named as grantee, not by way of delivery, but for safe custody; and that it had been recorded by mistake and without his consent. The prayer was for the cancellation and surrender of the instrument, on the ground that as the matter stood it was a cloud upon his title to the property described in the instrument. In the answer filed the material averments in the bill were specifically denied, and in the replication issue was joined on the matters alleged. Some evidence was taken as to the effect of this outstanding instrument upon the plaintiff’s title in the general market, a matter about which there could be no controversy, but not a particle as to the facts in issue. The learned judge specially presiding at the time, with a correct appreciation of the issue raised by the pleadings in the case, and correctly applying equity rules, held that in the absence of all evidence in support of plaintiff’s averments, .these being specifically denied in the answer, the denial prevailed and the plaintiff was not entitled to the relief prayed for. He accordingly ordered the bill to be dismissed. Upon exceptions taken, and there were many, the learned president judge of the district, before whom the matter then came to be heard, holding, correctly enough, that the question in the case was whether the instrument in question operated as a present conveyance or a testamentary writing, determined from an inspection of the paper and that alone, without any regard to the pleadings, state of proofs or findings, that it was a will, and that, it had ; been revoked by the bringing of suit. A decree for its surrender and cancellation followed. The appeal is from this decree.

Such summary disposition of the case was unwarranted. The case cited by the learned judge in support of his' conclusion, Turner v. Scott, 51 Pa. 126, is an unquestionable authority, and much that is there said is applicable here ; but it cannot be contended that the instrument here, the subject of the controversy, contains any such positive or unequivocal expression of purpose as was contained in the instrument there considered. In that case as in this, the instrument was in form a deed, but it contained the following express provision: “ this conveyance in no way to take effect until after the decease of the said John Scott, grantor.” That the form of the instrument there was allowed to be without any real significance, may be readily misunderstood. The case is no authority for the notion that the form of the instrument is in all cases immaterial. The effort in every case where judicial construction is required, must be to develop the purpose of the maker, to the end that such purpose may take effect, if the rights of others be not prejudiced thereby. Cases arise where by reason of obscurity of expression, such purpose may not readily or definitely be ascertained from the terms of the instrument itself ; in such cases the law calls to its aid whatever circumstances there may be in the case from which light may be reflected. Since the distinction in purpose between a deed and a will is so obvious and so generally understood, the fact that the form of one has been adopted rather than the other, is a circumstance which in some cases may be of large significance. What the case of Turner v. Scott, supra, is authority for is, that where the language used in the instrument to express the purpose of the maker admits of but one construction, or has definite legal import, such outside and collateral inquiries have no place in the investigation, for the reason that, in such case, it is not a question of what the party may have meant or intended, but what is the meaning of the words he has used. The instrument there was held, regardless of what'outside indications there were of the contrary intent, to be a will, because it expressly declared the purpose of the maker that it — the instrument itself — was to be without effect until his death, thus distinguishing it unmistakably as a testamentary paper pure and simple. In the cases following Turner v. Scott, supra, in which the doctrine of the latter has been applied and the instrument adjudged a will, the restrictive phraseology is not always the same, but in no case is it less explicit in directing that the paper — distinguishing between the instrument and the enjoyment of the interest given or conveyed — is not to operate until after the death of the maker. An examination of these cases will show that no other construction was possible in any of them, without directly contradicting the language used by the maker to express his purpose in connection therewith. Certainly this much cannot be affirmed with respect to the instrument here. The restricting clause we are to consider is as follows : “ The full intent and meaning of this conveyance is that Frances Fellbush shall enjoy the above described premises for and during the term of her natural life, said life estate to take effect upon the death of the said Fellbush, grantor herein, and the remainder to go to the children of the said Justus and Frances Fellbush.” To hold that the restriction here expressed relates to the time when the instrument is to take effect, may perhaps involve no contradiction of anything expressed. So much may be conceded for present purposes. Certainly quite as much can be affirmed of a contrary construction, that would make the restrictive clause relate to the time of enjoyment of the estate given or conveyed. It would follow, then, that the instrument is equivocal in regard to the very thing the law allows to be the determining factor, viz., the purpose of the maker. It may be conceding much to admit that the language used in the restrictive clause here lends itself as readily to one construction as the other; but so much being admitted, we are necessarily driven to the consideration of whatever collateral facts the case presents, in order to develop what the instrument leaves obscure, the intent of its maker with respect thereto. In such inquiry the fact that the paper is in form a deed may properly be considered; and the further fact, possibly of larger significance, and one which relates to a matter directly put in issue by the pleadings, that the paper had passed from the hands of the maker into the hands of the party named as grantee. These same facts were present in Turner v. Scott, supra, but they could not be considered there, because the effect would have been to contradict the unequivocal language of the instrument. In the present casó the plaintiff asks the cancellation of a paper in form a deed, and which, under a construction that at least does no violence to the language used, is capable of operating as a deed, however much it may be capable of operating as a will, and which is in the hands of the grantee, on the ground that he intended it as a will and not as a deed. The burden resting upon him in such contention was wholly overlooked. The prima facies were against him, both with respect to the form of the instrument and the possession of it by the grantee. If he intended it as a will, why did he adopt the form of a deed ? If he intended it as a will, why did he hand it over to the party named as grantee ? He alleged in his bill matters which, if accepted as true, would overcome the adverse prima facies ; but the answer of the defendant denied each material averment, and upon issue joined with respect to these, the plaintiff rested wholly and entirely upon the unsupported averments in his bill. As we have said, this was not a case in which the construction was to be placed upon the instrument in entire disregard of the pleadings, proofs and findings. The issue was clearly drawn, and there was absolutely nothing offered in support of the averments which were required to be established before the instrument could be declared something different from what it purports to be, and what its distinguishing characteristics clearly indicate it was. The bill in the first instance was properly dismissed and on proper grounds. Any other disposition of it would have been in palpable disregard of established rules.

The decree is reversed at the cost of the appellee.


author: Per Curiam:,

text:
    Caflisch v. Logue, Appellant.

      Appeal — Quashing appeal — No final decree — Equity—Injunction.
    Where a preliminary injunction is granted, and a designated time and place are “fixed as the time and place for hearing motion to continue the same, subject to the defendant’s right to dissolve at any time,” and subsequently on a motion to dissolve, the court orders that the matter bé “ continued to give counsel for plaintiff opportunity to file his answer, to regular argument court,” an appeal taken from both orders will be quashed.
    Argued Oct. 10, 1906.
    October 10, 1906:
    Appeal, No. 173, Oct. T., 1906, by defendant, from orders of C. P. Somerset Co., No. 9, Equity Docket, 1906, in equity in case of J. C. Caflisch and A. L. Caflisch, trading as Caflisch Brothers, v. George W. Logue.
    Before Mitchell, C. J., Fell, Brown, MestrezAt, Potter, Elkin and Stewart, JJ.
    Appeal quashed.
    Bill in equity for an injunction.
    From the record it appeared that the court entered the following decrees:
    And now, to wit, June 2,1906, upon presentation of within bill and of injunction affidavits, and after approval of injunction bond filed by plaintiffs, a preliminary injunction, as prayed for within, is granted, and Saturday, June 9,1906, at 10 o’clock A. M., at the court room,'Somerset, Pa., fixed as the time and place for hearing motion to continue the same, subject to the defendant’s right to move to dissolve at any time. Sec. Reg.
    August 13, 1906, case called by attorney King and matter continued to give counsel for plaintiffs an opportunity to file their answer, returnable to regular argument court, to which attorney King objects and bill sealed.

      Errors assigned were the decrees of the court.

      Alexander King, with him John R. Seott and Koontz Ogle, for appellant.

      W. H. Ruppel, for appellees.
   Per Curiam:,

Appeal quashed at bar.


text:
    Commonwealth v. Renzo, Appellant.

      Criminal law&emdash;Murder&emdash;Continuance&emdash;Counsel.

    Where on an indictment for murder it appears that counsel were assigned to the prisoner several weeks before the trial, and that after their application for a continuance had been refused, they still had twelve days for preparation before the jury was actually called, the refusal of the continuance is not ground for reversing the judgment.

      Criminal law&emdash;Murder&emdash;Practice&emdash;Reading extracts from reports.

    While in the trial of an indictment for murder, the reading by the prosecution of extracts from the state reports, is not a desirable practice, still such practice, subject to the discretion and control of the judge, is not unlawful.

      Criminal law&emdash;Murder&emdash;Lunacy&emdash;“ Transitory frenzy.”

    The law of Pennsylvania does not tolerate the doctrine of “transitory frenzy” as a defense to murder. In the eye of the law it is nothing but vindictive and reckless temper.
    Argued Oct. 15, 1906.
    Appeal, No. 136, Oct. T., 1906, by defendant, from judgment of O. & T. Indiana Co., June T., 1905, No. 1, on verdict of guilty in case of Commonwealth v. Carmene Renzo.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Telford, P. J.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were as follows:
    1. The court erred in refusing to continue the trial of the case on the application of the defendant; making the following order, “Sept. 8, 1905, after hearing and considering the reasons urged for a continuance in this case we do not feel that it is our duty to grant it. There has been time for preparation, we think, since counsel were assigned for this defendant and there yet remains ten days for preparation; the continuance of the case is therefore refused.”
    2. The court erred in allowing the private counsel for the commonwealth to take up the state reports and read garbled extracts from the same, thereby giving a false impression of the law to the jury to the great prejudice of the defendant while arguing the case to the jury, and under the objection of the counsel for the defendant.
    November 2, 1906:
    3. The court erred in taking the case from the jury as to the question of insanity, wherein he charged as follows: “So far as we have noticed or can recall there is no evidence in this case of defendant’s insanity at the time of the commission of the crime; but this is for you to discover, and if you find no such evidence then it will be unnecessary for you to consider this phase of the case. A physician was called by the defendant, who testified to a mental condition that he says sometimes exists, and recited the symptom or effect of such a condition, but not with reference to this case, as he had no knowledge of it; and so his evidence, if you find no evidence of insanity in the defendant at the time of the crime, cannot affect the question of the guilt or innocence of this defendant.”

      E. Walker Smith, with him H. E. Anderson, for appellant.

      Georye J. Feit, district attorney, with him James W. Mack, for appellee.
   Per Curiam,

No assignment of error has any merit or excuses bringing this case here.

Counsel were assigned to the prisoner several weeks before the trial and after their application for a continuance had been refused they still had twelve days for preparation before the jury was actually called. The case was hot at all complicated, either in facts or in law, and counsel have not ventured to assert here that there was any defense they could have made which was prevented by want of time.

There was nothing to justify the charge that the prosecution read “ garbled extracts ” from the state reports to the jury. Such reading is not a desirable practice. It leads to counter extracts by the other side and tends to confuse the minds of the jury. They are much more likely to get clear ideas of the law if they receive it altogether from the judge. But the practice, subject to the discretion and control of the judge, is not unlawful, and to stigmatize it as “ reading garbled extracts,” without even an effort to show- any misreading or perversion, is reprehensible.

There was no evidence of insanity to submit to the jury. Indulgent as the law of Pennsylvania is in favor of the accused, it has never tolerated, nor is likely to tolerate, a doctrine of “ transitory frenzy ” as a defense to murder. The medical profession in their humane efforts to diagnose and ameliorate every form of mental as well as bodily variation from normal condition, may be justified in giving it a specific name and description, but in the eye of the law it is nothing but vindictive and reckless temper.

The judgment is affirmed and the record remitted to the court below that execution may be had according to law.


author: Pee Curiam,

text:
    Commonwealth v. Minney, Appellant.

      Criminal law — Murder—Jury—Challenge—Conscientious scruples — Preconceived opinions.

    A juror’s conscientious scruples against capital punishment, or his preconceived opinion as to the guilt or innocence of the prisoner, are good grounds for challenge, and the test of such scruples or such an opinion as a disqualification, is the juror’s own testimony as to his ability to throw aside their influence and render a verdict according to the evidence alone; but this test is not to be applied solely on the juror’s own conclusion. His ability as well as his willingness must be shown to the satisfaction of the judge, and the latter must be allowed a large measure of discretion.
    Where a juror states that he has conscientious scruples against capital punishment, but testifies that he would bring in a verdict according to the evidence, although it “would worry his conscience” or “would do violence to his conscience,” the trial judge cannot be charged with error in sustaining the commonwealth’s challenge for cause.
    In a murder trial a prisoner has no right to the service of any particular juror on his panel. If he has a legal and impartial jury this is all he is entitled to.
    The fact that a juror uses the term “fixed opinion” does not disqualify him if he still declares that he can disregard it and be governed by the evidence alone.

      Criminal law — Murder—Charge—Omissions.
    Where the judge in his charge, reviewing the evidence, omits or insufficiently refers to portions that counsel think material, it is their duty to call the judge’s attention to them before the case goes to the jury, so that the error, if there is one, may be corrected before it has done any harm.

      Argued Oct. 15, 1906.
    November 2, 1906 :
    Appeal, No. 290, Jan. T., 1906, by-defendant, from judgment of O. & T. Fayette Co., Dec. T., 1905, No. 4, on verdict of guilty of murder of the first degree in case of Commonwealth v. Wilbur Minney.
    Before Mitchell, C. J., Fell, Beown, Mesteezat, Pottee and Stewaet, JJ.
    Affirmed.
    Indictment for murder. Before Beppeet, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were in sustaining various challenges, and portions of the charge.

      S. J. Morrow, with him B. E. Hopwood, D. M. Hertzog and B. M. Carroll, for appellant.

      Thomas H. Hudson, district attorney, and Davis W. Henderson, assistant district attorney, for appellee, were not heard.
   Pee Curiam,

The second and third assignments of error are to the court’s sustaining the commonwealth’s challenges for cause to jurors who had conscientious scruples against capital punishment. It has long been settled that such scruples are a good cause for challenge: Com. v. Lesher, 17 S. & B. 155; and it is equally well settled that the test of such scruples as a disqualification is the juror’s own testimony as to his ability to throw aside their influence and render a verdict according to the evidence alone: Com. v. Valsalka, 181 Pa. 17 (34).

The same test is applicable to the disqualification by a preconceived opinion of the juror as to the guilt or innocence of the prisoner, which is the ground of the fourth assignment: Com. v. Taylor, 129 Pa. 534, and cases there cited.

But this test, while in the nature of things the only one available, is not to be applied solely on the juror’s own conclusion. He may honestly think he can disregard his scruples or his opinion, and may honestly try to do so; but his ability as well as his willingness must be shown to the satisfaction of the judge, and the latter must be allowed a large measure of discretion. “We cannot bring before us the tones, the manner and apparent spirit and character of this juror, and for that reason we cannot review the influence such considerations exercised upon the mind of the learned judge : ” Com. v. Roddy, 184 Pa. 274. “ The established test is ^whether or not the juror can throw aside his impression or opinion and render an impartial verdict on the evidence alone. That question the juror alone can answer, and the weight of his answer is not to be determined exclusively by his words as they appear in print in the record, but by his words, manner and bearing, as to which a fair measure of discretion must be allowed to the court below which had the juror before it: ” Com. v. Eagan, 190 Pa. 10.

In the present case the two jurors who had conscientious scruples against capital punishment each testified that he would bring in a verdict according to the evidence, but it “ would worry his conscience ” or “ would do violence to his conscience.” The judge might very fairly doubt if the jurors had the ability to be entirely impartial though they might honestly make the effort. But even if he had no such doubt he was right in holding that the law did not compel him to subject a juror to such a strain on his conscience. It was a proper exercise of his discretion.

But even if the discretion had been improvidently exercised the prisoner would not have been injured, for he had no right to the service of any particular juror on his panel, and if he had a legal and impartial jury this was all he was entitled to : Com. v. Mosier, 185 Pa. 221, and cases collected in Thompson and Merriam on Juries, secs. 159, 251 and 271.

On the point made in the fourth assignment that the juror testified that he had a “ fixed opinion,” the case of Curley v. Com., 84 Pa. 151, is express authority that notwithstanding the juror’s use of the term “ fixed opinion ” he was not disqualified if he still declared he could disregard it and be governed by the evidence alone.

The other assignments do not require any detailed discussion.

The amendment of the record of the first trial was justified by the minute book and merely conformed the record to the verdict as it was actually rendered.

We have constantly to remind counsel that where the judge in his charge reviewing the evidence omits or insufficiently refers to portions that counsel think material, it is their duty to call the judge’s attention to them before the case goes to the jury, so that the error, if there is one, may be corrected before it has done any harm.

The judgment is affirmed and the record is remitted to the court that execution may be had according to law.


author: Mr. Justice Mestrezat,

text:
    Commonwealth, Appellant, v. Wise.

      Constitutional law — Construction—Conflicting provisions — Sections 1, 2, 7 of article XIV of the constitution — Public officers — County commissioners— Vacancy in office.

    In construing a constitution, the object is to give effect to the intent of the people adopting it. This is to be ascertained from the instrument itself, and by giving to its words and terms their ordinary and usual signification, unless it appears from the context, or entire instrument, that another meaning was intended. If different portions seem to conflict, the courts must harmonize them, if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.
    As there is no constitutional or statutory provision for determining which of the three predecessors in the office of county commissioner is the predecessor of a commissioner elect who refuses to qualify, the provision in section 2 of article XIV of the constitution, that a county officer shall continue in office until his successor shall be qualified, cannot apply where one of the county commissioners elected under section 7 of article XIV declines to qualify and accept the office. That provision was manifestly intended to apply to cases where a single individual filled a county office, and where, therefore, it is enforceable and gives an opportunity to continue in office an elective, instead of an appointive official. Where a commissioner elect refuses to qualify a “casual vacancy” occurs which may be filled in the manner provided by section 7 of Article XIV. The Act of April 15, 1834, sec. 16, P. L. 537, has no application to such a situation.
    Argued May 15, 1906.
    Appeal, No. 162, Jan. T., 1906, by plaintiff, from judgment of C. P. Lancaster Co., Trust Book No. 20, page 43, overruling demurrer in case of Commonwealth ex rel. William Brown, District Attorney of Lancaster County, v. J. Valentine Wise.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.

      January 7, 1907:
    Quo warranto to determine title to office of county commissioner. Before Landis, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in overruling demurrer.

      W U. Hensel, for appellant,
    cited as to what constitutes a vacancy: Com. v. Troxel, 20 W. N. C. 549; Walsh v. Com., 89 Pa. 419.

      John E. Malone, for appellee,
    cited as to the right of the defendant to hold over: Com. v. Hanley, 9 Pa. 513; McKinley’s Case, 28 Pa. C. C. Rep. 90; York County v. Small, 1 W. & S. 315; Com. v. Gaige, 94 Pa. 193 ; Com. v. King, 85. Pa. 103; Miller v. Sacramento County, 25 Cal. 93 ; People ex rel. Melony v. Whitman, 10 Cal. 38; Elam v. State, 75 Ind. 518 ; State v. Harrison, 113 Ind. 434 (16 N. E. Repr. 384) ; State v. Lusk, 18 Mo. 333 ; Sappington v. Scott, 14 Md. 40; Smoot v. Somerville, 59 Md. 84; Johnson v. Mann et al., 77 V. 265; State v. Hadley, 64 N. H. 473 (13 Atl. Repr. 643).
   Opinion by

Mr. Justice Mestrezat,

At the general election held in November, 1902, M. L. Greider and Lewis J. Kirk, the nominees of the republican or majority party, and J. Valentine Wise, the nominee of the democratic or minority party, were elected county commissioners of Lancaster county and having been duly qualified, they entered upon the performance of their duties on the first Monday of January, 1903. At the election held in November, 1905, S. Millo Herr and L. R. Reist, the nominees of the republican or majority party, and Edward D. Reilly, the nominee of the democratic or minority party, were elected commissioners of the county. Herr and Reist- were duly qualified and entered upon the discharge of their duties on the first Monday of January, 1906. Reilly refused to take the oath of office, and on January 1, 1906, filed in the court of common pleas of Lancaster county a paper in which he states that “ I hereby resign and decline the office of county commissioner of Lancaster county to which I have been elected, and I hereby respectfully request you to fill the vacancy as provided by law.”

Reilly having declined to accept the office, J. Valentine Wise has, by virtue of his prior election and qualification as county commissioner, continued to act as one of the commissioners since the first Monday of January, 1906. At the suggestion of the district attorney, the court of common pleas of Lancaster county issued a quo warranto against Wise commanding him to show by what warrant he claims to hold the office. He appeared and filed an answer in which he averred that in November, 1902, he was elected a commissioner of Lancaster county as a representative of the minoritj'- party and entered upon the performance of his duties on the first Monday of January, 1903; that on the first day of January, 1906, he, Herr and Reist, the two majority candidates elect, met as the board of county commissioners and he claimed to be entitled to hold the office until Reilly qualified as a commissioner; that he then presented to the board of commissioners a paper, signed by Greider and Kirk, the retiring county commissioners, in which they disclaimed any right to continue as county commissioners by reason of one of the county commissioners elect having failed to qualify; and that being a county officer, he has a right to continue the performance of the duties of a county commissioner under section 2 of article XIV of the constitution which provides that county officers shall hold their offices for the term of three years, “ and until their successors shall be duly qualified.” The commonwealth demurred to the answer, and the case was heard by the court below on the suggestion, answer and demurrer. The learned judge, in an elaborate opinion, held that Reilly’s act in declining the office of county commissioner to which he had been elected did not create a vacancy in that office, and that Reilly was the successor of Wise, and, therefore, the latter had the right to hold over until his successor was elected and qualified. He therefore declined to enter judgment of ouster against the defendant.

Article XIV of the constitution of 1874 is devoted exclusively to county officers, and is the only part of the instrument which makes provision for their election and the filling of vacancies in county offices. Section 1 of the article declares that “County officers shall consist of ... . commissioners, . . . . auditors or controllers, .... and such others as may from time to time be established bv law-” Section 2 of the article provides that “ County officers shall be elected, at the general elections and hold their offices for the term of three years, beginning on the first Monday of January next after their election, and until their successors shall be duly qualified; all vacancies not otherwise provided for shall be filled in such manner as may be provided by law.” Section 7 of the article provides that “Three county commissioners and three county auditors shall be elected in each county where such officers are chosen, in the year 1875, and every third year thereafter; . . . . any casual vacancy in the office of county commissioner or county auditor shall be filled by the court of common pleas of the county in which such vacancy shall occur, by the appointment of an elector of the proper county, who shall have voted for the commissioner or auditor whose place is to be filled.”

There are certain questions arising out of the interpretation of the provisions of the constitution of 1874 relative to county officers which are so well settled by the plain language of the instrument itself or by the adjudications of this court that they are no longer open to discussion. County officers in the several counties of the commonwealth must be elected at the general election, and by section 2 of article XIV of the constitution they shall hold their offices for three years from the first Monday of January following their election “and until their successors shall be duly qualified.” A vacancy in a county office not otherwise provided for, is to be filled, under this section of the article, in such manner as may be provided by law. County commissioners are county officers, and by section 7 of the article three persons are to be chosen commissioners under a system of minority representation, and any casual vacancy which may occur must be filled by the court of common pleas by the appointment of an elector who voted for the commissioner whose place is to be filled. If a vacancy occur in the office of county commissioner and it is filled, the occupant thus installed will perform the duties of the office for the residue of the triennial term. The death of a person elected to fill the office of clerk of the orphans’ court before he was qualified did not, under the constitutional amendment of 1838, create a vacancy, but the incumbent then in office held over until his successor was qualified. The same construction was given section 2 of article XIV of the present constitution where two candidates for prothonotary had the same vote and, hence, there had been a failure to elect.

Conceding the above propositions to be settled law in this state, 'we now come to the consideration of the question involved in this case, to wit: whether J. Valentine Wise elected as the democratic or minority county commissioner at the general election in November, 1902, and whose term would otherwise have expired January 1,1906, is entitled to hold over and continue in office for another term of three years because Edward D. Reilly, elected in 1905 as the democratic or minority commissioner, declined to accept the office and qualify.

In construing a constitution, the object is to give effect to the intent of the people in adopting it. Cooley’s Const. Lim., 7th ed., 89. This is to be ascertained from the instrument itself, and by giving to its words and terms their ordinary and usual signification, unless it appears from the context or entire instrument that another meaning was intended. Judge Cooley in discussing the rule that the whole instrument is to be considered in ascertaining the intention of each part says (Const. Lim. 91): “ The rule applicable here is, that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory. . . . It is scarcely conceivable that a case can arise where a court would be justifiable in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.”

The defendant contends that the refusal of Reilly to qualify and assume the duties of the office of county commissioner did not create a vacancy in the office, and that Reilly, being the minority commissioner, is the successor of the defendant in the office, and that therefore the latter is entitled to continue to act as commissioner until the first Monday of January, 1909. Prior to the adoption of the present constitution, the office of county commissioner was a statutory and not a constitutional office, and the position of the defendant would be correct if, as under the prior legislation of the state, there had been but a single commissioner to elect at the annual general election. The refusal to qualify and accept an office does not, in such cases, create a vacancy, and the person elected at the preceding election holds over until his successor qualifies and takes the office. But can that rule be invoked under the present constitution where one county commissioner or one county auditor refuses to qualify and enter upon the discharge of the duties of his office ? If such action on the part of a commissioner or auditor elect does not create a vacancy, is there any method or way provided in the constitution or the laws of the commonwealth for determining who is the immediate predecessor to the defaulting candidate elect and who shall hold over as his successor ? If no such provision has been made and it cannot be ascertained in such case which of the three incumbents of the office the candidate elect succeeds, it is apparent that the provision of section 2 of article XIV, that county officers shall continue in office until their successors are duly qualified, cannot apply in case of the failure of a county commissioner or county auditor elect to qualify, and that such conduct on the part of the candidate elect does create a vacancy in the office under that section.

It will be observed that there is no county office except that of commissioner and auditor which requires more than one person to be elected at the same election to fill it, and to which the principle of minority representation is or can be applied by the constitution. While section 2 of article XIV provides that county officers shall hold their offices for three years “ and until their successors shall be elected,” the subsequent section, 7, of the same article is devoted exclusively to provisions for the election and appointment of commissioners and auditors and provides that three commissioners and three auditors shall be elected triennially with minority representation, but contains no provision that they shall continue in office until their successors are elected. Provision is made, however, in both sections for the filling of vacancies. The second section provides that “ all vacancies not otherwise provided for, shall be filled in such manner as may be■ provided by law,” and section 7 declares that" “any casual vacancy in the office of county commissioner or county auditor shall be filled by the court of common pleas .... by the appointment of an elector .... who shall have voted for the commissioner or auditor whose place is to be filled.” The defendant contends that section 2 of the article musí; be read in connection with section 1, and as the latter declares that a county commissioner and county auditor are county officers, it follows that they are within the provision of the former section and are entitled to hold their offices “until their successors shall be duly qualified,” and that in cases like the one at bar no casual vacancy occurs and the incumbent is entitled to hold over. This contention should be sustained if it will harmonize the three sections of article XIV of the constitution under consideration here. The three sections, as well as every other part of the instrument bearing on the subject, must be considered and read together in ascertaining what any part or all of it means. But will the construction contended for by defendant give effect to section 7 of the article, or result in manifest absurdity and prevent its provisions being carried out ? If the latter result follows the defendant’s contention, it cannot prevail because, as we have seen, it would be in direct conflict with the well-established rules of constitutional interpretation.

Reilly’s failure to qualify left one officer short of the three which the constitution requires to form a board of county commissioners. Was he the successor of Greider, Kirk or Wise, the three commissioners who were elected in 1902, and whose respective terms of office would otherwise expire on January 1, 1906 ? There is no way known to the constitution or the laws of the commonwealth by which that question can be determined in any case when a commissioner or auditor refuses to qualify and enter upon the discharge of his duties.

While the constitution recognizes and enforces minority representation in the election and appointment of county commissioners and county auditors, yet after they assume the duties of their offices no such distinction is or can be recognized or permitted. Each officer, while he may or may not continue his past party affiliations, is a commissioner or an auditor of the county with the same rights, powers and duties as either of his two colleagues. The fact that he is elected as the minority representative of the board invests him with no greater or lesser authority in the transaction of the business of the office than either of the other two members of the board elected by the majority party. In the discharge of their official duties, the three commissioners or auditors do not act as the representatives of the majority or minority party, but as officials in conformity with their duties prescribed by the laws of the commonwealth, uncontrolled and uninfluenced by any party affiliations or obligations. In this country, this is the theory upon which all officials, municipal, state and federal, are expected to act, and upon which they must act if our system of government is to be preserved.

Entertaining these views of the duties and obligations of a county commissioner or county auditor after he assumes the office, we cannot assent to the proposition, so earnestly urged by the learned counsel of the defendant, that as Reilly was elected in 1905 as the representative of the democratic or minority party he is the successor of Wise who was elected as the representative of the democratic or minority party in 1902, so as to entitle the latter to continue in office under the provisions of section 2 of article XIY of the constitution. Aside from the contention being contrary and repugnant to the principles upon which officials hold their offices and discharge their official functions, there are other reasons why it cannot be sustained. Assume that the prohibition and not the democratic party had elected the minority commissioner in Lancaster county in 1905, it manifestly would be contrary to the spirit of the constitution to continue Wise in office who, presuming he had continued his party fealty, was a democrat and not a member of the prohibition party which by the votes cast in 1905 would be the minority party at that time. If, as suggested, a member of the prohibition party had been elected as the minority representative on the board of county commissioners in 1905 and had died while in the discharge of the duties of the office, it will be conceded that under section 7 of article XIV of the constitution the court would be compelled to fill the vacancy by appointing an elector who had voted for the prohibition candidate and not an elector who had voted for the democratic candidate. In that event, it is apparent that Wise or no other democrat who had voted for the democratic candidate would be eligible for the appointment to fill the vacancy. This provision of the constitution recognizes what in practice is a fact, that the minority-party at one election is frequently not the minority party at the subsequent election, and ordains that the minority representative on the board of county commissioners and county auditors shall be an elector who voted for the successful minority candidate at the last election at which commissioners and auditors are elected.

Judge Cooley, in speaking of uniformity of construction, says (Cooley on Const. Lim. 88) : “ A cardinal rule in dealing with written instruments is that they shall receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable.” Let us see what would be the interpretation of section 7 of article XIY if Herr or Reist, the republican or majority representatives on the board of commissioners elected in 1905, had declined to accept the office. The rule of construction which we must apply in interpreting the constitution on the refusal of Reilly to accept the office must be the same' in case either of the majority candidates for the position had failed to qualify. If Herr or Reist, elected on the majority ticket in 1905 had declined the office, which of the two majority members of the former board would have held over as his successor ? The constitution affords no answer to the question and there is no statutory provision which solves it. Neither will it do to say that it is subject to an amicable arrangement between the interested parties. They can only proceed according to constitutional or statutory authority, and in the absence of such authority their act would be ultra vires and void, and would not sustain any claimant in his right to the office.

Let us, for a moment, look at other conditions which have existed and which under our elective system will doubtless exist again in some of the counties of this state in the election of county commissioners and county auditors. Assume the political situation in Lancaster county to have changed in the last three years, and that two democrats and one republican had been elected commissioners in 1905 and the republican elect had declined the office, which of the two of the majority members of the old board would have held over as his predecessor? Assume again that the two democratic members elect had declined to serve, which of the two members of the old board would have succeeded them? Would it have been one democrat and one republican or both of the republican members of the old board ? Assume, as has occurred in some of the counties of the state, that in violation of the spirit of the constitution the majority party should elect a board of all three county commissioners which was succeeded by a board elect with a minority representative on it and the latter had declined the office, which one of the three members of the old board would succeed him ?

As there is no constitutional or statutory provision for determining which of the three predecessors in the office of county commissioner or county auditor is the predecessor of a commissioner or auditor elect who refuses to qualify, it is apparent, we think, that the provision in section 2 of article XIV, that a county officer shall continue in office until his successor shall be qualified, cannot apply where one of the county commissioners or county auditors elected under section 7 of article XIV declines to qualify and accept the office. That provision was manifestly intended to apply to cases where a single individual fills a county office and where therefore it is enforceable and gives an opportunity to continue in office an elective instead of an appointive official.

It is suggested in the brief of the learned counsel of the appellant, that the Act of April 15, 1884, P. L. 537, makes provision for filling any vacancy which may occur in the office of county commissioner. That act would have met the case of any vacancy whatever in the office of county commissioner arising under the prior constitution. But the difficulty, and we think it insuperable, in applying it to the case in hand, is that the provision for appointing is not adequate to carry out the purpose of section 7 of article XIV of the present constitution. That section, as will be observed, provides for the election of a minority representative in the boards of county commissioners and county auditors, and directs that in case of a casual vacancy in either office, the same principle' shall be recognized in filling it. The spirit of the constitution as well as the expressed intention of its framers and the people who ratified it are that the minority party, shown to be such at the last election at which commissioners and auditors are elected, shall, during the whole of the succeeding term, have a representative in those offices. Judicial interpretation should carry out this intention if a reasonable and natural construction will permit.

Turning to the act of 1834 we see that section 16 provides that if, for the reasons therein stated, there is a vacancy in the office of county commissioner, “ the remaining commissioner or commissioners, together with the court of quarter sessions of the county, shall appoint a suitable citizen to fill the vacancy until the next general election, when a commissioner shall be elected for the unexpired term.” It is obvious, we think, that the act does not make sufficient provision for filling vacancies in the office of county commissioner like the one in the case at bar so as to carry out the principle of minority representation, as clearly contemplated shall be done by.section 7 of article XIV of the constitution. Admittedly, the vacancy must be filled for the residue of the three year term, and not until the next general election as the act of assembly provides. The act does not provide that in filling the vacancy, the appointing power shall recognize and enforce majority and minority representation as contemplated by the constitution. This was not required under the constitution in force in 1834, and hence it was not necessary that the act of assembly, passed in that year to fill vacancies in the office, should make provision for it. Under this act the single qualification required of the appointee is that he shall be “ a suitable citizen,” and the appointing power can fill a minority vacancy by an elector who had voted for the majority candidate, or could fill a majority vacancy or vacancies by an elector or electors who had voted for the minority candidate and thus make the board of commissioners to be composed entirely of electors who had voted for the majority candidates or for the minority candidates. Such action would be an infringement of the constitutional provision providing for minority representation, but it would not be a violation of any provision of the act of 1834.

It may be argued, however, that if the act of 1834 does not authorize the filling of vacancies in the office of county commissioner under the present constitution that the-, legislature has the power to make the necessary provision for filling vacancies in the office by virtue of section 2 of article XIV which provides that “ all vacancies (in county offices) not otherwise provided for, shall be filled in such manner as shall be provided by law.” But we cannot assent to the correctness of this proposition. By section 7 of article XIV it was obviously intended to make full provision for the election of county commissioners as well as for filling any vacancies which might occur in the office. That is the only section which deals with the subject and it recognizes minority representation and provides for its enforcement in the election and appointment of county commissioners. It does not authorize the legislature to provide for the filling of a vacancy in any contingency. Nor does section 2 of the article, as above suggested, provide for the filling of a vacancy in such manner that minority representation shall at all times be preserved. It therefore necessarily follows that unless section 7 of the article makes provision, not only for the election of county commissioners but for the filling of any vacancy which may occur in the office, there is no constitutional provision which does make provision for filling the vacancy in such manner as to preserve minority representation in the board, as is manifestly intended by the section. It cannot be assumed that it was the intention of the framers of the constitution, that it should be discretionary with the legislature that the boards of county commissioners and county auditors should be constituted as provided in section 7 which ordains that minority representation shall be observed in their selection ; and unless that is conceded it is apparent that the legislature has no authority to provide for the filling of such vacancy under section 2 of the article which does not require that body to observe any conditions or limitations in legislating on the subject of filling vacancies in county offices. Such construction of sections 2 and 7 of the constitution would result in delegating to the legislature in cases of vacancies in the boards of county commissioners and county auditors the authority to defeat and prevent the enforcement of the principle which the framers of that instrument and the voters who ratified it declared should be enforced in the selection of these officers.

We are therefore of opinion that there is no act of assembly which authorizes the filling of vacancies occurring in the boards of county commissioners and county auditors, and that under the present constitution the legislature is not authorized to enact legislation to fill such vacancies.

Has the constitution made no provision for filling the place of a county commissioner or county auditor elect who declines to qualify, and is there a casus omissus in this respect in the constitution ? The defendant contends that such action by an officer elect does not create a “casual vacancy ” which, by the constitution, the.court is authorized to fill. If this be true, then as suggested above,' we know of no provision in the constitution or statutes of the state and have been referred to none, which makes provision for such a contingency, and hence the constitutional mandate that there shall be three county commissioners and three county auditors is incapable of being carried into execution. In view, however, of the settled rule of interpretation, we cannot accede to the construction of the words in question which will render the constitutional provision nugatory or incapable of being carried into effect. On the contrary, we think it was the intention of the framers of the constitution to provide in the instrument itself not only for the election of county commissioners and county auditors, but also for the appointment to fill all vacancies in those offices so as to preserve minority representation therein, and that, therefore, where there is a vacancy in the office by the candidate elect failing or refusing to qualify, or when he dies before entering upon the discharge of the duties of the office, it should be regarded as a “ casual vacancy ” within the intendment of section 7 of article XIY of the constitution, and be filled by appointment by the court as provided in that section. If it were determinable from the constitution or by any law which was or could be enacted in pursuance thereof which of the three incumbents of the office was the predecessor of the officer elect who refuses to qualify, there would be no difficulty in enforcing the provision of section 2 that he should continue to discharge the duties of the office, and under such circumstances, it might well be that a different interpretation would be given the words in question. In that case, the ordinary meaning of the words might control the meaning which a consideration of the whole instrument under the circumstances of this case requires to be adopted. While it is true that in construing a constitution the ordinary and natural meaning must be given the words and terms used in it, yet when it is apparent from the context and the whole scope of the instrument, and especially when that meaning will render nugatory a part of the instrument, a broader meaning may be given such words and terms and one that will render all parts of the instrument effective and thus carry out the manifest intent of its framers. Here the election of county commissioners and county auditors is provided for in a single section of the constitution with a provision for filling casual vacancies, but with no provision in the section for such, officers continuing in office until their successors are qualified. Without any feasible or practical provision in any other part of the constitution for providing a successor where the candidate elect refuses to qualify, it is clearly within the proper rules of construction to hold that there is a “ casual vacancy ” in the office within the meaning of section 7, and that it should be filled in the manner therein provided.

For the reasons given, we must reverse the judgment of the court below and direct that defendant be ousted from the office.

The writer may be permitted to say that the recent assignment of the case is the cause for the delay in handing down the opinion.

The judgment is reversed and judgment is now entered here for the commonwealth upon the demurrer; and it is further ordered and adjudged by the court that the defendant, J. Yalentine Wise, be and hereby is, ousted from the office of county commissioner of Lancaster county, and from the franchises, rights, privileges and emoluments thereof, and that he pay the costs of this proceeding.