text:
    Pittsburg Steel Foundry, Appellant, v. Pittsburg Steel Company.

      Contract — Sale—Rescission of contract — Damages.
    In an action of assumpsit on a contract, it appeared that plaintiff, a corporation, manufactured steel ingots, and that the defendant, also a corporation, rolled ingots into billets. Under the contract in suit, the plaintiff was to erect furnaces to make steel ingots for defendant, and estimated to cost $25,000. Ingots were to be delivered to the defendant from time to time in sufficient quantities to enable it to operate a twenty-inch mill. The quantity was not to exceed 100 tons per day. It was agreed that the plaintiffs should be paid for the ingots fifteen per cent profit on the actual cost of materials, labor and repairs in making the steel, and the defendant guaranteed that the amount of profits which should accrue to the plaintiff should not be less than $50,000 for the period of two years during which the contract was to run. It was further provided that the defendant should make payments on the twentieth of each month for all steel delivered during the preceding month. The defendant further reserved the right to cancel the contract at any time upon paying to the plaintiff such a sum as with the profits then accruing, to plaintiff, would equal the sum of $25,000, being the estimated cost of the investment, plus a bonus of $25,000 for the privilege of cancellation. Plaintiff erected its mill and for three months delivered all the ingots which the defendant required for its use. Plaintiff purchased raw materials at the instance and request of defendant in advance of the immediate need for manufacturing purposes. Towards the end of the second month the defendant made a demand for ingots in quantities greater than it could use. To this the plaintiff replied that, “although you do not need the ingots which you have seen fit to order in pretended compliance with your contract, we hold ourselves in readiness to continue deliveries until notified by you to stop, and will also look to you for full performance of your part of the contract.” Subsequently the defendant refused to make a monthly payment, and also refused to accept ingots, and thereafter plaintiff made no further deliveries. Held (1), that the plaintiff had done nothing to waive its rights under the contract, and that it promptly and properly objected when defendant demanded more ingots than it could use, or was entitled to under the contract; (2) that the plaintiff was entitled to recover an amount sufficient to make good the loss upon the raw materials purchased for the benefit of the defendant and at its suggestion; (3) that the defendant by its refusal to accept and pay for ingots delivered to it in accordance with the contract, brought it to an end without fault on the part of the plaintiff; and (4) that plaintiff was not entitled to recover both the profits and the cost of the plant, inasmuch as the cost of the plant was one of the elements which the profits agreed upon were to cover and replace.
    Argued Oct. 29, 1908.
    Appeal, No. 188, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1902, No. 392, on verdict for plaintiff on case tried by the court without a jury in suit of The Pittsburg Steel Foundry v. The Pittsburg Steel Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for breach of contract.

      By agreement of the parties the case was tried by Shaper, J., without a jury.
    From the record it appeared that the contract for the breach of which suit was brought, was as follows:
    “Agreement made this 30th day of June, 1899, by and between The Pittsburg Steel Foundry, a corporation under the Laws of the State of Pennsylvania, party of the first part.
    “And W. C. Reitz, of Pittsburg, Pennsylvania, who signs this contract on behalf of The Pittsburg Steel Hoop Company, which latter Company is now applying for its charter and will be incorporated and organized on or before July 15th, 1899, and when so organized and when it has signed this contract making itself liable from the beginning hereunder, is to be substituted for said W. C. Reitz, party of the second part hereto, witnesseth:
    “The first party is erecting its plant at Glassport, Pennsylvania, and proposes to so construct its works or a part of them as to enable it to furnish to the second party open hearth steel ingots for the use of the second party and for such purpose the first party will make a special investment in laying down and erecting open hearth furnaces, the estimated cost of which as the basis of this contract is $25,000.
    “The first party is to make all open hearth steel ingots required for use by the second party, not to exceed 100 tons per day.
    “The ingots are to be 6 in. by 6 in. and are to be delivered at the first party’s works on cars provided by the second party.
    “The deliveries are to commence about Oct. 1st, 1899, and are to continue for two years from date of commencement of the deliveries.
    “The quality of the steel is to be tensile strength not less than 60,000 lbs. to the square inch; carbon from .10 to .12 per cent, phos. not to exceed .08.
    “The cost of the steel is to be 15 per cent, profit on the actual cost of the materials, labor, fuel and repairs in the making of the steel, being the actual mill cost, exclusive of interest on investments, taxes assessed and other general managerial expenses of the first party. This cost is to be agreed upon from time to time by an authorized representative of each of the companies to the contract, and if those representatives cannot agree, they shall select a third person, whose decision shall be final and conclusive upon both parties to the' agreement.
    “The second party shall make payments oh the 20th of each month for all steel delivered during the preceding calendar month.
    “The second party guarantees to the first party that the amount of profit which shall accrue to the first party under this agreement during the two years, in case it is not cancelled in the meantime as hereinafter provided, shall be not less than $50,000. The second party, however, reserves the right to cancel this agreement by paying to the first party such sum as with the profits then accrued to the first’ party under the contract on steel already delivered will equal the'sum of $25,000 or the estimated cost of its investment, and in addition thereto the second party shall pay as a bonus to the first party for the privilege of cancellation, the sum of $25,000.”
    Other facts appear by the opinion of the Supreme Court.

      Errors assigned were in overruling plaintiff’s exceptions to the adjudication, quoting them.

      John M. Freeman, with him D. T. Watson and Harry F. Stamhaugh, for appellant.
    — The facts as found by the court show that the plaintiff actually delivered to defendant during the months of January, February and March, 1901, a quantity of ingots equal to, and for the month of March, in excess of, the quantity required by the ■ defendant for use in operating its twenty-inch mill, and plaintiff was therefore not in default, and was entitled to recover damages for defendant’s breach of contract: Wright’s App., 99 Pa. 425; Diehl v. Adams County Mut. Ins. Co., 58 Pa. 443; Armstrong v. Coal & Iron Co., 48 Minn. 113 (49 N. W. Repr. 233).
    But even if the plaintiff were in default in January, February and the early part of March (which it was not) the defendant waived such default by continuously insisting upon performance by the plaintiff, and continuing to hold the contract obligatory upon both parties until March 18, 1901, when the plaintiff offered to comply with defendant’s demand, if the latter would pay for the ingots already delivered: Pratt v. Mfg. Co., 115 Wis. 648 (92 N. W. Repr. 368); Robinson v. Ry. Co., 103 Mich. 607 (61 N. W. Repr. 1014).
    It was perfectly apparent from the defendant’s conduct in January, February and March, 1901, and long prior thereto that it had abandoned its contract and determined not to perform the same and that it was not acting in good faith in its demands for ingots, and did not intend to use them: Lake Shore, etc., Ry. Co. v. Richards, 152 Ill. 59 (38 N. E. Repr. 773); Armstrong v. Coal & Iron Co., 48 Minn. 113 (49 N. W. Repr. 233); Nichols v. Steel Co., 137 N. Y. 471 (33 N. E. Repr. 561).
    The defendant was guilty of the first breach of the contract, and was, therefore, responsible for any default on the part of the plaintiff which can reasonably be attributed to the default of the defendant: Anvil Mining Co. v. Humble, 153 U. S. 540 (14 Sup. Ct. Repr. 876).
    The measure of plaintiff’s damages includes the loss sustained on melting materials, the loss sustained on the two furnaces erected, and the profit guaranteed under the contract, as well as the cost of the ingots delivered: McElwee v. Bridgeport Land & Imp. Co., 54 Fed. Repr. 627.
    Generally speaking, a demand of a greater sum than that which may be due is still a good demand, and it is the duty of the other party to pay what is due: Kimball v. Bellows, 13 N. H. 58; Marine Bank v. Fiske, 71 N. Y. 353; Hannan v. McNickle, 82 Cal. 122 (23 Pac. Repr. 271); Shirley v. Shattuck, 58 Mass. 470.

      Willis F. McCook, with him B. J. Jarrett, for appellee.—
    Where one party to a contract annuls the contract for a stated reason, it cannot afterwards be permitted to shift this ground and say that whilst that reason was not a good one, it had the right to declare it off for some other reason. Such views of treating contract obligations will not be permitted: Railway Co. v. McCarthy, 96 U. S. 258.

      January 21, 1909:
   Opinion by

Mr. Justice Potter,

This was an action brought to recover the amount of an award, and also for damages for the breach of a contract. A jury was waived by agreement of the parties, and the case was heard by the court. It appears .from the evidence, that the contract entered into between the plaintiff, the foundry company, and the defendant, the steel company, was an absolutely safe one in so far as the foundry company was concerned, provided it produced the steel ingots in the quantity and of the quality required. It ran no risk of loss, for it was to receive as compensation a profit of fifteen per cent on the actual cost of the materials, labor, fuel, etc., used in making the steel; and the steel company further guaranteed that the aggregate amount of profit which should thus accrue to the foundry company under the contract during the two years for which it was to run, should not be less than $50,000. Even in the event of cancellation, this much was to be secure; for while there was a provision under which the steel company reserved the right to cancel the agreement, it could only do so by paying to the foundry company such a sum as would, with the profit already made under the contract, on steel then delivered, equal the sum of $25,000, or the estimated cost of its investment in facilities for carrying out the contract; and in addition thereto the further sum of $25,000 as a bonus for the privilege of canceling the agreement. So that if it performed its duty, the foundry company was in any event assured of profits under the contract, amounting, at least, to the sum of $50,000, without the risk of loss. The plaintiff was to work substantially upon a percentage basis. The fact that the steel company was to pay the entire cost of all materials, and the cost of manufacturing them into steel, and a profit on the whole to the foundry company, gave to the defendant a vital interest in the securing of the raw materials as cheaply as possible.

The contract was made on June 30, 1899, and provided that deliveries of steel ingots to the defendant company were to commence about October 1 following. But neither the furnaces of the plaintiff company nor the mill of the defendant company was ready for operation at that time. The defendant company, however, anticipated that the price of raw material would advance; and, as set forth in the ninth finding of fact by the trial judge, “On August 9, 1899, the defendant authorized the plaintiff to purchase 1,000 tons of scrap for use in producing ingots ‘for our account,’ and from that time until January or February, 1900, a large number of written communications passed between the parties in regard to the purchase of scrap and other melting materials, the defendant company stating that it would require 2,500 tons for each of three months beginning December, 1899, and saying to the plaintiff, ‘You can purchase material to cover same to the best advantage.’ In October the defendant company authorized the plaintiff to purchase for its account 9,000 tons of basic pig iron, which was bought by the plaintiff. The defendant also on the same day authorized the purchase of from 500 to 1,000 tons of scrap; and a large number of other communications of like import passed between the parties, and a considerable amount of melting material was purchased in accordance therewith, the whole amounting to some fifty or sixty thousand dollars worth, in addition to the 9,000 tons of pig iron, which appears to have been sold not long after its purchase.”

There can be no question under the evidence, but that this raw material was all purchased, not only for the benefit of the defendant company, but with its approval, and nearly all of it upon its express request. And if the contract had been carried out, as was contemplated by both parties when it was made, this material would all have been used in the manufacture of ingots for the defendant company. In order to bear part of the burden of purchasing raw material in advance of its need for actual conversion into ingots, the defendant company advanced to the plaintiff the sum of $40,000. This amount would, in the natural course of the transaction, be used as a credit against the value of the ingots, as manufactured and delivered by the plaintiff; but it could make no great difference in the end, whether the money advanced was appropriated specifically to the cost of material or not. This was only one of the elements with which the defendant company was properly chargeable under the contract; in addition thereto, as fast as the material was worked up, the cost of manufacture, fuel, etc., and the profit of fifteen per cent thereon, would all be chargeable to the defendant. So that, if the money advanced were applied to the credit of the general account the same result would in the end be reached. All would have gone smoothly no doubt between the parties, had it not been for the change in the market price of steel, which is shown in the twenty-first of plaintiff’s requests for findings of fact, affirmed by the trial judge, and from which it appears, “That at the time the contract between the plaintiff and defendant was made in June, 1899, the market for steel was rapidly rising and continued to rise until about November, 1899, when it began to fall and continued to decline until beginning with June, 1900, and continuing until March, 1901; the defendant company could purchase' open hearth steel billets in the market at an average cost of over twenty dollars per ton less than they were costing the defendant under this contract, when made from the high priced melting materials purchased by the plaintiff on orders of the defendant.” In his opinion, the trial judge further says, “It is very apparent that considering the price of steel in the winter of 1901, it was very greatly to the advantage of the defendant to get rid of the contract, for the reason that it could buy steel at very much lower prices than its cost would be to it under the contract, and there is no apparent reason why the plaintiff should avoid the contract.”

The court below found that the plaintiff was entitled to recover for the value of the ingots actually delivered by it, and which were found to be of such a character that they should have been accepted by the defendant. But he refused to allow for the loss on materials purchased by the plaintiff at-the instance and request of the defendant, to be manufactured into ingots for it, and he also refused to allow as damages for the breaking of the contract, the minimum amount stipulated to be paid by the defendant company in case the contract should be canceled by it. The failure to award damages for the breach of the contract seems to us inconsistent with the findings of fact, and with the construction of the contract as set forth in the first conclusion of law by the trial judge, in which he holds that: “The contract is not one for the delivery to the defendant of such an amount of steel ingots as it might choose to order up to one hundred tons a day, but it is only for the ingots required for its use, that is, all that it should use from time to time in operating its twenty-inch mill, which was the only way it could use them.” We agree fully with this conclusion, and in a careful examination of the evidence, we find nothing therein to justify the suggestion that any change was ever made in the terms of the contract; nor do we find any support for the fourth and fifth conclusions of law reached by the'trial judge wherein he holds that the plaintiff did not continue to stand upon the position that it was only obliged to furnish a supply of ingots sufficient to meet the capacity of defendant’s mill. As we read the evidence, it does not appear that the plaintiff in any way waived its right under the contract to supply only such an amount of steel as defendant could use in its twenty-inch mill or did anything which would estop it from maintaining the position that it had delivered all the ingots which the defendant required for its use in the months of January, February and March, 1901. Our examination of the record satisfies us that the plaintiff did take and consistently maintain throughout the controversy the position that defendant was not entitled, under the contract, to the quantity of ingots demanded by it, although plaintiff did profess its willingness to supply all that were called for, if payment were made for what had been supplied. Such payment was never made. In its letter of February 21, referring to the defendant’s demand for more ingots, plaintiff said: “We can only say that although you do not need the ingots which you have seen fit to order in pretended compliance with your contract, we hold ourselves in readiness to continue deliveries until notified by you to stop, and shall also look to you for full performance of your part of the contract.”

This does not indicate a disposition to waive any of the terms of the contract; on the contrary, it shows readiness on the part of plaintiff to fully comply therewith; and a determination to hold the defendant to its agreement. As the trial judge says elsewhere, there was no reason why the plaintiff should not have desired to carry out the contract for it was entirely favorable to it, and the larger the amount of ingots manufactured, the larger would be the profit. There was every reason on the part of the plaintiff to make the deliveries as large as possible. But when the defendant company refused to accept or pay for any of the ingots as delivered, the plaintiff could not reasonably be expected to continue the vain thing of furnishing ingots which were not being accepted. We regard the evidence as being entirely sufficient to show that the plaintiff did at the time raise the question that defendant did not need, and was not, under the terms of the contract, entitled to the quantity of ingots it was demanding. The third, fourth, seventh and eighth assignments of error are sustained.

We are also convinced by a very close examination of the evidence that there is no sound basis for the second, third and eighth conclusion of law in which the trial judge refuses to award to the plaintiff an amount sufficient to make good the loss upon the raw materials purchased for the benefit of the defendant company, and at its suggestion. It may be true that the plaintiff was not, under the strict terms of the contract, bound to purchase materials in advance of actual need for manufacture, and that it was not bound to follow the advice or obey the orders of defendant, as to such purchases. It might have pursued the hand to mouth policy, and saved to itself some risk and much trouble thereby. But beyond all question, its action in the purchase of materials was taken in the supposed' interest of the defendant, and for the most part at its express direction, and the latter cannot now be permitted to disavow responsibility for the result. The purchase of all the materials in question, was made in order that they might be used under the contract for the manufacture of ingots for the defendant, and at its cost. The plaintiff, under the contract, had no concern as to the cost except to protect as best it could the interests of the defendant in the purchase of materials; and it was obviously its duty to comply with the reasonable demands of the defendant in that respect. The evidence shows that it acted in entire good faith, and that it made every effort to protect the interest of the defendant company. The latter must therefore be held chargeable with the final loss which resulted from the disposition of the materials purchased at its request, and for its benefit. The first, second and fifth assignments of error are therefore sustained.

Counsel for appellant complain in the sixth assignment that the court below erred in overruling their exception to the ninth conclusion of law, which conclusion was as follows: “The plaintiff's bill of items includes a claim for the cost of the plant and also a claim for the profit guaranteed during the two years .of the existence of the contract. We are quite unable to see how the plaintiff can claim both of these at the same time. It could only successfully claim the former by showing that the contract had been wrongfully brought to an end by the defendant without default on its own part, and a claim for the latter must be founded upon the performance of the contract. As neither 'of these events has happened we are of opinion that it cannot recover either of these items.”

The latter part of this conclusion is not justified by the evidence, nor is it consistent with the construction of the contract by the court in its first conclusion of law, in which it was held that the obligation upon the plaintiff was to furnish only as many ingots as the defendant could use in its twenty-inch mill The evidence shows that the plaintiff never failed to furnish at least that amount, and consequently it was never in default in that respect. The defendant company by its refusal to accept and pay for the ingots delivered to it in accordance with the contract, brought it to an end without fault upon the part of the plaintiff.

The trial judge was, however, entirely right in holding that the plaintiff could not recover both profits and cost of the plant. It was entitled to the profits stipulated for in the contract. But clearly, under the terms of the agreement, the cost of the plant was one of the elements which the profits agreed upon were to cover, and replace. The additional furnaces required were estimated to cost $25,000, and this amount was to be made good out of the minimum profits for which provision was made. The remainder of the guaranteed profits, an equal amount, was to go to plaintiff as a bonus for the cancellation of the contract. Of course, the main inducement to the plaintiff in entering into the contract, was the prospect of the much larger profits which would ensue if the agreement should be carried out as contemplated by both parties at the time. As we have already indicated, the evidence shows that the contract was brought to an end through no fault of the plaintiff, and it is therefore entitled to compensation in the first place for the ingots which it manufactured under the contract for the defendant company. If we have correctly apprehended the finding of the court below in this respect, the price of the ingots delivered, and for which recovery was allowed, was $58,249.80, with interest from the date of the judgment, September 17, 1908. This included a certain amount of profit which is stated by counsel for appellant as being $7,666.57. Whatever this amount was, there should be allowed to plaintiff, in addition thereto, a sum sufficient to bring the total profits up to $50,000, the minimum amount stipulated in the contract. This would apparently be the further sum of $42,333.43. In addition to these items the plaintiff is entitled to be made whole for the loss sustained on the resale of the-melting materials purchased by it at the direction of, and for the benefit of, the defendant company in the carrying out of the contract. This is stated by ■counsel for appellant as being $24,423.18, with interest thereon from April 3, 1902. From the sum of these items is to be deducted the amount of cash advanced in installments by the defendant company to the plaintiff, which in the aggregate was $40,000, with interest thereon from the dates of the payments. The balance thus shown will be the amount to which the plaintiff company is justly entitled, and for which judgment in its favor should be entered. This will only make good to the plaintiff the expenditures actually made by it under the contract for the purchase of raw materials required to enable it to carry out the agreement, and in addition will yield to it a clear bonus of $25,000 for the loss of the contract, as was contemplated in the agreement, and will also replace substantially the amount expended by the plaintiff in the construction of the additional furnaces required for the purposes of the contract. The calculations necessary to liquidate the judgment in accordance with the views herein expressed, will be made under the approval of the court below.

The judgment is set aside, and it is ordered that the record be remitted, that judgment may be entered in favor of the plaintiff in accordance with this opinion.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    McConnell v. Pennsylvania Railroad Company, Appellant.

      Negligence- — Railroads—Variance—Allegata and probata — Pleading— Evidence.

    1. In an action against a railroad company to recover damages for personal injuries there is no substantial variance between the allegata and probata, where the statement of claim charges that the defendant permitted a car to become so out of repair that while the plaintiff was lawfully engaged thereon the floor broke, while the evidence shows that some sort of repair had been made by placing a board over a hole in the floor of the car, and that it was this board which broke, permitting the plaintiff to fall into the hole.
    2. In such a case when the plaintiff alleges that the floor broke, the language is sufficiently comprehensive to cover a break in the original floor, or a break in an inadequate patching of that floor.

      Negligence — Railroads—Master and servant — Fellow servant — Act of April 4, 1868, P. L. 62.
    3. In an action against a railroad company to recover damages for personal injuries, where it appears that the plaintiff was injured by falling through a hole in the floor of the car, the defendant cannot allege that the plaintiff was a mere volunteer without any obligation by the defendant to him to inspect the car, where it appears that the plaintiff was engaged as a stone mason by the owner of a near-by building operation, that the plaintiff who had men under his employ, needed the stone in the car, and having such an interest, went on the car while it was on the siding and personally helped to unload the stone. The Act of April 4, 1868, P. L. 62, has no application to such a case.
    4. One who assists in the delivery of his own goods is not placed in the position of a fellow servant and subject to the principles of law governing the negligence of a fellow servant.
    5. Where the car in question was in the custody and under the control of the defendant up to the morning it was placed upon the siding, the jury are justified in inferring negligence of the defendant from the condition of the floor; nor in such a case can the defendant claim that the negligence was that of a fellow servant of plaintiff, inasmuch as it was the duty of the defendant even if the plaintiff were in the position of a fellow servant of its own employees to provide a reasonably safe place in which to work.
    Argued Jan. 5, 1909.
    Appeal, No. 172, Jan. T., 1908, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1898, No. 582, on verdict for plaintiff in case of Andrew McConnell v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the jury returned a verdict and judgment for plaintiff for $4,333. Defendant appealed.
    On motion for a new trial Ferguson, J., filed the following opinion :
    The plaintiff was employed by Archibald Baxter as a stone mason in the erection of certain houses in the southern part of Philadephia. Stone for the use of the plaintiff and his men was delivered to Baxter on the cars upon a siding near the building operation. This stone was unloaded from the cars by the employees of Baxter. On June 7, 1898, the plaintiff complained to Baxter that the stone was not being unloaded fast enough to keep his (plaintiff’s) men busy, and after some discussion of the difficulty of providing additional men to unload the cars, the plaintiff expressed his intention of going on the car and helping, to which Baxter gave his consent. While on the car the plaintiff’s foot went through an opening in the floor of the car and injury resulted. There was evidence that there was a hole in the floor of the car which had been patched by a piece of rotten board, about an inch thick, which board broke, part of it remaining over the hole and part falling to the ground underneath the car. If from this evidence the jury found the cause of the accident was the breaking of a board placed over a hole in the floor of the car, there was sufficient evidence to sustain the finding. The jury rendered a verdict for the plaintiff of $4,333.
    Upon the motion for judgment for the defendant or for a new trial a number of reasons were advanced, and for convenience they will be considered in the order in which they were argued.
    It is contended there is a material variance between the allegata and the probata. The allegation in the statement is to the effect that the company defendant permitted the car to become so oht of repair that while the plaintiff was lawfully engaged thereon the floor broke. The defendant contends that the evidence upon the trial was clearly to the effect that some sort of repair had been made by placing a board over a hole in the floor and that it was this board which broke, permitting the plaintiff to fall into the hole, and that this constitutes a different cause of action from the one alleged in the statement. The case of Mahoney v. Transit Company, 214 Pa. 180, is cited as authority upon this point. In that case the negligence of the defendant as alleged in the declaration was substantially that the defendant had stopped the car at an unsafe place. The trial judge, however, instructed the jury that under the facts of that case the act of the company in stopping the car where it did, was not negligence and should be eliminated from the case, but he permitted the jury to consider whether or not the company was negligent in not maintaining chains upon the side of the car to protect the passengers and prevent them from getting off. This being the negligence which the jury were permitted to consider and not having been alleged as negligence in the statement, the Supreme Court held the variance to be so material that judgment for the plaintiff entered in the court below was reversed by the Supreme Court without a venire.
    We are of opinion that there is not such a substantial variance in the case at bar as would have justified the trial judge' in withdrawing a juror upon the motion when ifwas made at the trial, or which would justify us in entering judgment upon this motion. The cause of action is substantially the same in the allegation and in the proofs. To say that a floor is out of repair and breaks is sufficiently precise to give the defendant a clear idea of the cause of the plaintiff’s action, and it may well be said that a hole in the floor would certainly justify' the formal allegation that the car was out of repair, and if that hole still existed but was covered by an inadequate and an insufficient covering, the floor would still remain out of repair. When the plaintiff alleged that the floor broke the language is sufficiently comprehensive to cover a break in the original floor or a break in an inadequate patching of that floor. For all practical purposes if a piece of wood was put over a hole in the floor, that piece of wood would properly be said to constitute the floor, and it is not therefore inconsistent with the allegation in the statement that the floor broke, if the plaintiff proved that the patch over the hole in the floor broke. We therefore are of opinion that the variance alleged is not a substantial one, if there is any at all, and there is nothing in the contention which will avail the defendant.
    The second point suggested by the defendant was that the plaintiff had no duty upon the car; it was not part of his work for his master to go there, and he was a pure volunteer and one to whom the company defendant owed no duty. Various decisions are cited in support of this contention: Flower v. Railroad Company, 69 Pa. 210; Gillen v. Rowley, 134 Pa. 209; Wischam v. Richards, 136 Pa. 109; Artz v. Lit, 198 Pa. 519. We have examined these cases with care, and conceding that a volunteer or one who assists a servant at the request of the servant cannot hold the master responsible for injuries received, we do not see that these cases apply to the situation disclosed at bar. The authorities are carefully considered in the case of Wischam v. Richards, and in that opinion it is clearly indicated that one who assists in the delivery of his own goods is not placed in the position of a fellow servant and subject to the principles of law governing the negligence of a fellow servant. In the case at bar the plaintiff was not assisting the servants of the railroad company. The stone was not unloaded by the railroad company’s servants, but the car was placed upon the siding with the expectation and understanding of both the railroad company and Baxter that Baxter was to provide the laborers to unload the car. When the defendant placed the car upon the siding with that understanding there was an implied assurance that the car was reasonably safe for the servants of Baxter to enter thereon for the purpose of unloading the stone, and they were not bound to make an inspection of the floor of the car to see if it was substantial enough to sustain their weight. The plaintiff had an interest in the unloading of the stone. He testified that it was his duty to be there, but the mere use of the word “duty” upon his part did not necessarily establish the fact; however, it appeared that the plaintiff had need of the stone, that his laborers were waiting to set it, that Baxter was insufficiently furnished with laborers at that time, and with Baxter’s consent the plaintiff boarded the car to assist in the unloading, having a direct personal and financial interest in expediting the work. The fact that he was not directly paid wages for such unloading cannot be held tb be the test as to the lawfulness of his position upon the car, and we therefore must hold that he was not a volunteer in the sense of the decisions cited.
    It is further contended, however, that if the plaintiff was not a volunteer he was in the position of an employee under the provisions of the act of April 4, 1868. We will assume that the repeal of the act of 1868 as affected by the act of 1907 does not apply to the present case, and under the act of 1868 the plaintiff has no greater right as against the railroad company than he would have had he been an employee of that company. But the act of 1868 would not prevent a recovery by an employee in this case if the defendant had been negligent. It is not necessary to cite authority to sustain a contention that a servant has a right to presume and act upon the presumption that his master has performed every duty incumbent upon him, and that the place to work is safe and reasonably adequate; that dangerous things are properly secured, and that proper repairs or supports or supplies have been provided. The cases cited by the defendant, Wannamaker v. Burke, 111 Pa. 423; Hoffman v. Clough, 124 Pa. 505; Walton v. Bryn Mawr Hotel Company, 160 Pa. 3, and Nemier v. Riter, 179 Pa. 557, do not apply to a situation such as is disclosed in the present case.
    It is further contended that it is not enough to show the happening of an accident; the cause of the accident due to a negligent act must be affirmatively established. As an abstract proposition of law that is true, but we are of opinion that the situation as disclosed upon the car in question was sufficient to do more than show the happening of an accident. The happening of the accident was shown and the manner thereof. If the floor in its original state had broken through with the plaintiff, it would probably be incumbent upon the plaintiff to show how long the condition existed, and that by the exercise of reasonable care the railroad company could have discovered it; but if the jury believed that the hole existed for an appreciable time before the accident and that some persons, whether employees of the railroad company or strangers, had placed a board as an insufficient and insecure repair to that hole, they were warranted in drawing an inference, if they chose to do so, that the defect had existed a sufficiently long time for its discovery and adequate correction. It must be borne in mind that the car was in the custody and under the control of the defendant up to the morning it was placed upon the siding, and if under such circumstances the jury inferred negligence from the condition of the floor we cannot say they were not justified in so doing. In this connection the case of Marsh v. R. R. Co., 206 Pa. 558, seems to be in point. In that case it was contended" the plaintiff had proved no more than the fact of the accident and had failed to prove negligence. But the evidence showed that the boiler (which had exploded) was of insufficient thickness in places, and that condition being described in detail the Supreme Court said: “The testimony of these two witnesses is not merely as to a theory of what might have caused the explosion, but is a recital of facts, which, if believed by the jury, sustain the plaintiff’s allegation that the defendant was negligent in placing its fireman on a locomotive supplied with an old, worn, defective, unsafe and dangerous boiler. Further discussion cannot make it plainer that there was testimony which the court was bound to submit to the jury in support of the specific negligence charged against the defendant, and though the jury might very fairly have found from the testimony offered by the defendant, that its theory of the cause of the explosion was the correct one, the question was exclusively for their determination, and their finding as to it cannot be disturbed.” There is a line of cases, of which Dickerson v. Central R. R. Co. óf N. J., 189 Pa. 567; Mixter v. Imperial Coal Co., 152 Pa. 395; Phila. & Reading R. R. Co. v. Hughes, 119 Pa. 301, are illustrations, in which a chain breaks, or a bolt slips off, without any evidence to show when or how the thing occurred, 'or that there was opportunity of discovery by the master, no matter how careful the system of inspection, but such cases do not seem to apply to a case in which the floor of a car bore the evidence of something done from which a jury could infer an improper or imperfect repair.
    The defendant, however, contends if negligence was proved, it was the negligence of a fellow servant and there can be no recovery. It is argued if the car had been repaired by the company’s servants and improperly repaired without knowledge of the superior officers of the company, that that improper repair was an act of a fellow servant, or if the failure to discover the improper condition of the car was due to improper inspection, that was likewise the negligence of a fellow servant in that the inspector would necessarily be held to be a fellow servant. The logic of these contentions would necessarily be that in no event could the company be held to be responsible for such a condition as existed in this case. If the company’s servants did not repair, it is argued that they are not liable, and if the company’s servants did repair, though inadequately, the company is not liable. We cannot assent to such a contention. The contention that if repairs were improperly made the negligence was that of a fellow servant is not supported by authority. In Penna. & New York Canal & R. R. Co. v. Mason, 109 Pa. 296, an engineer and fireman were killed by the explosion of the boiler of the locomotive on which they were at work. Shortly before the accident the locomotive had been repaired. The court was asked to charge the jury that the workmen who repaired the boiler were fellow servants and for that reason there could be no recovery. The court refused so to charge and the Supreme Court approved the ruling, using this language: “We think this answer accords with the general tenor of our Pennsylvania decisions, and unless we propose a new departure and conclude that the servant is to have no protection whatever from the carelessness of his master we must support this ruling of the court below. How a boilermaker employed in a machine shop can be regarded as a co-employee with a fireman and an engineer engaged in running a locomotive on a railroad, in the sense of making the latter responsible for the negligence of the former, is something that is difficult to understand.”
    Neither can we assent to the proposition that if there was a defective inspection, the plaintiff cannot recover, because the negligence if it existed was that of a fellow servant, that is to say, the inspector. In Phila. & Reading R. R. Co. v. Hughes, 119 Pa. 301, it was held if the company employed competent and skillful persons for the purpose of inspection, and afforded them reasonable opportunities and facilities for the work under proper instructions the company will not ordinarily be liable for the negligent performance of the work by their employees to a fellow employee, “unless the company knew, or by ordinary diligence ought to have known, of the defective manner in which the inspection was conducted.” In that case it was intimated that a brakeman and a car inspector were fellow servants, yet the court added to that intimation, “But whilst the performance of the duty of inspection must necessarily be committed to the employees, the general regulation is on the hands of the company, and it is the duty of the company to provide suitable persons, in sufficient numbers, at proper places, with reasonable opportunities to accomplish the work.” And further, the court in commenting on the facts of the case before it said: “Whether this provision of the company (for inspection) in view of the heavy, grades along the road and the number of cars inspected, was a reasonably adequate one, would, if the question were material, be for the determination of the jury.”

      In the Hughes case the judgment was reversed not upon the ground of inspection, but for the reason that the plaintiff had failed to prove the cause of the accident, and from that case we take it to be established that if there be a negligent inspection, or an inadequate one under the circumstances of the case, the jury is to determine the fact with the other facts in the case. This view is supported by the case of Marsh v. R. R. Co., 206 Pa. 558, which was a case of a boiler exploding on a locomotive. In that case the court said: “Whether the appellant (the railroad company) had discharged its full duty to the deceased by furnishing reasonably safe and suitable appliances for the work to be done, and, by having the boiler regularly and carefully inspected, and having made all proper repairs thereto, was a question for the jury. If the inspections were carelessly made by the inspector, the court properly held that the latter’s carelessness was not that of a coemployee of the deceased.”
    It is the duty of the master to provide a reasonably safe place in which his servants are to work. Such dangers as are incident to the work are supposed to have been taken into consideration by the servant, but where the place itself is unsafe by reason of defects the master may only relieve himself by adequate inspection and repair. This is his duty, and it may be discharged only by performance: Lewis v. Seifert, 116 Pa. 628. “Nor are those agents who are charged with the business of supplying the necessary machinery to be regarded as fellow servants, but rather as charged with the duty which the master owes to the servant, and the neglect of such agent is to be regarded as the neglect of the master. So is the employer equally chargeable whether the failure is found in the original tool or machine, or in a subsequent want of repair by which it becomes dangerous:” Canal & Railroad Company v. Mason, 109 Pa. 296. In Finnerty v. Burnham, 205 Pa. 305, the court said the master’s duty does not end with furnishing reasonably safe appliances and machinery. “The law imposes upon him the further obligation of using reasonable care to keep such place of work and such instrumentalities in a reasonably safe condition, and this of course is to be accomplished by a proper and timely inspection for defects and the repair' thereof. In the case of structural defects knowledge thereof, by the master will be inferred.” In Elkins v. Pennsylvania Railroad Company, 171 Pa. 121, a brakeman was injured by-reason of a defect in the step of a freight car on which he was attempting to get in the performance of the duty of his employment. The car belonged to and was in the yard of the Atlantic Refining Company, and the brakeman was in the employ of the Pennsylvania Railroad Company and -had been sent into the yard to shift the car. In the opinion of the Supreme-Court the language of Justice Dean in Dooner v. Canal Company, 164 Pa. 17, was quoted as follows: “The measure of duty of the receiving road as to cars turned over to it for transportation by connecting roads is settled by many cases. It is bound to make such inspection as the nature of the transportation requires, and if it pass and haul cars faulty in construction or dangerously out of repair it is answerable to its own employees who are thereby injured; the many cases both in England and in this country which sustain in substance this proposition are cited in Patterson’s Railway Accident Law, page 309.” The opinion then proceeds to say: “If the defendant company is responsible to its employees for the condition of the cars it receives for transportation over its own lines, why is it not so for the condition of-the cars 'it-requires them to shift from one place to another on the tracks and in the yard of the refining company? It is not the ownership of the cars or of the line on which they are moved that imposes the liability upon the company, but it is the handling or shifting of-them by its orders. The defendant company was not bound-to shift the cars in the yard of the refining company without-a previous inspection of them. If the latter refused to allow an inspection the former could have properly declined to engage in the work of shifting them. But having done the work it is responsible to its employees for injuries caused by the unsafe condition of the cars they were required to handle.” The case at bar seems to be very similar to the case of Phila. & Reading Railroad Co. v. Huber, 128 Pa. 63, in which a brakeman was injured in braking a car upon which he had not been before, the brake having slipped and the brakeman being killed. There was no evidence that either the deceased or defendant had any previous knowledge of the defect, which was of such a character that a proper inspection would have disclosed it. It was held that the deceased had a right to presume the brake was in safe condition, and it was for the jury to say whether the defect was such as the defendant should have known of, the Supreme Court saying:
    “But here the testimony was very abundant that the company enforced a system of daily inspection of all cars at the place of this accident, and if this had been thorough, the defect in this brake should have been discovered.”
    From these authorities we conclude that the plaintiff, being lawfully upon the car, had a right to assume that the flooring was secure. Being in the position of an employee the railroad company was bound to provide him with a reasonably safe place in which to work, and if there was a defect in the floor which could have been discovered by the exercise of reasonable care it was the duty of the company to repair it before the plaintiff was permitted to board the car. If on the evidence presented the jury believe there was this opportunity and that the defendant had been negligent either in the nondiscovery of the condition of the car or in the manner of the repair made, they had the right to so find by their verdict. On the whole, we see no error in the trial of this case of which the defendant can justly complain. The trial judge gave to the defendant the benefit of a statement of the law on the subject of inspection which was even more' favorable than it was entitled to under the decisions, and the other points of law were presented to the jury in a fair and impartial manner.
    In considering the motion for a new trial it must be borne in mind that the only evidence offered by the defense was that concerning the movements of the car before and after the accident and of the system of inspection in operation. There was evidence as to repairs which were made upon this car in January of 1898, which showed that a certain amount of new flooring was placed in the car. at that time. There was also evidence of repairs made to the car in September, 1898, after the accident, and in the list of repairs made at that time there is no mention made of repairs to the floor. There was evidence of the fact that the car was at Fifty-second street two days after the accident, and while there is no affirmative proof that the car was specially examined, there is proof that all cars were examined, and that no return was made of any repairs necessary to this car on that date. There was evidence of employees of the company who testified that no reports were made of any condition about the car requiring repairs at the time it left Betzwood a few days before the accident, but most of this evidence is of a negative character, it being argued, because no defects were reported that none existed; but the witnesses testified entirely from memory as to the conditions while the car was at Betzwood ten years before the day of trial, and as to the inspections before the accident the last time the car was known to be at a place where ehi inspection was made was on May 24, and the evidence that it was inspected was merely the fact that all cars were inspected at that place.
    This evidence was largely from the records of the company and could only have been offered for the purpose of satisfying the jury that the defendant had discharged its duty. As a part of the evidence in the case it was for the jury to consider, and by their verdict they have declared the evidence insufficient.
    We cannot say that the jury were not warranted in drawing the inference that the defendant was negligent in this case, nor can we say that the plaintiff was not lawfully engaged upon the car at the time of the accident, therefore the verdict should not be disturbed.
    The motion for judgment non obstante veredicto is overruled. The motion for a new trial is also overruled.

      Error assigned was in refusing binding instructions for defendant, and in overruling motion for judgment non obstante veredicto.

      John Hampton Barnes, for appellant.

      Thomas A. Fahy, with him Walter Thomas Fahy, for appellee.

      February 15, 1909:
   Per Curiam,

The judgment is affirmed for the reasons stated in the opinion of the learned judge of the common pleas.


text:
    Rose’s Estate.

      Will — Probate—Testamentary capacity.

    In a will contest it appeared that testator at the time of his death was eighty years old, and that when he signed the paper in question, was in bed and in his last illness. About two months before his death he dictated his testamentary wishes to his daughter, and told her that he would show the paper to his.counsel. About ten days before his death he directed the paper to be taken to his counsel, and the latter made a draft in legal form, and read it to decedent, who acquiesced in it and signed the paper. On the same day counsel thinking that a power of sale should be added, rewrote the will, adding the additional clause, and the will as finally written was then signed by the testator and witnessed. Several witnesses declared that the decedent at the time was entirely sane, and fully cognizant of the provisions of the will. Held, .that the will was properly admitted to probate.
    Argued Jan. 6, 1909.
    Appeal, No. 197, Jan. T., 1908, by George W. Rose, from decree of O. C. Phila. Co., Jan. T., 1907, No.. 438, dismissing appeal from Register of Wills in Estate of Dominicus Rose, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    Ashman, P. J., filed the following opinion:
    ' Several years before his death the testator ,had repeatedly expressed with some emphasis his intention to give to his children the income only of his property, leaving the principal to their descendants. The purpose, he stated, had been suggested on reading the will of'a friend and neighbor. His own will is framed on this line, and nothing on its face or in the testimony shows any want of testamentary capacity or any exercise of undue influence in its execution. The decedent was about eighty years old at death. His children consisted of a son and two daughters, both of the latter residing with their father. In July of the year of his death he directed his married daughter to take down in writing his testamentary wishes, and he told her he would show the paper to his counsel. On August 24, he directed the paper to be taken to the counsel with the direction to draw therefrom a will in legal form. Counsel made such a draft and read it to the decedent; who acquiesced in it and signed the paper. The counsel himself, on reflection, concluded to add a power of sale, and accordingly rewrote the instrument, which on the same day he took to the decedent, explaining to him the additional clause and receiving his assent thereto. The will as finally written was then signed and wit nessed. The decedent was declared by the several witnesses to have been at the time entirely sane and fully cognizant of the provisions of the will. He was in bed, suffering from a fatal disease, and was very weak physically. His daughter, Mrs. Reimel, supported his wrist while he sat up in bed, but the writing of the signature was his own unaided act. This short recital embodies all the material facts which were in evidence. Certainly nothing in those facts discloses a reason for setting aside the action of the register in admitting the will to probate.
    One witness, a clergyman, testified that he visited the decedent three weeks before the will was signed, and also-on the day of signing. He declared that on both occasions the decedent answered intelligently the questions which were put to him, and was mentally capable of transacting any business of importance.
    January 27, 1908. The appeal from the register is accordingly dismissed.

      Error assigned was the decree of the court.

      P. A. Wildermuth, for appellant.

      Evans & Forster, for appellee.

      February 15, 1909:
   Per Curiam,

The order dismissing the appeal from the register is affirmed for the reasons stated in the opinion of the learned president of the orphans’ court.


text:
    Likins’s Petition
    (No. 1).

      Constitutional law — Special sessions of leglislature — -Proclamation hy governor — Title of act — Corrupt practices act — -Act of March 5,1906, P. L. 78.
    1. The Act of March 5, 1906, P. L. 78, known as the corrupt practices act, and entitled: “An act to regulate nomination and election expenses, and to require accounts of nomination and election expenses to be filed, and providing penalties for the violation of this act,” does not violate sec. 25, of art. Ill of the constitution, which provides that, “When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such sessions.”
    2. The subject of secs. 9, 10, 11 and 12 of the act of March 5, 1906, is sufficiently designated in sec. 3 of the governor’s supplemental proclamation of January 9, 1906, as follows: “To designate the uses to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nominations and elections, and to require the managing committee and managers of all political parties to file with some designated official at the close of each campaign, a detailed statement in writing accompanied by affidavit, of the amounts collected and the purposes for which they were expended.”
    3. In order to interpret the proclamation of the governor the courts are bound to give the words used the same fair and reasonable meaning and intendment which they apply when considering a statute, and the general scope and sufficiency of the proclamation is to be determined by the same well-known rules. The purpose of the proclamation is to inform the members of the legislature of the designated subject which they are convened to consider, and when the general assembly enacts a law which is fully and clearly responsive to such a call, both in its title and in the body of the act, such law will be maintained by the courts.
    4. The Act of March 5, 1906, P. L. 78, is sufficient in title and is not in conflict with sec. 3, art. Ill of the constitution.
    5. A subject in a title to a general law should be more comprehensive and clearly expressed than in a proclamation to the members of the general assembly who are convened to consider particular legislation. The framers of the constitution had this difference in mind in not requiring the same particularity in the wording used in the proclamation and that required in the title of a statute.
    6. The courts are not at liberty to declare statutes void because of their apparent injustice or impolicy. Neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the constitution. The only duty and power of the courts is to scrutinize the act with reference to its constitutionality in order to discover which principle of the constitution, if any, is violated.
    7. Whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution.
    Argued Feb. 1, 1909.
    Appeal, No. 2, Jan. T., 1909, by Wm. M. Likins et al., from judgment of Superior Court, April T., 1908, No. 222, reversing order ox Q. S. Fayette Co., Dec. T., 1907, No. 285, -dismissing petition of W. M. Likins et al., for audit of the account of John R. Byrne, Chairman and Treasurer of the Republican County Committee.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    Orlady, J., filed the opinion of the Superior Court, which was as follows:
    In accordance with the provisions of the Act of March 5,1906, P. L. 78, known as the corrupt practices act, this proceeding was instituted in the coui’t below upon a petition signed by five qualified electors, praying for an audit of an account filed by John R. Byrne, chairman and treasurer of the republican committee of Fayette county for 1907. A motion to quash, an answer and a demurrer were filed, and after a full hearing the court held the governor’s proclamation and the subject of the Act of March 6, 1906, P. L. 78, to be in conflict with, and to offend against, sec. 25 of art. Ill of the constitution; and then dismissed the petition and quashed the proceedings; whereupon the petitioners bring this appeal. We are met at the threshold of this case with a large number of adjudications by the appellate courts which define our duty in considering the question involved as stated by the appellant, viz.: “Does the governor’s supplemental proclamation of January 9, 1906, designate the subject of secs, nine, ten, eleven and twelve of the Act of March 5,1906, P. L. 78? ” Do these sections conflict with or offend against sec. 25, art. Ill, of the constitution which provides that: “ When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such sessions.” The appellee urges that while the controversy involves the constitutionality of the whole of the act, in a narrower and stricter sense, its ninth section is particularly the subject of attack, and if either the whole act, or the ninth section is held unconstitutional, the judgment of the court below should be affirmed. The proceeding has its foundation in the ninth section, which requires that when such an account has been filed, five electors may present a petition to the court of quarter sessions of the county in which the office is situated, where such account has been filed, praying for an audit of such account, and it was at this stage of the proceeding that the petitioners invoked the aid of the court to appoint an auditor to audit the account. The whole course of decision in the appellate courts has been consistent in the effort to carry out the true intent of statutory enactments instead of resorting to sharp criticism, which must often bring legislation to naught, and as said in Allegheny County Home’s Appeal, 77 Pa. 77, “ It will not do, therefore, to impale the legislation of the state upon the sharp points of criticism, but we must give each title, as it comes before us, a reasonable interpretation. If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. “It need not be an index to the contents, as has often been said,” as such an interpretation would make the act and the title but repetitions of each other. In Sharpless v. Mayor, etc., of Phila., 21 Pa. 147, the mode of construction of legislative enactments is stated as follows: “The federal constitution confers powers particularly enumerated; that of the state contains a general grant of all powers not excepted. The construction of the former instrument is strict, against those who claim under it; the interpretation of the latter is strict, against those who stand upon the exceptions, and liberal in favor of the government itself. The federal government can do nothing but what is authorized expressly or by clear implication; the state may do whatever is not prohibited.” We can declare an act of assembly void, only when it violates the constitution clearly, plainly and in such manner as to leave no doubt or hesitation in our minds. This principle is asserted by judges of every court, both Federal and state, and by some of them it is expressed with great solemnity of language. In Erie & North East Railroad Company v. Casey, 26 Pa. 287, the same thought is expressed as follows: “The right of the judiciary to declare a statute void and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibility so grave that it is never to be exercised except in very clear cases. One department of the government is bound to presume that another has acted rightly.”
    These principles are necessary incidents of the lawmaking power. “In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete authority as it vests in and may be exercised by the sovereign power of any state, subject only to such restrictions as they have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specially defined legislative powers, but is entrusted with the general authority to make laws at discretion:” Cooley’s Const. Lim. 87; Powell v. Commonwealth, 114 Pa. 265. We cannot try the constitutionality of a legislative act by the motives and designs of the lawmakers, however plainly expressed. If the act itself is within the scope of their authority, it must stand, and we are bound to make it stand if it will upon any intendment.
    It comes to us with the seal of approval of two co-ordinate departments of the government, and to doubt is to decide in favor of its constitutionality; and again, it is said, nothing but a clear violation of the constitution — a clear usurpation of power prohibited — will justify the judiciary department in pronouncing an act of the legislative department unconstitutional and void: Pennsylvania R. R. Co. v. Riblet, 66 Pa. 164. The constitution allows the legislature every power which it does not positively prohibit. The wisdom, justice or expediency of the passage of an act of the legislature is not the subject of debate in our courts of justice. In one of the more recent cases, Sugar Notch Borough, 192 Pa. 349, the present chief justice stated: “It must not be lost sight of that the attitude of courts is not one of hostility to acts whose constitutionality is attacked. On the contrary, all the presumptions are in their favor, and courts will not be astute in finding or sustaining objections. . . . The express enumeration of the specific subjects must be affirmatively misleading as to the intent to exclude others, or the title will not be made invalid by it. The constitutional requirement as to the title is not to be strained to apply to cases not really within its reasonable intent,” and in Com. v. Moir, 199 Pa. 534, “The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason and expedience with the lawmaking power. If the courts are not at liberty to declare statutes void, because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of Republican government, unless it should be found that these principles are placed beyond legislative encroachment by the constitution:” Cooley on Const. Lim., chap. 7, sec. 4. Our only duty, and our only power is to scrutinize the act with reference to its constitutionality in order to discover which principles of the constitution, if any, it violates. Whatever the people have not, by their own constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution: Com. v. Reeder, 171 Pa. 505. The power of construing the constitution devolves upon the judiciary through the manifestation of the political principle that ours is a government of laws, rather than of men. In exercising that power the courts should take a large and comprehensive view of the constitution, ever mindful that every scripture is to be interpreted in the same spirit that gave it forth, and with a deep desire to enforce its full meaning.
    It is specially urged that the proclamation of the governor of March 5, 1906, P. L. 78, item “Third. To designate the uses to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nominations and elections, and to require the managing committees and managers of all political parties to file with some designated official at the close of each campaign, a detailed statement in writing, accompanied by affidavit, of the amounts collected and the purposes for which they were expended,” is not sufficiently specific to sustain the act, as being in conflict with and offending against sec. 25 of art. Ill of the constitution, which reads: “When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor, calling the special session.”
    Among the specially delegated powers of the governor of this commonwealth, is the authority given in sec. 12 of art. IV of the constitution as follows: • “ He may, on extraordinary occasions, convene the General Assembly,” etc. Pursuant to this authority the governor issued a proclamation and indicated as one of the four subjects the item third above quoted, “for the consideration of the General Assembly, with a view to legislation at the said session with respect to them.” An additional article was included in the same proclamation, relating to legislation on the subject, “To enable cities that are now, or may hereafter be, contiguous or in close proximity, to be united in one municipality,” etc. This latter feature of the proclamation, as well as the legal effect to be given to it, was considered by this court (Pittsburg’s Petition, 32 Pa. Superior Ct. 210) and exhaustively reviewed in Pittsburg’s Petition in 217 Pa. 227, when it was conclusively established that, “Whether the General Assembly ought to be called together in extraordinary session is always a matter for the Executive alone. How it shall be called together, and what notice of the call is to be given, are also for him alone. The constitution is silent as to these matters and wisely so. . . .A proclamation, however, is the proper mode of calling the legislature together, and the constitution seems to so contemplate, for Section 25, article III, speaks of the proclamation. But no form of the proclamation is to be followed. . . . This, however, is not for the judiciary, but for the governor alone. , . . With every presumption in favor of the compliance by the Executive with the constitutional requirements relating to his calling the General Assembly together in extraordinary session, it would be judicial hypercriticism to declare his second notice or proclamation insufficient to authorize the legislature to pass the act under consideration.”
    The subject embraced in the third item of the second proclamation should be considered, not in subdivisions'or detached parts, but in its entirety. It represents a continuous and complete thought in one sentence, which refers to a general project, the uses to which money may be applied in political campaigns, — and in ascertainment of this, the required filing of statements in writing of the amount of such moneys collected and the purposes for which they were expended. In order to interpret the proclamation of the governor, we are bound to give the words used the same fair and reasonable meaning and intendment which we apply when considering a statute, and the general scope and sufficiency of the proclamation is to be determined by the same well-known rules. The purpose of the proclamation is to inform the members of the legislature of the designated subject which they are convened to consider, and when the general assembly enacts a law which is fully and clearly responsive to such a call, both in its title and in the body of the act, it is playing on words to say that the call, as such, was misleading or insufficient. As we said in Pittsburg’s Petition, 32 Pa. Superior Ct. 210, “While it is necessary upon the executive to designate the subjects to be considered by the general assembly, it is outside our duty to go beyond the words of the law to inquire whether all of the other precedent formalities have in fact been complied with.” Moreover, the designation of the subject, so far as this case is concerned, is in no wise .ambiguous; and that the general assembly clearly understood its meaning, and that this enactment was responsive to the call of the governor, is clearly shown by the title and body of the act. That the proclamation, so far as it relates to the act under consideration was equally clear and that the notice it carried was plain, is demonstrated by the records of the legislature with the debates, amendments and final enactment followed by the approval of the governor. The necessity for such legislation was manifested by the call of an extraordinary session of the general assembly.
    Had this legislation been enacted at a regular instead of an extraordinary session of the general assembly, the attack against it would have been confined to the sufficiency of the title, but this feature of the assault was not sustained by the court below, as the learned judge properly denied and refused the contention that the title to the act did not clearly express the subject, and he held that it was not in conflict with sec. 3, art III of the constitution. The oath of office prescribed by art. VII of the constitution of 1873, includes the declaration: “ That I have not paid or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to procure my nomination or election or appointment except for necessary and proper expenses expressly authorized by law.” Sections 8 and 9 of art. VIII of the same fundamental law, define and declare the offense of bribery of an elector and prescribe a penalty for violation of the election laws. Former legislative enactments were deemed inadequate, and this was a step forward as an added requirement to safeguard the ballot box from the pollution of fraudulent votes, by making more specific and by defining with greater particularity “the uses to which money may be applied by candidates, political managers and committees in political campaigns both for nominations and elections.” The constitution and the general assembly by prior declarations had directed attention to this general subject, and the provisions contained in the body of the act under consideration are but details of the general purpose expressed in the title, which fairly and clearly expresses its purpose by which all those who are interested, or may be affected by its provisions are put upon inquiry. No one could read either the proclamation of the governor, or the title of the act without meeting the subject referred to in both — the use of money in elections — and as we said in Com. v. Jones, 4 Pa. Superior Ct. 362, “The subject may have but one object, while the means necessary for the attainment of that object may necessarily embrace separate subjects differing in their nature and particular effect, yet all contributing to it and comprised within thq, principal subject. Everything which the language of the subject of a title reasonably suggests as necessary or appropriate for the- accomplishment of its express purpose, is sufficiently enacted by its title,” and either the proclamation or the title is sufficiently clear and explicit to invite an inquiry into the body of the bill. Nor is the requirement of the law satisfied by anything short of an examination of the whole body of the act, when an inquiry is once invited by a sufficient title, and the same reasonable rule applies to the sufficiency of the proclamation. The learned court below concluded that the legislature, under this proclamation, could not at this special session pass a law of a general character “ regulaing” nominations and election expenses, and that there was no authority to go beyond what is implied and expressed in the proclamation — the enactment of a law on the subject “designating” the uses to which moneys may be applied, etc.; and held that: “While the authority to regulate includes and carries with it the authority to designate, the authority to designate does not and cannot be said to include and carry with it the authority to regulate. Under authority to pass a law regulating any matter, a general system of law may be formulated, embracing every feature, specification and detail that would be germane to the subject.” The last proposition has ample authority for its support in Sugar Notch Borough, 192 Pa. 349, in which case the present chief justice says in regard to the Act of April 3,1851, P. L. 320, entitled: “An act regulating boroughs.” Nothing more general and comprehensive on that subject could have been devised. It included the entire range of borough affairs so far as they were within legislative control.

      The whole controversy in this case is made to hinge on the effect and meaning to be given to the word “ designated ” as used in item third of this proclamation, and the word “regulate” as used in the title of the act. The mandate of the constitution with reference to the proclamation is — there shall be no legislation upon subjects other than those designated. The prohibition in regard to the form of a statute is, it shall not contain more than one subject, which shall be clearly expressed in its title. There is apparent justice and reason in providing, that the subject in the title to a general law should be more comprehensive and clearly expressed than in a proclamation to the members of the general assembly, who are convened to consider particular legislation. The framers of the constitution evidently had this difference in mind in not requiring the same particularity in the words used in the proclamation, and that required in the title of statute. In construing a statute, the title may be consulted in aid of the interpretation of the body of the act in cases of ambiguity and uncertainty, and the preamble may be resorted to for aid in its interpretation or to reconcile seeming inconsistencies (Com. v. Marshall, 69 Pa. 328), and generally the words of a statute are to be construed according to their popular and ordinary acceptation, and not necessarily according to the strict rules of etymology or grammar: Com. v. Phila. County Commrs., 1 S. & R. 382; Phila. & Erie Railroad Co. v. Railroad Co., 53 Pa. 20. A general and comprehensive, rather than a strained, technical or specific meaning is ordinarily to be adopted: Com. v. Northern Electric Light & Power Co., 145 Pa. 105.
    In applying these rules to the proclamation, we must keep in mind that when the general assembly was convened to enact this statute, it was in response to two proclamations, the earlier one, dated November 11, 1905, “to consider contiguous cities to be united, etc.” Second. To increase the interest paid for use of state money, etc. Third. To reapportion the state into legislative districts, etc. Fourth. To provide for personal registration of votes, etc. Fifth. To provide for the government of cities of the first class, etc. Sixth. To designate the amount to be expended for the erection of county bridges, etc. Seventh. To abolish certain fees, etc., and the later one, dated January 9, 1906, in which the governor adopts his original call, and designates, “additional subjects for the consideration of the General Assembly with a view to legislation at the said session with respect to them/’ viz.: First. To revise the laws relative to primary elections, etc. Second. To establish a civil service system, etc., and the third and fourth items above quoted. We conclude that the designation of the subject in the proclamation and its regulation in the title and body of the Act of March 5, 1906, P. L. 78, were sufficient. Standard authorities give more than twenty recognized synonyms in common use for the word "designate,” and the word "regulate” is credited with nearly as many. While each word has a distinct and limited meaning, yet each has a number of suggestive equivalents, that are so frequently used and so generally understood that they become intelligible substitutes because of the various senses, primary and secondary, in which they are used. To insist on applying such a restricted meaning to the words in common use in the construction of statutes would limit the legislative vocabulary to words understood by technical scholars only. Such refined distinctions between two words of such flexible meaning and often interchangeable in use are not adopted in the general affairs of men, and it would be drawing too fine a sight for the practical interpretation of statutes.
    The order of the court below is reversed and the record is remitted with a procedendo.

      Error assigned was the judgment of the Superior Court.

      George Patterson and Sterling, Higbee & Dunbauld, for appellant.
    — The constitution leaves within the discretion of the governor what shall be the subjects for legislation at the special session. There is no question that he alone is responsible for this, and that his discretion in so doing is not the subject of judicial review: Pittsburg’s Petition, 217 Pa. 227; Sample v. Pittsburg, 212 Pa. 533.
    The fundamental proposition of the appellant is that the proclamation designated as a subject for legislation a simple act of the nature above indicated and limited in its operation and effect to the classes of persons therein mentioned, while the act as passed is a general system and elaborate scheme intended to form a complete and inclusive regulation of the use of money in polities, or to pass what Judge Orlady terms this act a “ corrupt practices act.” That such an act is not the subject designated by the governor in his proclamation is, we think, apparent.
    The term "political managers and committees,” as used in the proclamation, should be construed to mean what the people ordinarily understand by that term, and as defined by the act it is much more inclusive than popular signification: Com. v. Kebort, 212 Pa. 289.
    The proclamation designates as a subject for legislation a law “to require the managing committees and managers of all political parties to file at the close of each campaign a detailed statement in writing, accompanied by affidavit of the amounts collected and the purposes for which they were expended.”
    The act as passed requires the same thing to be done by candidates. The law proposed by the governor did hot comprehend the filing of accounts by candidates.
    If the act in any essential particular is unconstitutional, then the whole act must fail: Com. v. Potts, 79 Pa. 164; Holl v. Deshler, 71 Pa. 299; Howard v. R. R. Co., 207 U. S. 463 (28 Sup. Ct. Repr. 141).
    There was no contention in the Superior Court, and is not now, that the proclamation is misleading or insufficient. The legislature had an undoubted right to pass an act the subject of which was designated by the third section of the proclamation. The point of the appellants in the Superior Court was, and here is, that this act is not the subject the governor designated: Wells v. Missouri Pac. Ry. Co., 15 L. R. A. 847.

      M. H. Stevenson and L. L. Minor, for appellees.
    — The act of 1906, both in its title and provisions, is “general and unqualified” and could “require any, all and every person and officer to file accounts.”
    The subject which the governor designated, and the purpose which he and the legislature sought to accomplish, was the prevention of "corrupt practices,” and all the matters now objected to are “details leading to the accomplishment of that object and are cognate to the subject of legislation and therefore form a part of it: Road in Phœnixville, 109 Pa. 44.
    February 15, 1909:
   Per Curiam,

The order appealed from is affirmed on the opinion of the Superior Court.


text:
    Likins’s Petition
    (No. 2).

      Constitutional law — Special session of legislature — Proclamation of governor — Act of March 5, 1906, P. L. 78.
    1. In construing art. Ill of the governor’s proclamation of January 9, 1906, convening an extra session of the legislature, the courts are to view it as the members of the general assembly were warranted in viewing it, that is, in the light of the whole document together with the earlier proclamation of November 11, 1905, under which the general assembly was specially convened with a view to legislation on this and other specified subjects.
    2. Although a governor who has decided to convene a special session of the legislature is empowered to proclaim, to indicate, to designate the subjects for legislative consideration at such session, he cannot by his proclamation, any more than he can by his message to the same body when in regular session, prescribe or limit the manner in which, or the extent to which the legislature may dispose of those subjects, which he designates in his proclamation as matters for legislative consideration. He may by proclamation in the one case, as message in the other, suggest the lines along which in his judgment the lawmaking body could most wisely or effectively operate. Such recommendations are in no wise restrictive of the legislative power. When, therefore, the governor, by his proclamation, couched in such language as he may select, has fairly indicated to the legislators and the people, a general subject for legislative consideration, the legislature, in special session, may lawfully deal with that subject as fully and completely as at a regular session.
    3. Article III of the supplemental proclamation of the governor of January 9, 1906, is sufficiently broad to cover the portions of the Act of March 5, 1906, P. L. 78, known as the corrupt practice act, which provides that candidates as well as managing committees and managers of political parties shall file statements of moneys collected and expended in political campaigns for nominations and elections.
    Argued Feb. 1, 1909.
    Appeal, No. 1, Jan. T., 1909, by W. M. Likins et al., from judgment of Superior Court, April T., 1909, No. 8, reversing order of Q. S. Fayette Co., Dec. T., 1907, No. 284, dismissing petition of W. M. Likins et al., for audit of the account of John Q. Van Swearingen.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    The opinion of the Superior Court by Orlady, J., was as follows:
    This is a companion case to In re Account of John R. Byrne, treasurer, etc., in which an opinion is filed this day, and is similar to it, except that this is an application for an audit of the account of John Q. Van Swearingen, who was a candidate for the office of judge of the court of common pleas, etc., of Fayette county; and was elected at the general election held November 5, 1907, and who on December 4, 1907, filed with the clerk of the court of quarter sessions of the county a detailed account of money contributed, received and disbursed by him for election expenses, etc., as required by' the Act of March 5, 1906, P. L. 78.
    Five qualified electors petitioned the court to appoint an auditor, etc., as required by sec. 9 of the act, and after hearing on motion to quash, etc., the court below held the act to be unconstitutional for the reason that it was in conflict with sec. 25 of art. Ill of the constitution, in that the provisions of the act relating to the filing and review of accounts filed by candidates are not sufficiently designated in the proclamation of the governor calling the special session at which this act was passed.
    Under-the facts in the Byrne case, we held the act to be constitutional, and the reasons therein given apply in large measure to this one, so that it is not necessary to recount them here.
    Item third in the second proclamation of the governor is as follows: “To designate the uses to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nominations and elections, and to require the managing committees and managers of all political parties to file with some designated official at the close of each campaign a detailed statement in writing, accompanied by affidavits, of the accounts collected and the purposes for which they were expended.”
    In the analysis of this item of the proclamation we are to view it as the members of the general assembly were warranted in viewing it, that is, in the light of the whole document, together with the earlier proclamation of November 11, 1905, under which the general assembly was specially convened with a view to legislation on this and other specified subjects.
    It is urged that the third item in this proclamation contains two subjects;, or at least a principal and a sub-subject; for the purposes of this case, conceding this to be the fact, yet, the reason for the constitutional mandate prohibiting legislation on any subjects at a special session save those designated in the' proclamation of the governor is fairly apparent. The purpose was that the legislators thus unsually summoned and the public at large should be advised as to the general character of the legislation that could or might be constitutionally enacted at such special session. Although a governor who has decided to convene a special session of the legislature is empowered to proclaim, to indicate, to designate, the subjects for legislative consideration at such session, he cannot by his proclamation, any more than he can by his message to the same body when in regular session, prescribe or limit the manner in which or the extent to which the legislature may dispose of these subjects, which he designates in his proclamation as matters for legislative consideration. He may by proclamation in the one case, as by message in the other, suggest the lines along which, in his judgment, the lawmaking body could most wisely or effectively operate. Such recommendations are in nowise restrictive of the legislative power. When, therefore, the governor, by his proclamation, couched in such language as he may select, has fairly indicated to the legislators and the people a general subject for legislative consideration, the legislature in special session may lawfully deal with that subject as fully and completely as at a regular session. It is practically conceded that if the proclamation had stopped at what is called by the appellees, the first clause of “Item Third: To designate the uses to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nomination and elections,” the legislature would have fairly and properly before it the whole subject of the uses of money in political campaigns, and the legislation that followed would have been in this respect constitutional. Certain uses of money, expended by certain classes of persons or organizations, could have been declared lawful; other uses by other classes of organizations could have been prohibited, and the primary commands of the law could have been surely made effective by an enactment for the filing, auditing and publishing of accounts by those authorized to expend money, and the punishment of those who violated the legislative prohibition. But it is argued, because, in the language following the suggested first clause referred to, the governor speaks of the filing of accounts, and in that connection mentions only “managing committees and managers of political parties” and not candidates, he thereby cut down the dimensions of the subject previously designated, and limited the legislative power so that it could not lawfully prescribe or require the filing of any account by any person or body not specifically mentioned, described or designated in the proclamation. If this construction be sound, the governor has succeeded in practically strangling before its birth the very offspring he hoped to call into being through the efforts of the legislature he was summoning. The candidates are the persons most interested in the results of political campaigns, and if they may expend money at will, without being required to make public the nature and extent of their expenditures, the requirement that such accounts must be filed only by “ managing committees and managers” who might neither gather nor expend any money, would simply divert the course of the stream into a channel whence it would flow unvexed by any construction or supervision, so that this legislative attempt to prevent the pollution of the ballot box would be destitute of sense or significance.
    It is necessary that the subject be sufficiently designated in the proclamation to bring about intelligent and responsive action by the assemblymen. It is not required by the constitution that the subject be as clearly expressed in the proclamation as in the title to an act, nor is it required that the details by which the desired results may be accomplished be stated in the call, as this is necessarily a brief suggestion of a subject in such words so as reasonably to direct to it the attention of the legislative mind. This accomplished, the purpose of the constitution is fulfilled and the mission of the call is ended.
    In this item the designated subject was the lawful and unlawful use of money in political campaigns; the tribunal for ascertaining the sources from which moneys are obtained and the method of their disbursement; the uses to which moneys might be applied “ by candidates, political managers and committees in political campaigns, both for nomination and elections.” The machinery to be adopted in supervising and restraining its improper use; and — for legislative deliberation and conclusion,— many cognate provisions for remedying existing evils, through appropriate restrictions and penalties, all these were but details reasonably to be anticipated and resulting from the designated subject. Even if the individual, whether he be candidate, manager or committeeman, should have notice equivalent to the members of the general assembly, of the designated subject for intended legislation, each would see in the proclamation, that he is in the designated class of persons in regard to which the prospective legislation is requested.
    The executive and legislative departments are designed to work to a common purpose in order to enact effective legislation. The result of this notice “to consider, with a view to legislation” on this designated subject is the act before us.
    In so far as the question involved in this case is concerned, the designation of the subject in the proclamation is sufficient and'the same subject being clearly expressed in the title to the act, the order of the court below is reversed, and the record remitted to the court below with a procedendo.
    Rice/P. J., Porter and Henderson, JJ., dissenting:
    We will merely state the grounds upon which we differ from the majority, without elaboration. We are of opinion that the legislation, so far as it relates to filing accounts by candidates, is not within the subject designated by the governor; in other words, the subject of filing accounts as designated by the governor, is expressly restricted to managing committees and managers of political parties. If this construction of the proclamation leads to a result which deprives the act of a beneficial feature the remedy is with the legislature.

      Error assigned was the judgment of the Superior Court.

      George Patterson and Sterling, Higbee & Dumbauld for appellant.

      M. H. Stevenson and L. L. Minor, for appellee.
    February 15, 1909:
   Per Curiam,

The majority of the court are of opinion that the order appealed from should be affirmed on -the opinion of the Superior Court.