text:
    Schaffhauser, Appellant, v. Arnholt & Schaefer Brewing Company.

      Corporations — Officers—Salary—President—Vote of officer on his own salary.

    The president of a corporation cannot, against the protest of a minority of the board of directors, and as against stockholders who choose to challenge the action, sustain a claim for an increase of salary, the right to which, if it exists, is secured by his own vote as a member of the board which allows it.
    Argued April 2,1907.
    Appeal, No. 107, Jan. T., 1907, by plaintiffs, from decree of C. P. No. 1, Phila. Co., March T., 1906, No. 3,891, dismissing bill in equity in case of Charles Schaffhauser etal., Executors of the Estate of Henry Schaefer, deceased, v. Arnholt and Schaefer Brewing Company, William 11. Zimmermann, C. Harry Savage and James A. Griffiths.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Brégy, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree dismissing the bill.

      Isaac Hassler, for appellants.
    The voting of a salary or compensation must be entirely free from fraud, actual or constructive. The vote is illegal if it is carried only in including the vote of the director who received the salary or pay: Bergdoll v. Bergdoll Brewing Co., 10 Fa. Dist. Rep. 173; Loan Assn. v. Stonemetz, 29 Pa. 534; Wickersham v. Crittenden, 106 Cal. 327 (39 Pac. Repr. 602); Jacobson v. Lumber Co., 184 N. Y. 152 (76 N. E. Repr. 1075); Ward v. Davidson, 89 Mo. 445 (1 S. W. Repr. 846); Chamberlain v. Pacific Wool-Growing Co., 54 Cal. 103.

      John Gr. Johnson, with him Henry P. Brown, for appellees.
    —Many of the cases cited by the appellant, to the effect that a director is not entitled to compensation, are applicable simply to compensation of a director as such. They have no bearing upon the question of compensation as a president.
    The proper rule, which should govern cases like the present, is this: Where the compensation is fixed by the deciding vote of the person involved, a court of equity should grant relief if it appears that, by virtue of such voting, a fraud ivas worked upon the corporation, i. e., in the shape of an improper salary. Where, however, it appears affirmatively that the compensation is reasonable and- proper, no relief should be granted: Ashhurst’s App., 60 Pa. 290; Gardner v. Butler, 30 N. J. Eq. 702.
    May 20, 1907:
   Opinion by

Mr. Justice Elkin,

The defendant, Zimmermann, first became president of the brewing company March 26,1902, and had been re-elected annually by the board of directors during the ensuing years since that time. The annual salary prior to his election in 1902 had been fixed at $5,200, which amount was paid to and accepted by him as compensation in full for his services as president. In September, 1903, the board of directors, with the consent of the Schaffhausers, increased his salary as president to $5,720, which amount he continued to receive until an attempt was made to increase the same under the circumstances hereinafter stated. At the annual meeting of stockholders held December 1, 1905, William II. Zimmermann, C. Harry Savage, James A. Griffiths, Milcah I. Schaffhauser and Charles Schaffhauser were elected directors for the ensuing year. The three directors first named were chosen by the Zimmermann interests, ancl the two last named by the Schaffhauser interests, and this result was obtained under an agreement between Zimmermann and his sister, Mrs. Schaffhauser, dated March 26, 1902, at which time Zimmermann purchased the Arnholt stock, which was less than a majority of the whole capitalization, whereby Zimmermann was permitted to vote his stock cumulatively for two directors other than himself, thus putting it in his power to always elect a majority of the board friendly to his interests, although his sister owned or controlled a majority of the stock. At a meeting of the board held December 23, 1905, all of the directors being present, Zimmermann was elected president and Savage secretary and treasurer. Prior to that time Schaffhauser had been treasurer and he was defeated for re-election to this position by the votes of Zimmermann, Griffiths and Savage himself. In other words, these three directors acted together to serve the interests and purposes of Zimmermann. At the time of his election as president, in 1905, Zimmermann was receiving a salary of $5,720 per jrnar, which amount he continued to accept up to January 27, 1906, upon which date, at a meeting of the board of directors, at the instance of Zimmermann, a motion was made by Savage, seconded by Griffiths, to increase his salary to $10,400 annually. The Schaffhausers protested against the increase. When the motion was put by Zimmermann, as president, Savage and Griffiths voted in favor of its adoption and the two Schaffhausers against it, whereupon Zimmermann cast the deciding vote in favor of increasing his own salary and declared the motion carried. This bill was filed asking for an injunction to restrain the defendants from paying Zimmermann the increased salary authorized by the action of a majority of the board under these circumstances, and praying for a decree requiring him to refund to the brewing company such sums as he may have received as salary in excess of $5,720 per year, which amount, it is admitted, he is entitled to receive. The learned court below dismissed the bill, and refused to grant the relief prajmd for.

This appeal raises the narrow question whether the president of the defendant corporation, over the protest of a minority of the board, and as against stockholders who choose to challenge the action, can sustain his claim for an increase of salary, the right to which, if, indeed, any such legal right exists, was secured by his own vote as a member of the board which allowed it. The exact question has not been determined by this court. While it may not be legally accurate to say that a director of a corporation is a trustee for the entire body of stockholders, within the exact meaning of that term, there can be no doubt he does occupy such a fiduciary relation as to imperatively demand, both in good morals and sound law, that he shall manage the business of the company in such a manner as to promote, not his own interests, but the common interests of all the shareholders. He is a mandatary, or agent, or implied trustee of the stockholders, and as such the doctrine applicable to trust relations will be enforced against him and in favor of the rights of the stockholders. The generally accepted rule, applicable to such cases, is that the voting of a salary or compensation to a director, who either is, or is not, an officer of the board, must be entirely free from fraud, actual or constructive, and that the action is illegal, if it is determined by the vote of the director, or officer, whose salary is thus increased. This principle seems to be of almost universal application, recognized by the courts and the text-writers : 2 Cook on Corporations, sec. 657; 21 Am. & Eng. Ency. of Law (2d ed.), 910 ; Wickersham v. Crittendon, 106 Cal. 327; Ward v. Davidson, 89 Mo. 445; Butts v. Wood, 37 N. Y. 316; Jones v. Morrison, 31 Minn. 140. The general application of this principle is conceded by the learned counsel for appellees, but it is argued, that such action by the board is only voidable, not void, and that when a bill in equity is presented to a chancellor asking that the action be avoided on the ground that the increase of salary was unreasonable, it then becomes a question of fact to be determined by the chancellor, who, if satisfied that the increase of salary was reasonable and a just compensation for the services rendered, should refuse to grant the injunction. This position cannot be sustained without doing violence to the spirit of the rule. Whether the action by a majority of the board of directors, including the beneficiary of the increased salary, is absolutely void, or only voidable, need not now be determined. Eor the purposes of this case, it is only necessary to decide, and we do so decide, that it is voidable, when the minority of the board of directors, or a stockholder, chooses to have, it set aside in a proper legal proceeding.

Decree reversed, bill reinstated, and record remitted to the court below with instructions to grant the relief prayed for, costs to be paid by appellees.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Moore v. Wilkes-Barre, Appellant.

      Negligence — Municipalities—Defect in highway.

    Where a city requires a water company to construct a water gate in a street so that the cap shall be flush with the pavement, and it appears that the cap is so constructed, but that subsequently the pavement around it settled so that the cap projects above the blocks of the pavement, and this defective condition continues to exist for two years, a person injured by falling over the cap, while alighting from a street car, is entitled to an action against the city to have her case submitted to the jury.
    Argued April 15, 1907.
    Appeal, No. 152, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., Oct. T., 1904, No. 1,058, on verdict for plaintiff in case of Mary T. Moore v. City of Wilkes-Barre.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wheaton, J.
    The opinion of the Supreme Court states the circumstances of the accident.
    Yerdict and judgment for plaintiff for $2,583.33. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      James L. lenahan, with him Charles F. McHugh, for appellant.
    It is commonly held that such useful and necessary articles, rightfully placed in the highway, as hitching posts, stepping stones, and the like, if properly constructed and located, do not at least, as matter of law, constitute defects therein: Williams on Municipal Liability for Tort, 149; Abbott on Municipal Corporations, 1943.
    It seems that this case is ruled by Hopkins v. Williamsport, 25 Pa. Superior Ct. 498.

      John McG-ahren, with him M. ¡L. MoAniff, for appellee.
    The case was for the jury: Rick v. City of Wilkes-Barre, 9 Pa. Superior Ct. 399; City of Scranton v. Catterson, 94 Pa. 202; City of Phila. v. Smith, 23 W. N. C. 242; Walton v, Colwyn Borough, 19 Pa. Superior Ct. 172; Fee v. Columbus Borough, 168 Pa. 382; Glading v. Phila., 202 Pa. 324; Gillard v. City of Chester, 212 Pa. 338.
    May 20, 1907:
   Opinion by

Mr. Justice Elkin,

The appellee was injured just as she was alighting from a street car by stepping on a water gate located at the intersectioú of two streets in the city of Wilkes-Barre. The accident occurred in the evening, after dark, when the streets were either dimly1 lighted or not lighted at all. It is conceded that the water gate was the usual and customary device of the water company used as a part of its equipment in the supply of water to the residents of the city. The complaint of the appellee is that the city, negligently permitted the level of the street to sink or fall below the cap of the water gate to such an extent as to make a defect in the highway. The case does not, therefore, depend upon the proper or original construction of the water gate, but upon the fact of the proper maintenance of the street around it. The pinch of the case is whether it was the duty of the learned trial judge to determine as a matter of law that the evidence did not show such a defective highway as to make the city liable in damages, or whether this question should be submitted to the jury. A different question might arise if under the municipal ordinance the water company had been permitted to locate the water gate at the point where the accident occurred so that the cap projected three or four inches above the surface of the street. In such a case it might become a question of fact whether the orginal construction or location had been so negligent as to constitute a defect in the highway, but it must not be overlooked that the construction of sewers and drains and the laying of gas and water pipes with their necessary connections are servitudes on the streets essential to the comfort and convenience of the citizens of municipalities, and in the absence of such negligence as to constitute a defect in the highway pedestrians will be presumed to have assumed whatever risks there may be in using the streets with the superimposed servitudes. None of these questions, however, arise in the present case because it is not contended that the negligence charged in any manner relates to the original construction of the water gates, and the city does not defend on the ground that the street at this point was in the same condition as when the water gate was originally located there. It seems clear from the evidence that the city required the water company to construct the water gate so that the cap would be flush with the street. It is also clear that the street at this point was paved with Belgian blocks which had settled or sunk so that the water gate projected above them on the side next the street railway about three inches, and that this defective condition existed for a period of two years prior to the accident. If the water gate had remained flush with the street, as the city ordinance required, the accident would not have happened, and this case would not be here. We think that the questions of negligence, constructive or actual notice, and proximate cause, all of which are raised by the appellan t, were for the jury. The learned trial judge in a most careful and exhaustive charge defined the rights and duties of the parties under the law, so that nothing can be complained of in this respect. Under the evidence the question of contributory negligence was also for the jury. After a careful consideration of the whole case we concur in the views of the learned trial judge in the submission of the case to the jury, and find nothing upon which to sustain the assignments of error.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Meyers, Appellant, v. Central Railroad Company of New Jersey.

      Negligence — Railroads—Crossings—Signals—“Stop, look and listen.”

    In an action by a boy thirteen and one-half years old against a railroad company, to recover damages for personal injuries sustained at night at a railroad crossing, while the boy was sledding, there was evidence that the engine which struck the boy approached the crossing, running backward, without giving any warning in any way of its approach. The crossing was a dangerous one by reason of obstructions to the view of the track] and it was ordinarily protected by a watchman and safety gates. Neither of these precautions was in use at the time of the accident. There was evidence from which it might be fairly inferred that the boy might have stopped his sled or turned it to one side before reaching the track, had any warning of the approach of the train been given. Held, that the question of the defendant’s negligence and plaintiff’s contributory negligence was for the jury.
    Argued April 15, 1907.
    Appeal, No. 282, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., Feb. T., 1900, No. 68, refusing to take off nonsuit in case of Joseph Meyers by his next friend and mother, Josephine Meyers, v. the Central Railroad Company of New Jersey.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Wheaton, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      James II. Shea and Edward A. Lynch, with them Joseph E. Shea, for appellant.

      A. E. McOlvntoch, with him Arthur Hillman and Henry W. Palmer, for appellee.
    May 20, 1907:
   Opinion by

Mr. Justice Potter,

The trial judge in this case, while conceding the negligence of the defendant company, in failing to sound a bell or blow a whistle or give any warning when approaching a crossing after night, was unable to see that the negligence alleged could have been the proximate cause of the injury to the plaintiff. We cannot understand why he should have had any difficulty upon this point. There is evidence to show that the crossing was a dangerous one by reason of obstructions preventing a view of the track and trains running upon it, and that at the time of the injury here complained of the engine approached this crossing after night, running backward, without giving warning in any way of its approach. The plaintiff, a boy thirteen and a half years of age, was coasting upon the public highway, and was struck at the crossing. It seems from the evidence that there was a considerable stretch of level ground to be crossed before the track was reached, and it is a fair inference for the jury that the boy might have stopped his sled, or turned it to one side, before reaching the track, had any warning of the approach of the train been given. The failure of the defendant to give this warning was something from which injury or accident might naturally and reasonably have been anticipated under the circumstances. The crossing was one which was ordinarily protected by a watchman and safety gates. Neither of these precautions was. in use at the time of the accident, and it was, therefore, all the more imperative that some warning should come from the approaching train. It is a natural and reasonable inference that the failure to give this warning was what made the collision and injury possible, and even probable, and that if the warning had been given, it may also be presumed that the accident and injury would not have occurred. If the evidence tending to establish the negligence complained of is to be credited, there can be no question as to its being the proximate or direct cause of the injury.

The question of whether or not the plaintiff, under all the circumstances, exercised such care and diligence to avoid the danger as was to be expected of a reasonably careful and prudent person under the circumstances, was also for the jury to determine. He was certainly not, as a matter of law, to be held by the court as chargeable with contributory negligence. The law governing this feature of the case is summed up by our Brother Brown in Kelly v. Traction Co., 204 Pa. 623.

The judgment is reversed with a procedendo.


author: Per Curiam,

text:
    Everhart v. Lehigh Valley Coal Company, Appellant.

      Mines and mining — Coal lease — Suspension of royalties — Burning of breaker.

    Where coal mined under a lease is prepared for market by breakers situated on adjoining properties, and one of such breakers is destroyed by fire, but the mining of the coal is not interrupted inasmuch as it is prepared in the remaining breakers, the lessee is not entitled to take advantage of a provision in the lease that royalties shall not be demanded during the time that the production or shipping of coal is actually prevented by the destruction of a breaker.
    Argued April 15,1907.
    Appeal, No. 318, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., March T., 1904, No. 36, on verdict for plaintiff in case of George W. Everhart et al. v. Lehigh Valley Coal Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for royalties. Before Halsey, J.
    At the trial the .jury returned a verdict for plaintiffs for $31,248.95.
    On a motion for a new trial Halsey, J., filed an opinion which after quoting Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118, concluded as follows :
    It is further contended that under the covenants in the lease referred to, the lessees are relieved from the payment of minimum royalties covering a stipulated period of time, because of a fire which destroyed one of the breakers through which the coal mined was prepared for market.
    The eighth paragraph of the lease between the parties provides that if the breaker or necessary machinery or mining improvements be destroyed' or seriously injured by fire, then and in either such cases, the said lessee shall be excused from the payment of any rental except for coal acually mined during the time when the production or shipping of coal is so actually prevented; provided always, however, as to the cases of fires, that the said lessee shall use all due and proper diligence to rebuild the said breaker, machinery or other mining improvements.
    There never was a breaker erected upon the premises described in the lease. The coal from the leased premises was prepared for market through breakers upon adjoining properties. The breaker burned, the Babylon breaker, was upon an adjoining property, and was one of the breakers through which the coal was prepared for market. The Babylon breaker was never rebuilt. Coal was never actually prevented from being mined and prepared from the property as a consequence of the burning of the Babylon breaker. Coal was actually mined and shipped after burning of the Babylon breaker the same as it had been prior to the burning of the said breaker, through the Phoenix and Seneca breakers. This is clear from the testimony.
    The fire, therefore, did not actually prevent the mining of coal from the leased premises. Therefore, in our judgment, the fire did not bring in operation the clause of the lease quoted which would relieve the lessee from the payment of the royalties stipulated.
    Motion denied.

      Errors assigned were various instructions.

      J. B. Woodward, of Woodward, Barling & Morris, with him 8. P. Wol/oerton, for appellant.

      George B. Bedford, with him Henry A. Fuller and Alex. Simpson, Jr., for appellees.
    May 20, 1907 :
   Per Curiam,

The main question is settled by the case of Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118.

The only other question, whether the payment of royalties was suspended by the burning of the breaker, is well disposed of in the opinion of the learned judge below.

Judgment affirmed.


text:
    Karchner, Appellant, v. Pennsylvania Railroad Company.

      Waters — Extraordinary flood — Negligence—Railroads.
    In an action against a railroad company to recover damages for the flooding of land alleged to have been caused by the damming up or diversion of a stream, the court commits no error in giving binding instructions for the defendant where the evidence tends to show that the injury was caused by such an extraordinary flood, that the result would have been the same even if the alleged concurrent acts of negligence had not been committed by the defendant.
    Argued April 16, 1907.
    Appeal, No. 199, Jan. T., 1906, by-plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 1,101, on verdict for defendant in case of Lloyd Karchner v. Pennsylvania Railroad Company.
    Before Mitchell, O’. J., Brown, Mestbezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for injuries to plaintiff’s land. Before Ferris, J.
    At the trial it appeared that plaintiff’s land was situated along the Nescopeck creek, and that the floods which did the injury occurred in December of 1901 and February and March of 1902. ’ The evidence showed that these floods were of an extraordinary character, and that nothing like them had taken place for many years. The plaintiff claimed that the defendant company had placed various materials in the creek which obstructed its flow, and that these obstructions, in connection with the floods, caused the injuries for which suit was brought.
    The court gave binding instructions for defendant,
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      John T. lenahan, with him P. L. Brum and E. A. Lynch, for appellant.

      John MeGahren, with him LI. W. Palmer and P. A. O'Boyle, for appellee.
    May 20, 1907:
   Per Curiam,

In charging the jury the learned judge said “. . . . the question here is, was the defendant, within six years prior to the injury, guilty of any negligence which was the producing cause of the injuries complained of, either solely or in connection with, and so operating together -with, the flood of 1901 or 1902, as the case may be ? The rule of law in that connection is, that if the sole cause of the injury was an extraordinary flood the defendant company is not liable, and it can be held liable only in case some negligent conduct on its part, the natural consequences of which might have been and should have been foreseen, concurred with the flood in producing the loss. In other words, it must be shown that such negligent conduct, if there was any, as has been by the evidence shown to have been committed by this defendant within six years, was in itself, together with the floods, a producing cause of the'injuries sustained by the plaintiff. If the flood was so great as of itself to produce the injury independently of the negligence shown, if any has been shown, then the defendant cannot be held responsible. If the flood would have done the damage anyhow, -without regard to anything the defendant is shown to have done or failed to do within the six years, then the act or omission of the defendant cannot be said to be the cause of the injury so as to entitle the plaintiff to recover against it. The negligence which, coupled -with the act of God, produces the injury must be such as to be in itself a producing cause in concurrence with the flood,” And then after reviewing and illustrating the evidence and its application to the case, “We do not think the evidence was such that it would support an inference that there was such an obstruction of the stream that the defendant was bound to know or ought to know or anticipate would bring about the loss to the plaintiff or contribute to it as that loss is testified to here.”

This was a correct exposition of the law, and a review of the evidence sustains the judge in holding it insufficient to warrant submission to the jury. The testimony in behalf of the plaintiff as well as of defendant established that the flood was extraordinary and leads to the conviction that it would have done the damage complained of, without any regard to the acts of the defendant.

Judgment affirmed.


text:
    Lenahan, Appellant, v. Pittston Coal Mining Company.

      Negligence — Employment of infants — Age limit — Master and servant — • Contributory negligence — Mines and mining — Act of June 2, 1891, P. L. 176.
    The legislature, under its police power, may fix an age limit below which boys shall not be employed, and when that age limit is so fixed an employer who violates the act by engaging a boy under the statutory age, does so at his own risk, and if the boy is injured while engaged in the performance of the prohibited duties for which he was employed, his employer will be liable in damages for injuries thus sustained.
    Where a boy between fourteen and fifteen years of age is employed in a coal mine to oil machinery in violation of the Act of June 2, 1891, P. L. 176, which provides that, “no person under fifteen years of age shall be appointed to oil machinery and no person shall oil dangerous parts of such machinery while it is in motion,” and the boy is injured while oiling the machinery in motion, the employer cannot set up as a defense the contributory negligence of the boy.
    Argued April 16, 1907.
    Appeal, No. 96, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1904, No. 774, refusing to take off nonsuit in case of Margaret Leñaban v. The Pittston Coal Mining Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s son. Before Halset, J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      Thomas F. Farrell, with him Edward A. lynch, for appellant.
    An employee, aged fourteen, is not guilty of contributory negligence, as a matter of law, in using his employer’s premises in a manner not in accordance with instructions, but permitted by the employer without objection: Penna. Coal Company v. Nee, 13 Atl. Repr. 841; Rummell v. Dilworth, 111 Pa. 343; Dowling v. Allen, 74 Mo. 13.
    We cannot find that this section has ever before been construed in any case in this state, but almost identical provisions have been before the courts of other states, and the courts have uniformly held that under them employees under the ages prescribed by the. statute, cannot be charged with contributory negligence, as a matter of law: Marino v. Lehmaier, 173 N. Y. 530 (66 N. E. Repr. 572); Dragotto v. Plunkett, 99 N. Y. Supplement, 361; Sterling v. Union Carbide Co., 142 Mich. 284 (105 N. W. Repr. 755); Hall v. West & Slade Mill Co., 39 Wash. 447 (81 Pac. Repr. 915); American Car & Foundry Co. v. Armentraut, 214 Ill. 509 (73 N. E. Repr. 766).

      Barjamin It. Jones, with him Lawrence B. Jones and Henry A. Fuller, for appellee.
    Munley having been guilty of negligence that contributed to his death, plaintiff cannot recover, even though it were shown' that the defendant failed to comply -with the mine law in the matters alleged: Schlemmer v. Railway Co., 207 Pa. 198; Christner v. Coal Co., 146 Pa. 67; Belles v. Jackson, 4 Pa. Dist. Rep. 194.
    The doctrine established by the great weight of authority is that a servant, who is seeking indemnity for injuries alleged to have resulted from a breach of a statutory duty, cannot recover, if the evidence shows that he was himself wanting in ordinary care, and that he contributed by the carelessness to the injuries complained of : Labatt on Master & Servant, sec. 651; 4 Thompson on Negligence, sec. 4,622; McDonald v. Rockhill Iron & Coal Co., 135 Pa. 1; Cleveland, etc., Ry. Co. v. Baker, 91 Fed. Repr. 224.
    It is a rule of law that the “ common law is not to be repealed by anything less than express enactment or unavoidable implication: ” Foster v. Com., 8 W. & S. 77; Borland v. Nichols, 12 Pa. 38; Smith v. Railroad Co., 182 Pa. 139; Pettit v. Fretz, 33 Pa. 118; Endlich, Int. of Statutes, sec. 127; Hickory Tree Road Case, 43 Pa. 139; Schott v. Harvey, 105 Pa. 222.
    May 20, 1907 :
   Opinion by

Mr. Justice Elkin,

When this case again comes up for trial in the court below much will depend upon the exact duties which the boy, Munley, was required to perform by the appellee company. If it was á part of his duties to oil the “ scraper line,” as is the contention of appellant, the negligence of the appellee would be established ; if, on the other hand, as is asserted by appellee, it was no part of his duty to oil the “ scraper line,” the rule relied on by the court below would control the case.

The Act of June 2, 1891, P. L. 176, which, as its title declares, was intended to protect the health and safety of persons employed in and about the anthracite coal mines of Pennsylvania and to preserve the property connected therewith, provides, section eight, that “ no person under fifteen years of age shall be appointed to oil the machinery and no person shall oil dangerous parts of such machinery while it is in motion.” The boy, IVIunley, was fourteen years, four months and three daj^s old at the time the accident occurred. At the trial the learned court below directed a compulsory nonsuit to be entered, which, on motion made, he refused to take off on the ground, that the boy was guilty of contributory negligence in attempting to oil dangerous parts of the machinery while in motion, which was in violation of the statute, and therefore negligent. This would be the correct rule if the injured boy had the right under the law to engage in the employment which occasioned the injury. The learned trial judge took the view that the boy being over fourteen years of age was presumed under the common-law rule to have sufficient capacity to be sensible of danger and to have the power to avoid it, and that such presumption had not been overcome by the evidence produced at the trial. The exact question raised by this appeal is whether this common-law rule was modified or changed by the statutory regulation. The injured boy was under fifteen years of age, and if the appellee company employed him for the purpose of oiling machinery it did so in violation of the statute. Is it, therefore, in position to set up in this case the rule which presumes a boy over fourteen to be capable of appreciating danger so as to apply the rule of contributory negligence to his acts, when the legislature in express terms provided that an employer shall not engage a person under the age of fifteen years to perform this dangerous work ? After full consideration we are unanimously of the opinion that the legislature, under its police power, could fix an age limit below which boys should not be employed, and when the age limit was so fixed, an employer who violates the act by engaging a boy under the statu-' tory age does so at his own risk, and if the boy is injured while engaged in the performance of the prohibited duties for which he was employed, his employer will be liable in damages for injuries thus sustained. This rule is founded on the principle that when the legislature definitely established an age limit under which children should not be employed, as it had the power to do, the intention was to declare that a child so employed, did not have the mature judgment, experience and discretion necessary to engage in that dangerous kind of work. A boy employed in violation of the statute is not chargeable with contributory negligence or with having assumed the risks of employment in such occupation. There can be no question that this statute was intended as a protection to the employees, and its object was to prevent children under the age of fifteen years from being employed in and around the anthracite coal mines in the dangerous kind of work designated in the act, and it should be given a construction to best effectuate the purpose of its enactment. This exact question has not been before our courts, but it has been passed upon by the courts of many other jurisdictions, and so far as we are informed the rule hereinbefore stated has been uniformly followed.

Judgment reversed and a venire facias de novo awarded.


text:
    Commonwealth, Appellant, v. Perrego.

      Public officers — Actions—Bond—Moneys due commonwealth — Local taxes — Acts of April 16, 1845, P. L. 532; April 21, 1846, P. L. 413, and April 21, 1857, P. L. 266.
    Under the Act of April 21, 1857, P. L. 266, which extended the Acts of April 16, 1845, P. L. 532, and April 21, 1846, P. L. 413, a collector of local township taxes is not a defaulting public officer against whom a suit may be brought in the manner provided by these acts. The acts apply only to suits for the collection of moneys due the commonwealth.' The proper remedy by which a township may enforce its rights against a collector of local township taxes and his bondsman, is by an ordinary action of assumpsit under the Act of May 25, 1887, P. L. 271.
    Argued April 17,1907.
    Appeal, No. 116, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Co., June T., 1906, No. 256, making absolute rule to strike off judgment in case of Commonwealth ex rel. Kingston Township v. James D. Perrego and the American Bonding & Trust Company of Baltimore.
    Before Mitchell, O. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Buie to strike off judgment. Before Perris, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule to strike off judgment.

      W. Alfred Valentine, with him W. & Casterlin and L. Floyd Hess, for appellant.
    The state tax is collected through the local tax collectors, and hence on principle it is difficult to see wherein such an official is not a public officer, even within the definitions which limit such officers to persons who are agents of the state-: Com. v. Morris, 5 Kulp, 488; Com. v. Perrego, 31 Pa. Superior Ct. 126; Com. v. Evans, 74 Pa. 124.
    Under the act of assembly directing the entry of judgment, judgment may be entered by the prothonotary on prascipe of plaintiff’s attorney when the defendant is in default: Lumber Co. v. Home Ins. Co., 167 Pa. 231; Com. v. Perrego, 31 Pa. Superior Ct. 126.
    The act under which the plaintiff proceeded gives a special statutory remedy for the collection of money due from public officers. It was not repealed by the procedure act: Com. v. Morris, 5 Kulp, 488.

      G. J. Ciarle, for appellee.
    A defaulting tax collector of local township taxes is not a defaulting public officer within the terms and provisions of the Acts of April 16, 1845, P. L. 532; April 21, 1846, P. L. 413; April 21, 1857, P. L. 266, and April 7, 1862, P. L. 304.
    May 20, 1907:
   Opinion by

Mr. Justice Elkin,

The right of appellant to sustain this action depends upon the determination of the question whether a collector of local township taxes is a defaulting'public officer within the provisions of the acts of 1845, 1846 and 1857. The praecipe, filed May 23, 1906, directed the prothonotary to issue a summons in assumpsit under the Act of April 21, 1846, P. L. 413. It was accompanied by a statement of the plaintiff’s claim, to which was attached a copy of the bond on which the suit is based. The summons was made returnable June 4,1906. On June 18, the bonding company filed an affidavit of defense, and on July 6, neither defendant having put the case at issue, counsel for plaintiff directed the prothonotary to enter judgment in accordance with the provisions of the act of 1846. A few hours later on the same day, qounsel for the surety company entered a plea of non assumpsit. On July 9 a petition was presented in which it was alleged that the judgment was entered without authority of law, and the court below granted a rule to show cause why the same should not be stricken off, which, after argument, was made absolute. Prom that order this appeal is taken. It is contended for appellant that under the act of 1846 the prothonotary was authorized to enter the judgment, and it is conceded that unless this act and its supplements did authorize the entry of judgment it Avas iraprovidently entered, and should be stricken off. In order to intelligently discuss the question involved it will be necessary to briefly review these acts of assembly. The Act of April 16, 1845, P. L. 532, as is clearly expressed in its title, Avas passed for the purpose of increasing the revenues and diminishing the legislative expenses of the commonwealth. It provides for increasing the state revenues by the imposition of taxes for that purpose on many different subjects. Section 12 gives to the courts of Dauphin county'jurisdiction against defaulting officers and their sureties in the same manner as if they were residents of that county. This act only dealt with taxes and fees due the commonwealth, and provided for the collection of the same. The Act of April 21, 1846, P. L. 413, is a supplement to the act of 1845, and sets out in greater detail the procedure by which claims due the commonwealth shall be sued out and pressed to judgment in the proper court In section 4 it is provided, inter alia, that “ the attorney officiating for the commonwealth shall file a declaration along with the praecipe, and judgment shall be entered thereon and the sums be liquidated by the respective prothonotaries, as aforesaid, immediately after thirty days from the return of the writ, in which case unless, before that time, the defendants shall have filed an affidavit of defense, and shall put the cause to issue as is directed in the second section of this act.” The appellant relies on this provision of the act as authority for his direction to the prothonotary to enter judgment in the present case because it was not put at issue within thirty days from the return of the writ. If the case rested here it would be too plain for argument that appellant is without a legal foundation to support his action for two reasons, first, the act provides that the declaration shall be filed by “ the attorney officiating for the commonwealth,” and, second, because the procedure set forth in the act only applies to suits for moneys due the commonwealth. In the present case neither condition is met. The learned counsel for appellant are not officiating for the commonwealth,” but represent the township, and the moneys sued for are due the township, not the commonwealth. The Act of April 21, 1857, P. L. 266, is relied on to help out this situation. This act relates to the. office and duties of the attorney general, and provides generally for the certification of claims due the commonwealth to that officer for collection by the auditor general and state treasurer. By section 3 the provisions of the twelfth section of the act of 1845 and the fourth section of the act of 1846 are extended to all suits against defaulting public officers or their sureties within this commonwealth.” It is therefore argued, and with some plausibility, that this provision of the act of 1857 is broad enough to include a suit against any defaulting public officer, without regard to whether the moneys are due the commonwealth or a township, or other municipality. In order to properly determine this question it will be necessary to carefully examine these acts to ascertain their purpose and meaning. The twelfth section of the act of 1845 gave jurisdiction to the court of common pleas of Dauphin county in suits against any and all persons who are, or may hereafter, be officers of any description within this commonwealth, appointed by the governor, or by the board of canal commissioners, or elected by either house of the legislature, or by both houses in joint ballot, and who shall become defaulters in not paying over or accounting for moneys in their hands belonging to the commonwealth and against their sureties, in the same manner and with like effect as if the defaulting persons and officers and their sureties were residents of Dauphin county. It is obvious that the purpose of this act was to designate a court of special jurisdiction, for the convenience of the commonwealth, in the collection of revenues, or moneys due the state, from the persons or officers mentioned in the act. It only applied to persons, or officers, appointed by the governor or by the board of canal commissioners, or by the legislature. It went this far and no farther. The act of 1846 did not extend jurisdiction in such cases to any persons, or officers, other than those designated in the act of 1845. It is clear that the intention of the later act was to provide in greater detail a mode of procedure to govern the court of special jurisdiction in this class of cases. The act of 1857, while not so expressed in its title, was supplementary to the acts of 1845 and 1846, and was intended to make a more complete system for the collection of moneys due the commonwealth. Every line of the act is an expression of this purpose. When, therefore, it was provided in section 3 that the twelfth section of the act of 1845 and the fourth section of the act of 1846 shall be extended “ to all suits against defaulting public officers or their sureties within this commonwealth,” it is clear the purpose of the legislature was to extend the provisions of the act of 1845 which limited the right of action in such cases to persons or officers, appointed by the governor, or by the board of canal commissioners, or by the legislature, to all suits against defaulting public officers or their sureties within this commonwealth for moneys due the state. There is not a word in any of these acts to indicate a purpose to include a public officer for the collection of local taxes. These acts are in pari materia, relating to suits for moneys due the commonwealth, and must be construed together. The method of making settlements, the certification to the attorney general, the institution of the suits in the court of common pleas of Dauphin county, and the procedure to be followed, conclusively show that these acts relate to moneys due the commonwealth by persons or defaulting public officers. It is not enough for the appellant here to show that the defaulting collector of local taxes in the township is a “public officer,” and located “ within this commonwealth,” but in order to sustain this action under the act of 1846, and its procedure, it must appear that the defaulting collector was a “public officer” intrusted with- the collection of moneys due the commonwealth, and that the suit was instituted by her proper officers. There is no reason why the present suit should not have been instituted as an action of assumpsit under the Act of May 25, 1887, P. L. 271. The remedy in this act is just as ample and complete, and it would give a strained and unwarranted construction to the acts of 1845, 1846 and 1857 to hold that the procedure provided in that particular class of cases should be extended to include the case at bar.

Judgment affirmed.


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    Hillside Coal & Iron Company v. Zeigler, Appellant.

      Ejectment — Adverse possession — Evidence.
    In an action of ejectment where the defense set up is adverse possession, the court commits no error in giving binding instructions for the plaintiff, where the evidence justifies the conclusion that the possession of the defendant was not originally adverse, nor exclusive, and that it was not continuous for the period of twenty-one years.
    Argued April 17,1907.
    Appeal, No. 157, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1894, No. 50, on verdict for plaintiff in case of Hillside Coal & Iron Company v. Henry Zeigler.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in Pittston township.
    The opinion of the Supreme Court states the case.
    Yerdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      John T. Lenahan, with him James TL. Shea, John E. Shea and Edward A. Lynch, for appellant.

      J. B. Woodward, of Wheaton, Barling <& Woodward, with him Willard, Warren c& Knapp and James L. Lenahan, for appellee.

      May 20, 1907 :
   Per Curiam,

The learned judge below in directing a verdict said “the undisputed documentary evidence in the case, the records, deeds or contracts showing admissions by Henry Zeigler of the title of the Hillside Coal and Iron Company to'the land in dispute (or of the Hillside Coal and Iron Company’s predecessors), has been so clear as to, in our opinion, justify the court in regarding it as conclusive of these points, namely, that the possession of Henry Zeigler was not originally adverse to Charles Schlager, that it was not exclusive of Charles Schlager and those claiming under him, and that it was not continuous for the period of twenty-one years, or any period of twenty-one years previous to the beginning of this proceeding, and hence title by adverse possession has not been shown. We, therefore, in pursuance of the duty which the law places upon the court, direct you to render a verdict in favor of the plaintiff for the land in controversy under the issue.”

The evidence fully justifies this summary of it and the binding direction to the jury.

Judgment affirmed.


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    Coolbaugh, Appellant, v. Lehigh & Wilkes-Barre Coal Company.

      Mines and mining — Coal lease — Royalties in hotchpot — Judicial sale.

    Where the owners of two adjoining lots of land underlaid with coal execute a joint lease so as to place .the rents and royalties from both lots in hotchpot, a judicial sale of one of the lots will divest the owners thereof of all interest in the royalties in hotchpot.
    Argued April 17,1907.
    Appeal, No. 103, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1904, No. 314, on verdict for defendant in case of J. R. Coolbaugh, Administrator of the Estate of Milton Dana, deceased, v. Le-high & Wilkes-Barre Coal Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for royalties.

      Lynch, P. L, charged as follows :
    On August 30, 1870, Dana and Metcalfe, who owned adjoining lots 28 and 29, underlaid with coal, entered into an instrument in writing with a coal company, by which the company agreed to mine all the coal in both lots and pay to the several owners of these two lots certain royalty, twenty-five cents a ton, and a minimum, that is, the lowest fixed rate, of $20,000 a year. Milton Dana, whose administrator is the plaintiff in this suit, was one of the Danas who owned lot No. 28. That company went out of existence and the company defendant became the miner of the coal under the lease. A judgment was recovered in this court against Milton Dana, which was a lien upon his right, title and interest in the unmined coal. Upon this judgment an execution was issued, and the right, title and interest of Milton Dana in lot 28 was levied and sold by the sheriff. He then, in pursuance of his duty, gave to the purchasers, Mr. Birkbeck and Mr. Yan Horn, a deed for the right, title and interest which Milton Dana had in this land, for the premises covered by the lease, although the deed of the sheriff describes only lot No. 28. The trouble the judges, on consultation, had on the question, and one the Supreme Court, perhaps, will have to settle, is this, whether the levy made by the sheriff and the subsequent sale and deed which describes only lot 28, is sufficient to divest any interest, if Mr. Dana had any, in lot 29 ? As we understand the decision of the Supreme Court in this case, the sale divested all the right, title and interest of Milton Dana in lots 28 and 29. After the sale, Birkbeck and Yan Horn, the purchasers, gave notice to the mining company, defendant, that they had become the purchasers of Mr. Dana’s interest in the coal, and wanted the company to pay them the money which theretofore had gone to Milton Dana. In pursuance of this notice, and, no doubt, believing it to be the law, the company did pay, without objection on the part of the Danas or their representatives, all the money which fell due, to Birkbeck and Yan Horn. Hence defendant claims, and this contention is sustained, that all of Milton Dana’s right, title and interest to the coal in these premises, was sold by the sheriff, and purchased by Birkbeck and Yan Horn, and that they were both equitably and legally right in paying the installments which fell due to these purchasers. This being so, the plaintiff cannot recover in this case. Therefore the first point of the defendant is sustained, and you will render a verdict in favor of the defendant.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      F. M. Nichols, with him F. G. Sturges, for appellant.

      Arthur Hillman, Seligman J. Strauss and A. H. McGlintoclc, for appellee.
    May 20, 1907:
   Per Curiam,

The only question that can in any aspect be regarded as new, since this case was here before, 213 Pa. 28, is whether Dana had any estate or interest not sold by the sheriff.

The sale was of Dana’s interest in lot 28, and the argument of appellant is that the writing though called a lease was a sale of the coal in place and that Dana had an interest in the royalties from coal in lot 29, which was not levied on or sold and therefore did not pass to the purchasers but devolved on appellant as administrator of Dana’s estate.

The argument, however, rests on a misconception of the contract between the owners and of the title to lot 29. Dana never had any title whatever to lot 29, or the coal under it. "What he had was an interest in the royalties in 28 and 29 after they had become due by the mining of the coal. He was one of the owners of lot 28 and he and his cotenants in common joined the owners of lot 29 in putting the rents or royalties from both lots into hotchpot by a joint lease to the coal company. But they did not put their estates in. The titles remained distinct as they were before, and if the lease had been abandoned or forfeited the estates would have been as separate as they were before, without any further conveyancing of any kind. Dana’s interest in the pot and his right to get a portion of the rents from it came solely from his ownership in lot 28, and when that was sold the purchaser took all he had in either lot.

Judgment affirmed.


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    Tucker v. American Car & Foundry Company, Appellant.

      Negligence — Master and servant — Employment of incompetent fellow servant.

    An employer is bound to use ordinary care, in the selection of his employees, and if he neglects to do so, or if he retains them after he becomes aware of their unfitness or incompetency, he is answerable to his servant for his negligence in this respect.

      Practice, C. P. — Trial—Charge—Insufficient instructions.

    The mere omission to say to the jury what might have been properly said, cannot be treated as reversible error when no points were submitted to the court below asking for specific instructions, and it does not appear that any injustice was done to the parties by the omission, or that the charge was clearly erroneous.
    Argued April 18, 1907.
    Appeal, No. 133, Jan. T., 1907, by defendant, from judgment of C. P. Columbia Co., Dec. T., 1901, No. 187, on verdict for plaintiff in case of Mary A. Tucker v. The American Oar & Foundry Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s husband. Before Evans, P. J.
    The facts appear by the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $6,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Fred Heeler and John Hampton Barnes, with them James Scarlet, for appellant.
    The defendant was not negligent in retaining in its employment an incompetent crane operator: Wust v. Erie City Iron Works, 149 Pa. 263; Kroy v. Chicago, Rock Island & Pacific R. R. Co., 32 Iowa, 357.

      O. O. Bowers, with him Grant Herring and J. Gilmore Fleteher, for appellee.
    The plaintiff’s husband, under the evidence in this case, was not guilty of contributory negligence in remaining at work after he learned of the craneman’s incompetency and negligence: Huntingdon & Broad Top R. R. Co. v. Decker, 84 Pa. 419; Hughes v. B. & O. R. R. Co., 164 Pa. 118; Wust v. Erie City Iron Works, 149 Pa. 263; Patterson v. P. & C. R. R. Co., 16 Pa. 389; Webster v. Coal & Coke Co., 201 Pa. 218.
    The mere omission to say what might’have been properly said is no just ground of complaint by a party who submitted no points to the court: Reeves v. D., L. & W. R. R. Co., 30 Pa. 454; Com. v. Boschino, 176 Pa. 103; Connor v. Traction Co., 173 Pa. 602; R. R. & Mining Co. v. Auten, 188 Pa. 568; Worden v. Connell, 196 Pa. 281; Harding & Dubois v. Lloyd, 3 Pa. Superior Ct. 293.
    May 20, 1907:
   Opinion by

Mr. Justice Elkin,

In the statement of claim the appellant company is charged with negligence of a fourfold nature; that is to say, in failing to furnish a safe place to work, providing an unsafe and insecure section of hose for an air hoist, in employing an incompetent and unskilled crane operator, and in adopting an unsafe and unusual method of assembling parts for the purpose of constructing a car.

In determining the decisive question raised by this appeal, it is only necessary to consider the allegation that appellant was negligent in employing an incompetent and unskilled crane operator. The appellant concedes that the injury was occasioned through the negligence of the crane operator, but insists that it is not liable for damages in this case because the crane operator was a fellow servant of- Tucker, the deceased husband of appellee, and that under the familiar rule the master is not liable in damages caused by the negligence of a fellow servant. The evidence clearly established the fact that the crane operator was incompetent and grossly negligent and that Tucker knew of his incompetency. It is also in evidence that Henry, who was general foreman of erection and construction at the works where the accident occurred, knew that the crane operator was incompetent, for it is so stated in his testimony. He knew this fact not only from his own observation as foreman, but from frequent complaints made to him by other employees. It is also in evidence that a few days prior to the accident Tucker complained to the general foreman about the incompetency of the crane operator, saying that “ he did not consider him a safe man to work,” whereupon the foreman promised him, Tucker, that he, the foreman, would try and get a new craneman.” Acting upon these complaints the foreman testified I had him (the crane operator) taken down out of his crane,” and put another man in his place. He reported these facts to the boss machinist who had charge of the crane at night. The boss machinist then sent the incompetent crane operator to report to Stevenson, the master mechanic, who was the representative of the company in general charge of the works located at Berwick, and who, after full knowledge of all the facts, put the incompetent operator back in his crane, although he had been informed that Henry, the general foreman, had taken him out the night before. The accident happened the night on which Stevenson sent the crane operator back to work. It is upon this state of facts that the appellant relies to assert the rule that if a servant continues to work with a knowledge of defective conditions, either of men or machinery, he is guilty of contributory negligence by remaining at work after he has knowledge of the incompetency of the fellow servant or of the defective machinery. As a general rule, this is a correct statement of the law, but in our opinion, it has no application to the facts of the present case. Tucker did what any prudent and careful employee would be required to do when he reported the incompetency of the crane operator to the general foreman, and when he received the promise that an effort would be made to secure a new crane-man, and with knowledge of the fact that the incompetent craneman had been removed, he was justified in returning to work the next night. The evidence does not show that he had any knowledge of the fact that Stevenson had sent back the incompetent crane operator to take charge of the crane, that night, nor does it show that by observation he either did know the fact or should have known it, because the place where the crane operator sits is so high above the heads of the men below that in the smoke, dust and dim light of the shop it is very difficult to discern who the crane operator is. But even if, after his return to work that night, he learned that the incompetent crane operator had been again placed in charge, the court could not say as a matter of law that it was his duty to immediately throw down his tools and quit work, for at most it was for the jury to say whether he had exercised proper care under the circumstances. We see nothing in this case to take it out of the rule that an employer is bound to use ordinary care in the selection of his employees, and if he neglects to do so, or if he retains them after he becomes aware of their unfitness or incompetency, he is answerable to his servant for his negligence in this respect: Huntingdon & Broad Top Railroad Company v. Decker, 84 Pa. 419; Hughes v. B. & O. Railroad Company, 164 Pa. 178 ; Wust v. Erie City Iron Works, 149 Pa. 263.

The appellant further contends that the charge of the court was inadequate because it did not define what under the facts in the case constituted negligence of the defendant, or contributory negligence of the plaintiff. In this connection it should be observed that no request was made for specific instructions in the court below, nor was the attention of the trial judge called to any of the matters now assigned for error in this respect. Indeed, this question seems to have been an afterthought on the part of the learned counsel for appellant. As a general rule it may be said that mere omission to say what might have been .properly said, cannot be treated as reversible error when no points were submitted to the court below asking for specific instructions. It is true in some of our cases the judgment of the court below was reversed on the ground of inadequacy in the charge, but in all of these cases it appeared that an injustice had been done the parties, or the charge of the court had been clearly erroneous. After a careful examination of the charge in the present case, we cannot say that an injustice was done the appellant or that there was any clear error in the instructions to the jury.

Judgment affirmed.


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    Commonwealth v. Curcio, Appellant.

      Criminal law — Murder—Jury—Challenge for cause — Capital punishment.

    Where a person called for jury service on the trial of an indictment for murder states that he has formed an opinion, that this opinion will be an element in the case, and that it would continue until the evidence should overcome it, he is properly challenged for cause by the commonwealth.
    Where a juror states that he has conscientious scruples against capital punishment, but testifies that he could render a verdict according to the evidence, though it would worry his conscience, the discretion of the trial judge in sustaining the commonwealth's challenge for cause is not ground for error.

      Criminal law — Murder—Evidence—Refection of evidence.

    On the trial of an indictment for murder the trial judge cannot be convicted of error in rejecting evidence, where it appears that even if the testimony had been admitted, it was immaterial for the purpose of affecting any ground of defense set up by the accused. In such a case the rejection of the testimony does the defendant no harm.
    Argued April 29, 1907.
    Appeal, No. 161, Jan. T., 1907, by defendant, from judgment of O. & T. Lackawanna Co., Feb. T., 1906, No. 8, on verdict of guilty of murder of the first degree in case of Com. v. Saverio Curcio.
    Before Mitchell, C. J., Fell, Mesteezat, Potter and Elkin, JJ.
    Affirmed.
    Indictment for murder. Before Newcomb, J.
    At the trial Edward II. Strohl testified on his voir dier that he had formed a strong opinion about the case. He was examined and cross-examined, and finally challenged by the commonwealth. Finally he was examined by the court as follows:
    “ Q. Let me see if I understand you, Mr. Strohl. You say that you have an opinion, a strong opinion, at the present time? A. Yes, sir. Q. That if sworn as a juror you would still hold that opinion? A. Yes, sir. Q. You would hold it until such time as the evidence in the case would overcome it ? A. Yes, sir.”
    The Court: The challenge is sustained. [1]
    James J. May was challenged by the commonwealth for cause because he stated that he had conscientious scruples as to capital punishment.
    After examination and cross-examination, he was examined by the court as follows:
    “ Q. It is not quite clear to my mind what you mean by your conscientious scruples. Do you mean that it would be a matter of conscience with you so that you would feel responsible for the death of the defendant, provided the death penalty should follow your verdict ? A. Well, not if the evidence was exactly clear I don’t think I would feel that way, but I am practically against capital punishment. Q. You mean that you are against it on conscientious grounds ? A. Well — yes. Q. So that you are doubtful whether your conscience would permit you even in any case to render a verdict of murder in the first degree ? A. Well — no; if the evidence was direct, and there was no doubt at all, why I certainly would render a verdict with the law and the evidence. Q. When you say direct evidence, you mean by that, that you could not render a first degree verdict, if any part of the evidence was circumstantial ? A. I wouldn’t on circumstantial evidence at all — I could not. Q. If any part of the case depended upon circumstantial evidence, your conscience would not permit you to render a verdict of murder in the first degree ? A. I believe nob, no, sir.”
    The Court: The challenge for cause is sustained. An exception noted for the defendant. [2]
    When IT. L. Taylor was on the stand, the following offer was made:
    Mr. Reedy: We propose to prove by the witness on the stand that he met Dr. Bessey after the last trial of this case and that Dr. Bessey then told him that the wound in the arm was inflicted by a bullet passing from front to rear.
    Mr. O’Brien: We object to it for the reason that no ground has been laid on the examination of Dr. Bessey when he was on the stand, for this contradiction. What is the purpose of this offer, Mr. Reedy l

    Mr. Reedy: For the purpose of contradicting Dr. Bessey?
    The Court: I think the objection is well taken and is sustained, and exception noted for the defendant. [4]
    Yerdict of guilty of murder of the first degree, upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned among others were (1, 2) sustaining challenges ; (A) ruling on evidence, quoting the bill of exceptions.

      Damid J. Reedy, with him Herbert L. Taylor, for appellant.

      Joseph O'Brien, district attorney, with him T. A. Donahoe, assistant district attorney, for appellee.
    May 20, 1907:
   Opinion by

Mr. Justice Elkin,

A sense of professional duty, always commendable, but in the present case scarcely warranted by the facts, has impelled the learned counsel for appellant to bring to the consideration of this court nineteen assignments of error. We have carefully considered these assignments, and as a' result of our examination have concluded that no one of them, nor all of them combined, constitute reversible error. They do show diligence and research by those intrusted with the interests of their client. The case has been twice tried in the court below, and is here a second time for review. When the case was here before it was decided that there was sufficient evidence produced at the trial to require that the question of manslaughter should have been submitted to the jury, and that it was error in view of all the testimony to peremptorily charge that the defendant should either be convicted of murder, or acquitted on the ground of self-defense. On this ground alone the case was sent back for trial and that question does not arise on this appeal.

The errors now alleged relate to the challenge of jurors; the refusal to permit the defendant to offer certain testimony by way of contradiction; the instructions of the trial judge in defining the different degrees of murder; the refusal to admit testimony showing the reputation of the Black Hand Society; and the adequacy of the charge. We are not convinced that any of the matters complained of did the defendant any harm, or that any right vouchsafed by law to a person on trial for murder was denied this defendant. The charge was exhaustive and covered every phase of the case. It was a full, fair and complete presentation of the law as related to the facts, and in our opinion, the defendant has no just cause of complaint. We had some hesitation about the fourth assignment, but on the whole are inclined to agree with the learned trial judge that the refusal to admit this parol testimony by way of contradiction, the ground for which had not been properly laid, did the defendant no harm, because, even if the testimony had been admitted, it was immaterial for the purpose of affecting either ground of defense set up by the accused. It certainly does not amount to reversible error. The defendant has had the advantage of two trials before juries of his peers according to the law of the land, under the supervision of a learned trial judge, and we are not convinced either that there has been a miscarriage of justice, or that he has been denied any rights to which he was entitled under the law.

The assignments of error are, therefore, overruled and judgment affirmed.


author: Mr. Justice Mestbezat,

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

      Bridges — County bridges — Statutory requirements — Record—Act of June 13, 1836, P. L. 651.
    Under the Act of June 13, 1836, P. L. 551, the prerequisites to the authority of county commissioners to build a county bridge are: (1) a report of viewers that the bridge is necessary and would be too expensive for the township; (2) that these facts have been made to appear to the court, grand jury and commissioners of the county; and (3) that the bridge has been entered on record as a county bridge. Each one of these several steps is necessary to the validity of the proceeding authorizing the erection of a county bridge. If either has not been taken the commissioners are not empowered to expend the money of the county in the erection of the bridge.
    The proper practice in conforming to the statutory provision as to recording a county bridge, is for the commissioners to pass a resolution formally expressing their concurrence in the view that the bridge is necessary, and too expensive for the township, and to file a copy of such resolution in the quarter sessions, the record of which will then show a complete proceeding carrying authority to build. The mere fact that the commissioners had advertised for proposals to erect the bridge, and that this appeared in the records of the court, is not a compliance with the statutory provision that the bridge shall be entered of record.

      Argued April 29, 1907.
    Appeal, No. 87, Jan. T., 1907, by plaintiff, from decree of O. P. Cumberland Co., Sept. T., 1906, No. 244, sustaining demurrer to answer in case of Commonwealth ex rel. T. Ralph Jacobs, District Attorney of Cumberland County, on Petition of Jacob Musser, J. H. Lantz and Howard Hess, Supervisors of East Pennsborough Township v. J. Yan Bowman, J. H. Bowman and Lewis C. Faber, Commissioners of Cumberland County.
    Before Mitchell, C. J., Fell, Mestbezat, Potter and Elkin, JJ.
    Affirmed.
    Petition for mandamus. Before Sadler, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in sustaining demurrer to answer.

      S. S. Hupp, with him G. Wilson Swamtz, for appellant.—
    The demurrer should have been sustained: Appeal of Commissioners of Northampton County, 57 Pa. 452; Youghiogeny River Bridge, 2 Pa. Superior Ct. 265; Long v. Commissioners of Franklin County, 2 Rawle, 154.

      S. B. Sadler, with him M. F. Thompson, for appellee,
    cited: P. & L. E. R. R. Co. v. Lawrence County, 198 Pa. 1; Com. v. Baker, 212 Pa. 230; Mahon v. Luzerne County, 197 Pa. 1; Nescopeck Bridge, 120 Pa. 288; Youghiogheny River Bridge, 168 Pa. 454.
    May 20, 1907:
   Opinion by

Mr. Justice Mestbezat,

This is a proceeding by mandamus to compel the commissioners of Cumberland county to erect a county bridge over Conodoguinet creek in East Pennsborough township. The petition for the writ avers, inter alia, as follows: that certain citizens of Cumberland county presented their petition to the quarter sessions .of said county setting forth that a bridge over Conodoguinet creek in said township was necessary ; that the expense of erecting the bridge would be burdensome upon the inhabitants of the township and more than it was reasonable that the township should bear, and praying for the appointment of viewers; that viewers were appointed as prayed for and made a report in favor of the bridge which was confirmed absolutely by the court on November 13, 1905; that on November 14,1905, the report was approved by the grand jury of the county and entered on the records of Cumberland county a.s a county bridge; that shortly thereafter the county commissioners advertised for proposals for the erection of a bridge; that, subsequently, the court, upon petition of certain citizens of the county, reduced the width of the bridge from twenty to sixteen feet and modified the former order of the court fixing the width of the bridge at twenty feet, which order of the court was, on February 7, 1906, approved by the grand jury. The petition for the writ avers that it then became the duty of the county commissioners to procure an estimate of the cost of said bridge, provide moneys to defray the expenses of the same, and proceed to have the bridge erected, but they had neglected and refused to do so. The petition prayed for a mandamus commanding the commissioners to proceed to erect the bridge.

To the alternative writ issued by the court, the commissioners filed an answer admitting that the viewers recommended the building of the bridge; that their report was confirmed by the court, and the width of the bridge was fixed at twenty feet; that the commissioners then in ofiice advertised for proposals to build the bridge; and that the court made an order reducing the width of the bridge to sixteen feet, which order was confirmed by the grand jury at the February sessions in 1906. The answer also avers that one of the petitioners for the bridge was a member of the grand jury which acted upon the order of the court reducing the width of the bridge; that the commissioners have not acted upon that order; that they have not found the bridge necessary or that its expense is too great for the township in which it is proposed to be erected, both of which facts they deny; that the bridge has not been entered of record as a county bridge; and that no estimate of the cost of erection of the proposed bridge had been made by respondents, and no moneys provided to defray the cost of the erection of the bridge.

The relator demurred to the answer, the court overruled the demurrer and entered judgment in favor of the respondents, and dismissed* the application for the mandamus. The relator has.taken this appeal.

The authority of the county commissioners to erect bridges is conferred by the Act of June 13, 1836, P. L. 551, and before they are warranted in expending the funds of the county for the purpose, the statutory regulations must be complied with. Section 35 of that act provides: “ That the court having jurisdiction as aforesaid shall .... order a view .... and if, on the report of the viewers, it shall appear to the court, grand jury and commissioners of the county, that such bridge is necessary, and would be too expensive for such township or townships, it shall be entered on record as a county bridge.” Section 36 provides: “ Whenever a bridge shall be authorized and recorded as a county bridge, it shall be the duty of the commissioners to procure an estimate of the cost thereof, and provide in the county levies the moneys necessary to defray the same, and proceed to have such bridge erected by contract, or otherwise, as shall seem to them expedient.” The statutory prerequisites to the authority of the commissioners to build a bridge are: (1) A report of viewers that tbe bridge is necessary and would be too expensive for the township; (2) that these facts have been made to appear to the court, grand jury and commissioners of the county; and (3) that the bridge has been entered on record as a county bridge. Each one of these several steps is necessary'to the validity of the proceeding authorizing the erection of a county bridge. If either has not been taken, the commissioners are not empowered to expend the money of the county in the erection of the bridge.

The bridge, as will be observed, must be approved by the court, the grand jury and the county commissioners. If it lack the approval of either of these bodies, it is fatal to the proceedings and they are insufficient to warrant the erection of the bridge at the expense of the county. As said by Sharswood, J., in Pequea Creek Bridge, 68 Pa. 121: “ It is evident that the legislature intended that these three bodies should act as checks upon each other in the unnecessary expenditure of public money in the erection of county bridges. When either of them, therefore, have put their disapprobation on record, the proceeding falls. If it were not so, taxpayers and others interested in opposing a county bridge might be kept dancing attendance upon the court from sessions to sessions until some one grand jury may be induced to approve it.”

There is another prerequisite to the validity of the proceedings for a county bridge, and that is that it “be entered on record as a county bridge.” The proper practice, in conforming to this statutory provision, as pointed out in Pittsburg and Lake Erie Railroad Co. v. Lawrence County, 198 Pa. 1, is for the commissioners to pass a resolution formally expressing their concurrence in the view that the bridge is necessary and too expensive for the township, and to file a copy of such resolution in the quarter sessions, the record of which will then show a complete proceeding carrying authority to build. The bridge will then, in the language of the thirty-sixth section of the act, “ be authorized and recorded as a county bridge,” and it is the duty of the commissioners to provide the necessary funds and proceed to erect it.

Turning to the facts of this case it will be seen that the proceedings are fatally defective and that the learned judge was clearly right in refusing the mandamus. The relator demurred to the answer and, therefore, all the material facts, well pleaded in the answer, must be taken to be true. Among other averments in the answer is : “ Nor has the said bridge been entered of record as a county bridge.” This averment is admitted to be true by the pleadings and is, therefore, a complete answer by the commissioners to the demand of the relator for the erection of the bridge. If, however, we go beyond the technical rules of pleading, it appears that the relator has failed to establish the prerequisite fact to the validity of the proceeding that the bridge was entered on record as a county bridge. He avers in his petition for the writ that •“ the report was approved by the grand jury of Cumberland County and entered on the records of Cumberland County as a county bridge.” The answer, as we have seen, specifically denies this averment and there is no proof whatever adduced by the relator to sustain the allegation of his petition. His averment, therefore, that the bridge wTas .entered of record is unsustained by any evidence and necessarily falls.

The learned counsel for the relator argues that the answer filed by the commissioners to the rule to show cause wkji- the width of the bridge should not be reduced, in which they set forth that they had advertised for proposals to build the bridge, is a fulfillment of the requirements of the thirty-fifth section of the act of 1836 which provides that the bridge shall be entered of record. This is indeed a singular argument. The entry of the bridge on the record as a county bridge is a matter entirely different from the action required to be taken subsequently in advertising for proposals to erect the bridge. The law requires the performance of both of these duties as prerequisites to the erection of the bridge, and if either is not performed, the proceedings are not complete. To give validity to the proceedings, they must be approved by the court, the grand jury and the commissioners, and this fact must be entered upon the records of the court of quarter sessions, in which court the proceedings are required to be taken. The record then would have been complete and the county commissioners could have been compelled by mandamus to erect the bridge. As disclosed by this record, however, the proceedings are incomplete, and the statutory prerequisite requiring the bridge to be recorded is wanting and hence the commissioners cannot be compelled to provide the money and erect the bridge.

It is unnecessary to discuss or determine the authority of the court to reduce the width of the bridge, as was done in this case. The relator takes the position that the court,was without power to do so. He, therefore, does not rely upon the proceedings reducing its width as conferring a right to demand the erection of the bridge. The proceedings subsequent to the confirmation of the twenty-foot bridge also are open to the objection that the county commissioners have never approved nor entered of record the sixteen-foot bridge. The relator, therefore, must rely upon the original proceedings as establishing a complete record authorizing the commissioners to erect the bridge. As we have seen, they are fatally defective and give the relator no standing to demand that the commissioners expend the money of the county in the erection of this bridge over Conodoguinet creek.

The decree of the court below overruling the demurrer and refusing the mandamus is affirmed.


author: Mr. Justice Fell,

text:
    Corrigan v. Pennsylvania Company, Appellant.

      Negligence — Railroads—Crossing—“Stop, look and listen” — Death.
    In an action against a railroad company for death, it appeared that the deceased was killed while seated in a wagon at the rear end of the vehicle. The accident occurred after dark. The driver of the wagon stopped and waited several minutes near the tracks where it was usual for drivers to stop, look and listen for a train. The deceased got on the wagon after it had started, and sat with the driver. The horses were struck on the'first of the defendants’ three tracks by an engine running south very rapidly. Plaintiffs witnesses testified that no notice was given by bell or whistle. The crossing was a very dangerous one. After leaving the usual stopping place there were seven tracks of the road of another company to cross; then there was an open space of thirty-six feet with a down grade of three feet to the tracks of the defendant’s road. Until the open space was.reached, the view to the south was cut off by a high board fence, and on the night of the accident cars were standing on the tracks of the other company and obscured a view to the north. In the open space there was a view of the tracks north for 1,500 feet, but there were switch lights among the tracks that might confuse a person looking for the headlight of an engine. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued April 29, 1907.
    Appeal, No. 137, Jan. T., 1907, by defendant, from judgment of C. P. Erie Co., Sept. T., 1905, No. 128, on verdict for plaintiff in case of Medora Corrigan v. Pennsylvania Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Walling, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in submitting the case to the jury.

      J. Ross Thompson efe Son, for appellant,
    cited : Penna. R. R. Co. v. Beale, 73 Pa. 504; Gray v. Penna. Railroad Co., 172 Pa. 383; Kinter v. Penna. R. R. Co., 204 Pa. 497; Blotz v. Lehigh Valley Railroad Co., 212 Pa. 154.

      John B. Broolcs, with him Monroe J. JEehols and Paul A. Benson, for appellee,
    cited: Penna. R. R. Co. v. Ogier, 35 Pa. 60; Weiss v. Penna. R. R. Co., 79 Pa. 387; Penna. R. R. Co. v. Weber, 76 Pa. 157; Hanna v. Philadelphia & Reading Ry. Co., 213 Pa. 157; Carr v. City of Easton, 142 Pa. 139; Carlisle Borough v. Brisbane, 113 Pa. 544; Masterson v. N. Y. Cent. & Hudson River R. R. Co., 84 N. Y. 247; McNeal v. Pittsburg & Western Railway Company, 131 Pa. 184; Ellis v. Lake Shore, etc., Railroad Co., 138 Pa. 506; Whitman v. Pennsylvania Railroad Co., 156 Pa. 175; Smith v. Baltimore & Ohio Railroad Co., 158 Pa. 82; Link v. Philadelphia & Reading Railroad Co., 165 Pa. 75; Davidson v. Railway Company, 171 Pa. 522; s. c. 179 Pa. 227; Armstrong v. Consolidated Traction Co., 216 Pa. 595.
    May 20, 1907:
   Opinion by

Mr. Justice Fell,

The plaintiff’s husband was killed at a street crossing of the tracks of the Erie & Pittsburg Railroad Company in South Sharon. He was employed by a steel company and about seven o’clock in the evening, in the latter part of December, he asked another employee who was driving a heavy draught team to wait for him in order that he might ride to his home. The driver -waited several minutes at a place near the tracks where it was usual for drivers to stop, look and listen for trains. When he saw the deceased approaching, he called to him “ Hurry up ” and started his team on a walk. The box of the wagon was fourteen feet long and the seat was placed over the hind axle. The deceased got on the wagon while it was in motion and sat by the driver. The horses were struck on the first of the defendant’s three tracks by the engine of a passenger train running south very rapidly, of the approach of which, according to the plaintiff’s witnesses, no notice was given by bell or whistle.

The crossing was a very dangerous one. After leaving the usual stopping place there were seven tracks of the road of another company to cross; then there was an open space of thirty-six feet with a down grade of three feet to the tracks of the defendant’s road. Until the open space was reached, the view to the south ivas cut off by a high board fence, and on the night of the accident cars were standing on the tracks of the other company and obscured a view to the north. In the open space there was a view of the tracks north for 1,500 feet, but there were switch lights among the tracks that might confuse a person looking for the headlight of an engine. The crossings of the two roads were so close together with no safe stopping place between them that in point of danger they might be regarded as a single crossing and the accident as happening on the eighth track.

Under the testimony the court would not have been justified in holding as matter of law that the deceased was negligent. It has been frequently said that the rule that one who goes in front of a moving train which he saw or by the exercise of reasonable care would have seen will be adjudged negligent, is applicable only to clear cases. Where there is uncertainty as to the facts or the inferences to be drawn from them, the case is for the jury : Doyle v. Chester Traction Company, 214 Pa. 382. The presumption that the deceased stopped, looked and listened before he got on the wagon and that he continued to look until the collision occurred is not rebutted by anything disclosed at the trial. The danger may have been first apparent when it was too late to avoid it. The speed of the train was such that the headlight could not have been seen more than from fifteen to thirty seconds before the collision. The deceased was seated so far back in the wagon that the horses were within a few feet of the rail when he had a view of the tracks. lie would naturally first have looked south since he was on that side of the wagon and in afterwards looking north he may have mistaken the headlight for a switch light. At most he had but a few seconds in which to act after he became conscious of the danger.

The judgment is affirmed.


author: Mr. Chief Justice Mitchell,

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

      Election law — Primary elections — Mandatory provisions as to time— Act of February 17, 1906, P. L. 36.
    The provisions of section 3 of the Act of February 17, 1906, P. L. 36, known as the “Uniform Primaries Act” specifying the exact time when notices are to be sent to the county commissioners and the time when publication shall begin, are mandatory as to the times specified, and must be strictly followed where vacancies are known in advance in the usual time. Other vacancies “happening'or existing after the date of the primary ” are to be filled under section 12 of the act.
    Argued May 14, 1907.
    Appeal No. 209 Jan. T., 1907, by Commonwealth ex rel. John L. Kinsey, F. Amedee Bregy and Edward W. Magill, from judgment of C. P. No. 3, Phila. Co., in a proceeding for mandamus, directed to Rudolph Blankenburg, Howard A. Chase and Charles P. Donnelly, County Commissioners of" Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for mandamus.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in overruling demurrer to return.

      Thomas Raeburn White, Alex. 'Simpson, Jr. and George S. Graham, for appellant.
    It is a well settled rule in the construction of a statute that directions as to the time or manner in which power was vested in a public officer is to be exercised in the absence of negative words construed to be directory and not mandatory: Pittsburg v. Coursin, 74 Pa. 400; Trustees of Erie Academy v. City of Erie, 31 Pa. 515; Magee v. Commonwealth, 46 Pa. 358; Bladen v. Philadelphia, 60 Pa. 464; Election Cases, 65 Pa. 20; Norwegian Street, 81 Pa. 349; Kilgore v. Magee, 85 Pa. 401; Hershberger v. City of Pittsburg, 115 Pa. 78; Lancaster County v. Lancaster City, 160 Pa. 411; Walker v. Edmonds, 197 Pa. 645; Duquesne Boro. v. Keeler, 213 Pa. 518; Erie City v. Willis, 26 Pa. Superior Ct. 459; Com. v. Griest, 196 Pa. 396; Albright v. Sussex County Lake & Park Commission, 68 N. J. L. 523 (53 Atl. Repr. 612); People v. Cook, 14 Barbour, 259; The Matter of the Application of Douglass, 58 Barbour, 174.

      John U. Fow and Abraham M. Beitler, for appellee.
    May 20, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

The Act of February 17, 1906, P. L. 36, is an enactment to systematize, regulate and put under control of positive law, party nominations for public office. It is the latest of a series of statutes extending the direct and immediate control of law, over methods and details of the exercise of the elective franchise which previously had been left in the unrestricted discretion and control of individuals or party managers. Under the earlier system ballots were prepared by individuals or party officers in any form they desired, nominations were made by party machinery, usually conventions, under party rules and at irregular dates. Justly or urijustly these steps, which practically controlled nominations and elections, were exposed to the suspicion of manipulation not for convenience of party voters alone, but for undue advantage to individuals and party cliques.

The act of 1906 was passed to put an end to this system. Its first requirement is uniformity throughout the state, and in the first section it is enacted that it shall be known as the uniform primaries act. It provides that there shall be two primary elections in each year, one on the fourth Saturday before the February election, to be known as the winter primary, the other on the first Saturday of June (except in the years of presidential elections) to be known as the spring primai’y. These dates are fixed by the statute, and there is no claim by anyone that there is any discretion in anybody to alter them. Then follow a series of provisions which give rise to the present case.

So far as they are necessary to specify for present purposes they are contained in section 3, by which

(a) “■ On or before the ninth Saturday preceding the spring primary the Secretary of the Commonwealth shall send to the county commissioners a written notice setting forth the number of congressmen and officers of the commonwealth not nominated by state conventions, to be elected or voted for at the next succeeding general election.”
(b) “ Upon receipt of such notices and beginning within one week thereafter such county commissioners shall publish .... the names of all offices for which nominations are to be made or candidates for the party offices to be elected within the county at the ensuing primary, at least once each week for three successive weeks in two newpapers,” etc.

By sections 4, 5, 6 et seq. the county commissioners are to prepare official primary ballots for each party, names may be put on the official ballot on petition by qualified electors filed at least four weeks prior to the primary with the secretary of the commonwealth, who immediately after such filing shall forward to the county commissioners a correct list of the candidates of each party for the various offices as contained in such petitions. These provisions do not refer to the exact matters now in controversy, but are referred to as bearing on the general intent and construction of the act.

The exact question is whether the provisions of section 3 as to time are mandatory. We do not understand that any claim is made that any of the requirements themselves are not mandatory, but that if circumstances are such that convenience can be served and the substance of the requirements obeyed, the direction as to time may be treated as directory only.

This contention is not tenable. As already said the things to be done are a series of prescribed steps for a prescribed purpose. The terminus ad quem whereto they all lead is the spring primary whose date is fixed and immovable. The initiatory step of the series is the notice by the secretary of the commonwealth to the county commissioners, and the next is the publication. For these the statute fixes in positive terms the exact time, “ on or before the ninth Saturday preceding the spring primary,” for the notice, and the publication to begin “ within a week ” after receipt of the notice, and to be “ at least once each week for three successive weeks.” The argument is that the substantial requirement is a reasonable time for the electors and others for the purpose indicated, and if that is given, the intent of the statutes is fulfilled. But reasonable time is matter of opinion on which there may be large differences. It is plain as a practical matter that the duties imposed on the county commissioners and others in the preparation, distribution, etc., of ballots are such in a large city like Philadelphia that between the statutory dates there is no time to spare for even a diligent performance, and a delay in any of the steps throws all the subsequent ones back and interferes perhaps seriously with their performance. If the secretary may think seven weeks preceding the primary early enough for notice, and the county commissioners think two weeks after receipt of notice early enough to begin publication, there would be confusion at once, and who is to decide? But the conclusive objection is that this construction would restore in large measure the practical individual and party control of the whole subject which was the obnoxious feature of the previous system the act was intended to take away. What is reasonable time as already said is matter on which opinions may fairly differ, and to settle all questions on that subject the law itself fixes reasonable time and its provisions are mandatory.

If there were any doubt of this on the general construction of the act the provision of clause three of section two would effectually settle it. “ No .... candidates for the public offices herein specified (shall) be nominated in any other manner than as set forth in this act.” The principal object of the act was to break up “ snap conventions ” and other devices for unfair ends, under the old system, and one of its principal means of so doing was to enforce uniformity of time as well as methods. Its provisions for that purpose are mandatory.

It is not intended to express any opinion on the consequences of an omission or imperfect execution, accidental or intentional, of any of the prescribed steps, or the means of remedy in such case. It will be time enough to consider them if occasion should unfortunately arise.

The foregoing relates to the ordinary and regular mode under section three of the act of making nominations, where the vacancies are known in advance in the usual time. Other vacancies “ happening or existing after the date of the primary ” are to be filled under section twelve “ in accordance with the party rules as is now or hereafter may be provided by law.”

The first Saturday of June, the date fixed by law for the primary election, comes this year on June 1, and the ninth Saturday preceding was March 30. Prior to the latter date the secretary of the commonwealth notified the county commissioners of Philadelphia of the vacancies in office to be nominated for at the primary, including, inter alia, two judges of the court of common pleas No. 1. This was in accordance with the facts as they were then and up to March 30, and the' commissioners commenced the publication required by the statute, on April 5. On April 16, after the second of the three publications required had been made, the secretary notified the commissioners that an additional vacancy had occurred in common pleas No. 1 by the resignation of Judge Biddle, and under advice of counsel directed them to change their publication of notice, accordingly, and to print at the head of the judicial column of the official ballot the words “ Yote for three.” The commissioners under advice of counsel declined to follow this direction and this application is for a mandamus to compel them to do so.

The first notice from the secretary and the publication by . the commissioners ivere in strict accordance with the law under the facts as they then were, and the proceedings were thus regularly commenced under section three. The provisions of that section as to time being mandatory the third vacancy occurred too late for the nomination to be made under that section and it necessarily, therefore, falls under the alternative provisions of section twelve.

The judgment is affirmed.