text:
    Scranton, Appellant, v. Lackawanna County.

      Public officers — County auditors — County controller — Compensation of county treasurer.

    The duties and powers of county auditors and county controllers are substantially the same, and where a controller is substituted for county auditors, he performs the duties of the latter under section 41 of the Act of April 15, 1834, P. L. 537, which requires county auditors to approve the compensation of the county treasurer as fixed by the county commissioners.
    Under the Act of April 15, 1834, P. L. 537, sec. 41, which provides that the county treasurer shall receive as his compensation “a certain amount per cent on all moneys received and paid by him which rate shall be settled from time to time by the county commissioners with the approbation of the county auditors,” a fixing of the compensation each year is a judicious exercise of the power conferred by the act.
    Where the county commissioners and the county controller in joint session resolve that “the county treasurer be allowed the same commissions for the ensuing year as that allowed the past year,” the compensation so fixed cannot be extended beyond the year named without additional action by the county commissioners and the county controller. If the commissioners and controller fail or neglect to fix a rate of compensation after the expiration of the year, the county treasurer has his remedy under the Act of April 16, 1875, P. L. 54, by appeal to the common pleas, and this remedy is exclusive.
    Argued Feb. 19, 1906,
    Appeal, No. 247, Jan. T., 1905, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1903, No. 265, for defendant on case stated in suit of Joseph A. Scranton v. County of Lackawanna.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine compensation of county treasurer.
    The case stated was as follows :
    1. The last county auditors of said county were elected in November, 1899, and their term of office expired on the first Monday in January, 1903. There are no such officers as county auditors in said county since the last mentioned date.
    2. Under the act of 1895, a county controller was elected in said county in November, 1901, for a term of three years, and was duly installed in said office the first Monday in January, 1902.
    3. The compensation of the treasurer of Lackawanna county for services on behalf of said county has been received under the provision of section 41 of the Act of April 15, 1834, P. L. 537, which section reads as follows :
    “.Each County Treasurer shall receive in full compensation for his services on behalf of the county a certain amount per cent, on all moneys received and paid by him, which rate shall be settled from time to time by the County Commissioners, with the approbation of the County Auditors.”

      4. The present county commissioners were elected in November, 1902, and were installed in office on the first Monday in January, 1903, after the expiration of the term of office of the aforesaid county auditors.
    5. The plaintiff was elected treasurer of the county of Lackawanna in November, 1900, and was duly and regularly installed in his office, pursuant to law, on the first Monday in January, 1901, and his term of office will expire on the first Monday in January, 1904.
    6. On the first Monday in January, 1902, the county commissioners and auditors, by action taken in joint session, settled the compensation of the county treasurer by the following resolution: “ That the County Treasurer be allowed the same commissions for the ensuing year as that allowed the past year, to wit:
    For the receiving of county money.....2J f0

    For disbursing county funds.......2J %

    For redemption of bonds.........If f0 ”
    7. The plaintiff from the time of his installation in office up to the first Monday in January, 1903, received the compensation fixed by the county commissioners and county auditors as aforesaid.
    8. A meeting of the county commissioners was fixed for March 27, 1903, for the purpose of fixing the compensation of the county treasurer, and the county controller was notified to be present. The commissioners met for the said purpose and the county controller was present; and the following resolution was on motion adopted:
    “ That the rate or amount of compensation which shall be allowed the County Treasurer in full compensation for his services on behalf of the county on all moneys received' or paid out by him from January 6th, 1903, to this date, March 27th, inclusive, be as follows :
    On all moneys received..........2\<f0

    On all moneys paid out..........

      “ That from and after this date, and during the balance of the current term, the rate or amount of his compensation in full for his services on behalf of the county on all moneys received and paid out by him on warrants, shall be as follows:
    “ On all moneys received from the sale of bonds, one-half of one per cent. G$)'; on all other moneys received, one and one-fourth per cent. (1 \%) ; on all moneys paid out on temporary loans, one-half of one per cent. (-|- f0~) ; on all other moneys paid out, one and one-fourth per cent. (1|- fo).”

    To which action the county controller refused to consent.
    The commissioners allege that the compensation of the county treasurer shall be that which was adopted by them at the meeting and by the action aforesaid. This the plaintiff denies, and alleges that the commissioners had no authority to change the amount of his commissions.
    9. It is further agreed by both parties that the amount involved in this controversy exceeds the sum $1,500, and that during the month of April, 1903, the treasurer received $9,797.70; and that he disbursed $33,128.81; that in the month of May, 1903, he received $199,033.42, and disbursed $59,339.97; and that at two and one-quarter per cent for receiving and two and one-quarter per cent for disbursing these amounts of money, he would be entitled to $6,779.25.
    If the court, therefore, be of the opinion that the plaintiff is entitled to two and one-quarter per cent for receiving and two and one-quarter per cent for disbursing, then judgment may be entered for the plaintiff in the sum of $6,779.25; otherwise judgment for the defendant. Costs to follow the judgment. And each party reserves the right to appeal from the judgment of the said court of common pleas, to the Supreme Court of Pennsylvania.
    The court entered judgment for defendant on the case stated in an opinion by Newcomb, J.

      Error assigned was in entering judgment for defendant on case stated.

      Samuel B. Price, for appellant.
    The commission of the county treasurer settled under the act of 1834 by the commissioner and auditors, would seem from the language of the act to continue if not subsequently changed during his term: Merwine v. Monroe County, 141 Pa. 162; Heddens’ App., 18 Pa. C. C. Rep. 663; 2 Beach on Public Corporations, sec. 830, p. 856; Bastrop County v. Hearn, 70 Texas, 563 (8 S. W. Repr. 302).

      The county controller does not take the place of the county auditors in settling the commissions of the treasurer under the act of 1834: Endlich on Interpretation of Statutes, sec. 352.

      J. W. Carpenter, with him John J. Toohey, for appellee.
    The fair import of the language “ auditors or controllers,” in the constitution, in the connection it is used with other official duties, admits of one conclusion only. It assumes that each substantially exercises the same powers and performs the same duties: Taggart v. Commonwealth, 102 Pa. 354; Com. ex rel. v. Samuels, 163 Pa. 283; Com. ex rel. v. Severn, 164 Pa. 462.
    The powers, authority and jurisdiction of an office are the essence of the office itself, and are inseparable from it. To take them away totally is to destroy the office: Com. v. Gamble, 62 Pa. 343; Reid v. Smoulter, 128 Pa. 324.
    When the commissioners and the controller met on March 27, 1903, and attempted to settle the compensation for that year, and the controller refused to consent to the action of the commissioners, the result was that no compensation was settled. In the language of the act of 1875 they “failed to fix the compensation of the county treasurer,” and it then behooved the treasurer to appeal to the court. Having neglected to do so his claim for compensation was without foundation, and judgment was rightfully entered against him.
    March 19, 1906:
   Opinion by

Mr. Justice Mestrezat,

This is an amicable action in assumpsit to determine the right of the plaintiff to recover compensation alleged to be due him as the treasurer of Lackawanna county. The facts' were agreed upon by the parties and submitted to the court below in a case stated. The learned trial judge entered judgment in favor of the defendant. His opinion states the law of the case.

The controller was substituted for the county auditors so far as their duties under the act of 1834 required them to approve the compensation of the county treasurer as fixed by the county commissioners. This, as the learned judge says, is the effect of the Act of June 27, 1895, P. L. 403, as interpreted by this court in Lloyd v. Smith, 176 Pa. 213. The constitution provides that “ county officers shall consist of . . . . auditors' or controllers,” and we have held that the duties and powers of each are substantially the same. In Taggart v. Commonwealth, 102 Pa. 354, this court, in construing these words used in the constitution, says (p. 364) : “ The fair import of the language ‘ auditors or controllers,’ in the connection it is used with other official titles, admits of one construction only. It assumes that each subtantially exercises the same powers and performs the same duties.” Not only is this the fair and reasonable interpretation of these words as used in the constitution, but the act of 1895, authorizing the election of controllers in the commonwealth, in its first section directs that the voters shall elect a controller “in place of county auditor.” The effect of the act was to substitute the controller for the county auditors, conferring the powers and imposing the duties of the latter upon the former except wherein the statute provides otherwise. Such was held by this court, in Commonwealth ex rel. v. Samuels, 163 Pa. 283, to be the effect of the Act of June 8, 1893, P. L, 393, creating the office of county controller and which was almost identically the same as the act of 1895, but that act was declared unconstitutional by reason of a defect in its title. In the Samuels case it is said (286) : “The act of June 8, 1893, P. L. 393, while it does not in express terms abolish the office of county auditors in counties having more than 150,000 inhabitants, does so in effect by transferring their duties and powers to a county controller. This is the manifest intent of the act, as gathered from all its provisions, and as especially indicated in section one which directs the election of a controller ‘ in place of county auditor,’and section fifteen which expressly directs how the duties theretofore devolved on the county auditor shall thereafter be performed. Such moreover, even without an express legislative intent, would be the result of the act.”

It follows that the county commissioners could not settle the compensation of the county treasurer without the approval of the controller, and the latter having refused his consent to the rate fixed by the commissioners at their meeting on March 27, 1903, it was not binding on the county and would not render the county liable in this action.

It is contended, however, by the appellant that if no compensation was settled by the commissioners and auditors for the year 1903, the compensation settled on the first Monday of January, 1902, for that year, continued until the end of the treasurer’s term on the first Monday of January, 1904, and that he is entitled to recover the rate of compensation established for 1902. But this contention is clearly untenable. The act of 1834 provides that the treasurer shall receive as his compensation “ a certain amount per cent on all moneys received and paid by him, which rate shall be settled, from time to time, by the county commissioners, with the approbation of the county auditors.” It has been expressly ruled that under this act, the compensation of the treasurer may be increased or diminished during his term of office: Crawford County v. Nash, 99 Pa. 253. It was said by this court in Merwine v. Monroe County, 141 Pa. 162, adopting the suggestion of the trial court, “ that fixing the compensation (of the county treasurer) each year is a judicious exercise of this power.” The appellant entered upon the duties of his office on the first Monday of January, 1901, and the term expired the first Monday of January, 1904. So far as the record discloses, the only action taken with reference to fixing the compensation during his incumbency of the office was on the first Monday of January, 1902, when the commissioners and auditors, in joint session, settled bis compensation by adopting the following resolution: “ That the county treasurer be allowed the same commissions for the ensuing year as that allowed the past year.” This action was in line with the suggestion of this court that it would be a proper exercise of the authority conferred on the commissioners and auditors for them to fix the treasurer’s compensation each year during his official term; and the language of the resolution indicates an intention to fix the compensation annually. The resolution, it will be observed, limited the time during which the treasurer should receive the compensation named in it to “the ensuing year,” and consequently, the rate of compensation fixed at that time was in force and continued only until the first Monday of January, 1903. As the act requires the compensation “ to be settled from time to time,” the commissioners and auditors had the authority to limit the time for which the treasurer should receive the rate then fixed by them, and the rate expired with the limitation. After that date, and without subsequent action by the commissioners and auditors settling another rate, the treasurer could not enforce payment by the county at the rate of compensation fixed for 1902. Had the resolution of January, 1902, not limited the rate to that year, the appellant’s contention would have some basis to support it. That rate would, as appellant contends, have continued until some subsequent action by the commissioners and auditors. But having the authority to settle the compensation “from time to time,” and having exercised that authority by fixing it for a limited time, it became the duty of the commissioners and auditors to again settle the rate at the expiration of the period for which the former rate was to continue. Until such action was taken By the commissioners and auditors, no rate was fixed and there was no liability to the treasurer which could he enforced against the county.

The treasurer was not compelled to serve without compensation, and the failure or neglect .of the commissioners and auditors could not deprive him of it. In the event of a failure on the part of these officials to settle his compensation as required by the act of 1834, subsequent legislation afforded him an ample and complete remedy. That was provided by the Act of April 16, 1875, P. L. 54, 1 Purd. 464, pl. 28. That act provides that “ in every case where the commissioners and auditors have heretofore failed, or shall hereafter fail, to fix the-compensation of any county treasurer, an appeal may be taken to the court of common pleas of the proper county by the commissioners or treasurer; . . . . and on every such appeal the said court shall have power, in its discretion, to fix the compensation aforesaid finally.” This remedy, as we have said, was ample to give the appellant the relief he needed, and being statutory it is exclusive : Act of March 21, 1806, sec. 13, 4 Sm. L. 326, 1 Purd. 77, pl. 5.

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


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Rushbrook Coal Company, Appellant, v. Jenkins.

      Equity — Equity pleading — Responsive answer — Secret profits — Fraud— Corporations — Evidence.
    On a bill in equity by a corporation against its president to compel the latter to account for secret profits which he had made in the sale of real estate belonging to the complainant, an answer is responsive to the bill which denies the negotiations with the purchaser of the real estate as alleged in the bill, denies explicitly and unequivocally the receipt of any secret profits, and alleges that certain securities referred to in the bill were acquired by the defendant in a course of dealings with the purchaser, entirely disconnected with the property or affairs of the complainant.
    Where an answer is responsive to a bill, its.effect as evidence is not wholly overcome by the fact that there are some contradictions not of a serious character between the defendant’s testimony and his answer.
    Argued Feb. 20, 1906.
    Appeal, No. 330, Jan. T., 1905, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1903, No. 5, dismissing bill in equity in case of Rushbrook Coal Company v. John S. Jenkins.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for a discovery and for an account.
    Edwards, P. J., filed the following opinion :
    It is necessary to state briefly the nature of the plaintiff’s contention as set forth in the bill of complaint filed in this case.
    The plaintiff, an incorporated company, was the owner in part and lessee in part of about 600 acres of coal land, situate in Lackawanna county, on which there was a mining operation. After operating the mines for some years the company sold its property in May, 1892, to J. N. Rice, who, in turn, transferred the same property, in the same month, to the Blue Ridge Coal Company. Before, and pending, and for some time subsequent to the negotiations resulting in the sale of the property, the defendant, John S. Jenkins, was president, superintendent and a director of the plaintiff company. Jenkins, as an official of the company, is charged with having secretly received from the said J. N. Rice for his own use and without the knowledge of the other directors, certain property, consisting of shares of stock in various corporations and some real estate claimed to be worth altogether about $20,000, in consideration of the sale or lease of the company’s property to the said Rice, and that the other directors of the company were not aware of Jenkins’s deceitful conduct until about three years ago, when it was disclosed at the trial before a referee, of the case of Jenkins v. Ruslibrook Coal Company.
    The plaintiff claims that, owing to the fraud practiced by Jenkins, he ought to be compelled to transfer to the plaintiff the property not yet converted by him to his own use and to pay to the plaintiff the value of the property already converted, and that he should not be allowed to collect his judgment against .the plaintiff until an accounting is had as prayed for in the bill.
    The foregoing is a correct, though brief, statement of the plaintiff’s cause of complaint.
    The plaintiff, because of the weakness of the evidence presented to sustain the averments of the bill, seeks to avoid the inevitable consequences by attacking the character of the answer. It is claimed that the answer is not responsive to the bill, and, therefore, that the plaintiff is not bound to prove the material averments of the bill by the testimony of two witnesses or of one witness supported by corroborating circumstances. On account of this particular contention on the part of the plaintiff, it becomes necessary to examine the answer before proceeding to consider the evidence or to find the facts. After a careful examination of the answer we are of the opinion that it is fully responsive to the plaintiff’s bill. It is to be borne in mind that the whole substance of plaintiff’s contention is to be found in the third paragraph of the bill. How does the answer meet this paragraph ? Is it fully responsive ? Is the averment of the paragraph met explicitly and fairly ? Let us examine the answer, quoting a part of it. After admitting some facts the answer proceeds as follows :
    “ Further answering the third paragraph of the plaintiff’s bill, this defendant explicitly and unequivocally denies the allegations therein as to his negotiations with Dr. J. N. Rice. These assertions and allegations are untrue in toto.”
    Again: “ This defendant did not receive from the said J. N. Rice at that time any property or other thing of value in connection with the said negotiations, or with reference thereto, or for any other purpose. At the time of the negotiations and at the solicitations of the said Rice, this defendant agreed to take a one-fifth interest in the proposed corporation, and which was afterwards known as the Blue Ridge Coal Company. In other words, he agreed to become interested as a stockholder in the proposed lease of the property of the Rushbrook Coal Company, agreeing to pay for the stock in full, and in cash.”
    After explaining how the defendant acquired the property mentioned in the third paragraph, the answer proceeds thus :
    “ The property referred to in the third paragraph of the plaintiff’s bill, therefore, was acquired by this defendant in the com-se of dealings with the said Rice entirely disconnected from, and disassociated with the lease of the Rushbrook Coal Company, and had nothing whatever to do with that company, or any of its affairs, or any of its negotiations through its directors, or through this defendant as an officer or director thereof, with the said Rice, in connection with the lease of the Rushbrook property referred to in said paragraph. Whether the other directors of the Rushbrook company knew of these dealings is entirely immaterial, as they had no interest or right therein, or in the matters therein involved.”
    We have no hesitation in concluding that the answer is responsive to the bill.
    Another indirect attack is made on the answer based upon the character of the defendant’s testimony. It is claimed that his testimony is at variance with the averments of his answer and that the variance is such as. to destroy the responsive quality of the answer: Spencer and Newbold’s Appeal, 80 Pa. 317, is cited as authority. In that case Justice Mercur says : “ We may concede the correctness of the remark made by Chancellor Green, in Brown v. Buckley, 1 McCarter, 294, as to the general effect of the answer; yet here Newbold, the witness, substantially impeached a2id overthrew the answer of Newbold, the party. . . . When a party is permitted to testify, and does testify in conflict with his answer, it will not do to hold that his testhnony shall be disregarded and his answer stand wholly unimpeached. Precisely how far the rule should be modified, now that a party may be a witness in bis own behalf, it is not necessary at present to indicate.”
    We find also in the opinion in Savings Fund v. Lewis, 190 Pa. 558, the following utterance: “ His (the defendant’s) testimony was in a measure contradictory of his answer; not sufficiently so, perhaps, to overcome its effect as evidence, but enough to weaken its force.” While we concede that there are some contradictions in the defendant’s testimony, due to a great extent to the fact that the matters testified to occurred over twelve years ago and that the defendant kept no books, relying on his memory, which was not very clear, and on pocket diaries and loose memoranda, some of which were hard to decipher ; nevertheless, the contradictions are not so serious, nor is the variance between his testimony and his answer of such a nature as to either weaken the force of the answer or to destroy its responsive quality.
    We, therefore, hold that both contentions of the plaintiff, viz.: (1) that the answer is not responsive to the bill, and (2) that the defendant’s testimony has weakened or destroyed the force of the answer, are not sustained, and, therefore, further, that the plaintiff is bound to prove his case by such evidence as is required in a court of equity.
    The court found numerous findings of fact and conclusions of law in favor of the defendant, and dismissed the bill.

      Error assigned among others was in dismissing the bill.

      Samuel B. Price and A. Ricketts, with them H. C. Reynolds, for appellant.

      H. M. Hannah and Everett Warren, for appellee.
    March 19, 1906:
   Per Curiam,

Decree affirmed on the opinion of the court below.


text:
    Brown, Appellant, v. Kemmerer.

      Equity — Laches—Constructive trust.

    Where a party, having the right to set aside a transaction or treat it as a trust, stands by and sees another dealing with the property in a manner inconsistent with any trust and makes no objection, a delay of less than six years may bar a suit in equity.
    Argued Feb. 20, 1906.
    Appeal, No. 343, Jan. T., 1905, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1903, No. 8, dismissing bill in equity in case of John J. Brown et al. v. John M. Kemmerer et al.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Bill in equity for discovery and an account. Before Edwards, P. J.
    The opinion of the Supreme Court states the facts.

      Error assigned was decree dismissing the bill.

      I. H. Burns, with him A. A. Vosburg, Charles W. Dawson, J. F. Scragg, B. F. Tinkham and T. C. Von Storch, for appellant.

      Everett Warren, of Willard, Warren & Knapp, with him Welles & Torrey, for appellees.
    March 19, 1906:
   Per Curiam,

This was a bill filed in April, 1903, by stockholders of the Scranton Lace Curtain Manufacturing Company against Kemmerer, the former president of the company, Creighton, a former director, and what may be called for distinction the new Scranton Lace Company. The bill set forth that by fraudulent conspiracy between Kemmerer and Creighton the latter was allowed to recover a judgment against the company which did not represent any valid indebtedness ; that on this judgment first the personal property of the company was sold for much less than its value, was bought in by Creighton and resold by him a few months afterwards for more than enough to satisfy all his alleged claim against the company; and that notwithstanding these facts the real estate and fixtures were subsequently sold on the same judgment, bought in by Creighton and resold at a large profit to the new Scranton Lace Company. The answer denied all the allegations of fraud, and set up the statute of limitations and laches in bringing the suit.

The learned judge below (Edwards, P. J.) found the facts in detail, but also found “ generally that all the allegations of the bill of complaint charging the defendants with fraud, collusion, mismanagement and conspiracy, are unsupported by the evidence.” And in order to avoid a long discussion of the evidence he rested the case on the question of laches, in the following opinion:

“ Laches for less than six years, aided by other circumstances, will bar a right. Equity presumes against the existence of a trust unless it is asserted within a reasonable time. It is difficult to decide what is the reasonable time within which a constructive trust must be asserted. Each case must be judged by its own facts and circumstances. In some cases, a delay of six years may not constitute laches; in other cases, a delay of less than six years may do so. Where a party, having the right to set aside a transaction or treat it as a trust, stands by and sees another dealing with the property in a manner inconsistent with any trust and makes no objection, a delay of less than six years may bar a suit. As was said by the United States Supreme Court in Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, ‘We are but little aided by the analogies of the statutes of limitation.’ ”

“ What are the circumstances in the present case ? All the matters complained of occurred in 1897, in February when the personal property was sold, in March when the real estate was sold, and by June or July, at farthest, when the new company was incorporated and the real estate was finally transferred to it. All the stockholders of the old company, including plaintiffs, knew what was going on. Nothing was concealed from them. Actual and particular information was given them by circular. The new corporation took possession of the property and operated it. Improvements were made and new machinery substituted for the old. Nevertheless, the plaintiffs stood by and saw all this taking place without taking any steps to assert the existence of a constructive trust in their favor in the matter of the §70,000 issue of bonds. Everything the plaintiffs knew when they filed their bill they knew early in 1897; and can a party who alleges that he has been defrauded, or that a trust exists for his benefit, speculate upon the chances which the future may give him of deciding whether or not it will be profitable for him to uncover the fraud or to assert the trust ? We think not.

“ Therefore we conclude : That the plaintiff’s bill should be dismissed on the ground of laches.”

As this covers the only question of any legal interest in the case, the decree is affirmed on that part of the opinion of the court below.


text:
    Johnson v. Frothingham, Appellant.

      Judgment — Opening judgment — Laches—■Arbitration.
    Where, in an action of assumpsit, judgment has been entered for want of an affidavit of defense after an appeal from an award of arbitrators, and the defendant permits the judgment to remain unattacked for eleven years, during which time it has been twice revived with notice to himself, the court will refuse an application to open the judgment based upon the alleged invalidity of the rule of court permitting the judgment to be entered. Such a judgment is voidable and not void, inasmuch as the court has jurisdiction of the person and of the subject-matter, and it was the duty of the defendant to move within a reasonable time to strike it off, or open it.
    Argued Feb. 21, 1906.
    Appeal, No. 47, Jan. T., 1906, by defendant, from order of C. P. Lackawanna Co., Jan. T., 1892, No. 50, discharging rule to open judgment in case of F. J. Johnson v. Arthur Frothingham.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    Edwards, P. J., filed the following opinion:
    This suit was commenced by summons in November, 1891, It was ruled out for arbitration by plaintiff, and brought back into court by appeal in January, 1893. Notice was subsequently served on defendant to file an affidavit of defense in accordance with our rule of court, and on October 6, 1894, judgment was entered for the want of an affidavit of defense. The judgment was revived in 1899, and was again revived in 1904. The defendant now moves to open the judgment thus entered.
    Defendant claims that the plaintiff by the arbitration proceeding had waived his right to an affidavit of defense, and our attention is called to the case of Duncan v. Bell, 28 Pa. 516. Whether this case is modified by Horner v. Horner, 145 Pa. 258, or whether it is sustained by National Bank v. Stadelman, 153 Pa. 634, is of little consequence, because, in our opinion, our rule of court is sufficient authority for the entry of the judgment in question. The rule reads as follows: “ When a case has been ruled out on arbitration by the plaintiff, and he would otherwise be entitled to an affidavit of defense, he shall not be entitled to judgment for want of the same under these rules, until after the case is brought back into the court by appeal or otherwise, in which case he shall be entitled to judgment, unless the defendant shall file such affidavit within fifteen days after demanded as provided in rule 8.”
    If it should be conceded for the sake of argument that judgment was erroneously entered for the want of an affidavit of defense, and that our rule of court is invalid, the most that can be said is that the judgment was voidable and not void, the court having jurisdiction of the person and of the subject-matter s Clarion, etc., R. R. Co. v. Hamilton, 127 Pa. 1; This being the case, it was the duty of the defendant to move within a reasonable time to strike off or to open the judgment. In the case at bar the defendant is chargeable with great laches. He offers no reasonable excuse for the delay. The record shows that the suit was brought fourteen years ago, and judgment entered eleven years ago. The original summons and each scire facias were served upon the defendant, and he, therefore, cannot plead want of notice. We see no way to relieve the defendant from the charge of laches. Plaintiff’s counsel refers to numerous cases in his brief on this point. They are much alike in character. We shall cite only one case, and it, shows the general trend of the decisions: Lytle v. Forrest, 175 Pa. 408, where the Supreme Court says in a per curiam : “ Applications to open judgments by default, and let the defendants into a defense, are appeals to the equitable power of the court, and should be made with reasonable promptness. In this case appellant’s laches were inexcusable. His petition was not presented until after the death of the plaintiff, and the lapse of about eleven years after he knew that the judgment had been entered against him for want of an affidavit of defense. Having failed to give any satisfactory excuse for this long and unreasonable delay, he was in no position to invoke the aid of a court of equity.”
    -In addition to the foregoing arguments or reasons, we do not find much merit in the defendant’s contention on the facts of the case. His defense does not invite the interposition of a court of equity.
    The rule to open judgment is discharged.

      jError assigned was the order of the court.

      A. A. Vosburg, with him C. W. Dawson, for appellant.

      M. J. Martin and T. P. Duffy, for appellee, were not heard.
    March 19, 1906:
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Mr. Justice Fell,

text:
    Hawley’s Estate.

      Taxation — Collateral inheritance tax — Decedents’ estates — Will—Compromise.

    An agreement to set aside a will and to make distribution in accordance with its provisions will not relieve legacies passing to collaterals from the collateral inheritance tax; but money paid in good faith in compromise of threatened litigation is not subject to the tax.
    Where certain legatees under a will claim that the provision for their benefit was in discharge of an obligation of the decedent, and the heirs deny the validity of the writing as a will because of the want of testamentary capacity, and the parties without fraud or collusion make-a compromise by which the will is set aside and the legatees are allowed a part of their demands, the payment made to the legatees is not subject to the collateral tax. In such a case payments made to other legatees who .had no demand against the estate, are also relieved from the tax.
    Argued Feb. 27, 1906.
    Appeal, No. 376, Jan. T., 1905, from decree of O. C. Berks Co., June T., 1905, No. 73, directing payment of collateral tax in Estate of Jesse G. Hawley, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Petition for citation to compel payment of collateral tax.
    The facts are stated in the opinion of the Supreme Court.
    The court entered the following decree:
    That Kate E. Hawley and John W. Rauch administrators pendente lite of Jesse G. Hawley, deceased, pay to the register of wills, for the use of the commonwealth of Pennsylvania, the sum of $3,306.23, with interest thereon at the rate of six per centum from April 19, 1904, on account of collateral inheritance tax due in said estate of Jesse G. Hawley, deceased.

      Error assigned was the decree of the court.

      Isaac Hiester, for appellants.
    No collateral inheritance tax is due to the commonwealth: Pepper’s Estate, 159 Pa. 508; Kerr’s Estate, 159 Pa. 512.

      Wm. Kerper Stevens, of Stevens Stevens, with him William A. Shomo, for appellee.
    Where a legacy is given in payment of a debt, which is a legal obligation in the lifetime of the testator and at the time of his death, and the legacy does not exceed the amount due, and such legacy is accepted in full satisfaction, it is regarded as a payment and not as a mere bounty, and is not subject to the succession tax. But this principle cannot apply where no claim such as could have been enforced by a suit exists, as where the legacy is a pure gratuity based on the faithful performance of services rendered without expectation of reward and without liability on the part of the person receiving it: Gibbon’s Estate, 13 W. N. C. 99; Walters’s Estate, 3 Pa. C. C. Rep. 447; Stinger v. Commonwealth, 26 Pa. 422; Rubincam’s Estate, 14 Phila. 306.

      March 19, 1906:
   Opinion by

Mr. Justice Fell,

The claim of the commonwealth is for collateral inheritance tax on money paid by the heirs of the decedent to persons who were named as beneficiaries in a writing purporting to be a will, which was not admitted to probate. The decedent died in 1903, leaving surviving him a widow and two daughters. Two writings purporting to be his wills were found. By the first of these, dated in 1899, he gave annuities to his sisters, and the rest of his estate to his daughters, except a bequest of $5,000 to his employees. By the second, dated in 1902, he provided annuities for his sisters, payable the first Monday of April, and gave to his employees who had been with him three years or upwards $10,000 “ to be divided between them, giving to those who have been with me the longest time and the highest salary the largest sum and so on down, payable the first Monday of April each year.” This paper throughout bears many evidences of mental confusion, and aside from these there seem to have been substantial reasons to doubt whether when he wrote it the decedent, who was not an illiterate man, was possessed of a sound and disposing mind.

A caveat was filed with the register of wills and negotiations were pending between the daughters and the employees, eighty-seven in number, for several months. The latter claimed that they had been induced to continue in the decedent’s employ by his promise of additional compensation at his death, and that the provision in the writing was intended as a satisfaction of that obligation. These negotiations resulted in a written agreement by which it was provided that the employees should be recognized as creditors of the estate to the extent of a gross sum of $55,000. The register entered a decree reciting that all the parties in interest had been notified and had appeared before him, and that having considered the allegations and the evidence offered in the case he sustained the objections of the caveators and refused probate of the writing. The administrators pendente lite filed their account, and the amount due each employe was determined by the orphans’ court.

No mere device intended to evade the payment of tax due the commonwealth can be effective. Courts look beyond the form of any arrangement by which the commonwealth is deprived of a tax to its substance to ascertain its real purpose. An agreement to set aside a will and to make distribution in accordance with its provisions will not relieve legacies passing to collaterals from tax. Such an agreement is evidently collusive. But money paid in good faith in compromise of threatened litigation is not subject to tax: Pepper’s Estate, 159 Pa. 508; Kerr’s Estate, 159 Pa. 512.

It is averred in the answer to the petition for a citation ihat the controversy as to the validity of the will was not collusive but real, and that the compromise agreement was made in good faith to avoid a .contest and not for the purpose of evading the payment of collateral inheritance tax. There is nothing in' the testimony nor in the conduct of the parties to the agreement that raises a doubt of the truth of these averments. In the decision of the case they must he considered as established facts. That the annuities given to the employees of the decedent in the writing purporting to be his will were mere gratuities and gave rise to no legal obligation that they could enforce as creditors of his estate is of no importance. They claimed that the writing was a valid will and that the provision for their benefit was in discharge of an obligation of the decedent. The heirs denied the validity of the writing as a will because of the want of testamentary capacity. A settlement was made in which the employees were treated as creditors and allowed a part of their demands. This was clearly a compromise of a doubtful right to avoid litigation, by which the heirs parted with a portion of the estate in the purchase of peace. The employees took nothing under the will, and the money paid them was not subject to tax, unless the whole arrangement was collusive. Nor is the claim of the commonwealth affected by the fact that the annuities provided for the sisters of the decedent were secured to them without abatement. The contest was as to the whole writing and not as to a part. If it was invalid, their claims as annuitants fell with the others.

The decree of the court is reversed at the cost of the appellee.


text:
    Folk, Appellant, v. State Capital Savings and Loan Association.

      Building and loan associations — Stock—Issue of full-paid, stock.

    A building and loan association commits no unlawful act in issuing full-paid stock, the dividends of which are not guaranteed but are limited in amount and payable only out of the profits, and the holders of which are entitled to no preference and have no advantage over other stockholders upon distribution in case of loss or insolvency; provided that the issue is incidental to the main business of the association and is intended to provide a fund from which loans may be made to the holders of installment stock.

      Building and loan associations — Withdrawal fee.

    A building and loan association incorporated under the laws of Pennsylvania has the right to establish a fixed withdrawal fee provided that it is a reasonable one, fairly approximating the proportion which upon the most accurate practicable calculation would appear chargeable against each share at the date of withdrawal.

      Building and loan associations — Employment of solicitors and collectors.

    Building and loan associations organized under the laws of Pennsylvania may employ collectors and solicitors in furtherance of the requirements of their business.
    Argued Feb. 28, 1906.
    Appeal, No. 34, Jan. T., 1906, by plaintiffs, from decree of C. P. Berks Go., dismissing bill in equity in case of George M. Folk, John T. Balsley, Edward W. Madden and W. H. Fisher v. State Capital Savings and Loan Association.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Endlich, J., filed the following opinion:
    The plaintiff, suing for himself and others in like interest who may join him, is the holder of stock in the defendant building association, incorporated under Act April 29, 1874, P. L. 73. The par value of its stock is $100 per share. The ordinary installment stock issued by the association is to be paid for until matured by monthly dues of fifty cents. The by-laws, however, in article 8, provide for prepayment of the par value of stock subscribed for at the time of subscription and for its issuance upon such prepayment as “ Full Paid Stock” bearing dividends not exceeding five per cent per annum payable out of, but not otherwise participating in, the profits of the corporate business. In the same.article provision is made for voluntary withdrawals of stock, a definite and invariable charge thereon per share being established during the first and second years, which, as the answer explains, is in lieu of and fairly approximates the average share of expenses above earnings apportionable during that period to each share. In the prosecution and extension of its business throughout the state, the association employs agents to solicit and receive stock subscriptions and to collect and receipt for payments due the association-, allowing them a reasonable compensation for their services. It is contended by the plaintiff that (1) the issuance of full paid dividend bearing stock, (2) the deduction of a withdrawal fee, and (3) the employment of paid solicitors and collectors are contrary to law and prejudicial to the interests of the plaintiff and other shareholders in the association, and that its corporate existence will be jeopardized by the continuance of these practices. Upon these grounds it is prayed that they be restrained by injunction. The cause was set down for hearing and heard upon bill and answer.
    1. The right of a building association to issue paid up dividend bearing stock has been put upon express statutory basis in England: see Acts 37 & 38 Yict. Ch. 42, sec. 13; and in Tennessee: see Wilson v. Parvin, 119 Fed. Repr. 652; 56 C. C. A. 268; Kirklin v. Savings & Loan Ass’n, 107 Ga. 313 (33 S. E. Repr. 83). It is denied in Illinois as contravening a positive statutory direction that stock “ shall be payable in .... periodical installments: ” see Rhodes v. Savings & Loan Co., 173 111. 621 (50 N. E. Repr. 998), and in North Carolina as inconsistent with the building association system as there legalized: see Meroney v. B. & L. Ass’n', 116 N. C. 882 (21 S. E. Repr. 924). It has been affirmed as existing in the absence of any statutory provision expressly authorizing or prohibiting it, in England (under a statute previous to that above referred to) : In re Guardian Permanent Benefit Bldg. Soc. L. R., 23 Ch. D. 440, sustained on appeal to the House of Lords ; Murray v. Scott L. R., 9 App. Cas. 519; in Alabama: Johnson v. Bldg., etc., Ass’n, 125 Ala. 465 (28 So. Repr. 2); Bell v. B. & L Ass’n, 140 Ala. 371 (37 So. Repr. 237) ; in Iowa: Tootle v. Singer, 118 la. 533 (88 N. W. Repr. 446), in Missouri: Hohenshell v. S. & L. Ass’n, 140 Mo. 566 (41 S. W. Repr. 948) ; State v. Loan, etc., Ass’n, 142 Mo. 325 (41 S. W. Repr. 916) ; Latimer v. Loan, etc., Co., 81 Fed. Repr. 776; and in New York: People v. Preston, 140 N. Y. 549 (35 N. E. Repr. 979). In Pennsylvania, in Criswell’s App., 100 Pa. 488, on distribution of the assets of an insolvent building association, the holders of “ cash matured stock, for which payment was made in advance,” were adjudged to come in pari passu with other stockholders (that much being decided also in Wisconsin) : Leahy v. Bldg., etc., Ass’n, 100 Wis. 555 (76 N. W. Repr. 625), and in Bldg. & L. Ass’n v. Linhart, 4 Pa. Dist. Rep. 620, it was held by Judge McIlvaine, that a building association incorporated under the act of 1874 has the power to issue, under its by-laws, paid up stock carrying a fixed annual dividend. The same view was expressed by Mr. Attorney General Elkin in an opinion reported, 8 Pa. Dist. Rep. 567, whilst a contrary view is intimated by Mr. Attorney General Carson in a recent opinion reported, 14 Pa. Dist. Rep. 80.
    The act of 1874, with its supplements, provides for the incorporation and regulation of corporations generally. It declares, in section 1, that “ each of them ” shall by virtue of its existence as a corporation thereunder have certain powers, “ unless otherwise specially provided.” Following this section, with its enumeration in broadly comprehensive terms of powers thus common to all corporations, comes the division of these into classes, building associations being included in the second class, and various provisions of a more or less general character regulating the mode and procedure of incorporation, the details of organization, conduct of business, etc. These provisions in turn are succeeded by a series of sections each containing special directions relative to a particular species of corporation, among them section 37 relating to building associations. This section has been modified and. added to from time to time by later enactments, but in its essentials remains unchanged. Like all the other special provisions concerning particular corporations, those dealing with building associations, whether contained in section 37 as originally enacted or incorporated in or added to it by subsequent legislation, are of course to be read as part, and in connection with the general provisions, of the act of 1874. They were not intended and.cannot be properly understood as denying or limiting any of the powers conferred upon corporations generally except in so far as the subject-matter of those powers has been specifically dealt with in such a way as to expressly negative or necessarily imply a curtailment of them- — as, e. g., concerning the purchase of real estate, the borrowing of money, the measure of fines, and the like. Apart from directions of this sort, the specific provisions on the subject of building associations are rather of an enlarging, enabling character, conceding to them exceptional powers by no means common to corporations generally and giving rise to no implication of an intent to deprive building associations of rights incidental, in the absence of special provisions, to their status as corporations under the general provisions of the act of 1874, and consistent with the character and objects of building associations generally. It is, indeed, to be noted that the legislature has attempted no definition of what constitutes a building association. It has assumed that certain features and methods are essential to it, and there is no room for doubt that without them no corporation, whatever its label, can claim to be a building association. But it has not excluded the possibility that, consistently with these essential features, the legitimate development of the business of these associations may add others which, at the date of the enactment, were not foreseen and against which, therefore, it is not to be taken as implying any prohibition. Thus it is well understood to be one of the differentiating characteristics of the building association scheme that it affords an opportunity to shareholders to subscribe for stock payable in small periodical installments. A society discarding this feature could hardly be looked upon as within any definition of building associations. In a society, however, which retains this feature, a provision enabling those who may wish to do so to acquit themselves at once of liability for periodical payments by an advance payment at the time of the subscription of the fixed par value of the shares subscribed by thém, is manifestly not to be declared a departure from its fundamental purpose. It is but the affording of an opportunity for voluntarily anticipating a result eventually contemplated. Anil if upon such advance payment, the society agrees to allow to the paid up shareholder a periodical dividend reasonably within the margin of profit shown by experience to be likely to accrue to the society on the sum thus paid, which dividend is understood to be payable only out of the profits earned and in lieu of any share therein upon winding up, it is not clear how the principle of mutuality of profit and loss as among the whole number of shareholders is at all violated. It is settled that this principle justifies and requires dereliction in the payment of dues to be made good by fines, and that the lawful measure of theser ordinarily is the real damage sustained by the society through the failure of payment, plus such slight excess as will make it more profitable for the member to pay promptly than to lag behind: Lynn v.' B. & L. Ass’n, 117 Pa. 1, and the Act April 10,1879, P. L. 16, section 6, has accordingly fixed the maximum fine at two per cent per month on all arrearages. If, however, the principle of mutuality requires compensation to the society by the member for deferring payment, it would seem equally to justify compensation by the society to the member prepaying. Nor ought the importance of this element in building associations to be overlooked. Doubtless it was originally supposed that every member would eventually become a borrower, and some accepted doctrines of building association law are traceable to that theory. Practically there never was a time when building associations generally could get along without a' considerable nonborrowing constituency, simply because accumulations would have been too slow to wait for. The mere investor, therefore, however inferior in merit, was always needed. He lias become more and more indispensable as the opportunities for borrowing money have multiplied, the rates of interest gone down, and the terms of repayment offered outside of building associations to borrowers become more flexible and easy. When interest ruled high and the small borrower had difficulty in finding a lender upon property affording a narrow margin of security and liquidation of the debt piecemeal was possible only in building associations, their loans were eagerly sought, obtained at high premiums and supplied out of a comparatively slender stock of cash; and profits were correspondingly great. But all this has changed.' Premiums amount to very little. Profits are small on individual transactions, mounting up only where the aggregate of the transactions is considerable. Partly in deference to this circumstance the Act June 4, 1901, P. L. 403, permits loans, with all the incidents of building association loans, to be made not only - to members but also to outsiders willing to become members if advances are granted to them. To accommodate borrowers in sufficient numbers, however, the associations are under a necessity to have on hand a greater stock of cash. As much as fourteen years ago the legislature felt called upon by express enactment to sanction and at the same time to restrain within safe limits the practice of building associations of borrowing money wherewith to meet applications for loans in excess of available accumulations : Act June 2, 1891, P. L. 174, amended by Act June 25, 1895, P. L. 303. The device of issuing paid up stock bearing a fixed dividend was but a means of inducing investors to become members, of putting into the hands of the associations the larger funds demanded by altered conditions, and of avoiding, to some extent if not altogether, the haphazard, expensive and perilous expedient of temporary loans from parties having no interest in the proper and economical management of the corporate affairs. At the bottom of it all there would seem to be real necessity and sound policy. The possible danger from over-accumulation is guarded against by the statute authorizing by-law provisions for involuntar}' withdrawals: Act April 10, 1879, P. L. 16, section 3, and in the case of this defendant by a by-law empowering the directors to discontinue the issuance of stock. Neither is it alleged, nor does it appear that an allowance of five per cent upon prepaid stock is unreasonable or disproportionate to the general earnings of the association. That stock participates in no other way in the profits of the business. Even to that extent it participates only if the profits are sufficient to pay the dividend. In case of disaster it is entitled to no preference upon distribution. The installment stock on the other hand shares-in the net earnings upon the paid up stock and in the event of insolvency comes in pari passu with it. It would seem in view of all this that there can be no criticism on the score of reasonableness in an arrangement whereby, so long as the association is a going concern, the paid up shareholder is secured a portion of the current profit's up to five per cent upon the sum advanced by him. There is no allegation that it is either more or less than the holders of installment stock are likely to realize. The allowance made by the association upon voluntary withdrawals considered in the light of its averments on that subject in the answer would indicate that the two classes of stock are on the long run very much in the same case.
    Beyond these mere suggestions it will not be attempted to add anything to the general discussion of this subject by that profound lawyer and great judge, Sir George Jessel, M. R., in re Guardian Permanent Benefit Bldg. Soc. L. R., 23 Gh. D. 440, and by the distinguished judges speaking for their respective courts in the other cases above cited as substantially in line with it. Neither is it needful to restate, by way of excerpts, necessarily lengthy, from these various decisions the reasoning upon which they are severally based. It is enough to say that they sufficiently stand upon common ground and agree in their 'results to furnish authority of a very high and persuasive order for holding that the acceptance of prepayment of stock and the issuance thereupon of full paid dividend bearing stock is in no proper sense a borrowing of money (see to the same effect also Coltrane v. Blake, 113 Fed. Rep. 785; 51 C. C. A. 457), that; remembering that a building association cannot successfully perform its intended functions without members who are simply investors and not borrowers, its power to aid the latter class of members, and thus the main purpose of its creation, will be promoted by attracting investing members capable of putting larger sums at the society’s disposal than can be speedily gathered by means of periodical payments alone; that the allowance of a fixed dividend upon such paid up stock out of the profits of the corporate business is a reasonable incident to its issuance, just to both classes of shareholders and not calculated to give either an undue advantage over the other; that on the contrary the practical effect of the concurrent issuance of both installment and full paid stock is likely to prove beneficial to both classes of shareholders; that no essential characteristic of the building association scheme can be regarded as forbidding and no essential purpose of it as defeated by this device; that it is contrary to no accepted rule of policy applicable to or involved in the nature of building associations ; and that it is not excluded by statutory provisions in terms authorizing and regulating operations on the footing of installment stock, but not clearly confining associations thereto or expressly prohibiting any other. And it is to be noted that with this view every adjudicated case involving the point under discussion appears to be in harmony, except perhaps the one above referred to decided in North Carolina.
    Objections on the score of policy, consistency, etc., being out of the way, i. e., it being apparent that in the absence of any difficulty arising from statutory limitations the ordinary nature and powers of building associations as generally understood include the right here questioned, the inquiry in this case recurs to the terms of the act of 1874 and its supplements. Is there anything in these amounting to a special express or implied prohibition against their issuing, besides installment stock, full paid stock bearing dividends at a fixed rate payable out of, and not further participating in profits ? There is no question here of the right to issue preferred stock. There is no by-law authorizing that to be done and no attempt to do it. As regards the existence of the only power here involved, it must be conceded that the statute law of this state contains no express prohibition against it. Neither does it say, as the Illinois statute does, that the stock issued by building associations shall be paid in installments. It directs that the capital stock shall not go beyond a certain maximum and shall be divided into shares of such denomination, not exceeding $500 each, as the ajpplication for incorporation may specify; that it may be issued in series (a well-understood term implying nothing as to the manner of payment) not exceeding certain figures; that the time and place for payment of periodical installments on stock shall be appointed by by-law; that no periodical installment over $2.00 per share shall be allowed ; that unpaid installments shall be liens, etc. In short, it regulates the respective rights and duties of the society and the shareholder as regards installment stock, its issuance and the subject of payments thereon, and provides for their enforcement — all matters which from the beginnings of building associations have been the source of uncertainty and litigation and which called for definitive settlement by legislative enactment. It is, however, silent as to any other manner of paying for the stock, under which, in the nature of things, similar questions cannot arise. The act of 1879 makes it lawful for the association to provide for the involuntary withdrawal and cancellation of unadvanced shares “ at or before maturity,” but does not require the retirement of shares when full paid, and it may be noted that the act June 22, 1897, taxing certain building association stocks seems to consist with no such necessity. We have then here a set of provisions which in terms neither authorize nor prohibit the issuance of full paid stock and from whose terms no implication of legislative intention on the subject fairly arises. We have in sec. 1 of the act of 1874 a declaration that all corporations formed under it shall, “ unless otherwise specially provided,” possess certain general powers, among which are :
    “ Sixth. To make by-laws not inconsistent with law, for the management of its property, the regulation of its affairs and the transfer of its stock.
    “ Seventh. To enter into any obligation necessary to the transaction of its ordinary affairs.”
    We have, in sec. 5, as amended by Act May 14, 1891, P. L. 61, a further declaration that:
    “ The by-laws of every corporation created under the provisions of this statute .... shall be deemed and taken to be its law, subordinate to this statute. . . . They shall prescribe the time and place of meeting of the corporation, the powers and duties of its officials, and such other matters as may be pertinent and necessary for the business to be -transacted. . . .”
    When it comes to determining what is “ necessary” for the conduct of the business and transaction of the affairs for which a corporation has been chartered, it must of course be understood that what is meant is a due and profitable prosecution of its lawful purposes; that the “ necessity ” contemplated is a relative one having reference to economy, convenience, efficiency and success ; and that some latitude is to be allowed to the discretion of the corporation itself in deciding what, from time to time, is or is not in that sense necessary; see Pittsburg Junct. R. R. Go.’s App., 122 Pa. 511. In view of that meaning of the word, of what has been said above and of what has been decided elsewhere, and it may be added in view of what is known to be the practice among building associations pretty much everywhere in recent years, it surely cannot be affirmed by the courts that the addition of the paid up stock feature to the original installment stock plan is not necessary in the building association scheme at this clay. The weight of judicial opinion is decidedly to the contrary. And so is the practical testimony of those most largely interested in these associations, who have adopted it. It will not do to treat these people indiscriminately as devoid of business sense or as self-seeking schemers. Nor is it an argument against the existence of a power which may be legitimately employed and when so employed made the instrument of accomplishing a good and useful purpose, that it may, in the hands of dishonest men, be perverted to evil ends. It ought, therefore, upon principle, to be held that the power to receive prepayment of stock and allow a reasonable fixed dividend thereon payable out of the profits of the corporate business, i. e., to issue the kind of paid up stock here in question, exists in building associations chartered under the act of 1874 by virtue of the provisions of that act. And this view of it is greatly aided by the fact that it accords with the construction put upon the act by the legislature itself. The Act June 22, 1897, P. L. 178, “ Taxing certain stocks of building and loan associations for State purposes,” imposes a tax upon “ all full paid, prepaid and fully matured, or partly matured stock in any building and loan association incorporated under the laws of this state .... upon which annual,, semiannual, quarter^ or monthly cash dividends or interest shall be paid.” There is no law in Pennsylvania under which building associations can be incorporated save the act of 1874. It cannot be assumed that the legislature meant to make stock unlawfully issued by building associations a source of regular revenue to the state. The only possible alternative is that according to the legislative understanding of the act of 1874, building associations have, under it, the right and power to' issue full paid dividend bearing stock as well as installment stock, which latter is expressly exempted from the tax imposed by the act of 1897 while unmatured and even when matured while in process of liquidation. The potency of such legislative interpretation of a statute is illustrated by the decision in Bourguignon Bldg. Assn. v. Com., 98 Pa. 54; Pardee’s App., 100 Pa. 408; Seaman v. Washington Boro., 172 Pa. 467, and many other cases. That of Com. v. Hauck, 103 Pa. 536, goes to the length of referring to a statute imposing a penalty for the improper use of sidewalks constructed by individuals in unincorporated villages as legalizing such and relieving them of the objection of being public nuisances.
    2. The defendant’s by-laws provide that withdrawals of full paid stock during the first year shall be entitled to the full amount paid less a charge of $1.00 per share; during the second year the full amount paid less a charge of fifty cents per share ; and thereafter the full amount paid — withdrawals of installment stock during the first year to the full amount paid less a charge of fifty cents per share; during the second year the full amount paid with 4 per cent interest less a charge of fifty cents per share ; during the third year the full amount paid with 4 per cent interest, thereafter and up to 108 months the full amount paid with 5 per cent interest, and after that period the full amount paid with full profits.
    According to section 37, clause 2, act 1874, a member voluntarily withdrawing during the first year is entitled to receive the amount paid “ less all fines and other charges,” and during any subsequent year “ in addition thereto,” (i. e., to the amount paid less fines and other charges), legal interest thereon : this latter allowance being modified by the provision of section 2, act 1879, the obvious effect of which is to substitute therefor “ such proportion of the profits of the association, or such rate of interest, as may be prescribed by the by-laws.”
    The answer avers upon the basis of actual experience, that during the first and second years of the running of installment stock the expenses fairly chargeable against it are relatively heavy and greater than its earnings, but thereafter relatively lighter and less than its earnings; that during the first and second years after the issue of full paid stock its average earnifigs do not exceed its proportion of the expenses and the state tax and dividends paid by the association, but thereafter yield a margin of profit to it; that in practice it is impossible to calculate upon each withdrawal of stock the exact proportion of expenses with which it is chargeable, and therefore necessary to fix a definite charge fairly approximating the same; and that the withdrawal charges objected to do so.
    It is of course true that the terms of withdrawal fixed by statute cannot be materially altered by the society to the prejudice of its stockholders: Rhoads v. B. & S. Ass’n, 82 Pa. 180; Baker v. Sav., etc., Ass’n, 23 R. I. 243 (49 Atl. Repr. 967). But it is equally sure that, in obedience to the fundamental principle of mutuality already adverted to, every shareholder in a building association is liable to the extent of his stock interest for the losses and expenses of the enterprise, and that he cannot by withdrawing escape that liability : McGrath v. Savings & Loan Ass’n, 44 Pa. 383. This applies to installment stock and of course to paid up stock which is not preferred stock. Whatever may be the rule elsewhere, in this state it is settled that this liability is enforceable by way of deduction from, or set off against the withdrawal claim: B. & L. Ass’n v. Silverman, 85 Pa. 394, 396 ; Christian’s App., 102 Pa. 184, 189. Indeed the act of 1874 makes it so by not only limiting the withdrawing member to what he has paid in, etc., “ less all fines and other charges,” (which latter phrase under the decisions last cited clearly includes a due proportion of the expenses), but also by making every share of stock subject to a lien in favor of the association “ for the payment of unpaid installments and other charges incurred thereon under the provisions of the .... by-laws: ” section 37. The only question open here is whether the association can by by-law fix a definite and invariable sum per share as representing the proportion of expenses, etc., chargeable to it upon voluntary withdrawal— call the sum so fixed and deducted a withdrawal fee or whatever else you please. It is difficult to see why not, provided the amount thus charged be in fact and according to actual experience a reasonable one, fairly approximating the proportion which upon the most accurate practicable calculation would appear chargeable against each share at the date of withdrawal. Absolute accuracy in this particular is never attainable before winding up, and the right of withdrawal does not involve a right to an account of profits and losses : Watkins v. B. & L. Ass’n, 97 Pa. 514, 522, 524. Approximation being concededly the most that is ever possible before dissolution: Watkins v. B. & L. Ass’n, supra, there would seem to be no tenable objection to a permanent regulation fairly accomplishing it. That such is the purpose and effect of the charge here in question appears by the answer. It is thus clearly distinguishable from the charge adversely considered by the attorney general in 14 Pa. Dist. Rep. 80, which was not treated as a liability of the association and not carried on its books, but went towards the payment of salaries, etc. In New Jersey membership was acquired in a building association in 1898, whose charter at the time validly provided for the right of voluntary withdrawal of the amount paid in with interest, less a withdrawal fee of $ 1.00. A statute passed in 1899 directed that a voluntarily withdrawing shareholder^should be paid “ not less than the sum of his installment paid in, less all unpaid fines and his proportionate share of any loss sustained by the association.” In a suit against the association by the member upon his withdrawal after the passage of this enactment, it was decided that it ought not to be held applicable because the rights of the parties were fixed by the law obtaining in 1898 ; but that, assuming the act of 1899 to apply, there was no inconsistency between it and the charter provision referred to, justifiable as intended to cover clerical expenses, and that the withdrawal fee should be deducted : Intiso v. S. & L. Ass’n, 68 N. J. L. 588 (53 Atl. Repr. 206).
    3. The remaining point raised by the bill and answer requires but brief notice. The power of corporations generally to employ and compensate subordinate agents is of course not open to question: 4 Thompson’s Corp. sec. 4,783. If statutory authority for so doing is needful, it is in the act of 1874, section 1, expressly conferred in the enumeration of powers applicable alike to building associations and to other corporations formed under it, viz.:
    “5. To appoint and remove such subordinate officers and agents as the business of the corporation requires, and to allow them a suitable compensation.”
    What has been said concerning the meaning of the word “necessary” is equally pertinent to the restriction, in this clause, of the power to appoint and compensate agents to “such .... as the business of the corporation requires.” The question whether the business does require the employment, etc., of collectors and solicitors is one to be determined according to changing circumstances and must rest largely in the discretion of the corporation and its managers. Certainly as against their judgment it can he a question for the courts only in clear and flagrant cases. There is in this respect no discrimination to he made against building associations. There was a time when they were looked upon with suspicion and treated by the courts with some degree of disfavor. But by and by the beneficial results they were capable of achieving became manifest and their methods better understood. Thereupon the laws of the state admitted them to incorporation and legalized their business. Under those laws they are nothing less than full-fledged corporations, and their business is a lawful business. The right granted to them to prosecute that business carries with it the power to employ all the usual means appropriate for its efficient prosecution, just as in the case of any other corporation: Millvale Boro. v. Ry. Co., 131 Pa. 1, and to do all such things as are fairly incidental or auxiliary to its business, just as in the case of any other corporation: Malone v. Gas Light, etc., Co., 182 Pa. 309, 322. See also Howley v. R. R. Co., 213 Pa. 36, 41, 42. The possibility that such a power may be abused or the fact that in some instances it may have been abused is not decisive against its existence. As against this defendant there is no allegation of abuse, actual or threatened. The presumption is to the contrary. Nor is it difficult to understand how in view of the changes which have affected the business of building associations in recent years, the employment of solicitors and collectors may have become not only a convenience and a material aid in profitably carrying on their lawful operations, but positively indispensable to their survival. It may be added that this case presents no question as to the right to maintain branch offices, and its decision involves no expression of opinion on that question.
    The conclusion is that there is no case here for an injunction under any of the prayers of plaintiff’s bill, nor for any other relief, and that the bill is to be dismissed with costs.

      Error assigned was the decree of the court.

      Charles M. Plank, for appellants.
    A building association incorporated under the laws of the state of Pennsylvania, has no right to issue full paid .stock upon which a dividend is guaranteed. Stock in a building association, which is brought to its par value, is matured, and the holder thereof is entitled to be paid, and his connection with the association ceases: Winegardner v. Equitable Loan Co., 120 Iowa, 485 (94 N. W. Repr. 1110); Rhodes v. Missouri Saving & Loan Co., 173 Ill. 621 (50 N. E. Repr. 998); Andrews v. Poe, 30 Md. 485.
    Building and loan associations incorporated under the laws of this state have no right to charge or retain a withdrawal fee: Wittman v. Concordia Building Assn., 13 Phila. 95; Rodgers v. Southwestern Mutual Saving Fund & Bldg. Assn., 7 W. N. C. 95.
    The appointment of solicitors and collector by a building association doing business over the entire state is practically the establishing of branch offices and is not authorized by law.

      Charles H. Bergner and M. W. Jacobs, with them W. Kerper Stevens, Wm. A. Shomo, Joseph Savidge and Joshua W. Swartz, for appellee.
    Full paid stock may be issued: Criswell’s App., 100 Pa. 488; Heptasoph B. & L. Assn. v. Linhart, 4 Pa. Dist. Rep. 620; Com. v. Hauck, 103 Pa. 536; Pardee’s App., 100 Pa. 408; Seaman v. Washington Boro., 172 Pa. 467.
    In other jurisdictions, in the silence of legislation upon the subject, the right of associations to issue full paid and prepaid stock has been upheld in a number of cases, among which are the following: In re Guardian Permanent Benefit Building Society, L. R. 23 Ch. Div. 440; Murray v. Scott, L. R. 9 App. Cas. 519; People ex rel. Fairchild v. Preston, 140 N. Y. 549 (35 N. E. Repr. 979); Hohenshell v. Home Sav., etc., Assn., 140 Mo. 566 (41 S. W. Repr. 948); State v. Loan, etc., Co., 142 Mo. 325 (41 S. W. Repr. 916); Kirklin v. Atlas Savings, etc., Assn., 107 Ga. 313 (33 S. E. Repr. 83); Johnson v. Nat. Bldg., etc., Assn., 125 Ala. 465 (28 So. Repr. 2); Bell v. B. & L. Assn., 140 Ala. 371 (37 So. Repr. 237); Tootle v. Singer, 118 Iowa, 533 (88 N. W. Repr. 446); Latimer v. Equitable Loan, etc., Co., 81 Fed. Repr. 776.
    Withdrawal fees may be charged: Intiso v. Savings & Law Assn., 68 N. J. L. 588 (53 Atl Repr. 206); McGrath v. Savings and Loan Assn., 44 Pa. 383.
    The association had a right to employ soliciting and collecting agents.
    March 19, 1906:
   Opinion by

Mr. Justice Fell,

The general purpose of building associations is the accumulation of funds to be loaned to their members and to be repaid in small periodical payments. The accumulation from tbe payment of installments on stock is so slow as often to hamper their practical operations and different methods have been adopted to provide funds to meet the demands of borrowing members promptly and thus to promote the general purpose. Building associations are authorized by the Act of June 25, 1895, P. L. 303, to borrow money for temporary use when applications for loans exceed the accumulations in the treasury, and when a series of stock has matured. The issuing by these associations of full paid stock to serve the same purpose as borrowing is an enlargement of their scope of operations not inconsistent with their original design, if properly restricted. While it has not been expressly authorized by the legislature, there is a distinct recognition of the practice by the Act of June 22, 1897, P. L. 178, which subjects such stock to taxation. We find nothing unlawful in the issuing of full paid stock, the dividends of which are not guaranteed but are limited in amount and payable only out of- the profits, and the holders of which are entitled to no preference and have no advantage over other stockholders upon distribution in case of loss or insolvency; provided that the issue is incidental to the main business of the association and is intended to provide a fund from which loans may be made to the holders of installment stock. To this extent and for this purpose its issue is within the implied powers of such associations.

The reasons stated by the learned judge of the common pleas amply support the decree dismissing the bill, and upon them the decree is affirmed at the cost of the appellant.


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    Miles, Appellant, v. Pennsylvania Coal Company.

      Mines and mining — Surface support — Preliminary injunction.

    Where a lease expressly allows the lessee of a coal mine to rob the pillars without liability for subsidence of the surface it is nota case for preliminary injunction, even though the privilege is only in the lease of part of the land, and the complainants are co-tenants of the lessor.

      Argued Feb. 20, 1906.
    Appeal, No. 14, Jan. T., 1906, by plaintiff, from decree of C. P. Lackawanna Co., Jan. T., 1906, No. 2, refusing preliminary injunction in case of William Miles et al. v. The Pennsylvania Coal Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Kelly, J., filed the following opinion:
    In the year 1880, William Miles and others, being the owners of a tract of land containing upwards of 128 acres in Old Forge township, in this county, made a lease of the coal underlying the surface to the Pennsylvania Coal Company, the defendant, under certain terms and conditions, to some of which we shall hereafter refer. In 1885 the interest of Agnes A. Smull, one of the lessors, which amounted to an undivided 19-110 of the whole, was acquired by the defendant by a deed from her. By this deed the defendant acquired title to an undivided 19-110 interest in both the surface and the coal. In 1899 the Pennsylvania Coal Company, defendant, conveyed to William Miles, one of the lessors in the coal lease, its 19-110 interest in the surface of the 128 acres, reserving the coal with the right to remove it without liability for injury to the surface by such clear, sweeping and comprehensive language that no doubt can be entertained but that under the reservation clause the coal company had the right to mine out all of the coal, including pillars, without regard to the effect upon the surface. William Miles has since died, and his heirs, William Miles, Caroline A. Miles, Caroline E. James, Warren A. James and Ada Carter, are now the owners of an undivided 61-110 interest in the coal, and 80-110 interest in the surface, subject, of course, to the interest of the lessee ; the other plaintiffs, Lorenzo Burdette Smull, Thomas Smull and Rebecca Houston, owning 30-110 interest in the coal and surface, while the defendant owns 19-110 interest in the coal only.
    The evidence shows that the defendant, after having practically mined out all of the coal in one of the veins, called the Slope Vein, which could be mined without endangering the surface, is now proceeding to remove the coal formerly left as pillars for surface support, comprising about one-third of all the coal; and that it is .the intention to mine out all of the coal in the property without any provision for surface support and without regard to the effect upon the surface ; and that this removal or “ robbing ” of pillars will undoubtedly damage and injure the surface and cause it to subside to a greater or a lesser extent, which cannot, with any degree of certainty, be foretold. This the defendant company, contends it has the right to do by virtue of the provisions of the lease first referred to, while it is contended on the part of the plaintiffs that it acquired no such right under the terms of the lease, and that it should be restrained from doing so by preliminary and permanent injunction.
    It seems to us-that the heirs of William Miles can have no standing to restrain the defendant from mining all of the coal in the property, in view of the comprehensive and effective terms used in the reservation contained in the deed from the defendant to him, conveying 19-110 of the surface. In accepting that deed he agreed that the coal company might mine “ all the several veins of coal in, under and upon, the land described,” the surface of which was conveyed “ as fully and entirely as if the said prarty of the first part, its successors and assigns, remained the owner in fee simple of said surface or right of soil ” ; he agreed to take the surface (19-110 undivided interest in it) “ with the full knowledge that the coal thereunder lias been or may be entirely mined out and removed, and that from such mining out and removal the surface and any impi'ovements thereon may be injured or entirely destroyed,” and that “ there is no covenant express or otherwise ” that the surface would be sustained by either vertical or lateral support. Plaintiffs contend that this provision can only be applied to the property conveyed, viz.: 19-110 of the surface. Granting that this contention is correct, for the purpose of the argument at least, it must be borne in mind that the 19-110 is an undivided interest, and that to hold that the defendant must support the surface as far as the 19-110 is concerned is to hold that it must support it all, and thus absolutely take away from it the benefit of the reservation clause in its deed to William Miles.. This construction would be clearly inequitable and we cannot adopt it in an application for a preliminary injunction. This being so it would not be proper to grant the writ in favor of the other plaintiffs who are the owners of 30-110 of the surface only, because of the well known principle that when the granting of an injunction will do more harm to the defendant than good to the plaintiff, it should be refused and the plaintiff left to his legal remedy. For these reasons we think that the preliminary injunction, which should never issue except in a clear case, should be refused.
    But regardless of the complications of the question, by reason of the different interests in the surface and the coal, we think the case is with the defendant upon the main question by reason of the clause in the lease which waives the right of surface support. The lease is for “ all of the merchantable coal ” in the property that can be worked, “ together with the right to mine and remove said coal in said veins until all the merchantable coal has been mined and removed from said veins on said hereby leased premises.” It provides for the method of mining; the royalty and method of payment, etc., and contains this clause: “ And it is hereby further agreed that the said lessee shall not be liable for any falling in of any part or parts or all of the surface of the said hereby demised premises in consequence of the mining and removing of all of the said coal, and the said lessors shall indemnify the lessee against any liability for any falling in of any surface of any lots in said demised premises, the surface of which may have been sold by said lessors.”
    The law upon the respective rights of the owners of the surface and the owners of the coal, is clearly stated in Barringer and Adams on Mines and Mining, 675 et seq.: “ Where there has been a horizontal division of the land, the owner of each subjacent estate owes to the owner of the superincumbent estate the support of his land in its natural condition, and the owner of the superincumbent estate has conversely a right to this support. This is an absolute proprietary right, necessarily arising out of the ownership of the surface, and not an easement depending upon a grant. The mine owner in taking out his minerals must leave sufficient support for the superincumbent land. This he may do by leaving ribs or pillars, or by constructing artificial supports. If he fails to do this, and the land sinks he is liable for the damage that occurs to the surface owner by reason thereof, and he may .be enjoined from the further removal of minerals. Whether the mine owner has worked his mine skillfully or negligently does not affect the existence of the right to surface support. . . .” “ The owner of the minerals has a right to so much only as he can take out without injury to the surface. . . .” “ Though the right of surface support is absolute, yet the subjacent owner may be relieved of the corresponding obligation by a release from the surface owner, or by the terms of the instrument creating his estate. But upon him who thus attempts to control the rule of law, lies the burden of proof. To destroy or injure the surface, there must exist some statutory or contract authority. The intention to part with the right of surface support must appear by plain and explicit languagein the grant of the minerals, or by an express exception from a reservation of them. It may not be taken away by mere implication from language not necessarily importing such a result.” These general principles are fulty supported by the cases in Pennsylvania: Lowry v. Hay, 2 Walk. 239; Gumbert v. Kilgore, 6 Cent. Repr. 406 ; Robertson v. Coal Co., 172 Pa. 566 ; Jones v. Wagner, 66 Pa. 429; Scranton v. Phillips, 94 Pa. 15; Coal Co. v. Hopkins, 198 Pa. 343; Williams v. Hay, 120 Pa. 485 ; and McDade v. Spencer, 6 Lacka. Leg. News, 84. The last case was one decided in this court, the opinion being by Edwards, P. J., who reviewed the authorities at length, and laid down the following propositions of law: “ 1. Where there has been a separation of the minerals from the surface, the owner of the mineral estate, in the absence of an agreement to the contrary, owes a servitude to the superincumbent estate of sufficient support. 2. There is no custom of mining which permits the owner of a mineral estate to remove the supports and allow the surface to sink. 3. The implied right of support to the surface may, however, be excepted from the grant by apt words in the deed, and where such exception has been made the grantor or those who claim under him may mine all the coal, even though by so doing the surface may fall in.” And Mr. Justice Paxson, in Williams v. Hay, 120 Pa. 485, tersely states the proposition as follows: “It is settled law in this state that when one person owns the surface and another person owns the coal or other minerals lying underneath, the under or mineral estate owes a servitude of sufficient support to the upper or superincumbent estate. This principle has no application where the same person is the owner of both estates, nor does it apply where by the contract between the parties they have covenanted for a different rule. - Like any other right, the owner of the surface may part with the right to support by his deed or covenant.”
    Applying these principles to this case it seems to us that the clause in the lease which we have quoted in which' it is specifically agreed that the lessee shall not be liable for the falling in of any or all of the surface on account of- mining and removing all of the coal, is such clear waiver of the right of surface support that it cannot be seriously questioned. This clause not only waives all right to surface support as far as the lessors are concerned, but it goes farther and stipulates that the lessors shall indemnify the lessee against liability for any falling in of the surface on any lots which may have been already sold. This language plainly shows that the intention was that all of the coal could be mined without liability for damage even though as a result all the surface might fall in. We cannot see how any language could more aptly express the agreement of the parties that the right to surface support was waived, and that all the coal was conveyed with the right to mine it with absolute disregard to the' effect upon the surface.
    We have examined the lease from beginning to end with a view of ascertaining whether there is anything to be found which would tend to modify the effect of the stipulation on the subject of damages to the surface, but have been unable to find any language which would have such a tendency. Counsel for the plaintiffs contend the clause which provides that “ if said lessors may wish at any time to have more pillars left in the mines than it appears to be the intention of the said lessee to leave, or that said lessee may have left in similar workings in said hereby demised premises the said lessors may, by written notice to said lessee, designate where and in what manner such pillars are to be left,” implies that pillars were to be left to support the surface. But we do not think such is the reasonable inference to be drawn. The clause is more or less ambiguous, yet it seems to us to mean that' during the process of mining the lessors shall have the right to see to it that the mining is conducted in a skillful manner so as not to destroy or injure tbe mine while the coal is being taken out. It is a matter of common knowledge that great quantities of coal in a mine might be entirely lost as the result of unskillful mining, and it is fair to suppose that when the lease was entered into it was the desire of the lessors that all the coal which the property could possibly yield might be taken out and paid for, and as the lessee might have abandoned the property or have become insolvent, or in some way the property might revert to the lessors before the coal was all mined, it was most desirable and proper that the lessors should have some say as to how the mining operations should be carried out. We do not think the principles of construction would warrant us in giving this last clause quoted the effect contended for by the plaintiffs. No notice was given in compliance with this clause, so no injunction can issue by virtue of violation of its provisions, nor is one asked for on that ground. The rule is, therefore, discharged, and the preliminary injunction refused.

      Error assigned was the decree of the court.

      H. M. Hannah and S. B. Price, for appellants.

      Everett Warren, with him E. N. Willard, Henry A. Knapp and Charles P. O'Malley, for appellee.
    March 19, 1906:
   Per Curiam,

We have not been convinced that this is a case requiring a preliminary injunction. Following the usual rule, therefore, we express no opinion on the merits.

Appeal' dismissed.


text:
    Hayes’s Election.

      Appeals — Jurisdiction—Supreme and Superior Court — Election contest— Question of costs — Title to public office.

    An appeal from a judgment of the court of quarter sessions, where the only matter in controversy is liability for costs in a contested election, must go to the Superior and not to the Supreme Court. Thomas’s Election, 198 Pa. 646, explained.
    Appeal, No. 255, Jan. T., 1905, from decree of Q. S. Lackawanna Co., April Sess. 1903, No. 283, in the Matter of the Election of'John Hayes, to the office of Burgess of Old Forge.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Remitted to Superior Court.
    Appeal from decree imposing costs on the petitioners in a contested election case.
    The case is stated in the opinion of the Supreme Court.

      A. A. Vosburg, with him John H Bonner, James E. Watkins and Edward W. Thayer, for appellants.

      M. J. Martin, with him John J. Toohey, for appellee.
    March 19, 1906:
   Per Curiam,

This case being an appeal from the judgment of the quarter sessions should have gone to the Superior Court. The language of the act of 1895 conferring jurisdiction on the Superior Court includes “ all proceedings of any kind in the court of quarter sessions .... except cases involving the right to a public office.” The present controversy does not involve any question of title to public office but only a matter of liability for costs in a contested election.

Appellants were no doubt misled by the case of Thomas’s Election, 198 Pa. 546, where this court entertained an appeal on what appears to be a similar question. That case in the court below involved the right to the public office of constable, though such right did not continue to be involved in the particular questions raised on the appeal. But it appears from an examination of the paper-books that the appeal was based on the alleged unconstitutionality of the Act of April 28, 1899, P. L. 118, if construed as the court below had construed it to be retroactive. No question was raised by either party as to the jurisdiction, and as the constitutional question was one that would ultimately come before it this court overlooked the fact that the appeal should have gone to the Superior Court first. In the present case, however, our attention having been drawn to the question of jurisdiction, we must adhere to the clear statutory lines.

The case is remitted at the costs of appellant to the Superior Court.