author: Mb. Justice Bbown, Mb. Justice Mestbezat and Mb. Justice Potteb

text:
    Russ, Appellant, v. Commonwealth.

      Constitutional law—Legislative authority—Appropriations—Contract to supply meals to members of the legislature while attending dedication of the Grant Monument in New York.

    By a concurrent resolution passed over the governor’s veto on April 21, 1897, by the senate and the house of representatives, the two houses resolved to attend in a body the dedication of the monument erected in memory of General Grant at New York, and further resolved “that all matters pertaining to such attendance be referred to the Committee on Military Affairs of the Senate and House.” The committees entered into a contract with a caterer to furnish two meals in New York on the day of the dedication. The meals, consisting of edibles, wines and cigars, were furnished in accordance with the agreement. Held, (1) that the committee had power under the resolution to make the contract; (2) that the legislature had the power under the constitution to authorize the committee to make the contract in question; and (3) that the contract did not violate article 2, section 8 of the constitution which prohibits members of the legislature from receiving any other compensation than their salary.

      Statutes—Diverse statutes—Construction.

    If divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them. It is an established rule of law, that all acts in pari materia are to be taken together as if they were one law.
    The concurrent resolution of April 21, 1897, P. L. 556, and the Act of May 15, 1903, P. L. 406, appropriating money to pay for the supplies furnished under the concurrent resolution are to be construed together as indicating the legislative understanding of what was intended by the concurrent resolution.

      Constitutional law—Legislative power—Restrictions on legislature.

    The test of legislative power is constitutional restriction; what the people have not said in the organic law their representatives shall not do, they may do.
    There is nothing in the constitution of Pennsylvania to prohibit the legislature from attending a commemorative patriotic celebration in a body, and to provide that the expenses of their meals when attending such celebration shall be paid out of the public funds.
    Mestrezat and Potter, JJ., dissent.
    Argued May 24, 1904.
    Reargued October 17, 1904.
    Appeal, No. 7, May T., 1904, by plaintiff, from order of C. P. Dauphin Co., Commonwealth Docket, 1908, No. 26, refusing to takeoff nonsuit in case of James Russ v. Commonwealth of Pennsylvania.
    Before Mitchell, C. J., Dean, Fell, Brown, . Mestrezat, Potter and Thompson, JJ,
    Reversed.

      Assumpsit on a contract.
    The court entered a compulsory nonsuit which it subsequently refused to take off, Weiss, P. J., filing the following opinion:
    The plaintiff was authorized and allowed by an Act of Assembly, approved April 25, 1903, P. L. 315, to bring suit in this court against the commonwealth “ to recover any sum or sums of money that may be legally or justly due him.”
    He sued in assumpsit and in his statement claims $5,911.16 with interest from May 1, 1897, on a book account for “ table supplies, wines, liquors, car fare, services, etc.,” furnished to the legislature of Pennsylvania on the occasion of the excursion of that body “to New York City to attend the General Grant monument dedication ceremonies,” April 27,1897.
    The claim is founded upon a contract entered into by the committee of military affairs of the senate and house of representatives of Pennsylvania with the plaintiff, claiming to act pursuant to a concurrent resolution passed by the senate and house of representatives after the same was disapproved by the governor and returned with his objections to the senate, in which it originated, and the house of representatives, and which read as follows:
    “ In the Senate, March 25, 1897.
    “Whereas, The dedication of a monument, erected in memory of the late General U. S. Grant in New York, occurs on April 27th, and is a matter of national importance, which the Commonwealth of Pennsylvania should suitably recognize as commemorating the life and deeds of a hero whose memory we revere; therefore be it
    “ Resolved (if the House concur), That the Senate and House of Representatives attend said dedication in a body, and that all matters pertaining to such attendance be referred to the Committee of Military Affairs of the Senate and House.”
    The cause came on for trial and was so proceeded in that at the close of the plaintiff’s testimony the defendant moved that a nonsuit be directed to be entered, which the court allowed, and the correctness of the allowance of the motion therefor is now for consideration.

      The question embraces the authority of the committee of military affairs to make the contract'; and if such authority is given, whether the legislature has the power to confer the authority to enter into the contract with the plaintiff.
    The plaintiff urges the view that as the legislature has unlimited power to tax, so it has unlimited power tó'expend public moneys, except as it is restrained by constitutional ordinance.
    The power to tax the subject when exercised is for public purposes, and it ought to follow that the power to expend public revenues is exercisable for public uses.
    A contract authorized by the legislature ought to be expressed in clear and unambiguous terms. Nothing relating to the essence of the contract should be left to inference.
    The reverence for the memory of the hero, whose monument was to be dedicated, is expressed in apt language in the concurrent resolution. So is that part of the resolution which recognizes the propriety of attendance by the senate and house of representatives at the ceremonies incident to the commemoration of the life and deeds of the great soldier. But the entertaining clause, from which the authority to contract must be derived, lacks the perspicuity which characterizes the other declarations. “All matters pertaining to such attendance be referred to the Committee of Military Affairs ” is not expressive of authority to contract for food and drink. The latter are incident to sustenance, but not to attendance, as such, upon a ceremonial.
    It would have been an easy task to embody in the resolution the delegation of authority to the joint committee to make the contract with the plaintiff.
    It could not be said of a person who would refer all matters pertaining to a mission, not of a business character, to another, not theretofore employed by him, that authority was thereby given to bind the party referring the matters, by a contract. The very act of reference would indicate that some report should be made to him.
    The resolution is silent as to the character and extent of the entertainment or the price to be paid.
    If it contemplated viands it was unlimited in quantity and expenditure. It is true the intention of the legislature must be ascertained, but it must be ascertained from the context and not from what may have been in the breasts of the legislators, or of the members of the joint committee.
    Little can be predicated upon the construction put upon the resolution by the joint committee or the members of the legislature.
    The testimony discloses the alacrity with which some of the members of the joint committee engaged potables immediately after its organization.
    It was incurring indebtedness for personal and private objects. That the attendance was to be by the body does not stamp it with a public character. The dedicatory services were of a general public character. But the attendance by the members of the senate and house of representatives in a body was nevertheless a private or personal affair.
    The effect of such construction is that public moneys are expended upon the members of the legislature attending the dedication in a body, and that by themselves upon themselves. The resolution lacks every element of authority to expend public money for public purposes, and interpretation of the resolution by themselves for their personal entertainment is not persuasive.
    The vice of the resolution, so far as concerns a contract, is that it does not obligate the state to pay, or authorize it to be done, nor does it disclose the banqueting feature as an incident to the dedication, nor that public money was to be appropriated to defray the expenses incurred during the attendance.
    That may have been the intention in the mind of the legislators or it may be gathered from the subsequent action of the body or committee. But the resolution itself gives no token of such a purpose and no extraneous intention can be read into it.
    Nor is the Act of May 15, 1908, P. L. 406, making an appropriation for badges furnished, or “ merchandise furnished ” as it is generically called in the act, any aid in construing the resolution as conferring authority to contract this bill. An appropriation following the resolution would establish an analogy, but bills of appropriation made for the purpose were twice vetoed by two successive governors.
    Concurrent resolutions were passed in 1899 (P. L. 407), and in 1903 (P. L. 547), authorizing the appointment of committees to make arrangements for the inauguration of governors, who were authorized to expend a designated sum in carrying out the same and whose chairmen were required to file with the accounting department vouchers and full proofs showing the manner of disbursements, and these were followed by appropriations of moneys for the purpose (P. L. 1899, page 48, and P. L. 1903, page 534).
    It is apparent that this affords no guide to the interpretation of the resolution under consideration.
    A reference by the legislature of all matters pertaining to an excursion, to a committee, is too vague and uncertain to warrant the conclusion that thereby the committee was empowered to contract with the plaintiff for food and drink to be furnished on this occasion.
    That the members of the legislature participated in the feast does not show that providing and serving it was contemplated by the terms of the concurrent resolution, nor does so doing bind the commonwealth.
    It is against the interest of the state to sustain the doctrine that the legislature may expend public money upon a banquet provided during an attendance by the members in a body upon a dedication, public in its nature, pursuant to a resolution of reference to a committee, which in general terms embraces all matters pertaining to the attendance.
    It is no hardship to require, if such power exists, that the purpose be clearly expressed, and rules of interpretation cannot be invoked, by way of enlarging authority, to transform a memorial resolution into a contract for a festival.
    A reference does not imply power of final action. The resolution is ominously silent in respect of the object of the reference so far as relates to the subject-matter of this claim, or of the commonwealth’s liability for anything the committee might do, or of the extent of the obligation to be incurred, or of the moneys to be appropriated therefor.
    If not suppressed, all this is unexpressed. Except by ratification authority in writing is not construed into a contract by subsequent events. It is established by the instrument, and a reference of matters pertaining to an attendance upon a ceremony is at variance with power to contract a bill for food and drink which, however necessary, are not pertinent to the attendance. Assuming the general power of the legislature to make or authorize a contract of this kind, a safe premise to lay down is, that the contract of the authority to make it must be set forth in clear and unambiguous language and that nothing substantive can be left to conjecture.
    This resolution in our opinion offends against this rule and the right of the committee to make the contract claimed must be denied.
    Having failed to show authority on the part of the committee with whom he contracted, the plaintiff’s claim falls. He has no cause of action and consequently has no right of recovery from the commonwealth. In view of the foregoing, there is no need to determine whether there is a constitutional inhibition against the making of the contract or authorizing it to be made by the legislature, and the motion to take off the judgment of nonsuit is, accordingly, overruled.

      Error assigned was refusal to take off nonsuit.

      M. W. Jacobs and John E. Fox, for appellant.
    The joint committee, composed of a large number of members of both houses, construed the resolution to authorize the incurring of expenses ; a great majority of the members of both houses so construed it, as also did the legislature of 1897, by passing the vetoed bill, and the legislature of 1903, by passing the approved act. We thus have the contemporaneous construction, which is always valuable and persuasive, “contemporánea expositio est optima et fortissima in lege ” and the subsequent act, which was, not only in pari materia, but was directly interpretative : United States v. Freeman, 3 How. 556 ; Com. v. Fraim, 16 Pa. 163; Big Black Creek Imp. Co. v. Com., 94 Pa. 450 ; Umholtz’s License, 191 Pa. 177.
    The intention of the legislature is the thing to be ascertained, and, in ascertaining it, if the circumstances so require, the courts will go beyond the letter of the legislative act, and even give the act a construction which appears to be contrary to its letter.
    The resolution as the legislature construed it, and as, we submit, it ought to be construed, was within the constitutional power of that body to pass : Com. v. Mann, 5 W. & S. 403; Moers v. Reading, 21 Pa. 188; Norris v. Clymer, 2 Pa. 277; Briscoe v. Bank, 36 U. S. 257; Bergner v. Harrisburg, 1 Pears, 291; Com. v. Gingrich, 21 Pa. Superior Ct. 286 ; Tatham v. Phila., 2 W. N. C. 564; Tagg v. Phila., 18 W. N. C. 79; Morton v. Phila., 4 Pa. Dist. Rep. 523.
    The furnishing of the meals to the members of the legislature who participated in the trip was not intended as, nor was it, “ compensation ” for any services rendered by them: Sharpless v. Philadelphia, 21 Pa. 147.

      C. U. Bergner and Hampton L. Carson, attorney general, with them Frederic W. Fleitz, deputy attorney general, for appellee.
    It is a sufficient answer to the so-called contemporaneous construction to say that if the language used in the joint resolution does not plainly and unmistakably mean that a contract binding the state is authorized to be made by the committee of military affairs, a subsequent act of the legislature, expressly declaring that the words used shall be construed to mean that such contract could be made, would be unconstitutional : Commonwealth ex rel. Roney v. Warwick et al., 172 Pa. 140.
    An act of the legislature, expressly passed for the purpose of placing upon words a meaning which the words themselves would not reasonably support, would be invalid.
    A trustee has never been permitted to speculate with the estate of the cestui que trust, nor afford himself entertainment, enjoyment or profit at its expense.
    ■ Compensation to members is properly for time spent, for services performed and for personal expenses incurred for the public; but the forms of the compensation to be made to them for outlay, time and labor are the two expressly fixed by the constitution, namely, salary and mileage, which are declared to exclude all others: Buckalew on the Constitution, page 40.
    January 9, 1905 :
   Opinion by

Mb. Justice Bbown,

Want of authority from the state to the committees of military affairs of the senate and house to enter into a contract with the plaintiff was the reason given for the entry of the nonsuit and the refusal to take it off. If there was such authority, it is to be found in the following preamble and resolution passed over the veto of the governor: “ Whereas, the dedication of a monument erected in memory of the late General U. S. Grant, in New York, occurs on April 27, and is a matter of national importance, which the commonwealth of Pennsylvania should suitably recognize as commemorating the life and deeds of a hero, whose memory we revere; therefore be it resolved (if the house concur), that the members of the senate and house of representatives attend such dedication in a body, and that all matters pertaining to such attendance be referred to the committee of military affairs of the senate and house.”

In tbe preamble there is not only a recognition by the people of the state, through their representatives, of the national importance of the dedication of the monument to a great soldier, but an avowal of the commonwealth’s duty to suitably recognize the event. This was laudable, because it was patriotic. By the resolution action was taken, committing the state to participation in the dedicatoiy exercises. It was sent to the governor for his approval, because it must have been regarded by those who passed it as committing the state to it, and, if so, it was a matter in the nature of legislation. It is only such resolutions that require executive approval under section» 26, of article III of the constitution: Commonwealth v. Griest, 196 Pa. 396. If both houses had simply resolved to attend the exercises in a body, and to adjourn for a day for that purpose, it would have been no concern of the governor, and they could have gone with or without his approval; but if more was embodied in the resolution, amounting practically to an enactment authorizing special committees of the senate and house to act on behalf of the state in making suitable the recognition which both branches of the legislature had agreed upon, it was for the governor to approve or disapprove.

But the contention of the learned counsel for the commonwealth is that, even if the resolution does involve legislation, no authority to act was conferred upon the committees by the words “ all matters pertaining to such attendance be referred to the committee of military affairs of the senate and house,” their duty being simply to consider and report to the respective houses. This cannot be regarded as the reasonable meaning of the words. While there is no express authority given to the committees to do any particular thing, there is, on the other hand, no direction to them to report, and that they were to act, and not simply report what further action each house should take, seems to be manifest. The resolution was first introduced in the senate. Why should it ask for a report from the committee of military affairs of the house as to what it should do, and why should the house, subsequently concurring in the resolution to attend the dedication in a body, ask for a report from the senate’s committee ? Both bodies had resolved to go, and referred all matters in connection with their going to a joint committee composed of the appropriate committee of each. The intention of the legislature is to be gathered not from the strained, but from the natural, meaning of the reference to the committee of all matters relating to the attendance. “ All matters pertaining to such attendance ” certainly included arrangements for the transportation and entertainment of the members of the legislature, and if these were referred to the committees, the common understanding would be that they were to make them. If so, the power had necessarily been conferred on the committees of contracting for such arrangements. They so understood the resolution; the plaintiff, who dealt with them, had the same understanding of it; and the members themselves intended that it should be so understood, for, without calling for or receiving any report from the committees, they accepted the arrangements that had been made for them. The failure of the learned court below to so interpret it must be regarded as error. We consider this clear, with nothing before us except the resolution itself; but subsequent legislation, while not purporting to be expository of it, unmistakably indicates the legislative understanding of what was intended by it. By an act passed at the same session, though vetoed by the governor because regarded as an improper expenditure of the public funds, an appropriation was made for the payment of the expenses incurred by the legislature “ in attending the ceremonies connected with the unveiling of the monument at the tomb of General U. S. Grant.” From the testimony, it appears that the only expenses incurred were for the entertainment furnished by the plaintiff and for badges supplied by J. H. Shaw. By the Act of May 15, 190B, P. L. 406, the sum of $421 was appropriated in payment of tlie badges furnished by Shaw. These acts were passed by the legislature with section 11 of article III of the constitution before it, providing that no bill shall be passed “ for the payment of any claim against the commonwealth without previous authority of law.” The authority of law here was the reference by the legislature of all matters pertaining to the attendance to the committees of military affairs of the senate and house. The resolution and acts of 1897 and 1908 related to the same subject-matter, and are to be considered together in determining the legislative intention. “ The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established rule of law, that all acts in pari materia are to be taken together, as if they were one law: Doug. 30; 2 Term Rep. 387, 586; 4 Maule & Selw. 210. If a tiling contained in a subsequent statute, be within the reason of the former statute, it shall be taken to be within the meaning of that statute : Lord Raym. 1028 ; and if it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute : Morris v. Mellin, 6 Barn. & Cress. 454; 7 Barn. & Cress. 99. Wherever any words of a statute are doubtful or obscure, the intention of the legislature is to be resorted to, in order to find the meaning of the words: Wimbish v. Tailbois, Plowd. 57. A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter: Stowell v. Zouch, Plowd. 356. The citations are but different illustrations of the rule, that the meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed—the limitation of the rule being, that to extend the meaning to any case not included in the words, the case must be shown to come within the same reason upon which the lawmaker proceeded, and not only within a like reason: ” United States v. Freeman, 3 Howard, 556.

A second question raised by the appellee is as to the power of the legislature to authorize the committees to make such a contract as the one on which the plaintiff sues. The test of legislative power is constitutional restriction. What the people have not said in the organic law their representatives shall not do, they may do. It is hardly needful that authorities be cited and multiplied in support of this, but, as they seem to be unheeded whenever legislation is not in accord with the sense of right, propriety and views of those affected by it, there is nothing for us to do except to keep on repeating, even at great length, what has been said, in the hope that ultimately legislative power may be better understood.

“ The constitution allows to the legislature every power which it does not positively prohibit: ” Norris v. Clymer, 2 Pa. 277. “To me, it is as plain that the general assembly may exercise all powers which are properly legislative, and which are not taken away by our own, or by the federal constitution, as it is that the people have all the rights which are expressly reserved. We are urged, however, to go further than this, and to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we cannot do this. It would be assuming a right to change the constitution, to supply what we might conceive to be its defects, to fill up every casus omissus, and to interpolate into it whatever in our opinion ought to have been put there by its framers. The constitution has given us a list of the things which the legislature may not do. If we extend that list, we alter the instrument, we become ourselves the aggressors, and violate both the letter and spirit of the organic law as grossly as the legislature possibly could. If we can add to the reserved rights of the people, we can take them away; if we can mend, we can mar; if we can remove the landmarks which we find established, we can obliterate them; if we can change the constitution in any particular, there is nothing but our own will to prevent us from demolishing it entirely. The great powers given to the legislature are liable to be abused. But this is inseparable from the nature of human institutions. The wisdom of man has never conceived of a government with power sufficient to answer its legitimate ends, and at the same time incapable of mischief. No political system can be made so perfect that its rulers will always hold it to be the true course. In tbe very best a great deal must be trusted to the discretion of those who administer it. In ours, the people have given larger powers to the legislature, and relied, for the faithful execution of them, on the wisdom and honesty of that department, and on the direct accountability of the members to their constituents. There is no shadow of reason for supposing that the mere abuse of power was meant to be corrected by the judiciary. There is nothing more easy than to imagine a thousand tyrannical things which the legislature may do, if its members forget all their duties, disregard utterly the obligations they owe to their constituents, and recklessly determine to trample upon right and justice: ” Black, C. J., in Sharpless v. Mayor of Philadelphia, 21 Pa. 147. “ However easy it may be to demonstrate that public debts ought not to be created for the benefit of private corporations, and that such a system of making improvements is impolitic, dangerous, and contrary to the principles of á sound public morality, we can find nothing in the constitution on which we can rest our consciences in saying that it is forbidden by that instrument:” Moers v. City of Reading, 21 Pa. 188. “ Nothing but a clear violation of the constitution—a clear usurpation of power prohibited—will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void : ” Pennsylvania Railroad Company v. Riblet, 66 Pa. 164. “To justify a court in pronouncing an act of the legislature unconstitutional and void, either in whole or in part, it must be able to vouch some exception or prohibition clearly expressed or necessarily implied. To doubt is to be resolved in favor of the constitutionality of the act. This rule of construction is so well settled by authority that it is entirely unnecessary to cite the cases: ” Commonwealth ex rel. Wolfe v. Butler, 99 Pa. 535. “In creating a legislative department, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete authority as it vests in and may be exercised by the sovereign power of any state, subject only to such restrictions as they have seen fit to, impose, and to the limitations which are contained in the constitution of the United States. The legislative department is not made a special agency for the exercise of specially defined legislative powers, but is intrusted with the general authority to make laws at discretion: ” Powell v. Commonwealth, 114 Pa 265. “ But whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution. Certain grants of power, very specifically set forth, were made by the states to the United States, and these cannot be revoked or disregarded by state legislation; then come the specific restraints imposed by our own constitution upon our own legislature ; these must be respected; but in that wide domain not included in either of these boundaries the right of the people through the legislature to enact such laws as they choose, is absolute. Of the use the people may make of this unrestrained power, it is not the business of the courts to inquire. We peruse the expression of their will in the statute; then examine the constitution and ascertain if this instrument says, thou shalt not,’ and if we find no inhibition, then the statute is the law simply because it is the will of the people, and not because it is wise or unwise: ” Commonwealth ex rel. v. Reeder, 171 Pa. 505. Prima facie, the legislative authority is absolute except where expressly limited. This is the uniform principle of all political and legal views, and of all constructions recognized by constitutional law: ” Commonwealth v. Moir, 199 Pa. 534. “ The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the state, except as' those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise and oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of riglit, reason and expediency with the lawmaking power. . . . If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the constitution: ” Cooley on Constitutional Limitations, ch. 7, secs. 4 and 5 (6 ed. 1890, p. 201).

Scanning the list of expressly forbidden legislation, as found in section 7, article III, of the constitution, there is no restriction upon what was done by the legislature in its action assailed in this proceeding; nor is there any other line in that instrument by which the action is impliedly prohibited, for nowhere is such legislation, or anything relating to it, mentioned. The resolution may be regarded by some as unwise and improper, and if in any legislative district there were those so minded at the time it was adopted, and they happened to be in the majority, they had the opportunity to exhibit their disapproval, if any senator or member who voted for it came up for re-election. It is doubtful, however, if any legislative career would have been cut short for support of the measure. From time out of mind legislative bodies have, at the public expense, and with hearty popular approval, paid fitting tribute to the deserving dead, who, in peace or war, had served the state or nation; and public money so expended is well spent for the public, for it strengthens and elevates patriotism, and helps to make better men and women of the young who witness the homage so paid. But this digression need proceed no further.

We do not understand that if the legislature had named a separate commission to represent the state at the exercises, and had provided for the payment of its expenses, the power to do so would be questioned; but because the two bodies constituted themselves such representatives, the power is questioned, for the reason that, as the claim of the plaintiff is for food and drink furnished them, they will, if it is allowed, receive compensation in violation of section 8, article II, of the constitution, which provides that “ The members of the general assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise.”

Proper entertainment of the legislature was not merely incidental to its attendance at the dedication, but was necessary, and, therefore, formed part of the state’s expenses in making suitable recognition of the ceremony. The concurrent resolution contemplated the payment of nothing but such expenses, and their payment to the man who furnished what was so necessary cannot be regarded as compensation or pay to the members of the legislature for their services as legislators in any sense, whether such strained meaning for “ compensation ” be searched for in dictionary or encyclopedia of law, or the word is to be interpreted as popularly understood.

It is conceded by the learned and able counsel for appellee that the payment of the expenses may not be technically compensation, and yet, by the process of reasoning through which they would have us declare it to be compensation within the constitutional prohibition, the very ink furnished to senators and members, and the pens dipped into it in answering the daily inquiries of constituents, would have to be regarded as constitutionally unlawful compensation to them, if paid for by the state.

The payment of expenses by the state in having itself fittingly represented, when it ought to be represented on great public occasions, involves nothing but the maintenance of its own dignity; and who shall represent it, or how it shall be represented, is for the legislature alone. If in their judgment its members, representing every portion of the state, ought to do so, who can better represent the commonwealth, and when they do so, what legislative service are they rendering for which they are receiving forbidden compensation because the state pays the expenses necessarily incident to its representation ? The state is often represented by commissions created by the legislature, composed in part of members of the senate and house, but no one bas ever thought of asking a court to say that those members of such a commission who happen to be senators or representatives receive prohibited compensation because their hotel bills are paid with those of the other members of the commission out of the appropriation for the payment of its legitimate expenses. That members of a legislature may be only part of such commission, instead of as one body being the state’s sole representative, can make no difference in principle, if the position taken by the appellee is to be sustained. It has not been very elaborately pressed by the learned counsel representing the commonwealth, and we need, not discuss it further.

In disposing of the questions raised on this appeal, we have nothing to do with the appellant’s claim as presented in the court below; and it would, therefore, be improper for us to say anything about it. If, after it shall have been passed upon by a jury, the plaintiff or defendant should feel aggrieved by the finding, and the court below should not correct any wrong that may be done, the alleged grievance may be the subject of another appeal. All that we now decide is that, by the act authorizing the appellant to sue the commonwealth, he is to recover such sum as under the rules of pleading and evidence may be justly due him. Under these rules the case must be tried, and such sum awarded to him as, under proper instructions from the court and under all the proofs, the jury may find to be just.

Judgment reversed and procedendo awarded.

Mb. Justice Mestbezat and Mb. Justice Potteb

dissenting :

That there may be no doubt as to the claim for which this action was instituted and the items of which the majority of this court says are chargeable against the commonwealth of Pennsylvania, we state the claim in the language of the plaintiff himself, as found in his statement, as follows :

“ Legislature of Pennsylvania,

“ Excursion to New York City

“ General Grant Monument Dedication.

“ To James Russ, Dr.

“ 1887

“April 27, To table supplies..........$1,678.36

wines and liquors....... 3,026.60

supper at Dooner’s for Com. 61.90

J. H. Riebel, cigars...... 450.00

hire of china and breakage . 187.53

employees’ services ...... 240.00

Amount brought forward............$5,644.39

car fare.............. 202.50

purchase of stoves....... 70.00

freight charges......... 8.75

James Russ, incidental expenses ............. 175.00

$6,100.64

“Cr. By liquors returned........ 157.00

sale of stoves.......... 32.00 189.00

$5,911.64

The edibles and drink were furnished as a lunch and dinner, both meals being served between the hours of 11:30 A. M. and 6 p. M., on the boat which carried the legislative excursionists on the Hudson river from Jersey City to a point opposite the Grant monument, a distance of ten miles or less, and back. There were 425 persons, of which number 253 were members of the legislature. Relative to the meals and liquors furnished, Senator Krause, chairman of the joint committee to make arrangements for the excursion, testifies as follows: “ Q. Tell us what he (Russ) furnished. A. He furnished the lunch; as soon as we arrived at Jersey City and got on the boat there was a very nice lunch prepared for us. Q. Go on and state what else Mr. Russ did. A. After the ceremonies were over he furnished an elegant dinner for us, with wines and liquors and everything included, with the cigars; had cigars going on the train, cigars on the boat, and everything in first-class order. Q. Do you remember the kind of wine that was furnished ? A. White Seal; wasn’t any too good for the members of the legislature, we thought. Q. Do you remember what else was furnished, can you tell what was furnished in the way of food for the dinner ? A. Oh, it was so fine that I forget exactly all the elegancies that we had; we had everything first class. Q. Can you tell us what other liquors were furnished ? A. Liquors of all description. Q. Describe them; tell what they were. A. We had plenty of whisky, and we had plenty of beer and plenty of appollinaris; I don’t know how many drank apollinaris, but apollinaris was furnished. Q. Did you specify what liquors? A. Yes, sir; as far as the wines were concerned, because that was a motion unanimously carried in the committee. Q. You did not specify anything with respect to the whisky, beer or cigars ? A. Oh, I told him we wanted all those things. Q. I understand, generally speaking, senator, that you ordered nothing special from Mr. Russ except the wine ? A. That is all. Q. You left it to his discretion? A. That is right.”

John Riebel, a cigar manufacturer of Philadelphia, was a member of the military committee of the house as well as of the joint committee to arrange for the excursion. He was called as a witness by the plaintiff and testified that the joint committee, about three fourths of which were present, held a meeting in Philadelphia the night before the excursion, and that Mr. Dooner served them with a lunch for which a charge is made in the plaintiff’s bill. He further testified: “ Q. Can you tell what he (Russ) gave to you as lunch ? A. Only a first-class lunch; I can’t begin to enumerate what articles he had there, or what food he had there; a first-class lunch in every respect. Q. State whether he provided anything else. A. On our return back he had supplied one of the finest dinners a man wanted to sit down to, served on the boat, had all the elegancies of the season, anything you can mention in the eatable line almost.”

As to the contract made with him by Senator Krause and what was furnished in pursuance of it, the plaintiff testifies : “ Q. What did he say to you when he came there ? A. He told me he wanted a first-class layout, everything up to date, and I did so. Q. What did he tell you he wanted as to the number of meals if anything? A. Well, a lunch the moment we got on the boat and a dinner returning towards New York—Jersey City. Q. What did he (Krause) say? A. He said I should go, ahead and make all arrangements, and especially the one thing that they (the committee) put out especially was ‘ White Seal champagne.’ Q. (Mr. Fox) now can you state what you did furnish? A. Oh, Lord, I furnished everything, they had a nice lunch and very fine dinner. Q. Now about how much a head did you calculate to charge ? A. I did not calculate at all, there was no price whatever, if it cost $5,000,000 there was no price at all that was to it. Q. In other words, there was no limit put on the cost? A. No, sir; not a cent. Q. You don’t know the kind of liquors returned? A. No. Q. Do you know the price charged for the returned liquors ? A. Just that much there; it was very lucky any was returned at all.”

The only basis for this claim of $5,911.16 against the state for table supplies, wines and liquors, cigars and “ incidental expenses ” (about one half of the claim, it will be observed, being for wines and liquors) is a joint resolution passed by the senate and house of representatives over the veto of the governor in which it is resolved “ that the senate and house of representatives attend said dedication (of the General Grant monument in New York) in a body, and that all matters pertaining to such attendance be referred to the committee on military affairs of the senate and house.” The learned trial judge held that this resolution conferred no authority on the committee to make a contract with the plaintiff for the items charged in his bill, and hence he had no valid claim against the state. For the reasons set forth a-t length in the opinion refusing to take off the nonsuit, we entirely concur with the conclusion of the court below, and would affirm the judgment.

It does not aid the position of the majority of the court to cite authorities to sustain the proposition, conceded to be the settled rule in all the states of the federal union, that the power of the general assembly of a state to legislate is absolute, subject only to the restrictions and limitations imposed by the constitution of the state and that of the United States. That principle is not controverted, but it is most strenuously denied that the legislature, by the joint resolution in question, gave authority to the committee on military affairs to bind the state by a contract to pay the plaintiff the claim for which this action was brought. It is apparent that the language of the resolution conferred no direct authority on the committee to enter into a contract to bind the state for any expense incurred by the legislature in attending the dedicatory exercises. If any authority to contract for such purpose is given, it is by implication and that alone, and not being necessarily implied from the power conferred upon the committee by the joint resolution, the court should not sustain it on that ground. The character of the claim conclusively rebuts any implication that the legislature in passing the resolution intended to authorize the committee to make a contract for it. Such interpretation of the resolution opens the door to raids upon the state treasury by committees of the legislature by which the taxpayers of the state can be made to pay claims which, as in this instance, the general assembly of the commonwealth or no other self-respecting legislative body, would for one instant think of approving. Had the plaintiff’s claim, the character of which is shown by the items thereof and the testimony, been presented to the senate and house in open session at the time the joint resolution was passed, we are satisfied that those bodies would not have authorized the committee to contract for or pay it. It would have shocked the legislative conscience, as well as that of the people of the commonwealth. The testimony leaves no doubt as to the purpose in view when the contract was made. and what was expected to be, and what was, furnished in pursuance of it. About seventeen hundred dollars’ worth of food and three thousand dollars’ worth of wines and liquors were consumed on the steamer by the 425- guests of the state in six and one-half hours. This tells the brief but comprehensive story of the manner in which the money claimed here was applied (in the language of the preamble to the joint resolution) “ in commemoration of the life and deeds of a hero whose memory we revere.” Further comment upon the subject is unnecessary. To hold that authority was conferred upon the legislative committee by the concurrent resolution to contract for such a claim, is violative of all sound rulos of interpretation, and is not supported by reason or authority.

We would, morever, take a step further than the trial court and hold that the legislature was prohibited by the constitution from authorizing the committee to make the contract under which this claim is made against the state. Article 2 of section 8 of that instrument provides: “ The members of the general assembly shall receive such salary and mileage for regular and special sessions as shall bo fixed by law, and no other compensation whatever, whether for services upon committee or otherwise. No member of either house shall, during the term for which he may have been elected, receive any increase of salary, or mileage, under any law passed during such term,” At the time of the excursion to New York, the members of the legislature were receiving as compensation a salary and mileage fixed by law and hence under this constitutional provision they could receive “no other compensation whatever.” Equally explicit and mandatory is the provision that no member shall “ receive any increase for salary or mileage under any law passed during the term ” for which he is elected. Mr. Buckalew, a recognized authority upon the interpretation of the constitution, says (Constitution 40) : “ Compensation to members is properly for time spent, for services performed and for personal .expenses incurred for the public; but the forms of the compensation to be made to them for outlay, time and labor are the two expressly fixed by the constitution, namely, salary and mileage, which are declared to exclude all others.” A member of the legislature is therefore confined to his salary and mileage as compensation for his services, in neither of which is the claim here presented included. The joint resolution shows that the members attended the dedication as a legislative body, and the claim for the edibles, liquors, cigars, etc., furnished by the plaintiff -is “ other compensation ” to the members of the legislature than salary and mileage and therefore is clearly within the constitutional inhibition. If the sum claimed by the plaintiff had been paid by the state to the members to defray their expenses in attending the dedication, it would clearly have been additional to the compensation allowed them by law. The practical effect of a payment by the state direct to the plaintiff is the same as a payment of the amount to the members and by them to the plaintiff. In either case, they receive an additional compensation from the state for their services as members of the legislative body to which they belong.


source: Caselaw Access Project

author: Mb. Justice Thompson,

license: Public Domain

text:
    Sweigert v. Klingensmith, Appellant.

      Negligence—Master and servant—Proper appliances—Instructions as to work—Question /or jury.

    The duty of an employer is to provide an employee a safe place in which to work and to furnish him with suitable appliances and, if inexperienced, to make known to him any danger peculiar to their use.
    In an action by an employee against his employer, the owner of a gristmill, to recover damages for personal injuries sustained by the plaintiff while throwing off a belt from a pulley by moans of a stick, the case is for the jury where the evidence for the defendant tends to show that in gristmills of the character owned by the defendant, the method of removing belts from pulleys was by the use of a stick, while the evidence for the plaintiff tended to show that the general usage was to have a shifter to throw the belt off the pulley, and to have guards between moving belts.
    In such a case where the employer tells the plaintiff to follow the orders of the head miller, and the latter directs the plaintiff to throw off the belt with a stick, but gives him no instructions as to how to do it, and it appears from plaintiff’s testimony that plaintiff had no experience in running machinery, the case is for the jury on the question of instructions.
    Argued Oct. 11, 1904.
    Appeal, No. 88, Oct. T., 1904, by defendant, from judgment of C. P. Armstrong Co., • March Term, 1908, No. 190, on verdict for plaintiff in ease of Harry E. Sweigert v. Samuel Klingensmith et al, trading as J. Klingensmitli Mills.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Patton, P. J.
    The facts appear by the opinion of the Supreme Court and by the charge of the court below which was in part as follows :
    That is the question for this jury to pass upon. Did Samuel Klingensmith furnish to Harry Sweigert such appliances and machinery to work with as were in ordinary use in this vicinity in mills of the character in which he worked ? If be did, then the plaintiff cannot recover.
    [On the part of the plaintiff it is alleged that Mr. Klingensmith did not do that. He says that Mr. Klingensmith was negligent in this, that in ordinary mills a guard is erected between the buckwheat shucker belt and the cornmeal bolt belt, that that is the ordinary appliance used in such mills, and that none was used in this mill. He also says that in ordinary mills a shifter is used to throw these belts off the pulley and not a stick, as was used in the Klingensmith mill. He also complains that this ladder, which he had to stand upon, was broken and was tied together with rope and that it was not a suitable appliance for such work in such a mill. How is that, gentlemen ? Did Mr. Klingensmith provide and use the ordinary safety appliances that are used in mills of ordinary character ?] [3]
    [In regard to that, the first witness called was J. R. Young. His testimony in regard to that was rather unsatisfactory, as he concluded by saying that he saw more mills without these appliances than with them. The next witness was H. L. Pond, who stated that he had experience for thirty-four years, erecting mills all over the country, and that the way the Klingensmith mill was set up was not the safe way to set up machinery, as shown by the model, and he explained to you that there should have been a guard there between those two belts, or some appliance to keep the upper belt from falling down on the lower belt, and he says that there should be a shifter there to throw the belt, and he says that that is the way ordinary mills are built. D. H. Boards, who is a miller here in Kittanning, testified that he had about twenty-five, years’ experience, and that the usual method in setting up such machinery was to put guards between the belts.] [4]
    [That is substantially the testimony on part of the plaintiff. If you believe that the ordinary method of setting up this kind of machinery, in this class of mills, is by having safety appliances, and that they should have a guard bet-ween those belts and should have a shifter to throw the belt, and that this was not done or used in the Klingensmith mill, then the defendant is bound to respond in damages, because, as we have instructed you, it was the defendant’s duty to furnish its workmen with ordinary safe appliances, not the best safety appliances nor the best machinery, but just such as is generally used in ordinary mills of a like character.] [5]
    [Now, gentlemen, there is a serious discrepancy or contradiction in the evidence of these witnesses on the part of the plaintiff, and on the part of the defendant. You will have to reconcile that as best you can.
    In regard to the step ladder, which Mr. Sweigert said was broken and tied with a rope, Charles Klingensmith and Samuel Klingensmith and Mr. Hepler and Mr. Hays are called, and they say that there were ropes on the ladder, but that the ropes were not used to tie the ladder up, but to keep it from spreading apart, and that the use of the ropes was a safety and not a dangei'ous appliance on that ladder, and they also testify that the step ladder iix no way contributed to the injury. If that is true, if the step ladder did xxot contribute to the injury, then it is not material iix this case.] [6]
    [So you have oxxe set of witnesses who testify that in the ordinary mills of this character the method of removing the belts from the pulleys is by the use of a stick. If that is correct, then the plaintiff is not exxtitled to recover. If you find the contrary to be true, and that iix ordinary mills the general usage is to have a shifter to throw the belt off the pulley, and to have guards between moving belts, then the plaintiff is entitled to recover', because it was the duty of the defendant to furnish the plaintiff with the ordinary safe appliances.] [7]
    [There is another principle, gentlemen, upon which the plaintiff expects to recover, and that is this: The law says that if an inexperienced person is put in charge of dangerous machinery, it is the duty of the employer to give him proper instructions in regard to running it. That suggests the first inquiry in this case: was Harry E. Sweigert, the plaintiff, an inexperienced persoix ? If you find that he was axx experienced person then this principle does not apply. Mr. Sweigert admits that he had worked about this mill a number of years, but he says it was as a comxnon laborer. He says he had no knowledge of this machinery, and that he íxever threw off that pulley but once, that he had no knowledge or experience in regard to that. Then comes the xxext question, was that machinery dangerous ? ] [8]
    [That testimony is contradicted. The defendant’s witnesses swear that Mr. Sweigert was an experienced man, while Mr. Sweigert himself swears that he was not. That is a question for you to determine. If you believe he was an experienced maxx then this prixxciple does xxot apply, but if you believe he was not an experienced man, it was the duty of the defendant, before it required him to throw that belt off the pulley, to have instructed him as to the duties of his employment. So far as the court recalls the testimony, but we say the testimony is entirely for the jury, he was not instructed how to throw the belt off the pulley, except that Mr. Sweigert says Mr. Hepler held the step ladder for him and directed him where to go, and to pull the pulley towards him. Mr. Hepler denies that, and says that he did not instruct Mr. Sweigert how to pull the pulley.] [9]
    [There is another principle involved, even if that is true, Mr. Sweigert had no right to go into aplace of obvious danger. If the instrumentality by which he is required to perform the service is so obviously and immediately dangerous, that a man of common prudence would refuse to use it, the master cannot be held liable for the resulting damages. In such case the law adjudges the servant guilty of concurrent negligence and will refuse to give him that aid which otherwise he would be entitled to.] [10]
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.
    ■ Errors assigned among others were (8-10) above instructions, quoting them.

      M. F. Leason, with him Calvin Rayburn and S. H. Me Cain, for appellants.
    It was error for the court to submit to the jury the question of proper appliances, to wit: a protection or guard for the distant pulley, the condition of the step ladder and the length of the stick used : Shafer v. Lacock, 168 Pa. 497; Scott v. Allegheny Valley Ry. Co., 172 Pa. 646; Swanson v. Crandall, 2 Pa. Superior Ct. 85.
    The case before us was one which called for very careful guiding of the jury and a full explanation of the rights and responsibilities of the parties : Cooley v. Phila. Traction Co., 189 Pa. 563 ; Herrington v. Guernsey, 177 Pa. 175 ; Lerch v. Bard et al., 177 Pa. 197.

      R. A. McCullough, with him II. A. Heilman, for appellee.
    In determining what is the proximate cause, the true rule is, that; the injury must be the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act: Hoag et al. v. L. S. & M. S. R. R. Co., 85 Pa. 293; West Mahanoy Township v. Watson, 116 Pa. 344.
    These acts of alleged negligence, being the proximate cause of the injury and admitted to bo in dispute, all the facts relative to them were properly left to the jury: Bunting v. Hogsett, 139 Pa. 363; West Mahanoy Twp. v. Watson, 112 Pa. 574.
    It is the duty of an employer to provide his workmen with a safe place to work, suitable tools, machinery and appliances to work with and to see that any danger peculiar to their use is fully made known to them : Devlin v. Phoenix Iron Co., 182 Pa. 109; Doyle v. Pittsburg Waste Co., 204 Pa. 618.
    It is the duty of an employer to instruct adult workmen of special risks of an employment, which are not obvious to men of their experience and which are or should be known to the employer: DeGrazia v. Piccardo, 15 Pa. Superior Ct. 107.
    And an employer who commits this duty to another remains liable for its proper performance: Lebbering v. Struthers, 157 Pa. 312 ; Lee v. Electric Light, etc., 140 Pa. 618.
    December 31, 1904:
   Opinion by

Mb. Justice Thompson,

The failure of appellants to supply proper appliances with which to do the work and to give proper instructions to appellee, alleged to be inexperienced as to the use of machinery, were the grounds of negligence upon which appellee based his right to recover. The accident occurred in appellants’ gristmill and in its second story, in which were located a buckwheat shucker and a cornmeal bolt, run by a power shaft. The former placed above the latter, was run by a pulley attached to the end of its shaft by a belt extending from that pulley, to another, on the power shaft. These belts started side by side from the power shaft, but diverging', the buckwheat shucker belt ran horizontal while the cornmeal bolt belt ran somewhat beneath the shucker belt. In throwing off this latter belt the accident resulting in the injury to appellee occurred. In describing how it occurred, he testified that he got upon a step ladder, taking a stick about three feet in length and with it threw the belt off tbe line shaft. That at the time the other end of the belt also came off the pulley there, and it fell upon the underlying belt which ran the cornmeal bolt; this latter belt running with great rapidity caught the falling one, threw it back upon the power shafting and winding around the hand and arm of appellee drove them against the shafting and broke his arm. The throwing off the belt in the manner indicated and its falling upon an exposed and rapidly moving belt lying beneath, caused the accident and necessarily in determining the question of negligence on the part of the appellant, the initial question was whether the appliances furnished, were such as were in ordinary use in mills such as that of appellants.

On the part of the appellee the proofs were that the appliances used ordinarily in such mills were shifters and guarded belts, and on the part of appellants that those used in this mill were such as were customary and ordinarily used. The question, therefore, was one of fact and for the jury to determine. The learned trial judge said:

“ So you have one set of witnesses who testify that in the ordinary mills of this character, the method of removing the belts from the pulleys is by the use of a stick. If this is correct, then the plaintiff is not entitled to recover. If you find the contrary to be true, and that in ordinary mills, the general usage is to have a shifter to throw the belt off the pulley, and to have guards between moving belts, then the plaintiff is entitled to recover, because it was the duty of the defendant to furnish the plaintiff with the ordinary safe appliances.”

These instructions are fully sustained by Ross v. Walker, 139 Pa. 42, and Ricks v. Flynn, 196 Pa. 263. The learned trial judge was not guilty of error in so submitting this question of fact to the jury nor was he so in that part of his charge which related to the instructions required by law to be given to appellee as he was inexperienced and needed instructions.

As to his inexperience his testimony shows that he had been employed by the appellants in their mill as a driver of a wagon for the delivery of goods, subsequently as a common laborer and later as an employee in packing flour, filling flour sacks and delivering flour and feed. These employments do not import knowledge of machinery or of its operation or information as to the danger incident to the use of machinery. He testifies tliat he had no experience running machinery and had never run buckwheat burrs or a buckwheat shucker. If the danger of the work about the belts and machinery was not obvious, his inexperience thus shown, cast upon appellants the duty of giving him proper instructions. Such danger was not clearly obvious. It appears that one of his employers inquired why he had not thrown off the belt and he replied that he was going to get the head miller to come and see what was the matter with it and his employer’s reply was that be did not think anything was the matter with it. He also told him that in ease of difficulty to call upon the head miller who had charge of the general machinery and to do whatever he directed him to do. He sought the head miller and requested him to look at the buckwheat shucker belt and he directed him to throw it off. As the danger was not so obvious as to justify him in refusing to do the work in question, he was fully warranted in obeying the order, but in doing so he was entitled to proper instructions in view of the character of the appliances. His testimony shows that neither the member of the appellant firm who was in charge of the mill, or the head miller referred to gave him any instructions whatever and accordingly, standing upon a step ladder with a stick he threw the belt off and the result was the accident.

The learned trial judge left to the jury the determination of the questions of appellee’s experience and the sufficiency of the instructions, in view of the character of the appliances used. These questions were peculiarly within the province of the jury. The duty of an employer is to provide an employee a safe place in which to work and to furnish him with suitable appliances and if inexperienced, to make known to him any danger peculiar to their use. This is well settled and needs no iteration of authority to establish it: Doyle v. Pittsburg Waste Company, 204 Pa. 618.

Appellee’s injury was the probable and natural result of appellants’ negligence. Its cause was a connected one and the chain establishing the proximate cause was unbroken.

The judgment is affirmed.


author: Pee Curiam,

text:
    Klenke’s Estate
    (No. 1).

      Husband, and wife—Gift—Wife’s earnings—Bank account.

    Where a husband permits some of his own money and his wife’s earnings to be deposited in bank in his wife’s name, and never afterwards claims the money, and the wife subsequently makes additional deposits, the presumption is that the husband intended the original deposit as a gift to her.

      Husband and wife—Bank deposit—Estate by entireties—Survivorship.

    Whore a husband and wife have a deposit in bank in their joint names they hold by entireties and not by moieties, and upon the death of either the survivor takes the whole.
    Where a husband permits deposits to be made in bank in his wife’s name under such circumstances as to raise the presumption of a gift to her, or deposits moneys in the joint name of himself and wife, so as to create an estate by entireties, the fact that he leaves a will containing a large money legacy without leaving an estate to pay it, will not defeat the right of the wife to all of the moneys deposited.
    Argued Nov. 2, 1904.
    Appeal, No. 195, Oct. T., 1904, by Mary Merritt, from decree of O. C. Allegheny Co., June T., 1904, No. 135, dismissing exceptions to adjudication in estate of Henry Klenke, deceased.
    Before Mitchell, C. J., Dean, Fell, Blown, Mestrezat and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that Henry Klenke died on October 8, 1902, leaving a will by which he gave to Henry Clatty §1,500. He specifically devised certain stock of corporations, but there was no money to pay the legacy to Clatty. At the time of decedent’s death there was deposited in the Dollar Savings Bank §500 in the name of decedent’s wife, Catherine Klenke.
    There was also a balance in the names of Kate or Henry Klenke in the First National Bank of Birmingham of §725, which was paid after decedent’s death to the widow; in the German Savings & Deposit Bank, in the names of Henry and Kate Klenke, §1,890.25, and in the Iron & Glass Dollar Savings Bank, in the names of Henry and Catherine Klenke, §2,600. At the time the account was opened they signed the following agreement:
    “ The undersigned, who have made deposits in their joint names in the Iron & Glass Dollar Savings Bank, hereby direct the bank to honor and pay all checks and deposits that we or either of ns may draw upon the bank during the continuance of said account; and also authorize the bank to pay out to both or either of us any and all moneys to our joint credit upon both or either of us receipting for the same in our joint or individual names. This authority to continue to the survivor in case of the death of either.”
    Ovfb, J., filed the following opinion :
    Mrs. Klenke had no separate estate when she married the decedent, nor did she acquire any after her marriage, and although a part of the money deposited in the banks was no doubt the result of her labor jointly with her husband, yet as he was entitled to her earnings all the money deposited was his. If, then, the decedent did not intend to make a gift of the money deposited in the name of his wife in the Dollar Savings Bank to her, she must account for it as assets of the estate. ITis first intention was to have it deposited in his own name, but he knew that this was not done, made no objections and thereby ratified and assented to the act of his agent in making the deposit in Mrs. Klenke’s name, and as he never asserted any rights to this money and she subsequently made additional deposits, the presumption is that he intended it as a gift to her.
    As to the deposit in the German Savings & Deposit Bank in the names of Henry and Kate Klenke, it seems under the authorities that they held it by entirety, and that upon the death of her husband Mrs. Klenke took the whole fund. In Donnelly’s Estate, 7 Pa. O. C. Rep. 196, it was held that, “ Where a husband and wife made, a deposit in a savings fund in their joint names they hold by entireties and not by moieties, and upon the death of either the survivor takes the whole.” In Parry’s Estate, 188 Pa. 83, where a letter of credit was purchased by the husband with his own money, made payable to himself and his wife, and intended to be used in a journey abroad, and the husband died before the letter was exhausted, it was held that the wife was entitled by survivorship to the balance, 112,825.34, due upon it. A tenancy by entire-ties arises whenever an estate vests in two persons who are at the time when the estate vests husband and wife ; it may exist in personalty as well as real property, in choses in actions as well as choses in possession : Braiuberry’s Estate, 156 Pa. 628. A deposit in the names of husband and wife by reason of their unity goes to the survivor : 2 Morse on Banking, sec. 604 (5).
    It is suggested, however, that as the deposits in the First National Bank of Birmingham and the Iron & Glass Dollar Savings Bank are in the names of Henry or Catherine Klenke, they are not held as entireties. We think, however, the legal effect is the same, as the deposits are both joint and several, in favor of both as well as of each separately. There can be no question that either could check on the account in the lifetime of both, and the right of the survivor would not be defeated by the death of the other. And as the agreement signed by the parties when the deposit was made in the Iron & Glass Dollar Savings Bank expressly anthorized the survivor to withdraw the deposit, there can be no question as to Mrs. Klenke’s title to that deposit. There is not sufficient cash to pay Henry Clatty his legacy of $1,500, and as the testator no doubt thought there would be when he made his will in 1897, it is argued this shows he did not intend that his wife should take the money deposited in their joint names. But even if this were his intention then, it could not change the legal effect of what had been previously done.
    It is argued by exceptant that the deposits were made in the manner they were as a matter of convenience, because the decedent seldom came to the city after his stroke of paralysis in 1898, and that his wife merely acted as his agent in the matter; but the-force of this argument is much weakened by the fact that accounts in the German Savings & Deposit Bank and the First National Bank of Birmingham were opened in their joint names long prior to his incapacity; in the former in 1879, and in the latter in 1887. It is true the accouut in the Iron & Glass Dollar Savings Bank was opened in 1893, but as to that deposit the written agreement signed by the decedent fixes their rights.
    As we think the title to this deposit is in Mrs. Klenke, the exceptions must be dismissed.

      JSrror assigned was the decree of the court.

      Noah W, Shafer, with him A. W. Duff, for appellant.

      William JE. Minor, with him Jesse H. Wise, for appellee.
    January 30, 1905:
   Pee Curiam,

This judgment is affirmed on that portion of the opinion of the auditing judge below, which relates to the appellant’s claim.


author: Peii Cttkiam,

text:
    Klenke’s Estate
    (No. 2).

      Will—Legacy—Specific legacy—Widow’s election.

    Testator after providing for his wife gave to his stepson eighty shares of a water company’s stock after the death of the widow, and a legacy of SI ,500. He gave to his daughter his stock in a fire insurance company and after the death of the widow all his other stocks in which he had given his wife a life interest, except the eighty shares already given to the son. He left no estate to pay the money legacy. The widow elected to take against the will. Held (1), that the bequest of the fire insurance stock to the daughter and the water company’s stock to the stepson were specific legacies accelerated in possession by the widow’s election; (2) that as the water company’s stock was reduced one third by reason of the widow’s election, the interest of the stepson and the daughter in the remaining two thirds must abate together in proportion to their original holdings.
    Argued Nov. 2, 1904.
    Appeal, No. 196, Oct. T., 1904, by Henry Clatty, from decree of O. C. Allegheny Co., June T., 1904, No. 335, dismissing exceptions to adjudication in estate of Henry Klenke, deceased.
    Before Mitchell, C. J., Dean, Fell, Blown, Mestlezat and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that the material portions of the testator’s will were as follows:
    “ I also give to my wife the interests, or dividends on my stock in the Monongahela Water Company, German Fire Insurance Company of Pittsburg, and German National Bank of Pittsburg, and the interest on one thousand dollars, with the privilege to draw any part of the principal if necessary. But should my wife marry again, then she shall only receive what the law gives her as my widow.

      “ Then I give to my step-son Henry Clatty the sum of Fifteen Hundred Dollars to be paid to him by my executors within one year after my death.
    “ I also give to my step-son Henry Clatty after my wife’s death, eighty shares of Monongahela Water Company’s stock.
    “ Then I give to my daughter Mary Merritt, my stock in the Birmingham Fire Insurance Company, also my house and ground (with the reservations mentioned above excepted), also after my wife’s death or marriage my daughter, Mary Merritt, all my stocks (excepting what I have given above to Henrjr Clatty) and the balance of money on interest at my wife’s death.”
    The testator left no estate to pay the money legacy to the son.
    The widow elected to take against the will.
    Over, J., filed the following opinion:
    The question raised by the fifth exception of Mrs. Merritt to the decree is whether the benefits intended for the widow in the eighty shares of Monongahela Water Company stock bequeathed at her death to Henry Clatty should be sequestered to compensate the exceptant as a disappointed legatee. In Sandoe’s App., 65 Pa. 314, it was held that “ where a widow elects not to take under the will her substituted devises and bequests are a trust in her for the benefit of the disappointed claimants to the amount of their interest therein,” and that a “ court of equity will sequester the benefits intended for the wife to secure compensation to those whom her election disappointed.” In applying this rule in Young’s Appeal, 108 Pa. 17, the benefits intended for the .widow, who refused to take under the will, in personalty bequeathed as pecuniary legacies payable at her death were sequestered to pay an annuity, and in relief of the residuary legatees. And in Bigham’s App., 34 P. L. J. 304, affirming the decree in Davis’ Estate, 33 P. L. J. 355, the benefits intended for the widow in real estate specifically devised, subject to a life estate in her, were sequestered to-compensate residuary legatees who were held to be disappointed by the widow’s election. However, in Ferguson’s Estate, 138 Pa. 208, and Yance’s Estate, 141 Pa. 201, it was held that the rule could not be invoked in favor of residuary legatees, but as to disappointed devisees it has been reaffirmed and followed in Evans’ Estate, 150 Pa. 212, and McIntosh’s Estate, 158 Pa. 528.
    If then Mrs. Merritt is disappointed as a specific legatee the benefits intended for the widow in this stock legacy should bo sequestered to compensate her. That she is disappointed by the widow’s election is clear. The Birmingham Fire Insurance Company stock was specifically bequeathed to her, was not included in the bequest to the widow for life, and had she accepted under the will, Mrs. Merritt would receive in this distribution all of that stock, whilst by reason of the widow’s refusal she receives but two thirds of it. It is not so clear that she is disappointed as to the bequest of the balance of the stock as that bequest is accelerated by the widow’s election, and the benefits derived from this acceleration may compensate her for the one third of the stock taken by the widow. But even if they should not, it is doubtful if she would be entitled to compensation, as this bequest, so far as it relates to the Monongahela Water Company stock, is subject to the prior bequest to Clatty; with reference to it, it seems to be residuary, and if so, under the rule laid down in Vance’s Estate, 141 Pa. 201; Ferguson’s Estate, 138 Pa. 208, the legatee would not be entitled to compensation.
    It is not necessary, however, to decide this question now; but it can be raised when distribution is made of the dividends from this stock on the filing of the account of the sequestrator to whom the stock will be distributed, as can also the question as to' whether Henry Clatty is entitled to participate in the distribution of the sequestered benefits on account of the failure of the pecuniary bequest to him.

      Error assigned was the decree of the court.

      S. Sehoyer, Jr., with him John P. Hunter, for appellant.

      A. W. Duff, with him Noah 1V. Shafer, for appellee.
    January 30, 1905 :
   Peii Cttkiam,

The legacy to appellant was “ the sum of fifteen hundred dollars ” to be paid to him within one year from testator’s death. This was a plain, ordinary gift of money, with no specified fund out of which it was to he paid or on which it was to have a preference. No doubt the testator thought there would be money to meet it, but in fact there was not, and he made no provision for such contingency. That is the legatee’s misfortune.

On the other hand, the legacy to his daughter, Mrs. Merritt, was a specific gift of stock. It is true that except as to the Birmingham Insurance Company stock, the gift was in general terms and was postponed till the death of the widow, and then subject to the deduction of eighty shares of Monongahela Water Company stock in favor of Henry Clatty. But neither of these provisions made the legacy in any sense residuary. It was just as specific as if he had said to Henry Clatty eighty shares and to Mary Merritt the remaining one hundred and séventeen shares of my Monongahela Water Co. stock.” The specific property given to each legatee was as clearly indicated in one case as in the other.

Appellant’s fourth assignment of error is that the stock legacy given to him at the death of the widow is sequestered for the benefit of Mrs. Merritt. If such disposition had been made it would have been error. There is no occasion for sequestration or postponement of distribution. The gifts of the stock to both the legatees stand on the same footing. Both were specific, both were accelerated in possession by the widow’s election not to take under the will and neither has any claim to precedence over the other. But the testator had 197 shares, of which he gave eighty to Clatty and 117 to Mrs. Merritt. By the widow’s election there were only 1S1J shares left for both legatees and as'they stand on the same footing they must abate together, each getting his proportion of 1S1|-instead of his proportion of 197 shares. But it is not clear that the court has made any disposition, but rather has merely postponed that question until the period of distribution and ordered the stock to be held in the meanwhile. There appears to be no final decree on that subject and the fourth and fifth assignments of error are therefore overruled without prejudice to appellant’s right to raise them hereafter at the proper time, should it be necessary. As to the other assignments the decree is affirmed.


author: Peb Cubiam,

text:
    Commonwealth v. Dillen, Appellant.

      Criminal law—Murder—Intention.

    A verdict of guilty of murder of the first degree will be sustained where the evidence tends to show that the two prisoners, in an attempt to break jail, armed themselves with heavy pieces of iron, lay in wait for the turnkey, and when he appeared sprang upon him and struck him heavy blows on the head from which he died about twenty-eight hours afterwards.

      Criminal law—Murder—Money for defense—County commissioners.

    The court has no authority to make an order upon the county commissioners to pay a sum of money to be used in defending a prisoner indicted for murder. All that the court can do is to grant an application for compulsory process for witnesses.
    Argued Jan. 3, 1905.
    Appeals, Nos. 318 and 319, Jan. T., 1904, by defendants, from judgments of O. & T. Centre Co., Aug. T., 1904, No. 45, on verdict of guilty of murder of the first degree in cases of Commonwealth v. William .Dillen and Commonwealth v. Ira Green.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Indictment for murder.
    On a motion for a new trial Love, P. J., filed an opinion which was in part as follows :
    It is also assigned as a reason that the court erred in not making an immediate order upon the application of Clement Dale, Esq., one of the counsel for defendants, for process and means to enable defendants to prepare their defense. The application was for an order to be made upon the commissioners to pay a sum of money. We had no authority to make such an order. There was no application made by Mr. Dale for compulsory process for witnesses. Had there been it would have been granted at once. When the application was made we suggested that he ascertain who and what witnesses he wanted to subpoena and we would grant process, and also suggested that the commissioners agree to allow a reasonable sum to aid the defendants in procuring witnesses and preparing their defense. Immediately after their arrest we saw the commissioners’ counsel and suggested to him that he have the commissioners communicate with the prisoners and see if they had counsel, or to see if they had any choice of counsel to make, and we would assign such counsel to take charge of the defense. They made no choice, and the court assigned H. C. Quigley, Esq., to look after their defense, two or three weeks before court convened. Later on Clement Dale, Esq., and Hon. A. O. Eurst were called into the case by relatives of the prisoners. No compulsory process for witnesses was applied for until after court convened and a day or so before the cause was called for trial. We are not persuaded that the court erred in that matter.
    The facts in the case were confined to a narrow compass and to no great extent in dispute. It was not denied that the prisoners concocted a plan to escape jail for themselves and other prisoners, which involved the commission of a crime. The evening the crime was committed, the prisoners, having a couple of days before procured what might well be termed dangerous or deadly instruments, got out of their cell, and, with the instruments, concealed themselves in the bathroom, not far from the main entrance into the prison department of the jail. They knew that no one was present or about the jail but the turnkey, Jerry Condo. Dillen removed his shoes from his feet so as to avoid making a noise when they were to make the assault upon the deceased. They evidently were determined to overcome all obstacles in the way of their plan of escape.
    They lay in wait in the bathroom for three quarters of an hour before the turnkey entered. Just after he entered and locked the door behind him, and, just as he had started upstairs, leading to the cells above to be locked, they came out of the bathroom and Dillen dealt him a heavy blow with a heavy iron, T-shaPed, and Green jumped up the stairs above him and began to batter him on the head with a piece of iron about a foot in length, one- and a half inches wide and one half inch thick, striking him some eight or nine times. The blows resulted in his death, he dying in about twenty-eight hours after the beating.
    Who were the prisoners waiting for, armed as they were with the dangerous instruments? Had they determined to overcome the principal object that would prevent their escape, even to the taking of life ? It is true they testified that they did not intend to kill. Their testimony went to the jury without the court even calling the attention of the jury to the fact that in considering the testimony of the defendants they, in considering it, should regard the interest they had in the result of the trial. The facts as above stated were practically undisputed. That the instruments were of a dangerous and deadly character is clear; that they were deliberately procured by the prisoners, and that they laid in wait until an opportune time presented itself to use them upon the deceased; that Dillen, stealing upon the turnkey in his stocking feet, struck the first blow. That they acted in concert in the consummation of their criminal purpose is clear.
    That the beating on the head with a dangerous instrument was designedly done, and the blows were rained upon a vital part of the body, with said instrument, with a manifest purpose to so use it that the use of it resulted in death. We left the question of their intent to kill fairly to the jury under the evidence, and said that if the act was done deliberately, premeditatedly and a dangerous instrument was used upon a vital part of the body with a manifest purpose so to use it, and that it was likely to produce death, then the law presumes they intended the natural consequences of their own act. The defendants admitted that they were guilty of murder of the second degree. The only question was really whether or not there was an intent to take life; we submitted the question fairly and fully under the evidence.
    Verdict of guilty of murder in the first degree, upon which judgment of sentence was passed.

      Errors assigned were, among others, in refusing order on county commissioners, and various instructions.

      A. 0. Eurst, with him H. O. Quigley and Clement Bale, for appellant.
    W. B. Spangler, district attorney, and E. R. Chambers, with them Ellis L. Orvis, for appellee.
    January 23, 1905 :
   Peb Cubiam,

The evidence in these cases does not raise the slightest doubt about the guilt of the appellants, or the degree of it, the fairness of their trial, or the correctness of the rulings of the trial judge on the law as applicable to the evidence.

The specifications of error are all of them immaterial and most of them frivolous. So far as the points raised would justify notice they are sufficiently discussed, in the opinion of the court below refusing a new trial.

The judgments are affirmed and the records remitted for purpose of execution.