author: Mr. Chief Justice Mitchelb,

text:
    Commonwealth v. Delaware, Lackawanna & Western Railroad Company, Appellant.

      Railroads — Taking of public road, — Reconstruction of road — Act of February 19, 1849, sec. 13, P. L. 79.
    Where a public road is laid out by formal proceedings in the quarter sessions, with a legal width of thirty-three and a half feet, but the part actually opened and traveled is of much less width, a railroad company in changing the site of the road, and reconstructing it, is bound to reconstruct it as of the original width, and if it fails to do so and erects buildings of its own within the legal width of the road such buildings constitute a nuisance, and will be enjoined.
    Argued March 6, 1906.
    Appeal, No. 43 Jan. T., 1906, by defendant, from decree of C. P. Monroe Co., Dec. T., 1905, No. 3, on bill in equity in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. Delaware, Lackawanna & Western Railroad Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Staples, P. J.
    The court after finding the facts found the following conclusions of law:
    1. It was the duty of the defendant railroad company upon appropriating and occupying the original road through the Delaware Water Gap and changing the site thereof, to reconstruct the same in as favorable a location and hi as perfect a manner as the original road, and, inter alia, to locate and establish it of the width of thirty-three and one-half feet.
    2. The erection of the buildings of the stone crusher plant partially within the lines of said public road or street, and the overhead chute extending across the public road or street by the defendant company was illegal, and by the obstructions and operations within said street lines it is maintaining a nuisance which should be abated, and the plaintiff is entitled to a decree to that effect.
    3. The blasting of the defendant company as carried on in the operation of its work has been dangerous and should be conducted in such a manner as to prevent the throwing or casting of stones or other material either into the public road or the Delaware river, both public highways.

      Error assigned was decree awarding the injunction.

      W. S. Kirkpatrick and A. Mitchell Palmer, for appellant.
    The defendant maintains that this highway having been established by prescription, it is a public highway only to the extent of the public user and consequently where the width of the highway as used by the public is plainly indicated upon the ground, being bounded on the one side by a stone wall and on the other by the precipitous rocks of the mountain side, it became, and is, a public highway only between those bounds. The defendant in- erecting its stone crusher plant kept well without those bounds: Wayne County Savings Bank v. Stockwell, 84 Mich. 586 (48 N. W. Repr. 174); Gentleman v. Soule, 32 Ill. 271; Kruger v. LeBlanc, 70 Mich. 76 (37 N. W. Repr. 880); McKay v. Doty, 63 Mich. 581 (30 N. W Repr. 591); Wheeler v. Fitchburg, 150 Mass. 350 (23 N.E. Repr. 207); Valentine v. Boston, 39 Mass. 75; State v. Trask, 6 Vermont, 355; Plummer v. Ossipee, 59 N. H. 55; Hinks v. Hinks, 46 Me. 423; Coleman v. R. R. Co. 64 Mich. 160 (31 N. W. Repr. 47); Scheimer v. Price, 65 Mich. 638 (32 N. W. Repr. 873); Western Ry. Co. v. Alabama Grand Trunk Ry. Co., 17 L. R. A. 474; Reg. v. Telegraph Co., 12 Eng. Ruling Cases, 562; Com. v. Llewellyn, 14 Pa. Superior Ct. 214.
    May 7, 1906:

      Hampton L. Carson, Attorney General, with him Wilton A. Erdman, for appellee.
    In the present case every act essential to pass title to the defendant to that portion of the road where the obstruction occurs has been complied with. It meets in every particular the cases of McClinton v. Ry. Co., 66 Pa. 404, and Phila., etc., R. R. Co. v. Cooper, 105 Pa., 239, cited by appellant. It entered the land without appropriation, constructed the road, and in 1857 made compensation to John Barnes, the owner, and secured his release for all damages and demands by reason of such entry and appropriation. It seems ridiculous, therefore, to contend that the portion of the road over the John Barnes tract exists by prescription when the defendant has shown performance by it of everything necessary to prove that the land was obtained in a lawful manner and that the railroad company performed its duty.
    That it is necessary for a railroad to reconstruct the road of the same width as the original, has never been questioned in this state. We have been able to find but four cases in which the matter has been alluded to: Commonwealth v. R. R. Co., 138 Pa. 58; Conshohocken Ry. Co. v. Penna. R. R. Co., 15 Pa. C. C. Rep. 445; Com. v. R. R. Co., 24 Pa. 159; Baldwin Twp. v. R. R. Co., 210 Pa. 86.
   Opinion by

Mr. Chief Justice Mitchelb,

The learned judge below found the facts clearly and discussed and applied the law correctly, but owing to the wide range of the argument before him, at greater length and in more detail than is now necessary, as the essential facts are few and not really in dispute.

In 1803, by proper proceedings in the quarter sessions of Northampton county which then included the locus of the present controversy, a public road was laid out through the gorge of the Delaware Water Gap. This road was opened and continued to be used by the public until some time between 1853 and 1855, when a portion of it was appropriated and occupied by the defendant railroad company, and replaced by the road now in dispute, substantially parallel but higher up the side of the mountain. In 1904, the railroad company having become the owner of a tract of land which included a part of the relocated public road, erected a stone crusher plant consisting of a quarry further up the side of the mountain, buildings on both sides of the road, and a covered chute across the road to connect the buildings. The present bill was filed to enjoin the operation of the crusher as an eneoachment on the highway and a public nuisance.

These are the material facts and they are not really in dispute. Subordinate issues were raised as to the construction by the railroad under requirement of an Act of April 26,1855, P. L. 302, of a guard wall to protect teams from running over the embankment: the effect of several indictments by the quarter sessions of Monroe county (formed in 1836, from Northampton and Pike), for failure to keep the road in repair; the agreement in 1868, between the railroad company and the supervisors of the township as to the repair and acceptance of the new road in place of the old, etc. None of these, however, are material to the present controversy. The act of 1855, was a requirement of a safety guard on the precipitous side of the road and had no bearing on the question of width; the indictments were all upon the condition and want of repair, and the agreement of the supervisors in 1868, had reference only to the same thing, that the new road was satisfactory as to condition and accepted as replacing the old in that respect. It did not profess to go any further, or to alter the rights of the township or the commonwealth as to the title or legal limits of the highway, and it could not have done so had it attempted to. The supervisors are subordinate agents and have no authority to give away the rights of the commonwealth: Furniss v. Furniss, 29 Pa. 15; Snow v. Deerfield Township, 78 Pa. 181.

The substantial question is upon the title of the commonwealth to the new, or reconstructed road, with special reference to its width. The court below found that the legal width of the original road in 1803, was fixed at thirty-three and a half feet; that there was no evidence as to the width at which it was actually opened and used for travel, but the presumption was that it followed the usual custom of country roads in that vicinity and had an opened and traveled width of twelve to sixteen or eighteen feet. The new or relocated road appears to have been opened and used for travel at about the customary width, but there was no evidence as to the fixing of any legal width, or as to the amount of land taken for it, or the means by which the railroad company acquired title to such land from the previous owners.

On this state of facts the appellant bases its contention that the relocated or present road exists only by proscription and therefore occupies only the ground covered by the opened and traveled way. In substance this is the appellant’s whole case. Its buildings, except the chute, are outside of the traveled way but within the thirty-three and a half feet claimed by the commonwealth.

The argument rests on a fundamental misconception of the law and the burden of proof. The original road of 1803, was laid out by formal proceedings in the quarter sessions, with a legal width of thirty-three and a half feet. It was actually opened presumably only to the ordinary width, but it retained its capacity to be opened to its full legal width at any time in the future when- the public convenience should require it. This was its status, legal and actual, when the appellant took possession. It is conceded that the only authority for such taking was sec. 13 of the Act of February. 19, 1849, P. L. 79, which enacts that “ If any such railroad company, shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own expense, upon the most favorable location, and in as perfect a manner as the original road.” What the railroad company does under this authority is not to give the commonwealth a new road with a new title and new attributes, but the old road reconstructed. The site is necessarily changed but in all other respects it is to be “ the same,” to wit: expressly upon the most favorable location and in as perfect a manner as the original road, and by necessary implication of the same other qualities including width, actual and potential.

If when it took the former location of the highway and relocated the latter in 1855, the railroad only substituted a way of the traveled width, then when a half century or more later the public needs should require a wider highway the township would be compelled to resort to new proceedings and pay for additional land. That would not be reconstructing “ the same ” as the statute requires. The suggestion answers itself. In contemplation of law the present road is the road that was opened by legal proceedings in 1803. Its course has been deflected at this point but its entity remains the same, with all its attributes unchanged in point of law. If in the course of years the change had gradually come about to avoid obstacles, improve grade, or other reason of such kind, the legal as well as the actual road would in time be that which the public used, though it was not in the place where the viewers originally located it, and though the supervisors never had at any time the authority to relocate it: Furniss v. Furniss, 29 Pa. 15; Com. v. Marshall, 137 Pa. 170.

Part of appellant’s argument that the present road exists only by prescription, is based on the absence of any evidence as to how the ground for it was acquired by the railroad company. But the burden of proof was on the appellant. Even in ordinary cases where a railroad takes land for a right of way the presumption is that it takes the full width of sixty feet authorized by statute: Jones v. Erie, etc., R. R. Co., 144 Pa. 629. And such presumption is not rebuttable where as in the present case the width of land, however acquired for the purpose, was not dependent on the judgment of the corporation but had to be adequate to the discharge of its statutory obligation to replace the public highway. It is not for the corporation to defend on the ground that it did not do its dutjn

The buildings were within the legal limits of the highway, the chute extending across it though above the surface was of course an obstruction, and the court found that the quarry was so operated as to be dangerous to public travel and a nuisance. The injunction was therefore properly issued.

Decree affirmed with costs.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Benedict v. Zimmerman, Appellant.

      Will — Devise—Tenants in common.

    Testator devised land to two persons “provided, however, that in the event of the death of either of said devisees without heirs of their bodies begotten, the survivor shall inherit the share of the one so dying in the real estate hereby devised. ” Held, that if one of the devisees conveyed his interest to the other, the latter would take the entire title to the land.
    Argued March 6, 1906.
    May 7, 1906:
    Appeal, No. 62, Jan. T., 1906, by defendant, from judgment of C. P. Franklin Co., April T., 1905, No. 380, for plaintiff on case stated in suit of Jacob Lemaster Benedict v. Emma Maude Zimmerman.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Case stated to determine marketable title to an interest in real estate.
    From the record it appeared that the plaintiff and defendant, were tenants in common of land bequeathed to them by Jacob Lemaster, and that the defendant had agreed to purchase the interest of the plaintiff in the land. The material portion of the will of testator was as follows:
    “ Item. I will and devise to Jacob Lemaster Benedict and Emma Maude Benedict, children of Daniel and Mary A. Benedict, as tenants in common all that farm situated in Peters Township, .... provided, however, that in the event of the death of either of said devisees without heirs of their bodies begotten, the survivor shall inherit the share of the one so dying in the real estate hereby devised. . . .”
    The court entered judgment for plaintiff on the case stated.

      Error assigned was the judgment of the court.

      W. O. Nieblas, for appellant.

      W. U. Brewer, and J. R. B,uthrauff, for appellee.
   Per Curiam,

Under the will of their ancestor the parties are tenants in common in the land, subject to the condition of the proviso “ that in the event of the death of either of said devisees without heirs of their bodies begotten, the survivor shall inherit the share of the one so dying- in the real estate hereby devised.” By whatever name the condition may be called technically, it is clear that the entire estate in fee is vested in the two tenants in common and when one conveys his whole interest to the other the latter will have the entire title.

Judgment affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Stull, Appellant, v. Reber.

      Constitutional law — Vaccination of school children — Police power — Act of June 18, 1895, P. L. 203 — ■Local legislation — School law.

    The Act of June 18, 1895, P. L. 203, requiring the exclusion from the public schools of children who have not been vaccinated is a valid exercise of the police power of the state. The act is not local legislation, because township school districts may possibly not be included in the act; nor does it contravene sec. 1, article X of the constitution requiring the maintenance of an efficient system of public schools wherein all children above the age of six years may be educated.
    It was not the legislative intent that sections 11 and 12 of the act should be read together, and the right under section 12 to exclude unvaccinated children should be confined to the schools in the districts mentioned in section 11, namely, those in which smallpox is actually prevalent. The objects of the two sections are distinctively different. The fact that there had been no smallpox in a particular community for a period of forty years, will not relieve such community from the application of the act.
    In construing the act and applying it, the courts cannot take into consideration that vaccination will not take on some children, and that a physician cannot certify that such child has been successfully vaccinated.
    The fact that vaccination is the infliction of a disease, cowpox, on the subject, does not involve in the application of the act, a trespass upon the reserved rights of the individual which are beyond the reach of even the police power.
    The act of June 18, 1895, is not a penal statute, and is not to be construed or administered by the rigid technical rules applicable to penal laws, but fairly according to its intent, neither narrowing it to the letter to the exclusion of cases clearly within such intent, or stretching it beyond its legitimate scope to cover matters not clearly meant to be included.
    Argued March 6, 1906.
    Appeal, No. 63, Jan. T., 1906, by plaintiff, from decree of C. P. Franklin Co., Equity Docket 3, page 5, dismissing bill in equity in case of Edward C. Stull v. J. H. Reber, Charles H. Coover, Chester A. Geesaman and Dr. Samuel G. Dixon.
    Before Mitchell, C. J., Fell, Blown, Mestlezat and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Rowe, P. J.
    The bill after reciting that the complainant was a resident and taxpayer of the borough of Waynesboro and that Grace Stull was his daughter of the age of fourteen years continued as follows:
    “ The said Grace Stull is now and has been since the beginning of the present school year or term, to wit: September 4, 1905, properly and justly enrolled as a pupil in and attending the common or public school known as A grammar school conducted in the Snider avenue school building situate in the third ward of the said borough; that she is in good health and is not suffering from any contagious or infectious disease and is legally and justly entitled to continue to attend the said school for the remainder of the school term or year and is entitled to remain enrolled as a pupil thereof.
    “ J. H. Reber is the superintendent of all the common or public schools of the said borough of Waynesboro; Charles H. Coover is the principal of the said Snider avenue school building and has charge of the schools therein conducted; Chester A. Geesaman is the teacher of said A grammar school in which your orator’s said child Grace Stull is enrolled and in attendance as a pupil.
    “ There is not at the time of the filing of this bill, nor has there been for many years, any person in the said borough of Waynesboro or within many miles thereof suffering from smallpox (variola or varioloid).
    “ Charles H. Coover, principal of said Snider avenue school, and Chester A. Gessaman, teacher of said A grammar school conducted therein, have by order and direction of said J. H. Reber, superintendent of the common and public schools of the said borough, notified your orator and the said Grace Stull, his daughter, that she, the said Grace Stull, will be dismissed and excluded from the said A grammar school conducted in the said Snider avenue school building in which she is enrolled and in attendance as a pupil, on the 11th day of December, 1905. And the said J. H. Reber, superintendent, Charles H. Coover, principal, and Chester A. Gessaman, teacher, as aforesaid, defendants, in violation of their statutory duty and to the prejudice of the petitioner’s right in the premises, threaten and intend to dismiss and exclude the said Grace Stull from the said school on the 11th day of December, 1905.
    “ Your orator avers that unless .restrained by your honorable court the said defendants will carry out their said threat and dismiss and exclude the said Grace Stull from the said school, whereby both the said Grace Stull and your orator will suffer great and irreparable injury for which, there is no adequate remedy at law.”
    The bill prayed for an injunction,
    The answer admitted the material averments of the bill.
    The court found, inter alia, the following facts:
    There is not at the time of the filing of this bill, nor has there been for a period of about forty (40) years, any person in the said borough of Waynesboro, or within many miles thereof, suffering from smallpox, (variola or varioloid).
    Occasionally it is beyond the power of children of school age as well as adults to be successfully vaccinated, although they may not previously have had smallpox nor previously been vaccinated; that even repeated attempts to perform the operation of vaccination upon such children or adults is without effect and vaccination will not take. In such cases vaccination is not successful and the physician cannot certify that such child or adult has been successfully vaccinated.
    Sometimes a child may be suffering from a constitutional weakness or its system may be in such an unhealthy condition as to render the operation of vaccination exceedingly dangerous to said child.
    The court entered a decree dismissing the bill.

      Error assigned was decree dismissing the bill.

      O. C. Bowers, with him Sharpe Elder, for appellant.
    When personal rights or even the rights of property are invaded under the pretense of police regulation it is the duty of the court to interfere to protect them: In re Jacobs, 98 N. Y. 98; Henderson v. Mayor of New York et al., 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Mayor of Nashville v. Ray, 86 U. S. 468; East Tennessee University v. Knoxville, 6 Baxter (Term.), 166; Chalfant v. Edwards, 173 Pa. 246; R. R. Co. v. Husen, 95 U. S. 465; Com. v. Alger, 61 Mass. 53; Austin v. Murray, 33 Mass. 121; Watertown v. Mayo, 109 Mass. 315.
    We contend further that section 12 of the act of 1895, under ■which the defendants claim that they are required to exclude pupils from school who do not present certificates of having been successfully vaccinated, read in connection with section 11 of the same act is special in its application in that it only applies to a child or children attending public, private, parochial, Sunday or other schools, and does not apply to teachers or adults or other persons attending such schools, from whose presence there would or might be the same danger of contagion or infection as from the presence of the child or children whose attendance is prohibited.

      Walter Sf Gillan and Frank M. Eastman, with them Hampton L. Carson, Attorney General, for appellee.
    Section 12 of the Act of June 18, 1895, P. L. 203, is constitutional: Jacobson v. Massachusetts, 197 U. S. 11 (25 Sup. Ct. Repr. 358); Nissley v. Hummelstown Boro. School Directors, 5 Pa. Dist. Rep. 732; Sprague v. Baldwin, 18 Pa. C. C. Rep. 568; Com. v. Smith, 9 Pa. Dist. Rep. 625; Gerhard v. Packer Twp. School Dist., 24 Pa. C. C. Rep. 339; Cousins v. Burgie, 13 Pa. Dist. Rep. 368.
    The act is a proper exercise of police power: Penn. R. R. Co. v. Riblet, 66 Pa. 164; Powell v. Com., 114 Pa. 265.
    The police power permits compulsory vaccination: Com. v. Jacobson, 183 Mass. 242 (66 N. E. Repr. 719); Morris v. Columbus City, 42 L. R. A. 175.
    Exclusion of unvaccinated pupils is sustained in other states: Viemeister v. White, 179 N. Y. 235 (72 N. E. Repr. 97).
    The act of 1895 is not a special or local law: Com. v. Smith, 9 Pa. Dist. Rep. 350; Sprague v. Baldwin, 18 Pa. C. C. Rep. 568; Buckley v. Eckert, 3 Pa. 368; Slatterly v. Murphy, 8 Luz. L. Reg. 272.
    Sections 11 and 12 of the act of 1895 are not to be construed together: Nissley v. School Directors, 5 Pa. Dist. Rep. 732.

      May 7, 1906 :
   Opinion by

Mr. Chief Justice Mitchell,

The substantial question in this case is whether the Act of June 18, 1895, P. L. 203, requiring the exclusion from the public schools of children who have not been vaccinated is a valid exercise of the police power of the state. It has been twice so decided by this court. In Duffield v. School District of Williamsport, 162 Pa.476, asimilar regulation not even enacted by the legislature but enforced by the school directors under an ordinance of the city of Williamsport was held valid. And in Field v. Robinson, 198 Pa. 638, this very statute of 1875 was held constitutional. It appears to be thought that because the decision was given in a brief opinion per curiam the subject was not fully considered. But the proper inference is precisely the reverse, that the conclusion was so perfectly clear to the whole court that it did not require any extended argumentative support.

After these two decisions the question ought to have been considered as closed. But we have it raised again with small variations of facts and considerations, none of which are at all material.

On the constitutional question it is said that section 12 of the act contravenes sections 7 and 8 of article III of the constitution in that it is local and special legislation, regulating the affairs of school districts. The terms of the act apply expressly to the “several municipalities ” of the state, and it is argued that they do not include school districts in townships and therefore make an unwarranted distinction in regard to such districts. Whether townships are municipalities within the intent of the act it is not now necessary to consider. Even if not, the separate classification of school districts in cities and boroughs with reference to public health where population is dense and the danger of contagion great, would not be unconstitutional : Sugar Notch Borough, 192 Pa. 349.

But the act is in no proper sense a regulation of school districts. It is an act entitled “ for the more effectual protection of the public health in the several municipalities of the commonwealth ” and is a general statute on that subject. What bearing it has on schools and school districts is altogether incidental to them as constituents of the community. The constitutional restrictions on special legislation apply to direct legislation, not to the incidental operation of statutes constitutional in themselves upon other subjects than those with which they directly deal: Sugar Notch Borough, 192 Pa. 349.

It is further said that sec. 12 contravenes sec. 1 of article X of the constitution, requiring the maintenance of an efficient system of public schools wherein all children above the age of six years may be educated. It is sufficient to say that this article like all others must be construed and applied in connection with other fundamental governmental powers. The schools and school children, important as they are, are only fractions of the community and the police power of the commonwealth in the preservation of the public health must, if necessity arises, sacrifice the less to the greater interest. Salus populi suprema lex. If a child manifestly suffering from smallpox in its contagious stage should be excluded from school, it is hardly conceivable that the propriety of such action should be questioned. At what period before or after the outbreak of the disease the right of exclusion should arise is a legislative not a judicial question. As said by our late Brother Williams in Duffield v. School District, 162 Pa. 476, already cited : “ It is conceded that the board might rightfully exclude the plaintiff’s son if he was actually sick with, or just recovering from, the smallpox. Though he might not be affected by it, yet if another member of the same family was, the right to exclude him notwithstanding he might be in perfect health, would be conceded. How far shall this right to exclude one for the good of many be carried ? That is a question addressed to the official discretion of the proper officers ; and when that discretion is honestly and impartially exercised the courts will not interfere.” These words it should be remembered were written with reference to authority exercised under a city ordinance, and a fortiori when the police power of the state intervenes under the authority of a statute its directions are commands that may not be disputed.

It is further argued that sections 11 and 12 of the act should be read together, and the right under section 12 to exclude unvaccinated children should be confined to the schools in the districts mentioned in section 11, namely, those in which smallpox is actually prevalent. But this is manifestly not the legislative intent. Section 11 deals with a present and immediate danger, with- persons, dwellings and places where the disease actually prevails, and its prohibition includes adults as well as children, vaccinated or not. Section 12 on the contrary is a cautionary and prospective regulation, having in view not the actual presence of the disease, but its appearance in the future. The objects of the two sections are distinctly different.

In this connection the learned judge below found as a fact “ that there is not at the time of the filing of this bill, nor has there been for a period of about forty years any person in the said borough of Waynesboro or within many miles thereof, suffering from smallpox (variola or varioloid).” And it is argued that this feature distinguishes the case from those heretofore decided by this court. But the language of the act is general and its intent plain. The legislature may well have had in mind that the good fortune of such a community may not continue indefinitely. Immunity for forty years in the past affords no guaranty of immunity for even forty days in the future if a chance visitor from an infected locality or a borough resident returning from a visit to such locality should bring with him the germs of infection. Section 12 is precautionary and preventive, and it is an old and sound maxim that an ounce of prevention is worth a pound of cure.

There is one hardship in the twelfth section that may deserve consideration with a view to a possible remedy. The court below found as a fact “ that occasionally it is beyond the power of children of school age as well as adults to be vaccinated, although they may not previously have had smallpox nor previously been vaccinated; that even repeated attempts to perform the operation of vaccination upon such children or adults is without effect and vaccination will not take. In such cases vaccination is not successful and a physician cannot certify that such child or adult has been successfully vaccinated.” The health authorities, state or local, might well consider whether they have power to make a regulation as to what should be deemed a successful vaccination or its equivalent; whether the ratio of such immune children is of sufficient importance to justify the exercise of such power if possessed; and whether such regulation.would be undesirable as affording opportunity for the evasion of the statute. The latter, however, are medical and administrative rather than judicial questions.

Lastly, it is argued that construing section 12 as we have done it authorizes a trespass upon the reserved rights of the individual which are beyond the reach of even the police power. Vaccination, it is said, is the infliction of a disease, cowpox, on the subject and if that can be done irrespective of his consent then the next step may be to require submission to inoculation with antitoxin or serum for diphtheria, tuberculosis, cancer, etc., and we have rather a dismal picture of the possible consequences. It will be time enough to consider such matters when they arise. At present the vast preponderance of opinion among intelligent and educated people, under the guidance of the best medical authority, is that vaccination is a highly useful ameliorative if not always a preventive of one of the greatest scourges that have in past times afflicted humanitjq and that the regulation of it by statute is not only a justifiable but a wise and beneficent exertion of the police power over the public health. When the legislature goes beyond that into new or more debatable fields, it will be time enough to consider the limits of its power.

One expression in the opinion of the court below, and in some of the cases cited in the argument, requires a passing note. The act is not a penal statute. It is a broad general act relating to the health of the whole population of the commonwealth. It is not, therefore, to be construed or administered by the rigid technical rules applicable to penal laws, but fairly according to its intent, neither narrowing it to the letter, to the exclusion of cases clearly within such intent, nor stretching it beyond its legitimate scope to cover matters not clearly meant to be included. It is an act touching very closely common rights and privileges and therefore specially requiring a commonsense administration.

Decree affirmed.


text:
    Sheets’s Estate.

      Executors and administrators — Administrator d. b. n. c. t. a. — Trusts and trustees — -Will.
    Where a will creates an active trust in the executor for the administration and distribution of the estate among the children of the testator, and the executor dies before the trust is executed, the administrator d. b. n. c. t. a. of the testator is entitled to the fund, and the court has no authority to appoint a trustee to take the fund as against the administrator d. b. n. c. t. a. In such a case the fact that distribution under the will is postponed until the death of the children is immaterial as affecting the right of the administrator d. b. n. c. t. a. to the fund.
    Argued March 12, 1906.
    Appeal, No. 323, Jan. T., 1905, by Seth T. Foresman et al., from decree of O. C. Lycoming Co., refusing bill of review in the matter of the estate of John Sheets, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition by the sureties of Thomas J. Strebeigh for bill of review.
    John Sheets died testate April 29,1862; by his last will and testament, dated April 25,1862, probated in Lycoming county, May 1, 1862, he provided, inter alia, as follows :
    “ Item. I give and bequeath the whole of my estate, real, personal and mixed, wherever situate, to my sons and daughters (naming them) share and share alike except that my daughter Elizabeth shall have one thousand dollars over and above my other children. All which shall be invested by my executor hereinafter named, so far as the same shall be converted into money, and the interest of the money so invested as well as the rents, issues and profits of my real estate shall be paid over to my said children annually during their respective lives, and after the death of any one of them of my said children the principal of such deceased’ child shall be paid over to the children of such deceased child.”
    Letters testamentary were issued May 1, 1862, to John A. J. Sheets, the executor named in said last will and testament. John A. J. Sheets assumed the duties of his office and continued in the exercise of the same until his death in 1888.
    On June 22, 1888, letters of administration d. b. n. c. t. a., upon the estate of John Sheets, were issued to Thomas J. Strebeigh, a son-in-law of the decedent. Said administrator gave bond in the sum of $30,000 with the petitioners as sureties. On July 28,1888, the final account of John A. J. Sheets as trustee of the estate of John Sheets, deceased, was filed by Rachel T. Sheets, administratrix of the said John A. J. Sheets, deceased; said account was confirmed nisi and James B. Krause, Esq., was appointed anditor to dispose of the exceptions filed thereto and to make distribution. The exceptions were afterwards withdrawn, the account confirmed absolutely December 31, 1888, and distribution made by the auditor. After distributing the income among those entitled and a portion of the principal fund to the children and heirs of John A. J. Sheets, deceased, the auditor disposed of the balance of the permanent fund, amounting to $20,103.39, by directing Rachel T. Sheets, administratrix of John A. J. Sheets, to hand over to Thomas J. Strebeigh, administrator d. b. n. c. t. a. of the estate of John Sheets, deceased, enough securities and cash to makeup said balance.
    On January 7, 1889, at the same term of court, the orphans’ court of Lycoming county made a decree directing that the administratrix of John A. J. Sheets, deceased, should pay to Thomas J. Strebeigh, the trustee appointed by said court as the successor of John A. J. Sheets, trustee under the will of John Sheets, the amount of cash in her hands and deliver to him the securities belonging to the trust estate.
    Thomas J. Strebeigh, took into his possession and control the entire trust estate of John Sheets, deceased, and continued in the management and control of the same until his death on August 4, 1898.
    Between the years 1889 and 1895, Thomas J. Strebeigh filed six partial accounts as administrator d. b. n. c. t. a., in which he charged himself as such administrator with the funds which had come into his hands as trustee.
    After his death there was found to be shortage in the trust estate.
    McCltxre, C. J., specially presiding, filed the following opinion:
    We were of the opinion that as an active trust was created by the will of John Sheets, the proper proceeding would have been to have substituted a trustee on the death of the executor and to have turned over to him all the securities of the estate, and we refused a bill of review on the sole ground that the funds had come to the hands of the administrator, d. b. n. c. t. a., by virtue of a decree of the orphans’ court of Lycoming county unappealed from and unreversed, which decree was conclusive of Strebeigh’s right to receive them. A reargument was granted on the application of the petitioners, they alleging that this decree was modified by an order of the court made on January 7, 1889, awarding the funds of the estate, including the cash on hand and the securities, “ to Thomas J. Strebeigh, the trustee appointed by this court as the successor of John A. J. Sheets, trustee under the last will of John Sheets, deceased.”
    We have thoroughly reviewed this case, and have come to the conclusion that we were in error in holding that the administrator, d. b. n. c. t. a., had no right to receive the assets of the estate from the hands of the administratrix of the executor of John Sheets, deceased. It is true, the trust created by the will of John Sheets is an active one. This the Supreme Court decided when the will was before it for construction, but the trust is for administration and distribution and was vested in the executor by virtue of his office as executor, and the duties thereof on his death devolved upon one legally authorized to take his place in the management of the estate. The act of February 24, 1884, section 31, provides as follows: “Administrators de bonis non, with or without a will annexed, shall have power to demand and recover from their predecessors in the administration, or their legal representatives, all moneys, goods and assets remaining in their hands, due and belonging to the estate of the decedent,” etc.
    In Slaymaker v. Farmers’ National Bank, 103 Pa. 616, Mr. Justice Tkunkey, in delivering the opinion of the court, says : “ The object of the statute was to vest every administrator de bonis non, with the power to collect from his predecessor or his legal representatives, all assets in his hands, or for which he was liable, that belonged to the estate: Commonwealth v. Barnitz, 9 Watts, 25'2. Prior to its enactment an administrator de bonis non, could not recover the assets in the hands of his predecessor who had died; then the creditors, legatees or distributees of the estate were under the necessity of resorting to the personal representatives of the deceased executor or administrator to obtain satisfaction of their respective claims, but now they look to the successor who has all the powers of the original administrator and whose administration is a continuation of the original administration, under a separate responsibility, but by the same authority: Scott on the Intestate Law, 518-521. All assets belonging to the estate of the decedent, remaining in the hands of the first administrator, or to which he was entitled but had not administered, must pass into the hands of the successor in office.” And on page 620, he says: “ Aside from the personal estate which remains in specia, and was not administered by the first executor or administrator, and the uncollected debts owing to the estate, the administrator de bonis non may recover the assets remaining in the hands of his predecessor. He can bring suit immediately, but the defendant may have proceedings stayed until the account shall be adjusted, and then the judgment shall be for the balance.”
    In Kerr v. Hosier, 62 Pa. 188, an active trust devolved upon the executor of Nathan Woods to invest $5,000, a legacy to the testator’s granddaughter, which was to be paid to her when she came of age, but if she died before without lawful issue, then over. The executor finally administered the estate and filed an account of his administration, which was referred to an auditor and confirmed. He died, having this $5,000 in his hands. The question arose whether his administrator or the administrator de bonis non cum testamento annexo of the estate of Nathan Woods was entitled to this fund. The case turned on the question whether this legacy was a part of the undistributed estate of the testator, or whether it was held by the executor as testamentary guardian of the granddaughter. The court decided that the legacy was part of the undistributed estate of Nathan Woods, and should go to his administrator with the will annexed. That the executor had fully administered and settled the estate and filed an account of his administration, was not considered as a defense to the claim of the administrator de bonis non to receive the fund; on the contrary, it was indispensably necessary, in order to authorize the court to render judgment for the balance in the executor’s hands. According to this case, Strebeigh, as administrator with the will annexed, was entitled to receive the invested securities if they were still a portion of the estate of John Sheets, and as to this there can be but little question.
    In Olwine’s Appeal, 4 W. & S. 492, Arthur Rice, the testator, directed his executors, when his daughter should arrive at the age of twenty-one years, to sell his plantation at public sale, and after the payment of certain legacies to put out the remainder of the proceeds at interest, for the use of his Avife during her natural life, and after her decease to divide the same equally among his children. After the arrival of the daughter at age, the executor sold the real estate and received the proceeds. No account of the trust was ever settled by the executors. John Schaeffer was appointed by the court of common pleas trustee of the fund, and petitioned the orphans’ court for an account. It was held by the court that the trust for the widow was annexed to the office of the executors, and on the death of both could only be exercised by the administrator de bonis non, that Schaeffer as trustee had no interest in the estate or right to demand an account or to receive the proceeds.
    In Commonwealth v. Barnitz, 9 Watts, 252, the testator bequeathed a sum of money which he directed his executors to invest and apply the proceeds for the maintenance and support of his daughter. The executors renounced, and letters of administration with the Avill annexed were granted by the register. The administrators thus appointed settled their account and were discharged by the orphans’ court, which appointed another administrator de bonis non with the will annexed. It was held that the trust was confided by the will to the executors, and upon their renunciation the duties of it devolved upon the administrators with the will annexed, and after their discharge upon the administrator de bonis non, and that the court of common pleas had no power to appoint a trustee to manage the trust fund created by the Avill. The court, on page 256, says : “ The defendant and Henry Shultz, then, by receiving the appointment of administrator cum testamento annexo, became invested with the right to take charge of and manage the fund claimed in this action, according to the direction of the will, until they were dismissed from the administratorship of the estate. After that, however, upon the appointment of the administrator de bonis non, and his giving the requisite security, they ought to have paid the fund over to the administrator de bonis non, because it was still to be regarded as assets belonging to the estate of the testator, and liable for the payment of any debts which might be made to appear against it remaining unpaid. The duty of settling and paying such debts devolved upon the administrator de bonis non, and it would, therefore, seem to be proper that he should have the right of receiving the means necessary to enable Mm to do so.” This right of the administrator de bonis non to receive the property of the estate was thus decided, notwithstanding the fact that the testator died on January 39, 1811, and that the legatee did not make application for the appointment of a trustee until April 20, 1837. It is true in this case that the administrators cam testamento annexo were dismissed upon their own application, under the third section of the act of 1797, which provides that they, “ with leave of either of said courts, may be dismissed from the duties of their appointment and surrender the residue of the estate under their care to such person or persons as the said court may appoint.” But the residue of the estate which the administrators are required to surrender the court says not only refers to and includes the unadministered part of the estate in its most legal and technical sense, but all the assets-of the estate which remain in their hands.
    In Dorff’s Appeal, 10 W. N. C. 335, the executors were empowered to farm the estate, to sell at discretion, to divide the proceeds and invest the daughters’ shares for their use for life, and upon the death of each to divide her share among her issue or the next of kin. The court, on page 336, says : “ However, we are clearly of the opinion that the power in the will of James Hunt was vested in his executors virtute officii. It was to make distribution, and the fact that the portion of the daughters was to be set aside and held in trust for them, did not change the character of the power. After the sale, had each share separately been directed to be invested in trust, it would still have been a power for distribution and exercised by the executors virtute officii. Of course, under the law, as well settled, it survived to the administrator cum testamento annexo.”
    All these cases lead irresistibly to the conclusion that the power in the will of John Sheets was vested in his executor, John A. J. Sheets, virtute officii, and that his acceptance of the office of executor was without more an acceptance of the trusteeship, and upon his death the duties of the trust devolved upon the administrator with the will annexed.
    The trust was for the administration and distribution of the estate among the children of the testator and their issue, and that distribution is postponed until the death of the children the cases show does not change the character of the power. The duties devolved upon the executor as executor. During his life a trustee could not have been appointed, as that would have severed the trust from the office of the executor in which it was vested by the will. At his death the power which he exercised as executor fell upon his successor in office, the administrator with the will annexed.
    Here the testator clearly distinguishes a trustee nominatim and one virtute officii. The trust for the benefit of all the children is to be administered by the executor, John A. J. Sheets as executor of the will, while that for the benefit of his daughter Catherine is tobe executed by his son John A. J. Sheets, and in the event of his son’s death, no one who may be appointed administrator, d. b. n. c. t. a., shall exercise any authority over the fund bequeathed to her. While prohibiting the administrator, d. b. n. c. t. a., from managing the trust created for Catherine, he makes no such restriction regarding the trust for the other children, thus impliedly conceding the right of the administrator, with the will annexed, to exercise the powers given the executor so far as the latter trust is concerned.
    We are accordingly of the opinion that the order of the court confirming the report of James Krause, Esq., as auditor, wherein the balance of the funds in the hands of the administratrix of the executor were directed to be paid by handing over to Thomas J. Strebeigh, the administrator d. b. n. c. t. a., the securities of the estate, was a proper decree to make, as the trust was one which devolved upon the executor by virtue of his office and passed to the administrator, d. b. n. c. t. a., who had the right, under the act of 1834, to feceive the assets for the purpose of 'carrying out the terms and provisions of the will. '

      The order and decree of January 7, 1889, was a modification of the decree of December 31, 1888, and ordered the transfer of the assets to Thomas J. Strebeigh, the trustee appointed by this court as the successor of the said John A. J. Sheets. But this was erroneous, as Strebeigh never was appointed trustee under the will and if he had been he would not have been entitled to receive these assets as trustee, as his former appointment to the office of administrator with the will annexed carried with it the right to receive the assets of the trust estate.
    But, as we now view the case, it is no longer open to question that Strebeigh rightly received these assets as administrator, with the will annexed. He filed six accounts of his administration, in each of which he charged himself as administrator with the assets and accounted for the administration of the trust generally. These accounts were all duly advertised and confirmed by the court, and are conclusive of all matters contained therein. In an application for a bill of review there is no distinction to be made between an original and a final account. The terms “ final decree ” in the act of 1840 are alike applicable to both, and indicate a system under which, without any distinction, they are to be examined, corrected and confirmed as they are filed : Rhoads’s Appeal, 39 Pa. 186; Shindel’s Appeal, 57 Pa. 43; Schaeffer’s Appeal, 119 Pa. 640. It has thus been decided a number of times by this court that Strebeigh was properly chargeable as administrator with the will annexed with the assets of this estate, and as these decisions have never been reversed or reviewed, they are conclusive. If the bondsmen doubted the right of their principal to receive the assets of this estate their time was when the first account was presented for confirmation. By exceptions then filed they could have raised the question. The account which is now sought to be reviewed charges the estate of the administrator with the balance found due by the administrator’s fifth account, which was confirmed on June 13,1894, embracing the securities which were by said account stated to be in the hands of the administrator.
    To review the present account and to decide that the funds were not lawfully in the hands of the administrator -would be a complete reversal of the decrees of the court confirming the fifth and all previous accounts. This we are powerless to do. That the bondsmen did not have actual notice of the filing of the account is immaterial. All that is required is -the publication according to law. An allegation of the want of actual notice of the settling of the account of an administrator or of a decree of distribution has no avail where it appears that the notice provided by the act of assembly has been given : App v. Dreisbach, 2 Rawle, 287; Priestley’s Appeal, 127 Pa. 420 ; Ferguson v. Yard, 164 Pa. 586.
    May 7, 1906 :
    And now, to wit: October 24, 1905, the order made on January 26, 1905, dismissing the petition at the costs of the petitioners, is confirmed.

      Error assigned was the decree of the court.

      Seth T. Me OormicJc, for appellant.

      Max I. Mitchell, with him Otto 6r. Kaupp, for appellee.
   Per Curiam,

Judgment affirmed on the supplemental opinion of the court below.


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

      Railroads■ — Improper use of streets — Equity.
    A bill in equity against a railroad company to enjoin from making an unlawful use of streets in front of complainant’s property, and especially injurious to him, will not be dismissed where it appears that the illegal occupation of the streets by the defendant was not wantonly or even negligently done, but as choice of evils in a situation of constantly increasing difficulty involving very large public interests and convenience; but the bill will be retained, and a decree entered giving the defendant reasonable time to abate the nuisance or come to an agreement with the complainant. If the nuisance is not abated or the parties do not agree, the court will then by appointment of a referee, or issue to a court of law, or otherwise as it may deem most expedient, ascertain the damages to the complainant.
    Argued March 14, 1906.
    Appeal, No. 194, Oct. T., 1905, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1905, No. 987, dismissing bill in equity in case of Robert C. Hall v. Pennsylvania Railroad Company.
    May 7, 1906:
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      David T. Watson, of Watson Freeman, with him William Kaufman, for appellant.

      Patterson, Sterrett Acheson, for appellee.
   Per Curiam,

That the defendant was making an unlawful use of the streets in front of appellant’s property specially injurious to him was found as a fact by the court below, and, indeed, was so clear that it was not really denied by defendant’s counsel in this court. Being thus an admitted and continuing nuisance which could only be prevented at law by repeated actions, it is remediable in equity, and where the enforcement of a clear legal right comes within the jurisdiction of equity the doctrine of the respective inconvenience or loss to the parties has no place, and the duty to give relief is as mandatory as in courts of law: Sullivan v. Steel Co., 208 Pa. 540. The learned judge below, therefore, was in error in dismissing the bill and imposing the costs on the plaintiff.

It appears, however, beyond dispute, that the illegal occupation of the streets by defendant was not wantonly or even negligently done, but as a choice of evils in a situation of constantly increasing difficulty, involving very large public interests and convenience. While this consideration is not a bar to appellant’s rights, it is a good reason for the exercise of the chancellor’s discretion in the summary enforcement of such rights. And the appellant will have small ground for complaint of a little more delay in view of the facts as found by the court below that he bought the property when the conditions and use of the streets were the same, and as obvious as now, allowed between two and three years to elapse before filing his bill, and in the meantime, shortly before filing the bill, refused an offer from the defendant to lease the property at a much larger rental than that paid by his present tenants.

The decree is reversed, the bill directed to be reinstated and the injunction to be issued, the enforcement of the injunction, however, to be under the supervision and special orders of the court below so as to afford the defendant reasonable time to abate the nuisance. And at the proper time, if the parties do not agree, the court shall by appointment of a referee, or issue to a court of law, or otherwise, as it may deem most expedient, ascertain the damages to the plaintiff. Costs to be paid by the appellee.


text:
    Harris v. Parry, Appellant.

      Contract — Annuity—Equity.
    Where a brother, desiring to provide for a sister', purchases for her an annuity from an insurance company, under an agreement with her that the annuity should be paid to him during his lifetime, and after his death to her, equity will enforce the agreement, and require the annuity to be paid to the brother during his lifetime.
    Argued Jan. 8, 1906.
    Reargued May 2, 1906.
    Appeal, No. 193, Jan. T., 1905, by defendant, from decree of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 2,826, on bill in equity in case of John Campbell Harris v. Martha F. Parry and the Provident Life & Trust Company of Philadelphia. Before Mitchell, C. J., Fell,
    Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Davis,-J., filed the following opinion :
    J. Campbell Harris, the plaintiff, and the defendant, Martha F. Parry, are brother and sister. On November 24,1896, Harris purchased from the Provident Life & Trust Company, also defendant, an annuity bond, payable to Parry, in yearly sums of $2,000. He paid therefor, of his own moneys, the sum of $23,698. The next day Mrs. Parry agreed, in writing, with Harris, that upon the receipt of the said annuity, she would indorse and deliver the same over to him, or his designated agent. The bond is now and has been continuously in his possession, and was never delivered to Mrs. Parry.
    On June 12, 1903, Harris demanded of Mrs. Parry the delivery to him of the annuity checks thereafter to be received by her.
    The plaintiff avers, that he is informed and believes that Mrs. Parry intends to disregard the demand made upon her to deliver the said annuity check which would be issued on November 24, 1903, as well as other annuity checks to be issued thereafter, and that it is her intention to receive and appropriate them, and the money to be derived therefrom, to her own use, contrary to the said agreement.
    The bill prays that the said Martha F. Parry, “ be commanded to deliver to the plaintiff, by proper indorsement, all annuity checks hereafter received by her,” from the said trust company, that the said company “ deliver all such checks hereafter payable on their aforesaid annuity bond,” to the plaintiff, and that the said company “ be perpetually enjoined and restrained from paying to said Parry the annuity due on November 24, 1903, and such other annuities as may be due thereafter.”
    In the agreement, Martha F. Parry agrees that “ during the life of my brother, J. Campbell Harris, upon the receipt of payments therefor, and of interest deposited by him in the Pennsylvania Company .... I will immediately indorse and deliver them over to hini, or his designated agent (unless he arranges otherwise, hereon, in writing ”).
    It would seem, from the testimony, that Harris, being desirous of providing for the wants of his sister through the medium of an annuity bond, rather than by a will, purchased this bond for her use after his death, with the understanding and agreement, that during his life he should control the yearly payments. The only consideration was, evidently, such desire. The moneys were his own and though, after his death, he could not control the payments, yet the agreement, which must be taken as part of the transaction, and which was effective only during his life was legal and one which he could enforce. He had a right to reserve this power of control during, but not beyond his life, and during that period he could designate the purposes for which the said moneys were to be used. The first check, at least, received in accordance therewith, was delivered to the plaintiff under the terms of that agreement. In his testimony, the plaintiff says that he told Mrs. Parry that he intended giving her an annuity, instead of paying her the monthly sums as theretofore; that in case of his death, he would like to make this annuity, keeping it under his control, but so that it would be self-operating when he died. Mrs. Parry testifies that he said to her, “ I am thinking of buying you an annuity,” and that she replied', “ That is very kind, but what is the need of that? You will always have moneys to pay me what you are paying me now,” and that he replied, he would be better satisfied, to buy an annuity. Therefore he bought an annuity for her, and took from her an agreement that he should have its control during his lifetime.
    It appears to the court that the plaintiff has acted within his legal lights in the matter, and that the prayers of the bill must be granted.
    And now, February 24, 1904, this cause came on to be heard at this term and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit:
    1. That the defendant, Martha F. Parry, be, and she is hereby, perpetually enjoined and restrained, during the lifetime of John Campbell Harris, from demanding or receiving-from the Provident Life & Trust Company of Philadelphia the annuity payment due on November 24, 1903, as well as such other annuity payments as shall become due hereafter upon the annuity bond dated November 24, 1896, issued by the said the Provident Life & Trust Company of Philadelphia.
    2. That the defendant, the Provident Life & Trust Company of Philadelphia, be, and the same is hereby, perpetually enjoined and restrained from paying to the defendant, Martha F. Parry, during the lifetime of John Campbell Harris, the annuity due on November 24, 1903, and such other annuity payments as may hereafter become due on the annuity bond dated November 24, 1896.

      May 7, 1906:
    3. That the defendant, the Provident Life & Trust Company of Philadelphia, be, and the same is hereby, commanded to pay to John Campbell Harris, plaintiff, the annuity due on November 24, 1903, and furthermore to pay to him as long as he shall live such other annuity payments as may hereafter become due on the said annuity bond dated November 24, 1896.

      Error assigned was the decree of the court.

      Charles Seehner, with him J. Claude Bedford, for appellant.

      John Gr. Johnson and Samuel A. Boyle, for appellee.
   Per Curiam,

Decree affirmed on the opinion of the court below.


author: Mr. Justice Bbown,

text:
    Commonwealth ex rel., Appellant, v. Foster
    (No. 1).

      Municipalities — Cities of the third class — Municipal contracts — Prior appropriation.

    A prior appropriation by a city of the third class is essential to every contract entered into by it, in which “the appropriation of money” is involved.
    A mandamus will not be granted against the controller of a city of the third class to certify a contract for furnishing electric lights to the city, where it appears that no appropriation had ever been made either by resolution or ordinance of the councils of the city for the payment of any moneys under the contract.
    Argued Feb. 12, 1906.
    Appeal, No. 140, Jan. T., 1905, by plaintiff, from order of C. P. Lebanon Co., June T., 1905, No. 10, refusing mandamus in case of Commonwealth ex rel. The Edison Electric Illuminating Co. v. Charles Foster, Controller of the City of Lebanon.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Petition for mandamus. Before Ehrgood, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal of mandamus.

      May 7, 1906 :

      John G. Johnson,with him S. P. Light, and G. H. Killinger for appellant.
    To sustain our claim we offer a contract duly-entered into after bids taken, in pursuance of ordinance, between the appellant and the proper officers of the city, on terms which the law upholds.
    Similiar contracts have been held valid in: Black v. Chester, 175 Pa. 101; Metropolitan Electric Co. v. Reading, 175 Pa. 107; Seitzinger v. Tamaqua Boro., 187 Pa. 539.
    The controller cannot now raise the question that no appropriation was made in 1903, in anticipation of the requirements of this contract, prior to the passage of the ordinance which authorized it, the contract having been put into binding form by the proper authorities of the city, and it having been partly executed by the appellant rendering the services for which it stipulated and which were accepted by the city, which is now desirous of paying for those services which were so rendered to and accepted by it: Com. v. Philadelphia, 176 Pa. 588; Com. v. Pittsburg, 204 Pa. 219; Com. v. George, 148 Pa. 463; Black v. Chester, 175 Pa. 101; Philadelphia v. Lockhardt, 73 Pa. 211; Phila. v. Hays, 93 Pa. 72; McKnight v. Pittsburg, 91 Pa. 273 ; Shiloh Street — McCormick’s Appeal, 165 Pa. 386 ; Amberson Avenue, 179 Pa. 634.

      George B. Woomer, for appellee.
    No contract involving an appropriation of money can take effect without a precedent appropriation therefor, and an estimate of expenditure charged against the appropriation and so certified by the controller: Harrisburg v. Shepler, 7 Pa. Superior Ct. 491; Harrisburg v. Shepler, 190 Pa. 374; Harrisburg v. Mish, 14 Pa. Superior Ct. 496; Harrisburg v. McPherran, 200 Pa. 343.
    A controller cannot certify a contract for which an insufficient appropriation has been made: Deysher v. City of Reading, 18 Pa. C. C. Rep. 611.
   Opinion by

Mr. Justice Bbown,

Appellant’s application in the court below was for a writ of mandamus to compel the appellee, controller of the city of Lebanon, to certify on a contract for furnishing electric light to the city the appropriation against which the expenditures under the contract are to be charged, and to countersign two warrants drawn for light furnished under it. Judgment was entered for the respondent on the demurrer to his return and the petition was dismissed. There are, therefore, no facts in dispute.

The city of Lebanon is a city of the third class, and the duties which the appellant insists its controller owes to it, and which he should be compelled to perform, are defined in sections 4 and 5 of article IX of the Act of May 23, 1889, P. L. 277. By the fourth section it is the duty of the controller to countersign all warrants upon the city treasurer, the form whereof shall be prescribed by councils, and he shall not suffer any appropriation made by the city councils to be overdrawn. The fifth section provides: “ Every contract involving an appropriation of money shall designate the item of appropriation on which it is founded, and the estimated amount of the expenditure thereunder shall be charged against such item and so certified by the controller on the contract before it shall take effect as a contract, and the payments required by such contract shall be made from the fund appropriated therefor. If the controller shall certify any contract in excess of the appropriation made therefor, the city shall not be liable for such excess, but the controller and his sureties shall be liable for the same; which may be recovered in an action at law by the contracting party aggrieved. It shall be the duty of the controller to certify contracts for the payment of which sufficient appropriations have been made.”

The contract of the appellant for furnishing light to the city of Lebanon was entered into on June 15, 1903, and was for lighting the streets with electricity from January 1, 1905, to December 31, 1914. In his return the controller avers “ that no appropriation has ever been made either by resolution or ordinance of the councils of the city of Lebanon, Pa., for the payment of any moneys due or alleged to have become due to the relator, under its alleged contract with the city of Lebanon dated June 15th, 1903.” Under the pleadings it must, therefore, be taken as an admitted fact that at the time the contract of June 15, 1903, was entered into there was no item in any appropriation of money by the city councils that could have been designated as the one on which the contract was founded; and yet the mandatory words of the act are that there shall be such a designation in the contract; that the estimated amount of the expenditure under the contract shall be charged against such item; that the controller shall so certify on the contract before it shall take effect, and that the payments required by such contract shall be made from the fund appropriated therefor. The meaning of the words of the fifth section is unmistakable and the legislation is wise. Even if it were not, it is the law. “ One of the evils of municipal government in the past, was the practice of entering into contracts involving large expenditure of the city revenue, without a prior estimate of the cost, or a prior setting aside of the amount necessary to meet such cost, with the result that, after the expenditure was authorized by the execution of a contract and the contract was fulfilled, the municipality was left in financial straits because the cost of the work contracted for had not been counted before it was completed. This, undoubtedly, was one of the mischiefs to be remedied by the law which requires the controller to certify contracts for the payment of which sufficient appropriations have been made, and forbids him, upon the penalty of making himself 9,nd his sureties personally liable for the excess, to certify a contract which will involve an expenditure in excess of the appropriation upon which it. is founded. And, in order to prevent the controller from evading his plain duty by a merely formal certificate, he is required to certify upon the. contract the essential facts, namely, the estimated amount of the expenditure thereunder chargeable against the item of appropriation on which it is founded: ” Harrisburg v. Shepler, 7 Pa. Superior Ct. 491.

A prior appropriation by a city of the third class is essential to every contract entered into by it in which “ the appropriation of money” is involved. Such was the contract of the appellant with the city of Lebanon. Without an appropriation for the contract it had nothing to rest upon — no foundation — for the words of the act are that such contract “ shall designate the item of appropriation on which it is founded,” and the duty of a controller, which the appellant seeks to have this appellee perform, is “to certify contracts for the payment of which sufficient appropriations have been made.” Not only was there no sufficient appropriation made for this contract at the date of its execution, but there was no appropriation at all, and it would be judicial defiance of statutory words, as clear as the legislature could have made them, to compel the appellee to countersign warrants drawn, in payment of moneys alleged to be due on contract for expenditure under which there never was any appropriation.

True, the contract provides that “ the monthly payments to be made on this contract during the term thereof and according to the conditions thereof shall be charged against the item of appropriation for lighting the streets of the city of Lebanon, and the payments required as aforesaid shall be made from time to time from the fund appropriated for that purpose.” But there was no such an appropriation at that time, as appears from the respondent’s answer, admitted by the appellant to be true. There was an ordinance passed by the city of Lebanon on April 4, 1904, nearly ten months after the contract was entered into, making an appropriation for the fiscal year ending March 31, 1905, in which there was an item appropriating $12-, 500 for the lighting of streets. This was notan appropriation for the electric lighting, or for the payment of any sums due, or alleged to be due, under the contract of June 15,1903, but was for the general lighting of the city, which included that furnished by gas and oil.. But we need not consider this appropriation of 1904, for, as the court below properly held, an appropriation before the execution of the contract was a prerequisite to its valid existence. No other interpretation can be put upon the words of the statute.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Commonwealth ex rel., Appellant, v. Foster
    (No. 2).
    Argued Feb. 12, 1906.
    Appeal, No. 250, Jan. T., 1905, by plaintiff, from judgment of C. P. Lebanon Co., June T., 1905, No. 139, for defendant on case stated in suit of Commonwealth ex rel. v. Edison Electric Illuminating Co. v. Charles Foster, Controller of the City of Lebanon.
    May 7, 1906:
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin JJ.
    Affirmed.
   Opinion by

Mr. Justice Brown,

On this appeal the fundamental question that was involved in the preceding case is controlling. The admission in the case stated is “No appropriation was made by councils prior to the execution of the contract of June 15,1903, between the relator and the city, in anticipation of the requirements of that contract. No appropriation whatever for street lighting was passed by councils during the fiscal year, 1903-1904, except the appropriation made in the general appropriation bill for that year, which contained an item for * street lighting.’ All the money so appropriated during said fiscal year for street lighting was expended for various lighting purposes under contracts other than the contract of June 15,1903, namely, upon the contract of May 15, 1899 (as per paragraph 5, above), together with small sums paid for gas and oil.”

For the reasons stated in the opinion filed in January Term, 1905, No. 140, the judgment is affirmed.


text:
    Griffith, Appellant, v. Eisenberg.

      Trusts and trustees — Husband and wife — Separate use — Investment with wife’s money.

    Where a husband purchases real estate with his wife’s money and takes the title in his own name, and subsequently conveys the property to a trustee for the sole and separate use of his wife and her heirs and assigns, and in the deed recites the fact that the property had been purchased with his wife’s money, the wife takes an absolute estate in the land, which she has power to alienate.
    Argued Feb. 27, 1906.
    Appeal, No. 341, Jan. T., 1905, by plaintiffs, from judgment of C. P. Berks Co., March T., 1905, No. 53, on verdict for defendant in case of James M. Griffith, John H. Fow, attorney in fact for James M. Griffith, and John H. Fow v. Harry C. Eisenberg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.

      Proceedings under Act of June 10,1893, P. L. 415, to quiet title. Before Endlich, J.
    From the record it appeared that the proceedings were instituted by II. C. Eisenberg and others in possession of certain lands in the city of Reading against the heirs at law of Rose Ann Griffith. An issue was framed in which the heirs were made parties plaintiff and Eisenberg a party defendant as to the land claimed by Eisenberg.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendant.

      H R. Green, of Green $ Green, with him Henry Maltzberger and Eow Anderson, for appellants.
    That a separate use trust was created will appear from an examination of Jamison v. Brady, 6 S. & R. 466 ; Heck v. Clippenger, 5 Pa. 385, and Snyder v. Snyder, 10 Pa. 423.
    Mrs. Griffith had no power to convey, for a feme covert is, in respect to her separate estate, to be deemed a feme sole only to the extent of the power clearly given by the instrument by which the estate is settled, and has no right of disposition beyond it: Lancaster v. Dolan, 1 Rawle, 231. She shall be deemed to have no power, but what is positively given or reserved to her: Thomas v. Folwell, 2 Whart. 11; Pullen v. Rianhard, 1 Whart. 514.
    The words in the present deed “ but be subject only to her own order or disposition ” do not give power to convey: Cochran v. O’Hern, 4 W. & S. 95 ; West v. West, 10 S. & R. 445.
    The married women’s act of 1848 made no change in the law as to the wife’s separate use trust: Penna. Co. v. Foster, 35 Pa. 134; Wright v. Brown, 44 Pa. 224.

      E. H Deysher, with him Jefferson Snyder and C. H. Hull, for appellee.
    The first position assumed by defendant is that her money having purchased the property, David A. Griffith could not impress upon it a limitation without the consent of Rose A. Griffith, the beneficial owner: Richardson v. Aiken, 104 Pa. 567 ; Haines v. Ellis, 24 Pa. 253.
    May 7, 1906:
    The interpretation given to the act of 1848 in Haines v. Ellis, 24 Pa. 253, was questioned in The Pennsylvania Company v. Foster, 35 Pa. 134, decided in 1860, and was overruled in Wright v. Brown, 44 Pa. 224, decided in 1863.
    At the time of the execution of the assignment by David A. Griffith to Matthias S. Richards, May 29,1856, the decision of Haines v. Ellis had been read into the act of 1848 : Douglass v. Pike County, 101 U. S. 677; Geddes v. Brown, 5 Phila. 180 ; Menges v. Dentler, 33 Pa. 495.
   Opinion by

Mr. Justice Brown,

Both parties to this issue claim title from the same source, Rose Ann Griffith, the mother of James M. Griffith, one of the appellants. Before her marriage to David A. Griffith she was Rose Ann McGivern. By the will of Charles Evans, admitted to probate on September 10,1847, she was bequeathed the sum of |4,000 to be paid to her on attaining her majority. At that time she was not quite fifteen years old. She was married to David A. Griffith October 15, 1850, and attained her majority in December, 1853, when she became entitled to the legacy left her by Charles Evans. On August 1,1855, Isaac Eckert conveyed to David A. Griffith a tract of land in the city of Reading containing about five acres, of which the lot in controversy formed a part. On May 29, 1856, David A. Griffith, by a writing annexed to the Eckert deed, conveyed the premises to Matthias S. Richards, in trust, “ for the sole use and benefit of the said Rose Ann (intermarried with the said David A. Griffith) and to her heirs and assigns forever, and in such way and manner that no other person or persons, husband or otherwise, shall by no law, usage or custom whatever, have any right, title, claim or interest to the rents, issues or profits thereof, nor be in any way or manner liable for any debts or contract which may hereafter be created, but be subject only to her own order or disposition.” In the conveyance by Griffith to Richards there is a recital that the money which paid for the premises purchased from Eckert and wife had been furnished and provided out of the estate given to Rose Ann Griffith by Charles Evans, deceased. Subsequently Mrs. Griffith and her husband conveyed portions of the land to different grantees, among them John R. Miller, to whom on April 20, 1888, the lot in controversy was conveyed. He conveyed it to Wilson F. Beruhart, who in turn conveyed it to the appellee on November 5, 1890. Mrs. Griffith died February 25, 1899, and James M. Griffith, her son, and his grantee, the other appellant, now claim the property on the ground that it was held for the sole and separate use of his mother, and as she had no power to dispose of it, it descended to her heirs at law.

The learned trial judge directed a verdict for the defendant and discharged the rule for judgment for the plaintiffs non obstante veredicto, because he was of opinion, that there was not a separate use trust created for the wife, and, even if there was, her right at the time it was created was such as existed under the law as announced in Haines v. Ellis, 24 Pa. 258. The opinion in that case, delivered in 1855, held that real estate conveyed to a married women for her sole and separate use imposed no restriction upon her right to sell it. This was subsequently overruled by Wright v. Brown, 44 Pa. 224, but the court below was of opinion that the right of Mrs. Griffith was not affected by the latter case, decided after she had acquired a right recognized by the former.

David A. Griffith undoubtedly received the money, or a portion of it, that had been paid to his wife as a legatee of Charles Evans. He used it to pay for the property conveyed to him by Eckert, for he so declared in his deed to Richards. The preamble in that deed recites his use of his wife’s money to pay for the property as the inducement to make the deed to Richards, and shows clearly that he had not received the money as a gift from his wife. Even if he had taken the deed in his own name, his conveyance to Richards, in trust for his wife, can be read only as an acknowledgment by him that he had taken and held it charged with accountability to his wife for her money, which had paid for the property, and in discharge of such accountability, and of an obligation which he felt was upon him to secure her money to her, he made the conveyance now alleged to have created only a separate use for her. The equitable title had been in the wife from the time the husband received the deed, and that he so understood it cannot be doubted, in the face of what appears in his deed to Richards. No voluntary settlement was made by tbe husband in which he might, of course, have imposed conditions upon which the donee was to enjoy the estate, but the conveyance was made in recognition of a duty and obligation to make it. It was made in discharge of a debt to her, and the learned judge was correct in saying that he could “ impose no shackles upon it without the consent of the grantee.” She got simply what was her own, and her grantor could have imposed no conditions upon it in restraint of her right of alienation, unless she so consented. Richardson v. Aiken, 104 Pa. 567, is conclusive of this. In that case, a father, indebted to his married daughter in a certain sum which had been paid to him as her guardian, conveyed real estate to her for her separate use in consideration of his indebtedness to her, and it was held: “ This was not in any sense a settlement. The grantor was the guardian of his daughter, and the conveyance shows upon its face that it was in consideration of the ward’s money in his hands. Under such circumstances it was not in the power of the grantor to impose a separate use trust upon the grant, or any clog upon it whatever, without his daughter’s consent. She was a purchaser for value.” There is nothing in this record to show that Mrs. Griffith ever agreed to any conditions restricting her right to dispose of the real estate; but, on the other hand, by selling it off from time to time, she seems clearly to have understood that she had the right to exercise absolute ownership over it and that the deed from her husband was intended to give her such a right. As the first reason of the learned trial judge for refusing judgment to the appellants was a correct one, we need not pass upon the second.

Judgment affirmed.


text:
    Horn & Brannen Manufacturing Company v. Steelman, Appellant.

      Mechanics’ liens — Gas fixtures — Contract—Statutes—Act of June 15, 1897, P. L. 155.
    The Act of June 15,1897, P. L. 155, extending the right to file a mechanic’s lien to persons supplying gas fixtures and other appliances mentioned in the act, gives no right of lien where the goods were contracted for before the passage of the act, but delivered to the building after its passage and approval.
    A statute will always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature.
    Argued March 20, 1906.
    Appeal, No. 10, Jan. T., 1906, by defendant, from judgment of Superior Ct. Oct. T., 1905, No. 248, affirming order of C. P. No. 8, Phila. Co., Dec. T., 1897, No. 806, M. L. D., sustaining exceptions to report of referee in case of The Horn & Brannon Manufacturing Company v. Walter E. Steelman.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Appeal from Superior Court on exceptions to the report of E. Spencer Miller, Esq., referee; see 29 Pa. Superior Ct. 544.
    The facts are stated in the opinion of the Supreme Court.

      JError assigned was the judgment of the Superior Court.

      IT. Gordon Me Couch, with him Henry 8. Drinker, Jr., for appellant.
    In the absence of positive indication that the legislature intended to give the act of 1897, retrospective operation, it should not be so interpreted.
    The time at which the debt in question was “ contracted,” within the meaning of the act in question, was not the time of the delivery of the goods, but the time of making the contract which gave rise to the debt, and therefore the act of June 15, 1897, gives no lien for goods delivered pursuant to a contract entered into before that date.
    In upholding the plaintiff’s construction of the act we must impute to the legislature the intention to abrogate the established rule of law that goods for which a mechanic’s lien is claimed must have been sold on the credit of the building: Presbyterian Church v. Allison, 10 Pa. 418; Odd Fellows’ Hall v. Masser, 24 Pa. 507; Owens v. Johnson, 174 Pa. 99; Hommel v. Lewis, 104 Pa. 465; Oppenheimer v. Morrell, 118 Pa. 189; Fahnestock v. Wilson, 95 Pa. 801; Schroeder v. Galland, 26 W. N. C. 33; Hancock’s Appeal, 115 Pa. 1; Brown v. Cowan, 110 Pa. 588 ; Haddington Church v. Philadelphia, 108 Pa. 466.
    May 7, 1906:

      Samuel Grustine Thompson, with him Walter Willard, for appellee.
    A mere naked, unexecuted contract would not in itself be sufficient to support a lien. In addition there must be performance and delivery. Until this is done, there is no right to lien: Johnson on Mechanics’ Liens, page 123; Wilson v. Forder, 30 Pa. 129; White v. Miller, 18 Pa. 52.
   Opinion by

Mr. Justice Brown,

The mechanic’s lien Act of June 16, 1836, P. L. 696, provides that a building “ shall be subject to a' lien for the payment of all debts contracted for work done, or materials furnished for, or about, the erection or construction of the same.” By the Act of April 14, 1855, P. L. 238, entitled a supplement to the act of 1836, the provisions of that act are extended to plumbing, gas fitting and furnishing and erection of grates and furnaces. The Act of June 15, 1897, P. L. 155, amends the act of 1855, by further extending the provisions of the act of 1836, to gas fixtures, and by this last act, to' be read in connection with the act of 1836, every building is made subject to the lien of a debt “ contracted ” for gas fixtures furnished to it. The question now before us is whether the appellee, The Horn & Brannen Manufacturing Company, which furnished gas fixtures for a building after the passage of the act of 1897, under á contract to do so entered into before the act was passed, has a right to file a mechanic’s lien for the materials so furnished.

The words of the act of 1836 are that a building “ shall be subject to a lien for the payment of all debts contracted for ” materials furnished to it. On this appeal counsel for appellee labor to show that, prior to the passage of the act of 1897, no contract had been entered into between it and Steelman, the owner and contractor, to furnish the gas fixtures, and therefore the act, if it is only prospective in its operation, protects their client. We are at a loss to understand how this position can be seriously taken, in view of what appears in the record. A part of the stipulation referring the case to the referee is a distinct admission by the appellee that a contract was entered into between it and Steelman prior to the passage of the act of June 15, 1897, to furnish the material which is the subject of this lien. That portion of the stipulation is as follows: “ Whereas, prior to the passage and approval of the act of assembly of June 15, 1897, extending the provisions of the mechanics’ lien law to plumbing, gas fitting, and furnishing and the erection of grates and furnaces, gas fixtures, electric-light fixtures and wiring, the defendant proposed to the plaintiff to have it furnish the work, materials and gas fixtures for the buildings against which the above liens were filed, and that said plaintiff agreed to accept such proposition to so furnish them.” On the trial before the referee the first witness called by the plaintiff testified as follows : “ Q. Was there ever any written contract between you? A. No; only our estimate. Q. Was there any written acceptance of that estimate? A. I don’t think there was. I could not find any at our office. Q. Was there or was there not ? A. There must have been. He would come in from time to time to get the fixtures.” The referee found as a fact that “prior to June 15, 1897, the defendant proposed to plaintiff that it furnish and set up in the respective houses which were in course of erection or completion the gas fixtures specified in the lien filed, at the prices named therein, and prior to the said date the plaintiff accepted also the said propositon. The fulfillment by the plaintiff of the contract so made was not effected by the delivery of the said gas fixtures until after the fifteenth day of June, 1897.” Having been of opinion that the act of 1897, was not retroactive and applied only to debts contracted after its passage for materials furnished for or about the erection or construction of a building, he reported that judgment ought to be entered for the defendant. In disposing of the exceptions by the appellee to this report, the court below, sustaining the contention that the lien was within the protection of the act, said the question was “ whether the Act of June 15, 1897, P. L. 155, extending the right to file a mechanic’s lien to persons supplying gas fixtures and other appliances mentioned in the act, gave a right of lien where the goods were contracted for before the passage of the act, but delivered to the building after the passage and approval of the act.” Referring to the testimony in the case, the learned judge delivering the opinion of the court stated that the claimant had made a contract before the passage of the act to supply the gas fixtures for which the lien was filed. Clearly the contract out of which the indebtedness to the appellee has arisen was .made before the passage of the act of 1897, and must be so considered in determining the question before us.

The right to file a mechanic’s lien must have a contract as its basis or foundation. “ The claims of workmen and material-men do not become liens on a house from the mere fact that the work was done or the materials found for its erection, for they must be founded on a contract, express or implied, direct or indirect, with the owner of the estate sought to be charged. The lien law of 1886 provides only for ‘ debts contracted ’ for work and materials: ” Harlan v. Rand, 27 Pa. 511. This is reaffirmed in Owen v. Johnson, 174 Pa. 99. The rights of these parties were fixed by their contract, made prior to the passage of the act of 1897. What were these rights ? On the one hand, the appellee bound itself tó furnish the gas fixtures to Steelman on his personal responsibility, and for its failure to do so, his right was to hold it responsible for any damages resulting from a breach of its contract; on the other hand, he bound himself to pay for these fixtures, and, for his failure to do so, the right of the appellee would have been to sue him for what he owed. The rights of each of these contracting parties were such, and such only, as existed at the common law at the time they contracted and as if there had been no mechanic’s lien law. And yet Brannen testified that the goods were sold, not on the credit of Steelman, but on the credit of the building. This witness may have intended to testify truthfully, but what he stated was legally an untruth, for at the time the contract was made there was no law in existence giving his company a right to hold the building for what it agreed to furnish.

But the contention of the appellee, sustained by the court below and the Superior Court, is that the delivery of the goods upon the faith and credit of the building fixed the right to file the lien, and as it took place after the passage of the act, such right existed. In so holding, both courts overlooked the words of the act of 1836. The right of lien does not arise or grow out of the furnishing or delivery of the materials, but out of the debt contracted for them. The debt here was contracted before the passage of the act. There was only one time when it could be contracted, and that was when Steelman contracted with the appellee to buy its goods. The debt then arose, though payment of it could not be enforced until afterwards — until the appellee had furnished the goods which it agreed to furnish. But in that contract there was involved no right on the part of the appellee to file a lien, for there was then no law giving it such right. If the materials that it agreed to furnish had been within the mechanic’s lien laws then in existence, the contract would have given it a right to file a lien. It would have acquired such a right at the same time that Steelman created an indebtedness to it; but such right could not have been exercised until the materials had been delivered. The distinction between the time when a right of lien is acquired and when it can be exercised was overlooked by both courts, and in so overlooking it the error was committed which we must correct.

As the rights of the parties were such only as existed under the contract made before the passage of the act of 1897, do its terms apply to them ? This is easily answered, for there is nothing in the words of the act of 1836, to which the act of 1897 is but a supplement, extending the right to file a lien for gas fixtures, to justify the belief that it was intended by the legislature to act retroactively. “ Nothing short of the most indubitable phraseology is to convince us that the legislature meant their enactment to have any other than a prospective operation: ” Dewart v. Purdy, 29 Pa. 113. “ We always construe statutes as prospective and not retrospective, unless constrained to the contrary course by the rigor of the phraseology: ” Price v. Mott, 52 Pa. 315. It is hardly necessary to cite any of the many cases announcing this rule, and reference will be made to but one. “ There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the legislature: Neff’s Appeal, 9 Harris, 248; Fisher v. Farley, 11 Id., 501; Becker’s Appeal, 3 Casey, 52. Lord Bacon expressed concisely the same rule: Ñeque enim placet Janus in legibus. Retrospective laws generally if not universally work injustice, and ought to be so construed only when the mandate of the legislature is imperative: ” Taylor v. Mitchell, 57 Pa. 209. Applying this settled rule of construction to the act of 1897, its provisions can apply only to debts for materials contracted for after its passage. The wisdom of this rule manifests itself in the effort of the appellee to have it disregarded in this case. The appeal from the judgment of the Superior Court was allowed on the petition of Thomas D. Andress, who purchased the building from Steel-man. He may have purchased it before the passage of the act of June 15, 1897, after its erection, but before the gas fixtures were furnished to it, and, if so, it was necessary for him to protect himself only against such mechanics’ liens as could be filed against the building under the statutes then existing. At that time he would have known that no lien could be placed on it for gas fixtures furnished or to be furnished, but, with the act given a retrospective operation and taking in the contract of Steelman, he might have to pay for what at the time he purchased the property could not, under the laws then in existence, have become a lien upon it.

In Best v. Baumgardner, 122 Pa. 17, the question raised on this appeal was not passed upon by the court, and what was said by Greek, J., in overruling the constitutional objection to the act of 1887, is not to be regarded as in conflict with the views expressed in this opinion.

The judgment of the Superior Court is reversed, as is that of the common pleas, and the record is remitted with direction that judgment be entered for the defendant in accordance with the report of the referee.