text:
    Mellinger v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Fire—Sparks from engine — Circumstantial proof,

    1. In an action against a railroad company to recover damages due to a fire alleged to have been caused by the negligent operation of an engine the case is for the jury, where plaintiff adduces evidence to show that on the day of the fire defendant’s train drawn by an engine whose number was stated passed the premises puffing hard, while the wind was toward plaintiff’s yard; that about fifteen minutes later a fire was discovered on the roof of a shed; that the same engine on the train was seen throwing out sparks “large as a hazel-nut” about one hour later, at a distance of two and one-half miles from the pláce of the fire, that sparks of this size could not pass through an ordinary arrester in good condition and properly adjusted, and that the engine had large holes in the stack.
    2. In such a case it is not error to permit the plaintiff to show that the engine which had passed the plaintiff’s property fifteen minutes before the fire was discovered, threw out large sparks two and one-half miles from the place of the fire about one hour after the fire had started.

      3. In an action against a railroad company to recover damages for destruction of property by sparks, the plaintiff may recover, although his evidence is wholly circumstantial that a particular engine started the fire, and he produces no witness who actually saw the fire communicated by the engine to the building.

      Evidence — After discovered evidence — New trial — Courts—Abuse of discretion.

    4. Where after discovered evidence is of a cumulative nature and it is problematical whether it would have made any change in the result, the question of a new trial is for the trial judge, and in the absence of abuse his discretion will not be overruled.
    Argued May 16, 1910.
    Appeal, No. 170, Jan. T., 1909, by defendant, from judgment of C. P. Lancaster Co., Jan. T., 1908, No. 54, on verdict for plaintiff in case of W. G. Mellinger v. The Pennsylvania Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin and Mosciizisker, JJ.
    Affirmed.
    Trespass to recover damages for burning of a lumber yard. Before Hassler, J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,360. Defendant appealed.

      Errors assigned were refusal to grant new trial and refusal of binding instructions for defendant.

      W. U. Hensel, for appellant.
    The court erred in submitting the case to the jury: Albert v. Ry. Co., 98 Pa. 316; Henderson v. R. R. Co., 144 Pa. 461; Jennings v. R. R. Co., 93 Pa. 337; P. & R. R. R. Co. v. Schultz, 93 Pa. 341; R. & C. R. R. Co. v. Latshaw, 93 Pa. 449; Phila. & Reading R. R. Co. v. Yerger, 73 Pa. 121; F. & B. Turnpike Co. v. R. R. Co., 54 Pa. 345; Erie Ry. Co. v. Decker, 78 Pa. 293; P. & R. R. R. Co. v. Hendrickson, 80 Pa. 182; R. R. Co. v. Yeiser, 8 Pa. 366.
    The refusal to grant a new trial was not the proper exercise of judicial discretion: Martin v. Marine, 1 Phila. 280; Moore v. Webster, 14 Pa. C. C. Rep. 433; Bishop v. Lehman, 9 Phila. 112; Bitting v. Mowry, 1 Miles, 216; Kollock v. Palmer, 5 W. N. C. 474; Coghill v. Marks, 29 Cal. 673; Holbrook v. Nichol, 36 Ill. 161.
    July 1, 1910:

      John E. Malone, with him John M. Groff, for appellee.
   Opinion by

Mr. Justice Moschzisker,

The plaintiff was the owner of a lumber yard with certain buildings and sheds located about seventy feet from the tracks of the defendant’s railroad. On July 31, 1907, between 12 and 1 o’clock p. m., the property was destroyed by fire. Plaintiff brought suit alleging that the defendant negligently operated upon its line an engine with a defective smokestack which emitted large sparks in such a manner as to ignite and set fire to his property. He recovered a verdict, and the defendant has appealed.

The jury could have found from the testimony that on the day of the fire a work train of the defendant company passed the premises in question; that the engine ascended a heavy grade in approaching and was puffing very hard as it passed, while the wind was blowing over the railroad toward the plaintiff’s yard; that about fifteen minutes thereafter a fire was discovered on the top of one of the lumber sheds about twenty feet from the ground; that at the time the fire started on the roof “there were no flames of fire in the shed under the roof where the fire was on top;’’ that the engine on the train was numbered 1346— “she was an extra engine operated everywhere;” that this same engine was seen at about 1 o’clock p. m. on the day of the fire two and one-half miles past the plaintiff’s property throwing out sparks or cinders as large as the point of one’s thumb, “as large as hazelnuts, or larger,” and “some half an inch wide;” that the spark arresters in ordinary use are of three-sixteenths inch mesh, and sparks of the size and kind referred to could not pass through such arresters if in good condition and properly adjusted; that the engine in question had several holes in the smokestack on the side near the plaintiff’s property “some couple of inches wide and couple of inches long” and “just like burned through.”

After referring to the testimony relating to the cause of the fire, the trial judge said: “From it you may infer that the shed was set on fire by the defendant’s engine, if you are satisfied to arrive at such a conclusion from this testimony. It is not necessary that anyone should have seen the sparks go from the engine to the roof, but if the circumstances show and are such as would lead a reasonable man naturally to infer that that was the cause of the fire you may find that in your verdict. If it does not so satisfy you, or would not in your opinion satisfy a reasonable man, then, of course, it would not be sufficient evidence to justify you in finding that the fire was caused in this way. But even though the engine of the defendant company in emitting a spark, or in any other way, did cause this fire, that of itself would not be sufficient to render it liable for any loss which the plaintiff has sustained.” The trial judge properly defined negligence and explained the duty of the plaintiff to prove it. After a general review of the evidence, the charge continued: “Now this testimony is all for you. If from it you find that the buildings were set on fire by the defendant company, and that it was caused by their not having a proper arrester such as is in usual and ordinary use in their engines, or that it was defective so it could emit a spark the size of a hazel-nut or the end of a man’s thumb or half an inch in diameter, then defendant would have been negligent, and the plaintiff would be entitled to recover, but if, on the other hand, you find that the engine used on that day was 1351, that it had in it the proper spark arrester, such as is in ordinary use, that it was not defectively put in the engine, and that it could not have emitted sparks larger than three-sixteenths or one-quarter of an inch, then the defendant had done all that the law requires of it. It was not negligent, and the plaintiff could not recover.” These were correct and adequate instructions on the law, and we find no reversible error in their manner of statement.

Complaint cannot properly be made because of the admission of testimony to the effect that the engine threw out the large sparks two and one-half miles from the place of the fire about one hour after it had started. “Of course, the inquiry in all such cases is as to the existence or condition of the spark arrester at the precise time of the injury; but, in order to make this practical by proof that it was defective, or threw out sparks of unusual size, a reasonable latitude must be allowed to show its management and operation both before and after; ” and “Where the injury complained of is shown to have been caused, or in the nature of the case could only have been caused by sparks from an engine which is known and identified, the evidence should be confined to the condition of that engine, its management and its practical operation:” Henderson v. Railroad Co., 144 Pa. 461. The testimony in question was relevant to the condition and operation of the engine, and it could not have been excluded on the ground that such operation was not immediately at the time and place of the fire.

There was no error in the refusal of the trial judge to charge: “There is no sufficient evidence in this case that any fire was communicated to plaintiff’s property by defendant’s engine, nor that the defendant was guilty of any negligence in the construction or management of its engine.” Although the point is a close one, after serious consideration we are brought to the conclusion that the testimony was sufficient to take both of these questions to the jury. In Lackawanna & Bloomsburg R. R. Co. v. Doak, 52 Pa. 379, recovery was allowed “although there was no direct evidence that the building was fired by the engine, or that the sparks were emitted from it at the time;” and so in Erie Ry. Co. v. Decker, 78 Pa. 293. Of course, the burden is always upon the-plaintiff to show that the sparks from the defendant’s locomotive caused the fire. But “the evidence may be wholly circumstantial; as, first, that it was possible for fire to reach plaintiff’s property from the defendant’s engines; and, second, facts tending to show that it probably originated from that cause and no other:” Byers v. B. & O. R. R. Co., 222 Pa. 547. While the mere fact that sparks are thrown from the stack of an engine is not in itself evidence of negligence, where, however, sparks of an unusually large size are emitted it may be inferred that the engine is not supplied with a sufficient spark arrester: Henderson v. Railroad, supra, and cases cited at p. 477 of the report. “It is not required that the fact (negligence in the construction or management of the engine) be established by direct or positive proof; like any other fact, it may be established by circumstantial evidence; and, on account of the great difficulty of proving negligence in such cases, any proper evidence from which the negligence can be inferred is sufficient to throw the burden on the defendant:” Henderson v. Railroad, supra. “The evidence that the engine threw out sparks of the kind described was in itself enough to carry the case to the jury, upon the question of whether the spark arrester was in good condition:” Byers v. B. & O. R. R. Co., 222 Pa. 547.

The defendant contended that the locomotive which passed the plaintiff’s property just prior to the fire was engine 1351, and the plaintiff that it was engine 1346. At the trial the defendant asked the court to wait two hours to give it an opportunity to produce additional evidence relating to this point, and after verdict it asked for a new trial for the same purpose, claiming after discovered evidence. Both motions were refused. The motions were peculiarly for the trial judge and we cannot say that he abused his discretion in either refusal. The testimony sought to be adduced was of a cumulative nature, and we feel with the trial judge that it is extremely problematical whether it would have made any change in the result had the witnesses whose affidavits have been placed upon the record appeared at the trial. Only one of them claims to have seen engine 1346 on the day of the fire, and he frankly admits that he did not see it between the hours of 6 a. m. and 6 p. m.

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


source: Caselaw Access Project

author: Mb,. Justice Mesteezat,

license: Public Domain

text:
    Hauenstein v. Conestoga Traction Company, Appellant.

      Street railways — Trolley express companies — Freight cars — Consignee injured while unloading freight — Conductor—Swing of car on curve— Premature start.

    1. Where a consignee of freight is invited by the conductor of a trolley freight express car to approach the car and remove the freight from it to a barrow he is entitled while so doing to protection from the conductor in the position in which he is required to place himself for the purpose of receiving the freight and to an opportunity, not only to place the freight on the barrow, but to remove himself and the barrow so as to prevent a collision with the car.
    2. In an action brought by a consignee against a trolley express-company to recover damages for personal injuries, the case is for the jury where it appears that the plaintiff was invited by the conductor of one of the company’s freight cars which had stopped upon a curve to approach the car with a wheelbarrow and remove his freight, and the evidence tends to show that the plaintiff was struck by the swing on the curve of the starting car while placing the last box received from the conductor on the wheelbarrow, without any lingering or delay on his part in handling the box.
    Argued May 16, 1910.
    Appeal, No. 229, Jan. T., 1909, by defendant, from judgment of C. P. Lancaster Co., Dec. T., 1907, No. 48, on verdict for plaintiff in case of Daniel L. Hauenstein v. The Conestoga Traction Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Landis, P. J.
    The facts appear in thé opinion of the Supreme Court.

      July 1, 1910:
    Verdict and judgment for plaintiff for $1,537.50. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      W. U. Hensel, for appellant,
    cited: Hoffman v. Rapid Transit Co., 214 Pa. 87; Osterheldt v. Peoples, 208 Pa. 310; Dennison v. Iron Co., 22 Pa. Superior Ct. 219; Buzby v. Traction Co., 126 Pa. 559; Widener v. Rapid Transit Co., 224 Pa. 171.

      Martin M. Ilarnish, with him William B. Harnish, for appellee,
    cited: Clunn v. R. R. Co., 39 Pa. Superior Ct. 591; Gibbons v. Wilkes-Barre, etc., St. Ry. Co., 155 Pa. 279; Smith v. Philadelphia Traction Co., 3 Pa. Superior Ct. 129; Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Fairmount & Arch St. Pass. Ry. Co. v. Stutler, 54 Pa. 375; Holmes v. Traction Co., 153 Pa. 152; Redington v. Traction Co., 210 Pa. 648; Rea v. Ry. Co., 221 Pa. 129.
   Opinion by

Mb,. Justice Mesteezat,

This is an action of trespass brought by the plaintiff to recover damages for injuries received by him by being struck by one of defendant’s cars. The only question that needs consideration here is whether the court below erred in refusing to withdraw the case from the jury and in not directing a verdict for the defendant.

The defendant operates a street railway through the borough of Mount Joy in Lancaster county. It runs an express car over its lines for the purpose of delivering freight and baggage. On the morning of the accident it carried certain freight for the plaintiff who conducts a small grocery store in the borough of Mount Joy. When the car carrying his oranges and bananas reached the intersection of Columbia avenue and South Barbara streets the plaintiff was standing on the pavement awaiting its arrival. He called to the conductor to know whether he had any freight for him and received an affirmative answer. He told the conductor to put the freight off, but the latter told the plaintiff to bring a wheelbarrow and take the freight from the car. The car had doors in its sides as well as in the ends. The plaintiff took his wheelbarrow to a side door. He stood between the handles of the barrow, and the conductor handed him a box of oranges which he placed on the barrow. The conductor next handed him a crate of bananas which the plaintiff took, and just as he placed it on the barrow the car started and struck him, causing the injuries of which he complains. The car had stopped and was standing on a curve at the time it was discharging the freight. There were windows in the sides of the cars and in the doors. The wheelbarrow was manifestly quite close to the car and, of course, the conductor saw its position and was fully informed as to the proximity of the plaintiff to the car.

The plaintiff was invited by the conductor to approach the car and remove the freight from it, and while he was doing so he was entitled to protection from the conductor in the position in which he was required to place himself for the purpose of receiving the freight. It was the duty of the conductor to give the plaintiff an opportunity, not only to place the freight on the barrow but to remove himself and the barrow so as to prevent a collision with the car, and the plaintiff had a right to rely upon the performance of this duty. It does not appear that he was struck by the car by reason of his having remained in the position, in which he was receiving the freight beyond the time that was necessary to complete the transfer of- the freight to the barrow. The last box handed the plaintiff by the conductor was being placed on the barrow when .he was struck and injured. He, therefore, did not contribute to his injuries by unduly remaining at the .place he. .was. receiving his freight. It was. his duty, .of. course, to. leave the place and remove.his barrow. as soon as he had received the freight, but the evidence fails to show that he was guilty of any negligence in this respect. He occupies the same position as if he had been invited to the body of the car to receive his freight and was alighting from the car with it in his arms and was injured by the premature starting of the car. There could be no question but that the defendant would be liable to the plaintiff for injuries received under those circumstances. The facts of such a case do not differentiate it from those of the present case. In either case, the plaintiff having been invited to receive his freight, it was the duty of the conductor not to move the car until the freight had been delivered and the plaintiff had an opportunity to leave the car.

The conductor is charged with notice of the exact position of the plaintiff in reference to the car. He saw the barrow and saw the man while the freight was being handed out of the door of the car. He also knew that the car was standing on a curve and is presumed to know that the rear of the car might come in contact with the man in the position in which he was placed. It was, therefore, negligence for the conductor to start the car without giving the plaintiff an opportunity to leave it. It is not correct, as contended by defendant’s counsel, that the plaintiff “stayed within the radius of a patent danger.” The side door of the car was closed and the car was started by the conductor before the unloading of the freight was completed by its being placed on the barrow; hence the plaintiff did not remain within the swing of the car after the unloading of the freight. Had he loitered there his injuries would, under those circumstances, have resulted from his own negligence. But the accident happened by reason of the conductor moving the car before the plaintiff had an opportunity to complete the transfer of his freight to the barrow and remove it from danger. There was no excuse for such action on the part of the conductor. Knowing the proximity of the plaintiff to . the car and the consequent danger to him .by moving it on the curve, it was the duty of the conductor to give the plaintiff an opportunity to avoid the danger.

The case was for the jury and was properly submitted by the learned trial judge. There was no error in the answer to points or in the charge, and therefore the judgment will not be disturbed.

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


author: Per Curiam,

text:
    Commonwealth v. Herr, Appellant.

      Constitutional law — Title of act — Garb of teachers — Act of June 27, 1895, P. L. 395 — Religious worship.

    1. The Act of June 27, 1895, P. L. 395, entitled, “An Act to prevent the wearing in the public schools of this Commonwealth, by any of the teachers thereof, of any dress, insignia, marks or emblems indicating the fact that such teacher is an adherent or member of any religious order, sect or denomination, and imposing a fine upon the board of directors of any public school permitting the same,” is sufficient in title, and does not violate sec. 3, art. Ill, of the constitution of Pennsylvania.
    2. The title of the act is sufficient to cover the provisions relating to the suspension and disqualifying of teachers who violate the act and to cover the provisions relating to the fining of individual directors, or the deprivation of the directors of their office or their disqualification for office.
    3. The statement in the title that the fine is to be imposed on “the board of directors,” whereas the penal provision contained in the body of the act is directed against the director or directors who offend, does not render the act unconstitutional.
    4. The act does not violate the fifth and fourteenth amendments of the constitution of the United States, in that it subjects the individual school director to punishment for the acts of his associates as a body, when he may not be in any way responsible for them.
    5. The act is not to be construed, so as to impose a penalty on a director who has done his duty. It is only directed against such directors as have failed to comply with the provisions of the act.
    6. The act does not violate secs. 3 and 4 of art.' I of the constitution of Pennsylvania relating to religious- wor-ship- and belief. The provision in tbe act, “That no teacher in any public school of this commonwealth shall wear in said school or whilst engaged in the performance of his or her duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination,” does not disqualify any person from employment as a teacher, “on account of his religious sentiments.” It is directed against acts, not beliefs, and only against acts of the teachers whilst engaged in the performance of his or her duties as such teacher.
    7. The religious freedom and the rights of conscience guaranteed by the constitution do not necessarily and always stand in the way of the enforcement of laws commanding or prohibiting the commission of acts even by those who conscientiously believe it to be their religious or moral duty to do or to refrain from doing them.
    8. The right of the individual to clothe himself in whatever garb his taste, his inclination, the tenets of his sect, or even his religious sentiments may dictate is no more absolute than his right to give utterance to his sentiments, religious or otherwise. In neither case can it be said that a statute cannot restrain him from exercising these rights whenever, wherever and in whatever manner he conscientiously believes it to be his moral or religious duty to do so.
    Argued May 16, 1910.
    Appeal, No. 277, Jan. T., 1909, by defendants, from judgment of the Superior Court, Oct. T., 1908, No. 188, reversing judgment of Q. S. Lancaster Co., April Sessions, 1908, No. 21, and remitting the record with a procedendo in case of Commonwealth v. Amos R. Herr et al., the Board of School Directors of the School District of Mount Joy Township.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Indictment against school directors for failure to enforce the Act of June 27, 1895, P. L. 395, relating to the garb of school teachers. Before Landis, P. J., in the court of common pleas.
    Appeal from Superior Court.
    The facts appear in the opinion of the Superior Court, by Rice, P. J., as follows:
    Taking up the objections urged against the validity of the Act of June 27, 1895, P. L. 395, in the order in which they are set forth in the brief of the appellees’ counsel, the first question to be considered is whether the act violates sec. 3, art. Ill, of the constitution which declares that no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title. The title reads: “An act to prevent the wearing in the public schools of this commonwealth, by any of the teachers thereof, of any dress, insignia, marks or emblems indicating the fact that such teacher is an adherent or member of any religious order, sect or denomination, and imposing a fine upon the board of directors of any public school permitting the same.” As the subject clearly expressed in the title is the prevention of certain acts by common school teachers, anyone interested in the subject would, upon reading the title, naturally be led to presume that the bill contained provisions germane to the subject and calculated to effect the object to be attained. He also would naturally be led to presume that included in them were provisions calculated not only to deter school directors from permitting teachers to transgress the law but also to deter teachers themselves from transgressing it. The title need not embody all the distinct provisions of the bill in detail, nor, as has been said repeatedly, serve as an index or digest of its contents; it is sufficient if the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into what is contained in the body of the bill. “A recent admonition from the Supreme Court in Com. v. Rapid Transit St. Ry. Co., 219 Pa. 11, indicates the true spirit of the constitutional requirement and suggests that brevity which does not mislead should be aimed at in the construction of the titles of statutes. Such a title, though general, will cover all details and collateral matters naturally and properly incident to the subject: Stegmaier v. Jones, 203 Pa. 47;” Com. v. Darmska, 35 Pa. Superior Ct. 580; Weiss v. Swift & Co., 36 Pa. Superior Ct. 376. Viewing this title in the light of these well-settled principles, it cannot be declared insufficient upon the ground that it does not expressly mention the provisions relating to the suspension and disqualifying of teachers who violate the act.
    The objection that the title is misleading, and therefore defective, because no mention is made therein of the purpose to fine individual directors, or to deprive them of their offices or to render them ineligible to appointment or election if they violate the law, is next to be considered. It is to be noticed that the provisions of the act relating to the deprivation of a school director of his office, and to his ineligibility to appointment or election do not come into operation until after a second conviction. They are not necessarily involved in the present case, and their validity need not be discussed. Even if they be invalid — a point we do not decide — the invalidity of the provision subjecting the offending directors to indictment and fine would by no means follow. The other punitive provisions are separable therefrom and may be rejected — we do not intimate that they must be — without drawing with them the provision upon which this prosecution depends: Com. v. Caulfield, 27 Pa. Superior Ct. 279; Com. v. Martin, 35 Pa. Superior Ct. 241, at p. 248, and cases there cited; Com. v. Dougherty, 39 Pa. Superior Ct. 338.
    But, it is claimed that the title, even as to the imposition of a fine, is misleading, because, as argued by appellees’ counsel, it indicates that the fine is to be imposed on “the board of directors,” whereas the penal provision contained in the body of the act is directed against the director or directors who offend. If in framing the title the intention had been to indicate that the fine was to be imposed upon a corporate or quasi corporate body, as distinguished from the individuals who compose it or the officers who direct its affairs, it is reasonable to suppose that some other form of expression would have been used than “board of school directors.” Under our common school system a “board” of school directors is not such a legal entity as can be made to respond to civil or criminal process. As used in this connection, it must be regarded as a mere name or form of expression to indicate a number of persons appointed or elected to sit in council for the management or direction of the affairs of a school district, the latter and not the board being the corporate entity. It is impossible to conceive of the imposition of a fine upon a board of school directors apart from the directors personally. And, surely, no one reading this title could reasonably infer therefrom that the intention was to do the vain thing of imposing a fine which could not be enforced against any person, natural or artificial. On the contrary, the plain and natural inference to be drawn from the words of the title would be that the body of the bill contained a penal provision calculated to deter the members of the governing body from permitting the forbidden act. This seems to be an appropriate occasion for quoting again the apt language of Allegheny County Home’s App., 77 Pa. 77: “It will not do, therefore, to impale the legislation of the state upon the sharp points of criticism, but we must give each title as it comes before us, a reasonable interpretation, ut res magis valeat quam pereat.” Without further elaboration, we conclude, that the title is sufficiently comprehensive as well as sufficiently precise and clear to sustain the provisions of the act involved in this case.
    The next objection urged against the act is that it violates the fifth and fourteenth amendments of the constitution of the United States, in that it subjects the individual school director to punishment for the acts of his associates as a body when he may not be in any way responsible for them. It is obvious, we think, upon a mere reading of this objection in connection with the clause of the statute to which it relates that the objection is based on an erroneous interpretation of the clause. It is “the public school director failing to comply with the provisions of this act,” who is made subject to indictment and fine. It would require a very strained and indeed wholly unwarranted interpretation of these words in a penal statute to hold that a director, who in good faith has done what he could officially to comply with the provisions of the act, but has been outvoted by his associates, has failed to comply with them. One of the elementary rules in the construction of statutes is to adopt such construction, if it be fairly possible, as will avoid a conclusion that would make it unconstitutional. The presumption always is that the legislature does not intend to violate the constitution, and this controls in doubtful cases. Besides this, the act furnishes very satisfactory evidence that the legislature did not intend to punish such a director as we have spoken of. It first declares that, “it shall be the duty of said school board to permanently suspend such teacher,” etc., and then that, “any public school director failing to comply with the provisions of this act shall be guilty of a misdemeanor,” etc. The law does not confer the power, nor impose the duty, on a single director, to suspend a teacher. He must, however, do his duty as a member of the board and when he has done that, he has complied with the provisions of the law. This is evidently what the legislature meant, not that he must do that which he cannot do himself. If the legislature had intended the absurdity and injustice of punishing a director who has done his duty and exhausted the power the legislature gave him, it would not have used language which reasonably imports that each direector is punishable by fine for his own dereliction only.
    The remaining objections urged against the act are that it violates secs. 3 and 4 of art. I of our constitution which so far as material here read as follows:
    Sec. 3. “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; .... no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preferences shall ever be given by law to any religious establishments or modes of worship.”

      Sec. 4. “No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth. ’ ’
    The inhibition of the act is thus expressed: “That no teacher in any public school of this commonwealth shall wear in said school or whilst engaged in the performance of his or her duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.” A violation of the foregoing provision subjects the teacher to suspension from employment in the district for one year, and a second offense to permanent disqualification to teach in the district. If the question for our decision were whether the act prohibited by this legislation is contrary to the letter or the true intent and meaning of the sections of the constitution above quoted, or of the constitutional prohibition against the appropriation or use of public school money for the support of any sectarian school, it would be sufficient for us to say that it has been authoritatively and conclusively answered in the negative by the Supreme Court in Hysong v. Gallitzin Borough School Dist. et al., 164 Pa. 629. So also if the question for our decision were whether the legislation was necessary in order to carry into effect, in the administration of the public schools, these constitutional provisions, the answer would have to be in the negative. The question is not, what do these sections empower the legislature to do, but what limitations do they impose upon the general legislative power vested in the general assembly by sec. 1, art. II of the constitution. This question did not arise in the case cited, and it is an obvious mistake to suppose that the legislation must fail because the effort to accomplish the same result through the courts was ineffectual. The legislature may exercise all the powers of a legislative character that are not prohibited to it by the state or federal constitutions: Com. v. McCloskey, 2 Rawle, 369. Nothing but a clear violation of the constitution, “a clear usurpation of powers prohibited” will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void: Sharswood, J., in Penna. R. R. Co. v. Riblet, 66 Pa. 164. The right of the judiciary to declare a statute void and to arrest its execution is one which, in the opinion of all courts, is coupled with responsibility so grave that it is never to be exercised except in very clear cases. “The party who wishes to pronounce a law unconstitutional takes upon himself the burden of proving beyond all doubt that it is so. ” Black, J., in Erie & Northeast R. R. Co. v. Casey, 26 Pa. 287; quoted with approval by Sterrett, J., in Powell v. Com., 114 Pa. 265. “Nor are the motives of the legislature, real or supposed, in passing an act open to judicial inquiry or consideration. The legislature is the lawmaking department of the government, and its acts in that capacity are entitled to respect and obedience until clearly shown to be in violation of the only superior power, the constitution.” Mitchell, J., in Com. v. Moir, 199 Pa. 534. “Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives:” Cooley’s Const. Lim. (7th ed., 1903) 184. Again the learned author says, and this is quoted with approval in Com. v. Moir, 199 Pa. 534: “The rule of law upon this subject appears to be, that except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the state, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason and expediency with the lawmaking power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the constitution, and the case shown to come within them:” Cooley’s Const. Lim. (7th ed.) 236. We have been led to bring prominently into view these generally accepted principles that govern the courts in the determination of such a question as we have before us, because we deem it the most appropriate mode of answering some of the arguments, which, it seems to us, are pertinent only to the question of the necessity for, and the expediency and wisdom of, the legislation. These are legislative, not judicial, questions, and they will not be discussed here.
    We cannot assent to the proposition that the intent or the effect of the legislation is to disqualify any person from employment as a teacher “on account of his religious sentiments.” It is directed against acts, not beliefs, and only against acts of the teacher whilst engaged in the performance of his or her duties as such teacher. It is true the acts prohibited are those which may indicate, and indeed may be dictated by, the religious sentiments of the teacher. Therefore we are led to the broader inquiry whether this constitutes an infringement of the “natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences,” or contravenes the accompanying declaration that “no human authority can, in any case whatever, control or interfere with the rights of conscience.” No man’s religious belief may be interfered with by law. As was said by Justice Williams in Hysong v. Gallitzin Boro. School Disk, 164 Pa. 629, the rights of conscience are no less sacred than the rights of property; test oaths and religious disqualifications belong to a period further back than the memory of the present generation can reach, and it is to be hoped they may never be restored. But broad as are these declarations of our constitution, and sacred as are the religious freedom and the rights of conscience they secure, yet it must be apparent to any person upon reflection, and has been repeatedly declared by the highest judicial authority, that they do not mean, unqualifiedly, that it is beyond the power of the legislature to enact any law which will restrain individuals from doing that which, if it were not for the law, their consciences would teach them to be their moral or religious duty. Indeed it is impossible to see how civil government could exist, if the dictates of the individual conscience were in every instance where they come in conflict with the law of the land the paramount rule of action. Speaking of the act of congress which forbids plural marriages in territories and places under the exclusive dominion of the United States, Chief Justice Waite said: “Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The first amendment to the constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States so far as congressional interference is concerned. The question to be determined is whether the law now under consideration comes within this prohibition.” Then, for the purpose of ascertaining the meaning of the term religious freedom, he reviewed the history of the times in which the constitutional provision relating thereto was adopted and in the course of his reasoning in support of the conclusion that it was not intended to prohibit legislation forbidding polygamy,, even by those adherents of a sect who believed it to be their religious duty to practice it, he used the following language which is pertinent to the discussion of the question before us: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practice to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land," and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Many other illustrations may be found in decided cases of the general principles that the religious freedom and the rights of conscience guaranteed by the constitution do not necessarily and always stand in the way of the enforcement of laws commanding or prohibiting the commission of acts even by those who conscientiously believe it to be their religious or moral duty to do or refrain from doing them. For example, not to go outside of Pennsylvania, a Jew who refused to be sworn in the trial of a case on Saturday because it was his Sabbath was fined: Stansbury v. Marks, 2 Dali. 213. The conscientious scruples of a Jew to appear in court and attend to the trial of his case on the same day were held to be no ground for the continuance of his cause: Philips v. Gratz, 2 P. & W. 412. The act prohibiting all worldly employment upon the first day of the week has been held not to be in contravention of the constitutional rights under consideration, even where. ■ applied to persons whose religious belief leads them to observe another day of the week as their Sabbath: Com. v. Wolf, 3 S. & It. 48; Specht v. Com., 8 Pa. 312. The same was held to be true as to persons who conscientiously believe it .to be .their religious duty to labor the. first six days of the week and .to keep the., seventh day as-the-Sabbath: Waldo v. Com., 9 W. N. C. 200. Adherents of a religious organization who deem it their duty by divine command to go into the streets and there preach the gospel and who as a regular part of their service use the drum, are not exempted by the constitution from the operation of a city ordinance which prohibits the use of a drum or other musical instrument on the street without permit from the mayor: Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355. The case of Com. v. Lesher, 17 S. & It. 155, is not directly pertinent to the question before us, but the remarks of Chief Justice Gibson which though made in a dissenting opinion were approved in Specht v. Com., 8 Pa. 312, and have not been questioned or qualified in any later case that has come to our notice, seem to be very pertinent. He said: “It is declared in the constitution that no human authority can, in any case, control or interfere with the rights of conscience. But what are those rights? Simply a right to worship the Supreme Being according to the dictates of the heart, to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act, for conscience’ sake, the doing or forbearing of which is not prejudicial to the common weal.” Then after speaking of the views of Mr. Jefferson upon the subject he proceeded: “He denies the right of society to interfere only where society is not a party in interest, the question, with its consequences, being between the man and his Creator; but as far as the interests of society are involved, its right to interfere on principles of self-preservation is not disputed. And this right is insolvable into the most absolute necessity; for, were the laws dispensed with, wherever they happened to be in collision with some supposed religious obligation, government would be perpetually falling short of the exigence. There are few things, however simple, that stand indifferent in the view of all the sects into which the Christian world is divided.” The right of the individual to clothe himself in whatever garb his taste, his inclination, the. tenets of his sect, or even his religious sentiments may dictate is no more absolute than his right to give utterance to his sentiments religious or otherwise. In neither case can it be said that a statute cannot restrain him from exercising these rights whenever, wherever and in whatever manner he conscientiously believes it to be his moral or religious duty to do so. That the right to wear a particular garb is not as absolute and as free from legislative control as that was expressly conceded by the Supreme Court in Hysong v. Gallitzin Boro. School Dist., 164 Pa. 629, in the following terms: “The legislature may, by statute, enact that all teachers shall wear in the schoolroom a particular style of dress and that none other shall be worn, and thereby secure the same uniformity of outward appearance as we now see in city police, railroad trainmen, and nurses of some of our large hospitals.” It is urged that this part of the opinion is obiter dictum. It is true the precise question whether the legislature could enact such a law was not before the court, and it may be conceded that for that reason the utterance is not a binding authority. Nevertheless it was pertinent in the discussion of the question then before the court, and was evidently made upon due deliberation. Besides that, the obiter, if so it may be regarded, comes from so high a source that it is entitled to great respect from us. Moreover, the proposition is so well supported by sound principle, that we believe it to be unassailable. But any public school teacher who is restrained by the act of 1896, from doing that in the scho'olroom which his conscience or his religious sentiments dictate, would just as plainly and to the same extent be restrained by such a statute as is described in the case cited. Another case that may be appropriately referred to in this connection is O’Connor v. Hendrick, 184 N. Y. 421. It was there held in a well-considered opinion that a regulation established by the state superintendent of public instruction, who had implied authority under the statute to establish regulations as to the management of the public schools, prohibiting teachers in public schools from wearing a distinctively religious garb while engaged in the work of teaching therein was a reasonable and valid exercise of the power vested in him. This is the only other decision that has been brought to our notice which deals with the precise question of the validity of a rule or statute of that nature.
    The system of common school education in this commonwealth is the creature of the state, and its perpetuity and freedom from sectarian control are guaranteed by express constitutional provisions. Subject to these, the power to support and maintain an efficient system of public schools, wherein all the children of the commonwealth above the age of six years may be educated, is vested in the legislature. This carries with it the authority to determine what shall be the qualifications of the teachers, but in prescribing them the legislature may not make religious belief or church affiliation a test. Nevertheless, the power of the legislature to make reasonable regulations for the government of their conduct whilst engaged in the performance of their duties must be conceded. Primarily it is the province of the legislature to determine what regulations will promote the efficiency of the system and tend to the accomplishment of the object for which it was established. It is only where such regulations are clearly shown to be in violation of the fundamental law that the courts, even though entertaining a different opinion from that of the legislature as to the necessity for or the wisdom or expediency of adopting them, may annul them. As shown by the preamble of the act under consideration, the legislature deemed it “important that all appearances of sectarianism should be avoided in the administration of the public schools of this commonwealth.” This was the ostensible object of the legislation, and we can discover no substantial ground for concluding that it was not the sole object which the legislature had in contemplation. Nor are we able to conclude either that the object was beyond the scope of legislative power, or that the regulation adopted has no just and proper relation to that object.
    July 1, 1910:
    The judgment is reversed, the demurrer overruled with leave to the defendant to plead the general issue and the record is remitted with a procedendo.

      Error assigned was the judgment of the Superior Court.

      W. U. Hensel, for appellant.

      Alex. M. DeHaven, with him J. W. Johnson, district attorney, S. V. Hosterman, assistant district attorney, and John E. Malone, for appellee.
   Per Curiam,

The appellants, school directors of Mount Joy township, Lancaster county, were indicted in the court of quarter sessions of that county for a violation of the Act of June 27, 1895, P. L. 395, entitled, “An act to prevent the wearing in the public schools of this commonwealth, by any of the teachers thereof, of any dress, insignia, marks or emblems indicating the fact that such teacher is an adherent or member of any religious order, sect or denomination, and imposing a fine upon the board of directors of any public school permitting the same.” On demurrer to the indictment, the question of the constitutionality of the act was raised, the objections to the same being fivefold. The court of quarter sessions sustained the last two,” that the act was violative of secs. 3 „ and 4 of our bill of rights. On appeal by the commonwealth to the Superior Court all of the objections to the constitutionality of the act were overruled and the judgment of the court of quarter sessions, sustaining the demurrer, was reversed, with leave to the defendants to plead: Com. v. Herr, 39 Pa. Superior Ct. 454. On, the characteristically well-considered opinion of the president judge of the Superior Court its judgment is affirmed.

Judgment affirmed.


text:
    Smith, Appellant, v. Brown.

      Negligence — Dangerous machinery — Cloth picking machine — Contributory negligence — Boy over fourteen — Instructions.
    In an action to recover damages for personal injuries received while working at a cloth picking machine a nonsuit is proper where it appears that plaintiff, a bright and intelligent looking lad of over fourteen, passed around to the side of the carrier feeding the machine and, getting into close proximity to it, carelessly allowed his hand to get caught, although the danger was obvious and plaintiff admittedly knew, from having worked in the same room with the machine for a year and having operated it himself for ten days, that the proper place to stand in feeding the machine was in front.
    Argued May 16, 1910.
    July 1, 1910:
    Appeal, No. 52, Jan. T., 1910, by plaintiff, from judgment of nonsuit of C. P. Lancaster Co., March T., 1906, No. 11, in case of Paul E. Smith, by his father and next friend, Harry Smith, v. Thomas Brown et al., doing business as Geo. Brown’s Sons.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hassler, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      B. F. Davis, for appellant.
    IT. U. Hensel, with him H. M. North, Jr., and J. A. Hippie, for appellees.
   Per Curiam,

The alleged defects in the machine by which Paul E. Smith was injured did not cause the accident, and, upon the case as presented by the plaintiffs, no negligence of the defendants was shown rendering them responsible for the injuries sustained by their employee. On the other hand, the conclusion reached by the learned trial judge was irresistible, that but for his heedlessness, he could not have been hurt. He was over fourteen years of age, bright and intelligent. He had worked for a year in the room where the machine was located by which he was injured and had operated it himself for ten days prior to the accident. From observation.and experience he knew that the place at which he ought to have stood while feeding the machine was in front of it, where he was thirty-eight inches away from it and could not possibly have been hurt by it. Standing where he ought to have stood, he could not have reached it with his outstretched arms. He' admitted he knew it was dangerous if he came in contact with it. Instead of standing where he ought to have stood, he passed around to the side of the carrier feeding the machine and, getting into clo§e proximity to it, carelessly allowed his hand to be caught. The whole situation is summed up in the following from the opinion of the court overruling the motion to take off the nonsuit, and upon it the judgment may well be affirmed: “The plaintiff is over the age of fourteen, and, as we have said, appeared to be a bright and intelligent boy, and is therefore presumed to have sufficient capacity to be sensible of danger and power to avoid it, as the law presumes boys of that age possess such capacity and power. The danger here was so obvious that anyone who is at all sensible of it could not help but observe it. He complains he was not properly instructed, yet he admits that he knew the proper place to stand to feed the machine was in front of it where he was out of reach of the danger of the lickerine. He knew this from his observation of where all he had seen operate it stood, during the more than a year he worked in the same room with it, and in his experience in operating it for ten days himself. Instructions in that particular were therefore unnecessary, as they would only have informed him of what he did know. It is impossible to conceive what other instructions could have been given him except to warn him not to allow his hand or clothing to come in contact with the lickerine. He knew of this danger, for it was right before his eyes. The most ordinary degree of care and prudence would have enabled him to discover the danger, and he was therefore bound to observe and avoid it by keeping at a safe distance.”

Judgment affirmed.


author: Mr. Justice Mestrezat, Mr. Justice Moschzisker,

text:
    Hiestand, Appellant, v. Keath.

      Mechanics’ liens — Act of June 4, 1001, P. L. 431 — Owner—Striking off liens — Matters dehors record — Statutes—Construction.
    1. It will be assumed, when the contrary does not appear, that in framing the “complete and exclusive system” embodied in the mechanic’s lien Act of June 4, 190J, P. L. 431, the legislative intent was to give but one adequate remedy to each party interested in the claim and in the property affected by the proceeding.
    2. Section 23 of the mechanic’s lien act of 1901, providing a remedy by petition and a rule thereon for “any party having a lien against, estate in, or charge upon the property included in such claim,” does not authorize the court, on application of the owner, to strike off a lien regular on its face for matters dehors the record.
    3. In construing sec. 23 of the act of 1901, as not applicable to the owner, the court will consider the fact that the sections immediately preceding and succeeding deal with the rights of others than the owner, and that if sec. 23 should be construed as applicable to the owner, its proper place in the statute would be immediately preceding or succeeding the sections providing for the scire facias.
    4. It is no argument in favor of a construction of sec. 23 as giving a remedy to the owner that he is entitled to more consideration or to a more speedy remedy than other parties in interest, or that the section in question does in fact furnish him a more speedy remedy than the scire facias.
    Mr. Justice Moschzisker dissents.
    Argued May 16, 1910.
    Appeal, No. 112, Jan. T., 1910, by plaintiffs, from judgment of the Superior Court, Oct. T., 1909, No. 167, affirming a judgment and decree of C. P. Lancaster Co., entered in Mechanic’s Lien Docket, No. 7, page 85, striking off a lien in case of B. Frank Hiestand et ah, partners, trading as B. F. Hiestand & Sons, v. Willis Keath.
    July 1, 1910:
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Petition to strike off a mechanic’s lien in the common pleas. Before Landis, P. J. Appeal from Superior Court.
    The facts appear in the opinion of the Supreme Court; see 42 Pa. Superior Ct. 403.

      Error assigned was judgment of the Superior Court.

      W. U. Hensel, with him W. C. Rehm, for appellants.
    The lower court has no jurisdiction to strike from the record the mechanic’s lien which was regular on its face: Burger v. S. R. Moss Cigar Co., 225 Pa. 400; Stoke v. McCullough, 107 Pa. 39; Lee v. Burke, 66 Pa. 336; O’Hara v. Baum, 82 Pa. 416; Miller v. Bedford, 86 Pa. 454; Bohem v. Seabury, 141 Pa. 594; Hall v. Pub. Co., 180 Pa. 561; North v. Yorke, 174 Pa. 349; McVey v. Kaufmann, 223 Pa. 125.

      S. Z. Moore, with him W. S. Buck, for appellee.
    Courts have uniformly stricken off liens for matters dehors the record where the conditions called for in sec. 23 are present: Cox v. Croft, 39 Pa. Superior Ct. 551; Este v. Penna. R. R. Co., 13 Pa. Dist. Rep. 451; East End Mantle, etc., Co. v. Greensburg Plumbing Co., 16 Pa. Dist. Rep. 779; Este v. R. R. Co., 27 Pa. Superior Ct. 521; Hiestand v. Keath, 42 Pa. Superior Ct. 403.
   Opinion by

Mr. Justice Mestrezat,

This was a mechanic’s lien filed by the contractors against the owner to enforce the payment of $449.69, for lumber furnished the owner and used by him in the erection and construction of a building. The defendant owner presented a petition to the court and obtained a rule to strike off the lien alleging among other reasons that “the lien sets forth that it is filed against a two-story double frame dwelling house, which is in direct violation of the twelfth section of the aforesaid act of June 4, 1901, which provides: ‘A. single claim may be filed against more than one structure or other improvement, if they are all intended to form part of one plant. No apportioned claim shall hereafter be allowed, but separate claims, with the amount due determined by apportionment, may be filed as herein set forth.’ ” The facts dehors the record were placed before the court in a paper called a “stipulation,” signed by the counsel on both sides. The court made the rule absolute and struck the lien from the record. The plaintiffs have taken this appeal.

The view we take of the case requires us to determine but the single question whether under the mechanic’s lien Act of June 4, 1901, P. L. 431, 3 Purd. 2465, and its supplements, the court is authorized, at the instance of the owner, to strike off a lien regular on its face for matters dehors the record. It is authoritatively settled that the court had no such power under the legislation prior to the act of 1901. The appellee contends, however, that sec. 23 of the latter act confers the authority when invoked by the owner. We think this results from a misapprehension of the purpose of that section of the statute.

The act of 1901, like its predecessor of 1836, directs that payment of the claim shall be enforced by a writ of scire facias and provides, not only the form of the writ, but also the subsequent procedure for obtaining judgment and collecting the same by execution against the property bound by the lien. Section 36 enumerates the defenses which may be set up against the enforcement of the claim, and provides that they “shall wholly defeat the claim.” In addition to the defenses growing out of the insufficiency of the claim itself, or of the proof of the facts necessary to sustain it as a claim against the structure or other improvement, any defense may be set up which would defeat the action were it a personal one against the contractor to recover for the particular work or materials required to be done or furnished under the contract of the owner, or which shows that the claim was intentionally filed for a grossly excessive amount. A defense pro tanto is allowed if the proof shows that the work in certain particulars was not in accordance with the contract. Minor defects are a defense to the extent necessary to repair or complete the work. The court may order a more specific statement of the claim or an examination of books and papers to enable a proper defense to be made.

Section 10 of the statute requires the claimant to issue a writ of scire facias within two years which may, by waiver in writing by the owner, be extended for a further period of three years. Any defendant in the claim filed, however, may, under sec. 31, prevent delay and facilitate the speedy determination of the issues raised by the lien by serving notice upon the claimant or use claimant to issue a scire facias in fifteen days. If the writ is not issued within the time, the court is required on motion to strike off the claim; and if the writ is issued, the claimant cannot discontinue it or suffer a nonsuit on the trial. If the plaintiff does not appear or for any reason fails to maintain his claim, the court is required to enter a compulsory nonsuit.

It will, therefore, be observed that the statute affords, by means of the writ of scire facias, a complete remedy for the claimant to compel payment of his claim, and it is equally apparent that the owner may, under the sections of the act referred to, at any time compel a speedy issuance of the writ and may interpose any defense which will defeat the claim or relieve his property from the lien. These and other sections of the act of 1901, having provided a course of procedure by scire facias for the enforcement of the claim and for the full protection of the owner, the act of March 21, 1806, requires it to be pursued unless the act of 1901 gives the parties other and alternative remedies to enforce the same rights. It is claimed by the appellee that such is the effect of sec. 23 of the act of 1901.

The proceeding under that section is by petition and a rule thereon issued to the claimant to show cause why the relief prayed for should not be allowed. All proceedings on the claim are to be stayed pending the rule. The remedy given by the section may be invoked when the date of the completion of the structure mentioned in the claim is incorrect, or the claim is filed against more land than should be included therein, or if for any reason the claim is postponed to the rights of the petitioner. The remedy is equally effective when invoked by others than those personally served with the scire facias. The action of the court is to be determined from the pleadings, aided as to the material disputed facts, if any, by depositions or by a hearing at bar. Like proceedings may be had under the section if the claim for any reason is invalid, has been paid, waived or released or should not legally or equitably be allowed against the property. In such cases the material disputed facts are, at the request of either party, to be tried by a jury. The person entitled to the relief given by the section is, in the language of the section, “any party having a lien against, estate in, or charge upon the property included in such claim.”

The language of sec. 23 is sufficiently comprehensive to include the owner of the premises against which the lien is filed and who is a defendant in the proceeding. But in construing the section we must, under the settled rules of interpretation, read it in connection with the whole statute keeping in view the manifest purpose of the section. The object of the legislature in passing the act was, as declared in the statute, “that this act shall furnish a complete and exclusive system in itself, so far as relates to liens for labor or materials commenced to be furnished after its approval.” The legislature intended to enact a law forming a complete and exclusive system for the enforcement of the claims of mechanics and material men against the property benefited by the improvement, and also to furnish a remedy for the protection of all parties interested in the claim or the property against which it was filed. It will not, however, be presumed, in the absence of an express declaration to that effect, that where the statute gives a specific remedy to any person for the protection or enforcement of his rights or interests, that another remedy for the infringement of the same rights and applicable to others is to be extended and become an additional or cumulative remedy for him by reason of the generality of the language employed. It will be assumed, when the contrary does not appear, that in framing the “complete and exclusive system,” embodied in the act of 1901, the legislative intent was to give but one adequate remedy to each party interested in the claim and in the property affected by the proceeding. This will make the system harmonious and symmetrical and will meet the manifest purpose of its framers.

Recurring to sec. 23, we think that its provisions were not intended to apply to the owner against whom the claim is filed, but to other parties interested in the property whose rights were affected by the proceeding. As pointed out above, his rights and interests are enforcible and fully protected by the express provisions of the act authorizing and regulating the issuing of a scire facias and the proceedings thereon. He may, at any time after the right has accrued, require the claimant to file his lien in fifteen days, and immediately after the claim is filed, he may compel the claimant to issue a scire facias in fifteen days or have the lien struck from the record, and if the writ is issued it cannot be discontinued or a .nonsuit be suffered; and a compulsory nonsuit barring further proceedings must be entered by the court if for any reason the claimant fails to maintain his claim. The defenses to the scire facias, available to the owner, are ample to enable him to raise any question which will affect or destroy the validity of the lien or defeat the claimant’s right in whole or in part to enforce the claim against the property. It is, therefore, apparent that the proceedings by scire facias afford an ample remedy for the protection of the owner without invoking the alleged additional or alternative remedies provided by sec. 23.

Section 22, immediately'preceding, and sec. 24, immediately succeeding the section under consideration, deal with the rights of parties other than the claimant and the defendant owner in the claim filed. The preceding section authorizes the court on a rule to substitute a use claimant who has furnished unpaid items of labor or materials by contract with the claimant. By the succeeding section, the court may permit the person having an interest in the property described in the claim to intervene as a party defendant and make defense to the claim; and it also authorizes the claimant to substitute as a defendant any person who may have acquired an interest as owner after the date of the contract, or who is the personal representative of an owner or contractor who has died either before or after the filing of the claim. If we adopt the construction of sec. 23, urged by the appellee, it results not only in rendering useless the proceeding by scire facias provided in the subsequent sections, 32 to 36, for determining issues between the claimant and the owner, but interjects a section furnishing the same relief to the owner, between two former sections dealing with the rights of others than the owner. It is not at all probable nor is it to be assumed that the legislature, intending as it declares “to furnish a complete and exclusive system in itself,” would have adopted an act showing such disregard for the natural and orderly arrangement and disposition of the subject. The proper place in the statute for sec. 23, if applicable to the owner, would be immediately preceding or succeeding the sections providing for the scire facias; and they or it should be declared an alternative or cumulative proceeding for determining the issues between the claimant and the owner.

For more' than a century in this state, a scire facias has been the appropriate remedy to enforce payment of a mechanic’s or material man’s claim against the liened property. The act of 1803, the first statute authorizing a lien, and its immediate successor, the act of 1806, made no provision for such writ; but the act of 1808 and subsequent legislation on the subject have given the claimant the writ to enforce payment of the debt. The procedure by scire facias under the act of 1901, and its supplements, in addition to the common-law powers of the court, affords ample opportunity to the owner to assert any defense, technical or meritorious, which will prevent the enforcement of the claim against his property. The act of 1836, like the act of 1901, authorized the court on petition of the owner to compel the claimant to proceed to enforce his claim. The fifth section of the Act of August 1, 1868, P. L. 1168, empowered the court, at the instance of the owner, to enter a rule on the claimant to sue out a scire facias to the next monthly return day, and failing to do so, the court was required to strike the lien from the record. These and similar provisions under the legislation prior to the act of 1901, were held to afford the owner a remedy against defects not apparent upon the record of a mechanic’s lien, and he was compelled to pursue the remedy to enforce his rights. Such claim could not be summarily struck off, while the court had the power, aside from statutory authority, to strike from the record a claim irregular on its face or defectively stated: Lehman v. Thomas, 5 W. & S. 262; Linden Steel Co. v. Refining Co., 138 Pa. 10. The act of 1901 goes further than prior statutes in affording the owner protection under a scire facias, and permits him to rule the claimant, not only to issue a scire facias on the hen, but to file his claim after fifteen days’ notice or be debarred thereafter from so doing. If the legislature had intended by the act of 1901 to make such a radical,, departure from the established practice under similar statutory provisions, and furnish to the owner an alternative summary remedy in place of the procedure on a scire facias, it would have done so in language so plain as to leave no doubt of the legislative intent.

We are not impressed with the argument that the owner is entitled to more consideration or to a more speedy remedy than a mortgagee or other party having an interest in the property with no contractual relation with the claimant. The owner is the active party in procuring the erection of the structure for which the labor or material is furnished, and can protect himself by the contract. It is entirely different with parties other than the owner who have liens against or an interest in the liened property. They are not consulted about the improvement placed on the premises or the labor or material which goes into it. Hence, if their rights are infringed, there is ample reason why they should be furnished both a speedy and an effective remedy.

It is, however, an erroneous view of sec. 23 to say that it furnishes a more speedy remedy for the owner than the scire facias when he alleges as a defense to the claim that it is invalid, has been paid, waived or released, or should not legally or equitably be enforced against his property, all of which defenses are available to him in a proceeding by scire facias. Where he sets up such a defense, he cannot prevent the delay of a jury trial by proceeding under the section. It specifically provides that “the material disputed facts in such cases, if any, shall at the request of either party, be tried by a jury.” He cannot, therefore, deprive the claimant of the right to have the facts determined by a jury, and prevent the delay which is necessarily incident to a jury trial. The proceedings preliminary to the case reaching a jury will require at least as much, if not more, time than is required to put the case at issue on the scire facias. As has been seen, sec. 31 requires the claimant to issue a scire facias after a fifteen days’ notice and, hence, thereafter the owner may at once appear, enter his plea, and put the case at issue. It is apparent, therefore, that the owner’s remedy under the sections of the act providing for the scire facias is equally as speedy and efficacious as a proceeding by petition and rule under sec. 23 of the act.

Keeping in view the declared legislative intention to furnish “a complete and exclusive system” on the sub-, ject as well as the necessity for harmonizing the different sections of the act, we are of opinion, after a careful consideration of the whole statute, that sec. 23 does not authorize the court, on the application of the owner, to strike off a lien regular on its face for matters dehors the record. It follows that the order of the court of common pleas striking off the lien, and the decree of the Superior Court affirming that order or decree are erroneous and must be reversed.

There is nothing in the suggestion that the lien was irregular or insufficient on its face. The common pleas struck the lien off for matters dehors the record which were made to appear by the “stipulation” filed by the parties.

The decree of the Superior Court is reversed, and the order or decree of the court of common pleas making absolute the rule to show cause why the lien should not be struck off is reversed, and the lien is reinstated.

Mr. Justice Moschzisker,

dissenting:

The point here involved is not only the proper interpretation of the Act of June 4, 1901, P. L. 431, but the more important matter of the usurpation of the functions of the legislature; for it seems to me that the majority opinion voices a partial repeal rather than a construction of the act.

The opinion admits that “the language of sec. 23 is sufficiently comprehensive to include the owner of the premises against which the lien is filed;” but it takes the position that because the act gives him the right to force a scire facias and to enter any and all defenses thereto, the provisions of that section “were not intended do apply to the owner .... but to other parties interested in the property.” This is the sum and substance of the views expressed in the majority opinion.

When we look at sec. 24 and find that these “other parties” may “intervene .... and make defense . . . . with the same effect as if ... . originally named as a defendant” the whole argument falls to the ground. In other words, they and the owner are on a par, and if sec. 23 is applicable to the one it is equally applicable to the other. But the majority attempt to draw a distinction by saying that the owner “can protect himself by the contract,” while the “other parties .... who have liens against or an interest in the liened property” are not in that position; “hence, if their rights are invaded there is ample reason why they should be furnished both a speedy and effective remedy.” As already pointed out these “other parties” have the same effective remedy for defense under the scire facias proceedings as the owner, and it is difficult to see how the fact that he can protect himself in drawing the contract helps in the correct interpretation of the section in question, or how that fact can properly distinguish the owner from others so far as subsequent legal remedies are concerned. It is not for this court to draw distinctions arbitrarily between the owner and others when the legislature has classed them all together; and as well stated by Judge Head in certifying this case to us, “It would be anomalous to conclude that the legislature .... intended to furnish, for mortgagees, owners of ground rents or other parties having a lesser interest in the liened property, a speedy remedy for the injury following the filing of a lien that could not be sustained, when such remedy was denied to the owner having a greater interest.”

Again, the statement that the scire facias proceeding affords an opportunity for the presentation of all defenses is no argument against the existence of another remedy. It is not necessary to cite authorities or state examples to show that in many instances one may have a choice of legal remedies. The scire facias is primarily for the benefit of the claimant and is the method by which he is to enforce his lien. Any defendant, owner or otherwise, may put in his defense to the scire facias, but the legislature under its right to prescribe the practice in statutory proceedings has seen fit to give an additional particular remedy to defendants. No doubt this was done with the view that in many instances the new remedy would prove more expeditious than a defense to the scire facias. That it may not prove so where a jury trial is demanded does not alter the fact that its tendency would be to hasten the relief in most cases.

To quote once more from the opinion of Judge Head : “Prior to the passage of the act of 1901, it was held in a number of cases, notably in Stoke v. McCullough, 107 Pa. 39, that a lien could not be struck off for matters dehors the record even if such matters, when properly proven on the trial of the scire facias, would amount to a complete defense. The reason of the conclusion is stated in a line by Justice Clark: 'The claim is a specific lien under the statute, and the court has no power over it, except in the form provided by statute.’ "An owner, then, having a sound defense to a lien, but one resting on matters of fact dehors the record, could but file his affidavit of defense to the scire facias and enter his plea. He was then obliged to wait until his case was reached for trial although, in the meantime, his property was incumbered with a lien which ought never to have been filed.” This was the mischief in the old law which the act of 1901 clearly manifests an intent to relieve against by the remedy prescribed in sec. 23.

This section presents' an idea distinct and apart from the provisions for the scire facias and defenses thereto; the remedy afforded is not available under all circumstances, but is confined to certain enumerated defenses and those of a like character; partial defenses that would not completely defeat the claim cannot be entered thereunder. The apparent purpose is to give the court an opportunity to rid expeditiously a property of an entirely unjustifiable, or an invalid claim; and thus to afford a speedy remedy for the injury flowing from the filing of a lien which could not be sustained.

The views here expressed are in accord with the common and generally accepted opinion as shown by the reported cases: Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521; Cox v. Croft, 39 Pa. Superior Ct. 551; Hiestand v. Keath, 42 Pa. Superior Ct. 403; Este v. Penna. R. R. Co., 13 Pa. Dist. Rep. 451; W. E. Alberts Co. v. Opperman, 55 Pittsburg Legal Journal, 236; and the only discordant note is Burger v. S. R. Moss Cigar Co., 225 Pa. 400, which was decided without any consideration of the section in question.

In the present case, in a proceeding under sec. 23, it appeared that the claim had been filed against two separate structures, and the court below entered an order striking off the lien. In my judgment this was a proper exercise of a power plainly conferred by the act of 1901, and the order should be sustained.


author: Mr. Justice Brown,

text:
    Clark, Appellant, v. Lancaster.

      Negligence — Municipal corporations — Sidewalks—Loose grate — Curb —Contributory negligence — Burden of proof.

    1. Negligence of plaintiff, contributing to an injury complained of, is a matter of defense and ordinarily the burden of proving it is on the defendant.
    2. The rule that a plaintiff must present a case clear of contributory negligence does not mean that after proving affirmatively that the defendant’s negligence caused the injury, he must prove negatively that he himself was not guilty of negligence that contributed to the result.
    3. In an action against a city to recover damages for personal injuries received from stepping upon a loose grate over a gutter, an admission by plaintiff that she was not looking down as she walked along, but was looking straight ahead is not sufficient to convict her of con-tributary negligence unless it also conclusively appears from the testimony that if she had looked she could not have helped seeing the danger. , ' .
    4. In such a case where two witnesses for the plaintiff apparently contradict each other as to whether the grate was visibly loose and out of place, and it is not clear whether the plaintiff could have seen it, it is for the jury to reconcile the conflicting statements of the witnesses, and a nonsuit should not be entered.
    Argued May 16, 1910.
    Appeal, No. 152, Jan. T., 1910, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1908, No. 69, refusing to take off nonsuit in case of Annie E. Clark v. The City of Lancaster.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Hassler, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      B. F. Davis, for appellant.
    The question of contributory negligence was for the jury: Elias v. City of Lancaster, 203 Pa. 638; Catawissa R. R. Co. v. Armstrong, 52 Pa. 282; Crumlich v. Harrisburg, 162 Pa. 624; Glase v. Philadelphia, 169 Pa. 488; Curry v. Erie City, 209 Pa. 283; Holbert v. Philadelphia, 221 Pa. 266.

      Bernard J. Myers, city solicitor, for appellee.
    The burden was on plaintiff to show no contributory negligence: Lerner v. Philadelphia, 221 Pa. 294; Robb v. Connellsville Borough, 137 Pa. 42; Dougherty v. Philadelphia, 210 Pa. 591; Buzby v. Phila. Tract. Co., 126 Pa. 559; Sickels v. Philadelphia, 209 Pa. 113; Kennedy v. Philadelphia, 220 Pa. 273; Byrne v. Philadelphia, 211 Pa. 598; McIlhenney v. Philadelphia, 214 Pa. 44; West Chester, etc., R. R. Co. v. McElwee, 67 Pa. 311; Germantown Pass. Ry. Co. v. Walling, 97 Pa. 55; Baker v. Fehr, 97 Pa. 70.

      July 1, 1910:
   Opinion by

Mr. Justice Brown,

The plaintiff was injured by stepping on a loose grate over a gutter on one of the streets in the city of Lancaster. It tilted as she stepped upon it and she was thrown to the ground, sustaining the injuries for which she seeks compensation in this action. There was ample evidence of the defendant’s negligence, but a nonsuit was entered on the ground of the contributory negligence of the plaintiff, the court being of the opinion that, if she had looked where she was going, she would have seen the danger before her, which it was her duty to avoid. The learned trial judge, however, was clearly under a misapprehension of what was required of her in making out her case, and this may have led him into the error which must be corrected. In his opinion refusing to take off the nonsuit the following appears: “The burden was on the plaintiff not only to show that the defendant was negligent, but that she was free from any negligence that contributed in any degree to the accident: Lerner v. Philadelphia, 221 Pa. 294. We entered judgment of nonsuit for this reason and are now asked to strike it off.” Nothing said in Lerner v. Philadelphia conflicts with the rule that the negligence of a plaintiff, contributing to the injury complained of, is a matter of defense, and ordinarily the burden of proving it is on the defendant. Contributory negligence on the part of a plaintiff is no more to be presumed than the negligence of a defendant. The rule that a plaintiff must present a case clear of contributory negligence does not mean that, after proving affirmatively that the defendant’s negligence caused the injury, he must prove negatively that he himself was not guilty of negligence that contributed to the result: Bradwell v. Railway Co., 139 Pa. 404; Baker v. Westmoreland & Cambria Natural Gas Co., 157 Pa. 593; Fitzpatrick v. Union Traction Co., 206 Pa. 335; Coolbroth v. Penna. R. R. Co., 209 Pa. 433.

If it clearly appeared from the appellant’s own testimony, or from that of the other witnesses — so clearly that the jury could not have found otherwise — that the grate was loose or out of place, and that she ought to have seen its condition, patent tó a passer-by, she assumed the risk of its tilting, and the judgment of nonsuit could not be disturbed. She admitted that she was not looking down on the ground as she was walking along, but was looking straight ahead. This, however, was not sufficient to convict her of contributory negligence, for it must have appeared that, if she had looked, she could not have helped seeing the danger. She lived near the point where she was hurt and at times passed by it, but testified that she had no knowledge that the grate was loose or that the crossing was dangerous. A witness who was walking with her when she fell testified that there was nothing to show that the grate was dangerous. But the trial judge was of opinion that, from the testimony of plaintiff’s husband and that of another witness, it appeared that the grate was loose or out of place at the time of the accident, and that if the plaintiff had looked down at it, she would have seen its condition. It is true the husband testified that the grate was loose or out of place. When asked, however, whether he saw it was loose or off at the time of the accident, he answered that he could not see it from where he was standing, but knew it was loose because, when his wife trod on it, she went through it. Instead of testifying to what he saw of the condition of the grate at the time of the accident, he merely gave his reason for believing that it was then loose. Logan, the other witness, when asked by the court whether he saw that the grate was loose or out of place when the plaintiff stepped upon it, at first evaded answering, but finally admitted that, though standing only ten or twelve feet away from it, he could not say that he saw it was off its foundation. From some portions of the testimony of these two witnesses the jury might have found that, when the appellant stepped upon the grate, it was out of place and that she ought to have seen this, but the net result of their apparently contradictory testimony was by no means so clear that from it the court was required to pronounce the plaintiff guilty of contributory negligence. It was, therefore, for the jury to reconcile the conflicting statements, and, if they were unable to do so, to say which should prevail: Ely v. Railway Company, 158 Pa. 233.

The assignments of error are sustained and the judgment is reversed with a procedendo.


author: Mr. Justice Potter,

text:
    Montgomery, Appellant, v. New Era Printing Company.

      Libel — Newspapers—Prima facies — Privilege—Probable cause — AU torney at law — City councils — Report of meeting.

    1. Any oral or written words which impute to an attorney at law the want of the requisite qualifications to practice law, or with having been guilty of corrupt, dishonest or improper practice in the performance of his duties as a lawyer are actionable per so.
    2. Where, in an action of libel, plaintiff proves the publication of articles imputing dishonest and dishonorable action to the plaintiff in his professional conduct as an attorney at law, a prima facie case is made out, and the burden of proving privilege or probable cause is upon the defendant.
    3. Where, in such case, the defamatory articles are based in part upon a report of a meeting of a committee of city councils, it is the duty of the defendant to establish, by way of defense, if it can do so, the privileged character of its publication; either that the defamatory words substantially as it published them were spoken at the committee meeting, or that acting with due diligence, it was deceived into the belief that they had been so uttered; and in that belief had published them, with fair and reasonable comments upon the proceedings.
    Argued May 17, 1910.
    Appeal, No. 82, Jan. T., 1909, by plaintiff, from order of C. P. Lancaster Co., Nov. T., 1907, No. 13, refusing to take off nonsuit in case of C. Eugene Montgomery v. James D. Landis, B. S. Shindle et al., trading as the New Era Printing Company. Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.

      July 1, 1910:
    Trespass to recover damages for the publication of an alleged libelous article. Before Hassler, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was the refusal to take off nonsuit.

      John G. Johnson, with him Henry C. Niles and B. F. Davis, for appellant.
    The burden was on the defendant to show privilege: Neeb v. Hope, 111 Pa. 145; Conroy v. Pittsburg Times, 139 Pa. 334; McGaw v. Hamilton, 184 Pa. 108; Sacchetti v. Fehr, 217 Pa. 475; Mulderig v. Wilkes-Barre Times, 215 Pa. 470; Wood v. Boyle, 177 Pa. 620; Wallace v. Jameson, 179 Pa. 98.

      W. U. Hensel, for appellees.
    The question of privilege must be determined by the court: Henwood v. Harrison, L. R. 7 C. P. 606; Somerville v. Hawkins, 10 C. B. 583; Spill v. Maule, L. R. 4 Ex. 232; Neeb v. Hope, 111 Pa. 145; Jackson v. Pittsburg Times, 152 Pa. 406; McGaw v. Hamilton, 15 Pa. Superior Ct. 181.
    If publication is privileged, malice must be proved by the plaintiff: Ormsby v. Douglass, 37 N. Y. 477; Chapman v. Calder, 14 Pa. 365; Waller v. Lock, 45 L. T. R. 242; Com. v. Pavitt, 40 Legal Int. 454.
   Opinion by

Mr. Justice Potter,

In entering judgment of compulsory nonsuit in this case, we think the trial judge took for granted the existence of certain facts of which no evidence appears in the record. It was proven by the plaintiff that he was an attorney at law, practicing at the Lancaster county bar, and that the alleged libelous articles were published and largely circulated in the county. In the articles in question the plaintiff was charged with presenting a bill twice for the same services in the same case. The articles therefore imputed dishonest and dishonorable action to the plaintiff in his professional conduct as an attorney. Any oral or written words which impute to an attorney at law the want of the requisite qualifications to practice law, or with having been guilty of corrupt, dishonest or improper practice in the performance of his duties as a lawyer, are actionable per se. See 18 Am. & Eng. Ency. of Law (2d ed.), 960, and cases there cited, including Wallace v. Jameson, 179 Pa. 98; Bruce v. Reed, 104 Pa. 408; Barr v. Moore, 87 Pa. 385; Rush v. Cavenaugh, 2 Pa. 187. In the present action the plaintiff made out a prima facie case, and the burden was then upon the defendant to make out its defense. If the publication was a privileged communication, or if there was probable cause for the defendant to believe that the statements were true, that was a matter to be shown as a defense. The defamatory articles were based in part upon a report of a meeting of a committee of the city councils of Lancaster. There was, however, no evidence before the court that such a meeting of the committee was held, or that the articles fairly reported the facts as they actually occurred. As was held in Conroy v. Pittsburg Times, 139 Pa. 334, in order that a publication be privileged, it must be shown to have been made upon a proper occasion, from a proper motive, based upon reasonable or probable cause, and in a proper manner. Unjustifiable comments may deprive a publication of what would otherwise be its privileged character. Ordinarily, the publication of pertinent statements made in the course of judicial and legislative proceedings is absolutely privileged; but even as to them, this quality may be lost if the published account be exaggerated. Thus in Pittock v. O’Neill, 63 Pa. 253, Justice Sharswood says, “It has been held to be libelous to publish a highly colored account of judicial proceedings mixed with the party’s own observations and conclusions: Stiles v. Nokes, 7 East, 493; Lewis v. Clement, 3 Barn. & Ald. 702.” In the present case it was the duty of the defendant to establish, by way of defense, if it could do so, the privileged character of its publication; either that the defamatory words substantially as it published them were spoken at the committee meeting, or that acting with due diligence, it was deceived into the belief that they had been so uttered; and in that belief had published them, with fair and reasonable comments upon the proceedings. Not until proof of this character had been submitted, would the question arise for the determination of the court, as to whether or not the matter was privileged. We are of opinion that as the case stood at the close of the plaintiff’s testimony, the entry of a compulsory nonsuit was erroneous.

The judgment is reversed with a procedendo.