text:
    Commonwealth v. Witman, Appellant.

      Criminal law — Public officers — Municipal corporations — Act of March 31. 1860, sec. 66, P. L. 382.
    The words “any member of any corporation,” in section 66 of the act of March 31, 1860, -do not signify a corporation other than the one to which the supplies are to be furnished. These words refer to the corporation purchasing or receiving the supplies or materials, and of which the individual is a member, an officer or an agent. It is plainly intended to prevent anyone who is a member, officer or agent of any corporation, municipality or public institution from being in anywise interested, directly or indirectly, in the furnishing of supplies or materials to the corporation, municipality or institution with which he is officially connected. The statute intends to prohibit persons from occupying a° position in which they will be virtually contracting with themselves.
    The prohibition of sec. 66 of the Act of March 31, 1860, P. L. 382, applies to a councilman of a municipal corporation, who is interested directly, or indirectly in furnishing supplies to, or for the use of, the municipality of which he is an officer.
    The term “corporation” in its legal as well as in its popular sense, includes an incorporated city.
    Where a councilman of a city who is co-owner with his brother of a quarry, joins in the ratifying by councils of a contract with his brother to supply the city with stone from the quarry of which he is a co-owner, he may be convicted of violating see. 66 of the act of March 31, 1860.
    Argued Feb. 19, 1907.
    Appeal, No. 338, Jan. T., 1906, by defendant, from judgment of C. P. Berks Co., Oct. T., 1905, No. 40, on. verdict for plaintiff in clise of Commonwealth ex rel. Ira G-. Kutz, District Attorney, v. William Abbott Wit-man.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Quo warranto for violating sec. 66 of tbe act of March 31, 1860. Before Endlich, J.
    Tbe facts are stated in tbe opinion of tbe Supreme Court.
    Tbe court gave binding instructions against the defendant.
    Yerdict for plaintiff upon which judgment of ouster was entered.

      Error assigned was tbe instruction of the court.

      W. K. Stevens, of Stevens & Stevens, C. H. Buhl and Wm. Abbott Witman, Jr., for appellant.
    If the plaintiff bad any cause of action under the facts as shown by the evidence, the court should have left to tbe jury tbe question of whether the respondent was directly or indirectly interested in the contract made by John A. Witman with the city of Beading.
    Tbe facts do not show that tbe defendant has done anything whereby a forfeiture of his office of select councilman from the Thirteenth ward can be decreed: Com. v. Cooke, 50 Pa. 201; King v. Burrell, 12 Ad. & E. 460; U. S. v. Wiltberger, 18 U. S. 76; State v. Powers, 36 Conn. 77; Miller v. Miller, 44 Pa. 170; Com. v. Gouger, 21 Pa. Superior Ct. 217; In re School Directors of Kingsley Twp., 5 Pa. Dist. Rep. 750; McHenry’s Petition, 6 Pa. Superior Ct. 464; Com. v. Krickbaum, 199 Pa. 351; Trainer v. Wolfe, 140 Pa. 279; Com. v. Christian, 9 Phila. 556; Washington Twp. v. Shoop, 2 Pa. Dist. Rep. 639.
    April 1, 1907:

      Frederick W. Nicolls, with him Harry F. Hantner, for appellee.
    Hnder the evidence in the case the court below had a right to determine that the respondent was interested in the contracts for furnishing supplies to the city: Hunnings v. Williamson, L. R. 11 Q. B. Div. 535; Doll v. State, 45 Ohio, 445 (15 N. E. Repr. 293); Milford Borough v. Milford Water Co., 124 Pa. 610; Com. v. DeCamp, 177 Pa. 112; Todd v. Robinson, L. R. 14 Q. B. Div. 739; Whiteley v. Barley, L. R. 21 Q. B. Div. 154; McIlhenney v. City of Superior, 32 Neb. 744 (49 N. W. Repr. 705); Bell v. Quin, 4 N. Y. Super. Ct. 146; Meigs v. Lewis, 164 Pa. 597.
    Sec. 66 of the act of 1860 applies to a councilman who has an interest in a municipal contract with himself, with his firm, or with another person, even though such contract is not with a corporation: Com. v. Hancock, 2 W. N. C. 557; Coxe’s Case, 1 Pa. Dist. Rep. 702; Com. v. Hoyt, 31 Pa. C. C. Rep. 200; Rush Twp. Overseers v. Lynn, 4 Pa. Dist. Rep. 651; Kennett Elec. Light Co. v. Kennett Square Borough, 4 Pa. Dist. Rep. 707; Com. ex rel. Kepner v. Shepp, 10 Phila. 518; Com. v. Caven, 15 Pa. Dist. Rep. 291; Milford Borough v. Milford Water Co., 124 Pa. 610; Com. v. DeCamp, 177 Pa. 112; Com. v. Miller, 31 Pa. Superior Ct. 309.
   Opinion by

Mr. Justice Potter,

The portion of section 66, of the Act of March 31, 1860, P. L. 382, which is here directly involved, provides as follows: “ nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies, or materials to be furnished to, or for the use of, any corporation, municipality, or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale.” It is contended by counsel for appellant that the words “ any member of any corporation,” signify a corporation other than the one to which the supplies are to be furnished. We do not so read the act. These words refer to the corporation purchasing or receiving the supplies or materials, and of which the individual is a member, an officer or an agent. It is plainly intended to prevent anyone who is a member, officer or agent of any corporation, municipality or public institution from being in anywise interested, directly or indirectly, in the furnishing of supplies or materials to the corporation, municipality or institution with which he is officially connected. The statute intends to prohibit persons from occupying a position in which they will be virtually contracting with themselves. In dealing with this identical section, in Com. v. Miller, 31 Pa. Superior Ct. 309, Judge Rice said: “The object which the legislature had in view was the prevention of the danger of temptation, incident to a relation in which the self-interest of the officer of the corporation or municipality purchasing the supplies may come into conflict with the interest of the corporation or municipality.” He also cites an apt statement from 8 Tomlin’s Brown, 72, quoted and approved by this court in Everhart v. Searle, 71 Pa. 256, as follows : “No man can serve two masters. He that is intrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because, from a fraility of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. The danger of temptation from the facility and advantage of doing wrong which a particular situation affords, does, out of the mere necessity, work a disqualification.”

We have no doubt whatever, that the prohibition of section 66, of the act of March 31, 1860, applies to a councilman of a municipal corporation who is interested directly or indirectly in furnishing supplies to, or for the use of, the municipality of which he is an officer. The defendant in this case, being a councilman of the city of Reading, is clearly within the class of officials enumerated in the statute, who are forbidden to have any interest in furnishing supplies to the municipality. The attitude of this court has always been consistent with this view. Thus in Milford Boro. v. Water Co., 124 Pa. 610, it was said : “ The act of 1860 is another and a valuable safeguard thrown around municipalities. It was passed to protect the people from the frauds of their own servants and agents.” Chief Justice Sterrett said in Com. v. DeCamp, 177 Pa. 112: “ Section 66 is virtually a transcript of sections 1 and 2 of the Act of April 26, 1855, P. L. 328. As was doubtless intended by the revisers of our criminal code, its scope is broad and comprehensive.” And in Marshall v. Ellwood City Boro., 189 Pa. 348, Justice Green, said : “The criminal code of 1860 prohibited a member of a municipality from being interested in a contract for furnishing supplies or materials to the corporation, and imposed personal penalties upon him if he violated the act.”

The learned trial judge in this case well said: “ There can, however, be no doubt that the term ‘ corporation ’ includes, in its legal as well as in its popular sense, an incorporated city. The sole ground upon which the argument that it is not to be so understood here rests, is the omission of the term ‘ municipality ’ in the words of the second clause, ' nor shall any member of any corporation or public institution,’ etc. Yet it is clear that the joinder of ‘corporation or public institution ’ without anything more, indicates what sort of corporation is meant, i. e., corporations of a public nature, corporations in the nature of public institutions, ejusdem generis with such. The word ‘ corporation,’ therefore, in this phrase standing alone, has virtually the same meaning as if the word ‘ municipality ’ were added to it. So true is this that it cannot, without going further, be regarded as including mere private corporations. If, then, the phrase ‘ any corporation, municipality or public institution ’ is descriptive of a certain class of corporations as the subject and the only subject of the legislation; and if the phrase ‘ any corporation or public institution ’ is, under accepted rules of interpretation, descriptive of the same class, it follows that the same meaning must be given to both, notwithstanding the insertion in the one, and the omission from the other, of a term which is fairly embraced in the more comprehensive of the terms occurring in both. It is, indeed, well settled that the same language repeatedly occurring in the same statute is to be understood in the same sense throughout: Maxwell, Int. of Stat., p. 394. And this means not only literally identical phraseology, but, disregarding insignificant variations, phrases whose material constituents and legislative or legal import are the same: Mayor, etc., of Phila. v. Davis, 6 W. & S. 269; Murray v. Keyes, 35 Pa. 384; Com. v. Navigation Co., 66 Pa. 81. If the phrase ‘ any corporation or public institution ’ is fairly synonymous with ‘any corporation, municipality or public intitution,’ then the addition to the former of the words ‘ or any officer or agent thereof’- supplies the enumeration of ‘ councilman, burgess, trustee, manager or director of any corporation, municipality or public institution’ in the first clause of the enactment, and it becomes perfectly clear that what in the second was intended to be prohibited and must be understood to be prohibited, was, inter alia, the interest of any councilman in any contract for supplies to which the municipal corporation he represents is a party.”

The testimony as to the facts in this case is undisputed, and we take the statement of them from the opinion of the court below refusing a new trial, as follows: “ In the spring of 1905, the defendant and his brother, John A. Witman, were co-owners of a tract upon which defendant operated astone quarry and crusher. John was not concerned in this or any other quarry or crusher. Neither was he engaged in the business of contracting. He was a brakeman on a railroad. Defendant was and still is a member of the select council of the city of Beading. On May 22 councils passed, and a few days thereafter the mayor approved a resolution authorizing the board of public works of the city to purchase flint spalls in such quantities as they should deem proper, for experimental use upon ‘ certain ’ streets. The board thereupon visited defendant’s quarry, were by him shown about and made acquainted with the mode of preparing the stone for use, the different sizes, and so on. Without any formal contract being entered into, the board, through its subordinate officials, proceeded to order and defendant furnished and delivered spalls to such places, at such times, and in such quantities as he or his employees were directed by these officials, beginning on

June 3, 1905, and continuing to some time in August, 1905, aggregating about 2,800 tons. John never appeared before the board, nor had any negotiations with it, relative to the supplying of spalls. The city put a weighmaster at defendant’s quarry, who ascertained and reported the quantities of spalls taken away. The accounts were kept by the city and the bills made in John’s name. Warrants for payment at the rate of eighty-four and one-half cents per ton were drawn and delivered to and receipted for by him and the amounts called for therein paid to him. In the meanwhile, on May 25, 1905, John had handed into the board a proposal to furnish to the city, during the year beginning June 1, 1905, paving sand at such times, quantities and places as should be required, at the price of eighty-four and one-fourth cents per ton. The proposal was approved by the board and a formal contract drawn accordingly, which was executed upon its ratification on June 6, by councils in joint convention, defendant being present and aware of what was being done, and not marked ‘not voting.’ Sand to the amount of about thirty tons was subsequently ordered from and delivered by defendant in the same way in which spalls were ordered and delivered, the accounts being kept, bills made out and warrants drawn, receipted for and collected in the same way. Indeed, the contract for sand was treated and regarded as including spalls. On June 8, defendant and John, in pursuance of an oral understanding dating back to about June 1, entered into a written, sealed and acknowledged agreement whereby defendant was to furnish to John, during the period of one year ensuing, at the rate of seventy-nine and one-half cents per ton, ‘ all such sand and spalls as (John) may be desirous of purchasing.’ The sand and spalls furnished by defendant to the city were by him charged to John. But apart from the proposal and the subsequent execution of the formal contract of June 6, John’s active connection with the entire triangular transaction, both as regards sand and spalls, was confined to the receipt of the money due by the city from time to time, and the handing over to defendant of sums equal to seventy-nine and one-half cents per ton, retaining for himself five cents per ton. . . . That the furnishing of sand and spalls at-seventy-nine and one-half cents per ton was profitable to the defendant is part of his own testimony.”

The “ interest ” thus disclosed upon the part of the defendant, in the furnishing of supplies to the city, was, in the opinion of the trial judge, clearly such as is forbidden by the statute, to a councilman. The act provides that he is not to be interested “in anywise,” either “ directly” or “indirectly.” As defendant was paid by the ton for the materials which he delivered to the city, and at a profitable rate, it was certainly to his interest to promote the fulfillment of the contract; and both on reason and authority, this is sufficient to constitute an interest in the contract: Hunnings v. Williamson, L. R. 11 Q. B. Div. 533, which was as here, a case in which the contract was taken in the name of the brother. So also in McElhinney v. City of Superior, 32 Neb. 744, the city made a contract for electric light with one whose brother was a councilman of the city, and by reason of his joint ownership with his brother of the water power, which was to be used to generate the electricity, the court held that the councilman was “ interested ” in the contract. See also Doll v. State, 45 Ohio, 445; and Bell v. Quin, 4 N. Y. Superior Ct. 146.

The only issue involved in this case was whether the defendant had such an “ interest ” in the matter of furnishing supplies to the city of Reading, as was, under the statute, unlawful. The question of fraudulent intent, or unfairness in price, was not involved: Com. v. Miller, 31 Pa. Superior Ct. 309.

There being no dispute as to the existence and terms of the contracts, nor as to the manner of their fulfillment by the defendant, it then became the duty of the court to deal, as a matter of law, with their interpretation and effect, in the light of the act of assembly. With his conclusion that the admitted facts of this case convict defendant of having an interest prohibited by the statute, we are in entire accord.

The specifications of error are dismissed, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Hastings v. Engle, Appellant.

      Wills — Devise—Rule in Shelley’s case — Heirs—Children.
    Testatrix devised as follows: “I give and bequeath to V. during her life time and the heirs of her body at her decease all of my real estate, and in case of her or her children dying without living issue, the said real estate I give to the Board of Home Missions of the United Presbyterian Church of North America.” Held, that V. took an estate in fee simple.
    The words, “heirs of her body,” are technical words and are presumed to be used in a technical sense, unless the context indicates a clear intention to the contrary and under these words the devisees in remainder take as heirs of the devisee of the particular estate and not as purchasers under the testatrix and hence as the stock of a new inheritance.
    Prima facie “children” is a word of purchase and not of limitation. But where it is clear that it is used in the sense of “heirs” or'“heirs of her body” used in a former part of the will, it must be so construed and the intention of the testatrix be permitted to prevail.
    The rule in Shelley’s case is not one of construction but of law, and it operates only after the intention of the testatrix has been ascertained from the language of the will.
    Argued Feb. 25, 1907.
    Appeal, No. 88, Oct. T., 1906, by defendants, from judgment of C. P. Indiana Co., Sept. T., 1903, No. 101, for plaintiff on ease stated in suit of Virginia Hastings and John S. Hastings, her husband, v. H. B. Engle and Clara E. Engle, Executors of J. II. Engle, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate. Before Or vis, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The court entered judgment for plaintiff on case stated.

      Error assigned was the judgment of the court.

      M. C. Watson, with him Peelor & Feit, for appellants.
    Virginia Hastings had a life estate only: Todd v. Armstrong, 213 Pa. 570; Fox’s App., 99 Pa. 382; Stoner v. Wunderlich, 198 Pa. 158; Mulliken v. Earnshaw, 209 Pa. 226; Mayer v. Walker, 214 Pa. 440; King v. Savage Brick Co., 30 Pa. Superior Ct. 582; Doebler’s App., 64 Pa. 9; Shapley v. Diehl, 203 Pa. 566; Hill v. Hill, 74 Pa. 173.
    April 1, 1907:

      D. B. Taylor, with him Frank Keener, for appellees, cited:
    Criswell’s App., 41 Pa. 288; Grimes v. Shirk, 169 Pa. 74; Reimer v. Reimer, 192 Pa. 571; Corrin v. Elliott, 23 Pa. Superior Ct. 449; Hiester v. Yerger, 166 Pa. 445; Boyd v. Weber, 193 Pa. 651; Hogg’s Est., 27 Pa. Superior Ct. 428.
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit to recover the purchase money for real estate sold by the plaintiffs to the defendants’ decedent. The facts appear in full in the case stated. The right to recover is resisted by the defendants on the ground that the plaintiffs cannot convey a good title to the premises. The title was acquired by Virginia Hastings, the wife of the other plaintiff, under the will of Elizabeth Coleman, deceased, which provides, inter alia, as follows : I give and bequeath to Mrs. Virginia Hastings during her lifetime, and the heirs of her body at her-decease all my real estate, and in case of her or her children dying without living issue the said real estate I give to the Board of Home Missions of the Hnited Presbyterian Church of North America. I also give Virginia Hastings my piano and all my household goods absolutely.” On April 18,1900, the following codicil was added: “ I give and bequeath to Gula Hastings one thousand dollars to be paid to her out of my real estate.”

The plaintiffs contend that Mrs. Hastings takes a fee simple estate under the will, but the defendants claim that the devise to her creates only a life estate, and that, therefore, she cannot convey a fee simple estate.

At the time the will was written Mrs. Hastings had one child, a son Ralph, to whom the testatrix bequeathed $1,000, payable out of the bank stock. Subsequently her daughter was born to whom the testatrix made a bequest, payable out of the real estate.

The primary devise is “ to Mrs. Virginia Hastings during her lifetime, and the heirs of her body at her decease.” If the testatrix had ended her testament here there could be no doubt of her intention, or as to the quantum of the estate which Mrs. Hastings would take under the devise. The first taker is Mrs. Hastings and the remainder-men are “ the heirs of her body.” These are technical words, and are presumed to be used in a technical sense unless the context indicates a clear intention to the contrary: Graham v. Abbott, 208 Pa. 68. Under this language it is firmly settled in this state that the devisees in remainder take as heirs of the devisee of the particular estate and not as purchasers under the testatrix, and hence as the stock of a new inheritance. Mrs. Hastings becomes the root of descent, and from her the title passes in a continuous line of succession. Therefore, “ the heirs of her body” are not descriptive of the persons who take the remainder, but define and limit the estate devised to Mrs. Hastings. Such is clearly the legal signification of these words, and, standing alone and uncontrolled by other parts of the will, it will be presumed that by their use the testatrix intended not individuals, but quantity of estate and descent: Guthrie’s Appeal, 37 Pa. 9. Under all our numerous authorities, without a single exception, the life estate devised to Mrs. Hastings was enlarged into a.n estate tail which, by operation of the Act of April 27, 1855, P. L. 368, was converted into a fee simple estate.

We now turn to the clause of the will immediately succeeding the one containing the primary devise, and which passes the estate over. Its language is as follows : “ And in case of her or her children dying without living issue the said real estate I give to the Board of Home Missions of the United Presbyterian Church of North America.” The purpose of this clause, apparent on the face of it, was to meet the contingency of the beneficiaries named in the primary devise, dying without issue. The testatrix believed she had disposed of the whole estate in the first clause, which was true, but to avoid an intestacy caused by tire death of the primary devisees she supplemented it with the succeeding clause. That is the manifest purpose of the latter clause of the will. She, however, has used in this clause “ her children” instead of the words “heirs of her body,” and this is the ground for the appellant’s contention that the testatrix intended to give Mrs. Hastings “ a life estate only and at her death a life estate to her children if living, and the fee simple to the living issue of her children, and if Virginia Hastings or her children should die, without living issue, then to the Board of Home Missions of the United Presbyterian Church of North America.” But we are convinced that it was not the intention of the testatrix by this clause of the will to cut down or disturb the estate given to Mrs. Hastings in the first clause of the will. There is no unequivocal determination shown to interfere with or diminish the quantum of the estate given to the first taker in the primary devise. It is true that prima facie, “children” is a word of purchase and not of limitation, and, uncontrolled by the context, must be so construed. But where it is clear that it is used in the sense of “ heirs ” or “ heirs of the body,” used in a former part of the will, it must be so construed, and the intent of the testator be permitted to prevail. In this case the testatrix evidently used the word “ children ” in the devise over in the same sense as “ heirs of the body ” in the primaiy devise. It is plain, we think, that the testatrix by this clause meant to devise the estate over in the event of an indefinite failure of the issue of Mrs. Hastings. So long as. there were any “ living issue,” the estate was to continue in them, and not until their extinction was it to go over. To carry out the intention of the testatrix, it was not necessary to insert the words “ her children ” in the second- clause of the will, but the context shows the meaning of those words and hence they do not change or defeat the estate primarily given the first taker. The thought of the testatrix in both clauses of the will, expressed in the first by “ the heirs of her body ” and in the other, by “ her children,” was of the lineal descendants of Mrs. Hastings. In either case, as said in Shapley v. Diehl, 203 Pa. 566, “ the children would have come in as first in the line of inheritance.”

The rule in Shelly’s case, as we have often said, is not one of construction but of law, and it operates only after the intention of the testator has been ascertained from the language of the will. Here, the testatrix devised her real estate to the devisee for life and to the heirs of her body, and if she or her heirs died without issue then over. Such having been ascertained to be the intention of the testatrix, the law then declares, as announced in Shelly’s case, that Mrs. ‘Hasting takes an estate in fee tail under the provisions of the will. This being converted into a fee simple by the act of 1855, it follows that she with her husband can convey a good title to the premises which they sold to the defendant’s decedent, and hence the plaintiffs are entitled to recover in this case.

The assignments are overruled, and the judgment is affirmed.


author: Per Curiam,

text:
    Commonwealth v. Densten, Appellant.

      Physicians — Registration—License—Constitutional law — Police power —Act of May 18, 1893, P. L. 94.
    Registration as a physician after March 1, 1894, under the Act of June 8, 1881, P. L. 72, is outside of the limitations of the Act of May 18, 1893, P. L. 94, and is useless as a defense to an indictment for practicing medicine without a license.
    The Act of May 18, 1893, P. L. 94, providing for the licensing of a physician and surgeon is a proper exercise of the police power of the state, and does not violate either the federal or state constitutions.
    Argued Feb. 25, 1907.
    Appeal, No. 154, Jan. T., 1906, by defendant, from judgment of Superior Ct. Jan. T., 1906, No. 38, affirming judgment of Q. S. Lackawanna Co., Oct. T., 1904, No. 947, on verdict of guilty in case of Commonwealth v. Joseph Cooper Henston.
    Before Fell, Brown, Mestrezat,
    Potter and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    Orlady, J., delivered the following opinion:
    The defendant was tried and convicted of “ entering upon the practice of medicine and surgery and practice of the same without having obtained from the medical council of Pennsylvania a license to practice medicine and surgery,” in violation of the requirements of the Act of May 18, 1893, P. L. 94.
    The facts were undisputed and the court assumed the duty of instructing the jury that the defendant should be found guilty on the second count in the indictment and not guilty on the first and third ones. The whole question was reviewed on a motion in arrest of judgment, which was refused, and on a rule for a new trial, which was discharged. The defendant admitted that he was engaged in the practice of medicine, as charged, and did not pretend to have ever obtained any certificate or license to do so from the state authorities; his sole defense being that he was within the exceptions enumerated in the act of 1893, in that he had registered under the provisions of the act of June 8, 1881, at Montrose, Susquehanna county, Pennsylvania, on September 24, 1897, and that he had been continuously practicing medicine since 1869, under a certificate of sufficiency given to him by his preceptor which qualified him, under the law as it was then declared, to engage in the practice of that profession. It was contended that being thus qualified the subsequent legislation on the subject by Acts of March 24, 1877, P. L. 42, the registration Act of June 8, 1881, P. L. 72, and the registration and license or certificate provisions of the act of 1893, did not apply to him.
    The registration in Susquehanna county in 1897 was of no avail, inasmuch as the act of 1893 specially provides in the 15th section that such registration under the acts of 1881 to be a sufficient warrant to practice medicine and surgery shall be made prior to March 1, 1894. Registration after that date was outside the limitation of the act, and was fruitless as a defense. The propriety as well as the necessity for such restrictive legislation has been fully considered by our courts. In regard to this particular act, In re Registration of Campbell, 197 Pa. 581 it is said, “ the Act of May 18, 1893, P. L.. 94, is a valid and constitutional exercise of the police power of the state upon a subject plainly within that power and urgently in need of control by it. So far as any federal question is supposed to be involved it is set at rest by Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. Repr. 231), in which the supreme court of the United States pronounced an almost identical statute of West Virginia to be free from repugnancy to the constitution of the United States or the fourteenth amendment. In regard to the questions raised under the constitution of Pennsylvania, it would be sufficient to refer to Com. v. Finn, 11 Pa. Superior Ct. 620. The present chief justice reviews the previous legislation. on the subject and conclusively settles the necessity for a proper registration by all who ask the protection of our laws in the practice of medicine and surgery in this state. See also Com. v. Campbell, 22 Pa. Superior Ct. 98; State v. Currens, 111 Wis. 431 (87 N. W. Repr. 561); s. c., 56 L. R. A. 252. Not having complied with the requirements of any of onr laws regulating the practice of medicine and surgery, there can be no question of his being guilty on the second count in manner and form as he was indicted.
    April 1, 1907:
    The judgment is affirmed.

      Error assigned was the judgment of the Superior Court.

      A. A. Vosburg, with him Charles W. Dawson and James Mahon, for appellant.

      Joseph O’Brien, district attorney, with him W. S. Diehl, for appellee.
   Per Curiam,

This judgment is affirmed on the opinion of the Superior Court.


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

      Boroughs — Councils—Meeting—Election—Borough treasurer.

    Where eight members of a borough council assemble in the same room, and before any organization is- effected, and while all are engaged in a disorderly scramble to effect an organization, four of the members, apart from the others, go through the form of an election for a borough treasurer, the person so elected has no title to the office.
    Submitted Feb. 26, 1907.
    Appeal, No. 12, Jan. T., 1907, by plain till, from judgment of C. P. Lackawanna Co., Sept. T. 1906, No. 1,036, for defendant on case tried by the court without a jury, in case of Commonwealth ex reí. I. F. Price v. M. J. Garvey.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      April 1, 1907:
    Petition for mandamus. Before Kelley, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the judgment of the court.

      A. A. Vosburg and C. W. Dawson, for appellant.

      John H. Bornner, for appellee.
   Per Curiam,

This case’was tried in the common pleas with the case of another claimant to the office of treasurer of the borough of Moosic. In the opinion filed in that case, but covering both cases, it was said in relation to the relator in this: “ As far as Mr. Price’s claim is concerned, it is sufficient to say that he never was elected by either a de jure or a de facto borough council. He does not claim by virtue of his election at the meeting of the so-called Price council held on March 6, 1906, but claims under an election held on July 2, 1906. As we have stated in our seventh finding of fact, there was no valid meeting held on that date at which he was elected. Only four members of the council participated in any degree in any proceedings of the meeting in which he was chosen, viz.: Anthony, Woodbine, Broadhead and Scznyter. Sheehan, Moran, Cotter and Decker, the other four legal members of the council, took no part in it whatever. They were not even present at .the meeting, legally speaking, but were merely physically present in the same room while part of it was being held. They were, under the uncontradicted evidence, engaged in holding a council meeting with Sanderson and one Martin present and participating when the other four councilmen came into the hall and attempted to take charge and effect an organization by counting them as present and thus getting a quorum. They immediately adjourned and left the hall when the members of the Price council began to hold a meeting. The situation of affairs during the first few moments was that both parties were trying to do business at the same time. Under such circumstances there was no warrant or authority of law to note the presence of Sheehan and bis associates at the alleged meeting of council which elected Mr. Price as treasurer. It was an undignified scramble to effect an organization, but it was not successful.”

For the reasons stated in the opinion of the learned judge of the common pleas, the decree is affirmed at the cost of the appellant.


text:
    Stout, Appellant, v. Young.

      Will — Probate—Statute of limitations — Act of April 22, 1856, sec. 7, P. L. 532.
    Where five years have elapsed from the probate of a will, and no appeal has been taken, a devise of realty by the will cannot be impeached upon the ground that the testator was not of age when he executed the will.
    The Act of April 22, 1856, P. L. 532, is not merely a statute of limitations affecting a remedy; it is a provision “for the greater certainty of titles,” and establishes a ride of evidence which makes conclusive as to land after the lapse of five years without caveat or action at law duly pursued, what was before prima facie only.
    Argued Feb. 26, 1907.
    Appeal, No. 328, Jan. T., 1906, by plaintiff's, from judgment of C. P. Lackawanna Co., May T., 1905, No. 414, for defendant on question of law reserved in case of John Stout et. al., v. Ann Patterson Young.
    Before Fell, Brows, Mesteezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for land in Ransom township. Before Edwards, P. J.
    At the trial the jury returned a verdict for defendant, subject to the question of law reserved, as follows :
    “ That as the will of Daniel Stout was duly, probated in the office of the Register of Wills of Luzerne County in conformity with law, in 1876, and as no caveat was filed or proceedings of any kind instituted to have the probate set aside, it became conclusive as to the real estate of said Daniel Stout after five years, and cannot now be attacked in this proceeding.”
    Other facts appear by the opinion of the Supreme Court.
    • The court in an opinion by Edwards, P. J., entered judgment for defendant on the reserved ooint.

      April 1, 1907:

      Error assigned was in entering judgment for defendant.

      H. W. Mumford, with him Clarence BallenUne and W. A. Wilcox, for appellants.

      A. A. Yosburg, with him W. 1. Hibbs and Cha/rles W. Dawson, for appellees.
   Per Curiam,

The learned trial judge was of opinion that error had been committed in submitting to the jury the question of adverse possession in the defendants and their predecessors in title. Since this was one of two questions of fact submitted and the verdict may have been based on a finding for the defendants as to it, he entered judgment for the defendants on the question reserved, which was whether after five years the probate of the will became conclusive as to real estate, notwithstanding the want of age of the testator, no proceedings having been instituted to contest it. The conclusion reached by the court on this question, in which we concur, would have warranted a peremptory direction for the defendants. A right verdict had therefore been reached irrespective of the finding as to adverse possession, and judgment should have been entered on the verdict instead of on the reserved question.

The action was ejectment, brought in 1905, in which the validity of a will probated in 1876 was attacked on the ground that the testator was not of the age of twenty-one years at the time of making it. The construction of section 7 of the Act of April 22, 1856, P. L. 532, has been definitively settled. It is not merely a statute of limitations affecting a remedy; it is a provision “ for the greater certainty of titles,” and establishes a rule of evidence which makes conclusive as to land after the lapse of five years, without caveat or action at law duly pursued, what was before prima facie only. The probate of a will is a judicial act which cannot be collaterally impeached in an action of ejectment; it is conclusive on all persons, whether under disabilities or not, unless contested in the manner provided by the act: Wilson v. Gaston, 92 Pa. 207; Cochran v. Young, 104 Pa. 333; McCay v. Clayton, 119 Pa. 133. The probate is of course conclusive only as to matters within the jurisdiction of the register and not as to the effect of testamentary provisions which depend on matters dehors the record, as the validity of a gift to charities: Hegarty’s Appeal, 75 Pa. 503; or the effect of a subsequent marriage of a testatrix: Craft’s Estate, 164 Pa. 520; or the rights of afterborn children: Owens v. Haines, 199 Pa. 137. But the probate of a will unappealed from is conclusive of the fact that it is the will of the alleged testator. To establish this fact the necessary findings were that the will was duly executed, that the testator had sufficient mental capacity, and that he had reached the age of twenty-one years. Testamentary age is as essential to the establishment of a will as proper execution of the writing and the possession of testamentary capacity. It was involved in the adjudication and was settled by it.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Crawford v. Schooley, Appellant.

      Wills — Probate—Appeals from register — Jurisdiction of orphans’ court — Practice, O. C.

    On an appeal to the orphans’ court from the decree of the register of ■wills, admitting a will to probate, where the appellant produces a paper testamentary in character, bearing a later date, and proved as to its execution by two witnesses, the orphans’ court should open the decree admitting to probate the earlier will, and direct that the appellant produce before the register, the paper which he claims to be a later will, and proceed to make proof of its execution and validity in the usual manner. The court has no jurisdiction on the appeal from the probate of the earlier will to consider an application for an issue to determine the validity of the paper alleged to bo a later will.
    When the subscribing witnesses to a paper purporting to be a will, testify to its due execution, an issue to determine the genuineness of the instrument, if requested by the proponent, is a matter of right.
    Argued Feb. 25, 1907.
    Appeal, No. 71, Jan. T., 1907, by defendant, from decree of O. C. Lackawanna Co., No. 75, of 1905, dismissing appeal from register in case of Estate of James L. Crawford.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Be versed.

      Appeal from register of wills.
    Sando, P. J., filed the following opinion:
    The decedent, James L. Crawford, a resident of Scranton, Pennsylvania, died in Florida on February 19, 1905, leaving to survive him a widow, Huldah A. Crawford, and a stepson, James G. Shepherd. On February 27, a will dated September 13,1896, was probated and his widow appointed executrix. By this will, with the exception of an inconsiderable legacy to a sister and a comparatively small .devise to his stepson, his entire estate was given to his widow. The personal estate left by Mr. Crawford, as shown by the inventory and appraisement filed, amounted to $971,802. In addition, he left real estate as shown by the testimony, some of which was rented and yielding an income of about $750 per month, and the rest consisting of his Scranton and Florida homes. On June 27, 1906, sixteen months later, George B. Schooley took an appeal to the orphans’ court from the decision of the register, admitting to probate the will dated September 13, 1896, as the last will and testament of the decedent, and granting letters testamentary thereon.
    On June 30, 1906, Mr. Schooley presented his petition to the orphans’ court praying that a citation issue to Huldah A. Crawford and J. G. Shepherd commanding them to appear and answer the petition and to show cause why such appeal should not be sustained and an issue awarded. In this petition he averred that on January 30, 1905, James L. Crawford, at the city of Philadelphia made his last will and testament, a copy of which was attached as part of the petition. To this citation a suggestion was filed August 13, in which the respondents stated they were informed that there had been a codicil accompanying the proposed will and asking for a citation for its production before they should make answer. Such a citation was issued and in response to it on August 28, the petitioner presented the proposed codicil dated January 30, 1905. To this ' petition as thus completed the respondents filed their answer, in which they suggested, inter alia, that the alleged will and codicil produced by the petitioner were forgeries and that the signatures of James L. Crawford to the will and codicil had been forged.

      Upon the issue made up a hearing was had, the questions being, stating them in the language of the petition :
    “ (a) Whether said paper writing dated September, 1896, is the last will and testament of James L. Crawford, deceased.
    “(b) Whether the said James L. Crawford, deceased, executed the will dated New York, N. Y., December 16, 1904, and witnessed by A. N. Bahman and O. F. Riedel, and whether at the same time, on January 30, 1905, he executed a codicil thereto.”
    The rules of law governing this case are simple and well settled. The forty-first section of the Act of March 15, 1832, P. L. 135, declares: “ Whenever a dispute upon a matter of fact arises before any register’s court the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof.” The orphans’ courts possess all the jurisdiction and powers formerly vested in the “registers’ courts : ” Constitution of 1874, article 5, section 22; Act of May 19, 1874, section 6, P. L. 206. The construction given by the courts to this statute clearly leaves it in the discretion of the court to determine in any given case whether a substantial dispute as to material facts has arisen which must be submitted to a jury.
    The test by which the court is to determine whether such a substantial dispute has arisen is now well settled in a number of decisions. Substantially in the dispute is that a verdict could be supported by a trial judge upon a review of all the evidence: Dellaven’s Appeal, 75 Pa. 337; Harrison’s Appeal, 100 Pa. 458; Schwilke’s Appeal, 100 Pa. 628; as to whether or not a signature is genuine is that a verdict in favor of the genuineness could be supported upon a review of the whole evidence. There is only one safe and reliable test. If the testimony is such that after a fair and impartial trial resulting in a verdict against the proponent of the alleged will, the trial judge, after a careful review of all the evidence, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, it cannot be said that a dispute, within the meaning of the act, has arisen: Knauss’s Appeal, 114 Pa. 10; Sharpless’s Estate, 134 Pa. 250; Tallman’s Estate, 148 Pa. 286; Douglass’s Estate, 162 Pa. 567.
    It is not our purpose to review the numerous cases which have been decided, having a bearing on the matter under consideration. In some of the cases it is held that the granting of an issue is within the discretion of the court. This position renders it necessary that the court shall, to some extent at least, make judicial inquiry into the facts. The discretion to be exercised in such case must not be arbitrary or willful, but it must be based upon facts, the knowledge of which is judicially acquired. If this court has no power to judge whether there are in truth matters in dispute affecting the merits of the controversy, it has no duty to perform but to certify alleged facts to another court, to register the decision of that court yrhen it is returned, and to enter a decree in accordance therewith.
    After a careful consideration, aided by the light of the many cases cited upon argument, and others, we have no difficulty in reaching the conclusion that the court not only has the power, but is charged with the duty to ascertain from the evidence adduced by the parties, whether there are material disputed facts, and whether the character of such dispute is such that if the facts found by a jury in favor of one who requests the issue, such finding could upon consideration of the whole evidence in good conscience be sustained.
    Having reached a conclusion as to the correct rules to apply in a case like the present, our next duty is to apply them.
    Why in any event or under any circumstances refer evidence to a jury when, if their verdict should be against the weight of it, it would have to be set aside ? We have taken up the evidence to determine whether there is a substantial dispute demanding an issue. If evidence be so strong as necessarily to produce certainty and conviction, it matters not by what kind of evidence the effect is produced ; and the intensity of the proof must be precisely the same, whether the evidence be direct or circumstantial.
    When it is stated that a fact has been established by direct and positive evidence, it is meant that it has been testified to by witnesses as having come under the cognizance of their senses, and of the truth of which there seems to be no reasonable doubt or question; and when it is stated that a fact has been established by circumstantial evidence, it is meant that the existence of it is fairly and reasonably to be inferred from other facts proved in the case. When circumstances connect themselves closely with each other, when they form a large and strong body, so as to carry conviction, it may be proof of a more satisfactory sort than that which is direct.
    April 1, 1907:
    On the part of the petitioner it is claimed that to entitle him to an issue, all that is required of him is to establish by the proofs a prima facie case. On the part of the respondents it is claimed that an issue ought not to bo directed if upon the whole evidence as well that of the petitioner as that of the respondents a verdict ought not to be allowed to stand. We think the latter is the principle which must guide us in the disposition of the case.
    Applying the principles of law which are well established by the authorities, we are irresistibly led to the conclusion that the issue as prayed for must be refused. It is true that the petitioner and the two subscribing witnesses have testified that they saw the decedent sign his name to the alleged will and codicil, and ordinarily it might be said that such testimony should be sufficient to support a verdict in accordance with it, but upon consideration of the overwhelming evidence to the contrary we could not in conscience allow such a verdict to stand. We would subserve no purpose in discussing the circumstances which so convince us. It would require too much time and space. But we are satisfied that a disinterested reading and consideration of all the evidence cannot fail to satisfy anyone that it would be unrighteous to grant the issue prayed for. Appeal dismissed and demand for an issue refused.

      Error assigned was the decree of the court.

      W. U. Ilensel, with him S. B. Price, for appellant.

      Welles & Torrey, with them Roswell H. Patterson and Joseph O’Brien, for appellees.
   Opinion by

Mr. Justice Stewart,

This proceeding, so far as it was an appeal from the decree of the register admitting to probate the will of James L. Crawford, bearing date of September 13, 1896, was entirely regular; so far as it was a proceeding to determine whether the alleged will bearing date of January 30, 1905, was a forgery, it was not only irregular, but was coram non judice. This latter results necessarily from the fact that in the probate of wills the orphans’ court is without original jurisdiction. The appeal here put at issue a single question, and that related exclusively to the will which had been admitted to probate— was it the testator’s last will? Appellant contended that it was not, and to establish his contention, he produced a paper purporting to be a will of the same testator executed more than eight years subsequent to the date of the will probated. This paper was in the case simply as matter of evidence. An adjudication in appellant’s favor would not have established it as a will; that could only be done in the first instance through the probate of the register, and the correctness of his adjudication could only be inquired into by the orphans’ court on appeal. The paper had never been before the register; it had never been the subject of a judicial decree, and was not before the court in this proceeding except as evidence in connection with the issue being tried. To make effective his appeal, all that was required of appellant was to prove by two witnesses the execution of the paper he produced. It bore a later date, and was clearly testamentary in its character. If proved by two witnesses, then prima facie, the will that had been admitted to probate was not a last will. This much was done, and the inquiry should have there ended. "What remained was for the orphans’ court to open up the decree admitting to probate the earlier will, and direct that the appellant produce before the register the paper which he claimed to be a later will, and proceed to make proof of its execution and validity in the usual manner. Whether the paper so offered for probate was forged or genuine would then become a question to be inquired into, if contested on such ground, and the orphans’ court, either upon the appeal from the register’s decree, or upon certificate from him that the case presented a difficult and disputable question, would have jurisdiction to determine it. On an appeal from the decree of the register with respect to some other will, it had no authority to make such inquiry, and its conclusion with respect to it was without effect. The application for an issue to test the genuineness of the paper alleged to be a later will was premature, and the proceeding under it may be wholly disregarded. If authority is needed for the view here expressed, it may be found in Cawley’s Estate, Cawley’s Appeal, 162 Pa. 520.

Since the question considered by the court below — to no purpose as we have seen — is sure to arise when the disputed will shall come to be offered for probate, we take occasion here to say that in proceedings of this character, when the subscribing witnesses to a will testify to its due execution, an issue to determine the genuineness of the instrument, if requested by the proponent, is a matter of right.

The decree appealed from is reversed, and the record remitted for further proceedings in accordance herewith.


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

      Public officers — School controller — School law — Quo warranto — Ouster.
    Judgment of ouster is properly entered against a person claiming to be a school controller in a city, where it appears that there was no properly constituted ward of the city which he could represent, and that there was no election district in which votes could be cast for him for this office.
    Not decided whetherthe Act of April 28, 1903, P. L. 332, is unconstitutional.
    Argued Feb. 26, 1907.
    Appeal, No. 288, Jan. T., 1906, by defendant, from judgment of C. P. Lackawanna Co., May T., 1906, No. 63, on quo warranto in case of Commonwealth ex rel. W. R. Lewis, District Attorney, v. William Pax-sons.
    Before Eklu, Brown, Mestrxszat, Potter and Stewart, JJ.
    Affirmed.
    Quo warranto to determine title to the office of school controller in the city of Scranton.
    Edwards, P. J., handed down an opinion, the material portion of which was as follows:
    Did the councils have the right to designate the annexed territory as the twenty-second ward ?

      This is a question somewhat difficult of solution. The city of Scranton became a second-class city in 1901. At that time it had twenty-one wards. As a third-class city it could not have more wards under any circumstances. Counsel for relator claims that this limitation as to the number of wards is still the law for Scranton and that Scranton as a city of the second class can never have more wards, however much it might grow in size and population, unless by means of some legislation not yet enacted when the decree of annexation was made in this case, or when the councils undertook to create the twenty-second ward. I incline to the other view. I think the limitation to twenty-one wards disappeared, in a legislative sense, when Scranton became a city of the second class. It, therefore, seems that there may be a twenty-second ward if created by the proper authority. This leads to the next question.
    If Scranton can have more than twenty-one wards how can a new ward be created ? The relator contends that there is only one way, to wit: by the method pointed out by the Act of May 23, 1874, P. L. 230, section two. This section applies to all cities and it provides that “ wards in cities may be divided, or new wards therein created, by the court of quarter sessions of the proper county.” "When I first read the section I was disposed to agree with relator’s counsel; but a closer examination thereof will show that it does not cover annexed territory, or in other words, the creation of a new ward out of a new territory. It provides that upon petition of 100 qualified electors, or of councils, praying for “ a division of a ward, or for the erection of a new ward out of parts of two or more wards,” the court shall appoint five commissioners to make report thereon. If the report is favorable “to such division or creation” an election shall be held in “ the ward or wards proposed to be divided ” and “ if it appear that a majority of the votes .... are for a division the said court shall thereupon order and decree a division of the said ward or wards .... and shall number the new wards.” Evidently this section does not contemplate the creation of a ward except by the division of other wards already in existence. It therefore follows that section two of the act of 1874 does not apply to the case at bar.

      Is there any other general legislation applicable? Any legislation applying to all cities ? I can End none except the annexation Act of April 28,1903, P. L. 332, the constitutionality of which we have discussed in this opinion. The only reference in this act to the question of wards is to be found in the sixth section, and is in these words: “ The territory annexed shall, as soon as practicable, be arranged into wards of the city to which it is annexed.” By whom shall the territory be arranged into wards ? By the city councils ? The act does not say so, nor can that power be inferred from the words of the act.
    The next question is : Is there any second class city legislation under which annexed territory can be created into a ward ? The only legislation of this character is the recent Act of April 24, 1905, P. L. 307, authorizing the creation, division and consolidation of wards in cities of the second class. It would be premature now to discuss this act, as no action has been taken under it looking to the creation of a ward out of the annexed territory.
    It is useless also to examine any third-class city legislation which may apply and which may have been preserved for cities of the second class by art. XX, sec. 1, of the Act of March 7, 1901, P. L. 20, wherein it is provided that laws relating to cities of the third class shall continue to apply to cities of that class which have passed or may pass into a city of the second class by reason of increase in population, except so far as such laws are supplied by, or are in conflict with, laws relating to cities of the second class. Nobody has invoked the benefit of such legislation in this case and I cannot, therefore, discuss the question.
    The conclusion is plain that the annexed territory known in this case as “ Lincoln Heights ” can have no ward representation until it becomes a ward. It is not a ward yet. The city councils had no authority to make it into a ward.
    The question of an election district.
    “ Lincoln Heights ” has not yet been constituted into an election district. The constitution provides (art. VIH, section 2) that “ townships and wards of cities or boroughs shall form or be divided into election districts .... in such manner as the Court of Quarter Sessions may direct.” There is no other way in which an election district can be created, and the legislature cannot take away this power from the court. There is no order of the court of quarter sessions of Lackawanna county constituting the annexed territory into an election district. It follows, therefore, that no legal election has yet been held in the so-called twenty-second ward of Scranton. There is no ward which the respondent can at present represent and no legal election district in which votes could be cast for him for school controller or for any other office. On both grounds the respondent is out of court.
    April 1, 1907:
    It may be a hardship for the voters residing on Lincoln Heights that they cannot have ward representation although the annexed territory is a part of the city; but the hardship was not created by the court. At no time has the court been applied to for any action except to decree the annexation. Whatever might have been said about the creation of a ward I have no doubt that the annexed territory can be made into an election district.
    It is clear, therefore, that judgment must be entered for the commonwealth upon the demurrer.

      Error assigned was the judgment of the court.

      Edward W. Thayer, with him Da/oid J. Davis, for appellant.

      M. J. Donahoe, T. A. Donahoe and James J. Powell, for appellee, were not heard.
   Per Curiam,

It is conceded that judgment of ouster was properly entered against the defendant for the reasons that there was no properly constituted ward of the city of Scranton that he could represent as a school controller, and that there was no election district in which votes could be cast for him for this office. Whether the additional reason given by a majority of the court that the Act of April 28, 1903, P. L. 332, is both unconstitutional and void for uncertainty can be sustained, is a question not requiring decision at this time.

The judgment is affirmed.


text:
    Law, Appellant, v. Fuller.

      Corporations — Officers and directors — Trust relation — Loan of money to company — Purchase of corporate property.

    The president oí a corporation may, in good faith, loan to the company moneys necessary for its use, may take and enforce a note given as security for the loan, and at a judicial sale of the company’s property, purchase it for his own benefit.
    A stockholder cannot maintain a suit in his own name to assert the rights of a corporation of which he is a member unless he shows a demand upon the corporation to bring suit, and a refusal to do so, or such circumstances as would render a demand useless. The court will not assume that such demand would be'Useless, simply because the defendant owned a large majority of the stock of the corporation.
    Argued Feb. 26, 1907.
    Appeal, No. 18, Jan. T., 1907, by plaintiif, from decree of O. P. Lackawanna Co., May T., 1902, No. 1, dismissing bill in equity in case of John B. Law, for himself and such of the stockholders of the Girard Coal Company as care to join as plaintiffs herein, and Alexander B. Law v. E. L. Puller.
    Before Pell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an account.
    Kelly, J., filed an opinion, which was in part as follows:
    The plaintiffs, claiming to be stockholders of the Girard Coal Company, seek to have the defendant declared a trustee for them for their proportionate share of the value of the property of the company, which was sold at sheriff’s sale to the Seneca Coal Company, a corporation, the capital stock of which was, at the time, practically all owned by the defendant, upon judgments obtained by E. L. Fuller & Company, a copartnership, of which the defendant was a member, and E. L. Puller, while he was the owner of a majority of the stock of the Girard company, and was its president; which property, with other properties, were subsequently sold to the Lehigh Yalley Railroad Company for $1,000,000.
    The plaintiffs base their claim for an account upon the general principle of law that officers and directors of a corporation are trustees for its stockholders, and are forbidden in equity to acquire any interest hostile to the interest of the stockholders, and that whenever any such officer or director purchases the property of the corporation, he takes it as a trustee for the stockholders; while on the part of the defendant, it is contended that under the facts of this case the rule does not apply.
    While it is true that, generally speaking, a director of a corporation cannot acquire the property of the company, either at private or public sale, to the prejudice of a stockholder, yet there are exceptions to this general rule. Pie may loan money to the company and take security for it, and he may enforce such security in the same manner as any other creditor, if he acts in entire good faith. The principle is stated in 10 Cyc. 812, and sustained by many cases cited in the notes, as follows : “ The only just and practicable doctrine is that the director of a corporation may advance money to it, may become its creditor, may take from it a mortgage or other security, and may enforce the same like any other creditor, but always subject to severe scrutiny, and under the obligation of acting in the utmost good faith.” In Oil Co. v. Marbury, 91 U. S. 587, the principle is laid down that while a director of a joint-stock company occupies a fiduciary relation, where his dealings with the subject-matter of his trust and with the company are viewed with jealousy by the courts, and may be set aside on slight grounds, yet one director, among several, might loan money to the corporation when the money is needed, and the transaction is open and otherwise free from blame, and might buy at a sale under a mortgage given to him by the company to secure the money loaned, if the sale was a fair one. This principle is recognized as the law in Pennsylvania, as will be seen by reference to the opinion of Mr. Justice Dean in Mueller v. Fire Olay Co., 183 Pa. 450, in which he quotes from the opinion of Mr. Justice Miller, the principle just stated as a proper statement of the law, and who thus states the rule: “ The true interpretation of the rule, as shown by our own cases and the weight of .authority in the United States is, that the burden is on the officer having both the power and preference to show that the contract was fair under all the circumstances.” We find no cases in conflict with these principles of law, nor are there any referred to in the brief furnished us by the plaintiffs’ counsel. The principal case upon which they rely is Aultman’s Appeal, 98 Pa. 505. There is nothing in that case which is in conflict with the principles stated. It is authority for the general principle that a stockholder of a corporation cannot buy the corporate property without being held to account as a trustee for the other stockholders, but does not touch upon the question of the right of directors to advance moneys to a corporation and take and enforce security for it.
    The question, therefore, is, as far as the merits are concerned, does the defendant, under the facts of the case, come within the general rule which would constitute him a trustee for the other stockholders, or does he come within the exception to it, which allows a director to advance moneys to a corporation, take and enforce security for it, and at a judicial sale of the company’s property purchase it for his own benefit?
    The Girard Coal Company, the sale of whose property constitutes the subject-matter of the controversy, was operated at a loss from the time it first began business, up to the time of the sale of its property to the Seneca Coal Company, which, as by reference to our findings will appear, we treat as a sale to the defendant. John B. Law was its manager and superintendent up to November 1,1899, when he was removed, and under his management it lost money; and from that time until its property was sold at sheriff’s sale in April, 1901, under the management of his successor, it continued to lose money, so that from the time it began to operate until it ceased, it had lost, exclusive of all expenditures for equipment and betterments, upwards of $21,000. On March 1, 1899, it owed the Old Forge Coal Company $16,000, which was paid on that date by the firm of E. L. Fuller & Company, and the debt transferred to them. This was while Mr. Law was the manager and had access to the books of the company, and who was a member of the firm of E. L. Fuller & Company at that time. This firm advanced moneys to it from time to time, until on October 1, 1900, it owed them $38,000. While it does not appear that Mr. Law knew of these advances, yet, as a member of the firm of E. L. Fuller & Company, up to June 25, 1900, when he assigned his interest, he was in a position to know of them if he saw fit to inform himself, and as a stockholder and director of the Girard company he was in a position to keep himself informed with reference to its affairs. There is no evidence that he was misled in any way or deceived as to the transactions between E. L. Fuller & Company and the Girard company, or that he ever was denied any information. The meeting of the directors of the Girard company was called by E. L. Fuller, as the president, “ for the purpose of authorizing the treasurer to give the company’s note to E. L. Fuller & Company for money borrowed from them during the last two years, viz.: $38,000 and interest.” A notice of this meeting was prepared in the office of the company to be sent to Mr. Law, but whether mailed or not it did not reach him, and he had no notice of the meeting. If this notice was served upon him, or if it had reached him through the mail, he could certainly not deny the fairness of the transaction by which the property was sold. The validity of the debt is not questioned, nor is there any suggestion that the loans were not made in good faith to supply the needs of the company. We cannot see how the fact of the notice not reaching Mr. Law can affect Mr. Fuller. It was not his duty, as president, to personally send out the notice, and there is no evidence or intimation that he was concerned in any way in the failure of the notice to reach Mr. Law, or that he knew that Mr. Law had not had notice. In addition to the indebtedness of the company to E. L. Fuller ■& Company of $38,000, which, with interest at the time of the sale, amounted to upwards of $41,322.99, which was the amount of the judgment entered against it on March 16, 1901, it owed the defendant personally the sum of $13,090.33, which he had advanced to it from time to time, and for which a judgment note had been given him. The validity of this indebtedness is not questioned, nor is there any evidence to call in question the good faith of the defendant in making the loans. In both it owed, at the time its property was sold, upwards of $54,000, practically all its property was worth. It is true its value became much higher shortly after the sale to the Lehigh Yalley Company, but that was due to the general advance in the price of all coal properties in the anthracite regions at about that timo, and we must view the conditions as they existed at the time of the transaction, by which the -defendant became the owner of the property. It cannot be fairly found as a fact, in view of the uncoutradicted evidence, that the property of the Girard company formed any part of the $1,000,000 consideration for the sale of the Old Forge, Newton and Girard properties, in excess of $40,000, which was the estimate placed upon it by the representative of the purchaser, after an examination by experts, which sum was much less than the amount of its indebtedness.
    Under these circumstances and all of the facts of the case, we cannot see that the defendant was guilty of any dishonest conduct, or that he acted in bad faith. It is true that there was a rather abrupt change of conduct on the part of the defendant when he ceased advancing moneys to the company and began to enforce collection of his claims, for which he and the firm, of which he was a member, had already loaned, apparently with a view of combining the three properties, but, as we understand the law, that fact would not render the transaction a dishonest one. .lie had the undoubted right to cease advancing moneys at any time, and at any time to take legitimate legal action to collect what was already due him, either individually or as a member of a firm, and in the absence of any perfidious conduct on his part in doing so, he had the right, under the law, to become the purchaser of the company’s property.
    Having found that on the merits the plaintiffs have failed to make out a case, it is, perhaps, not necessary to discuss the technical objections that are interposed against them. We will refer to one of them, however. It is, that the plaintiffs as stockholders, cannot maintain their suit in the absence of an averment in the bill and proof of the fact that they made every reasonable effort to have the action brought by the Girard Coal Company itself. There is neither averment nor proof that there was any effort whatever made to induce the directors to institute any proceedings against the defendant. The law upon this question appears to be clear. In Hawes v. Oakland, 104 U. S. 450, it is stated by the supreme court of the United States as follows: “ Before a shareholder is permitted, in his own name, to institute and conduct a litigation, which usually belongs to the corporation, he should show, to the satisfaction of the. court, that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances.” Our own Supreme Court, in a per curiam opinion, in Holton v. Ry. Co., 138 Pa. 111, makes use of this language: “ The bill was filed by Noble Holton, as a stockholder, to enforce the rights of the railway company. It is settled law that such suit must be brought by and in the name of the corporation; or, if brought by a shareholder, the bill must contain an averment of a demand by the shareholder upon the corporation to bring suit, and a refusal to do so. This is familiar law, and does not need the citation of authority.” And again, by Mr. Justice Mitchell, in Wolf v. R. R. Co., 195 Pa. 91, is the rule stated fully and to the same effect. He said: “ The first matter for consideration is the status of the plaintiff to maintain such a bill. It is a bill to assert rights of the corporation, and, therefore, must ordinarily be brought by the corporation itself. The right of an individual stockholder to act for the corporation is exceptional, and only arises on clear showing of special circumstances, among which inability or unwillingness of the corporation itself, demand upon the regular corporate management, and refusal to act are imperative requisites. And the refusal by the corporate management must appear affirmatively to be a disregard of duty, and not an error of judgment, a nonperformance of a manifest official obligation, amounting to a breach of trust: Beach on Private Corporations, sec. 878. There must be averred and proved an actual application to the directors, and a refusal by them to bring suit, or to allow plaintiff to do so in the corporate name, and where misconduct of the directors themselves is alleged, the bill must show an effort to secure plaintiff’s rights through meetings of the corporation : Beach, secs. 882, 885. ‘ The shareholder should set forth in his bill the efforts that he had made to induce the corporation to act in the matter, should allege its refusal or failure to sue,’ and ' facts showing that he has left undone nothing which in reason he might have done to prevail on the corporate management to bring the action: ’ Taylor on Corporations, secs. 138, 140. See Morawetz on Corporations, secs. 241, 244.”

      April 1, 1907:
    The plaintiffs say, in defense of their right to sue as stockholders, that inasmuch as the defendant was the president and the owner of a large majority of the stock of the company, a demand upon the company would have been useless. We cannot assume that such demand would be useless simply because the defendant owned a large majority of the stock. The charter of the company fixed the number of directors at four. Who they were at the time this bill was filed does not appear. On January 23, 1901, according to the minutes of the -meeting held on that day, the directors present were E. L. Fuller, Frank T. Patterson and Percy C. Maderia. Whether Mr. Patterson and Mr. Maderia were still directors at the time the bill was filed, or who the other two were, has not been shown. Proceedings of ouster were begun against the company by the attorney general in the Dauphin county court on March 14, 1902, but there was no decree of ouster until November 13, following, so we cannot see ho tv that fact affects the question. In the absence of any proof of who the directors were about the time the bill was filed, and that they were mere representatives of the defendant, we do not think, in view of the authorities upon the subject, that the plaintiffs, as stockholders, can maintain the bill.

      Error assigned was decree dismissing the bill.

      J. B. Woodward, of Woodward, Banding da Morris, with him Joseph O’Brien, for appellants.

      Everett Warren, of Willard, Warren cfe Knapp, for appellee.
   Per Curiam,

This bill was by stockholders of a corporation against its president for an account, on the ground that he had procured a sale of the property of the company and had acquired possession thereof under circumstances that made him a trustee of the stockholders. There is no dispute as to the findings of fact. The law applicable to them is clearly stated by the learned judge of the common pleas, and on his opinion we affirm the decree at the cost of the appellant.


text:
    Drake, Appellant, v. Pennsylvania Coal Company.

      Mines and mining — Coal lease — Demand for royalties — Forfeiture— Ejectment — Notice.
    Unpaid royalties under a coal lease, where no place for their payment is fixed by the lease, must first be demanded on the premises before a forfeiture can be declared.
    A .coal lease stipulated that in case of forfeiture incurred, an amicable action of ejectment for the lands could be filed and judgment therein forthwith confessed to the plaintiffs by an attorney without a writ of error, appeal or stay of execution, provided that before entering such judgment at least thirty days’ notice of the intention to enter it should be given to the lessee, "within which time the rent due and unpaid may be paid, and the forfeiture avoided.” Held, that the thirty days’ notice applied only to a judgment confessed, and not to an ordinary ejectment begun by summons.
    Argued Feb. 26, 1907.
    Appeal, No. 276, Jan. T., 1906, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1904, No. 30, dismissing exceptions to report of referee in case of George K. Drake v. The Pennsylvania Coal Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to report of W. W. Lathrope, Esq.; referee.
    Newcomb, J., filed the following opinion:
    The plaintiff joined with his cotenants in a lease of certain coal lands to E. A. Coray. The defendant afterwards succeeded to Coray’s rights and this action of ejectment was brought by the plaintiff to enforce a forfeiture as to his undivided purpart of the demised premises. The referee found upon sufficient evidence that a cause of forfeiture had occurred, but on the undisputed facts held there could be no recovery, and, therefore, directed judgment for the defendant.
    This conclusion was based on three reasons, either of which if sound is fatal to the plaintiff’s case. They are as follows :
    1. No notice was given to defendant of plaintiff’s election to declare the lease forfeited.
    2. That even though that notice had been given, plaintiff was bound to give defendant at least thirty days’ notice of bis intention to sue, and for want of such notice the action could not be maintained.
    3. That the unpaid royalties which give rise to the claim of forfeiture must first bo demanded on the premises before a forfeiture can be declared, and for want of such demand the action fails.
    Upon the first and third propositions we think the learned referee was right, and that is decisive in favor of the judgment rendered. W e can add nothing profitably to what is said by him in support of those conclusions.
    While it makes no difference to the disposition of the case, we do not agree with him that thirty days’ notice of his intention to sue must be given by the plaintiff. This conclusion of the referee rests upon his construction of a certain clause in the lease which provided a special and summary remedy at plaintiff’s option for recovery of possession in case of forfeiture. The remedy so provided was not exclusive nor was it so considered by the learned referee. It was merely additional to any other remedy which the plaintiff might have. It was stipulated in the lease that in case of forfeiture incurred, an amicable action of ejectment for the lands could be filed and judgment therein forthwith confessed to the plaintiffs by any attorney without a writ of error, appeal or stay of execution, provided that before entering such judgment at least thirty days’ notice of the intention to enter it should be given to the lessee, “ within which time the rent due and unpaid may be paid, and the forfeiture avoided.”
    Giving special weight to this last clause of the stipulation for judgment, the referee says that unless the plaintiff is held to the same notice of intention to bring ejectment the object of this notice is defeated. This, he says, is to give an opportunity to pay the rent and avoid the forfeiture. “ It seems to me,” says the referee, “ that the spirit of the agreement requires this notice to be given before any adverse legal proceeding is commenced.”
    To tbis it miglit be answered that the parties didn’t say so. We are not called upon to resort to the supposed spirit of the agreement to determine its meaning so long as the terms in which the parties expressed themselves are neither obscure nor ambiguous. The opportunity to pay the rent here provided for was to prevent a judgment which once entered would be final and subject to no review except for fraud. An adverse action of ejectment is, and doubtless in the contemplation of the parties was, quite a different thing. The whole ground of controversy, if any there were, would in that case be open to contest. The defendant would have its day in court. If the summary remedy were chosen the plaintiff himself would dispose of the controversy by a stroke of the pen. It was to prevent such summary and irretrievable dispossession as this that the notice relied upon by the referee was provided.
    April 1, 1907:
    To accomplish the object which the referee had in mind it was unnecessary to give the lease his construction. For by the preceding stipulation which prescribed the terms on which a forfeiture could be declared a corresponding notice had to be given to the lessee, his agent or superintendent, or posted on the premises. This was a notice that an installment of rent was due. Thirty days had to elapse after giving this notice before any right to forfeit would accrue. By its terms, then, if the rent were paid in the meantime after such notice the right to assert a forfeiture would be effectually defeated; or, more accurately, the right would never come into existence. The referee found that this notice was given. The notice on which the learned referee relied concerns only the right to enter judgment under the power of attorney.
    The defendant filed some exceptions, but under the view which we take of the case it is unnecessary to pass upon them.
    Exceptions overruled.

      Error assigned was in dismissing exceptions to referee’s report.

      Samuel B. Price, for appellant.

      Everett Warren, of Willard, Warren cfi Knapp, for appellee.
   Per Curiam,

The order overruling the exceptions and confirming the report of the referee is affirmed for the reasons stated in the opinion of the learned judge of the common pleas.