author: MR. JusTIoE BRowN, Me. Justice Mestrezat,

text:
    Commonwealth v. Shoener, Appellant.
    Criminal law-Public officer.s-Demand for payment of public funds-Clerk of courts.
    A clerk of courts cannot be convicted of failing to pay over public funds when legally required to do so on demand made, where it appears that he held the funds under an agreement with the county pending a judicial ~1etermination as to whether he or the county was entitled to them and that the only demand made upon him was made prior to the conclusion of the suit adversely to him in the civil court.
    In the civil courts constructive demands may be and are recognized, but not so in a criminal court in the prosecution for an offense having as one of its statutory ingredients a refusal to pay on demand. A demand there means actual demand.
    Argued Feb. 14, 1905.
    Reargued May 10, 1905.
    Appeal, No. 286, Jan. T., 1904, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 47, reversing judgment of Q. S. Schuylkill Co., March T., 1903, No. 175, on verdict of guilty in case of Commonwealth v. John T. Shoener.
    Before MITCHELL, C. J., DEAN, FELL, BRoWN, MESTREZAT, POTTER and ELIcIN, JJ., on reargument.
    Reversed.
    Appeal from Superior Court.
    The facts are stated in tile O~1fl1Ofl of the Supreme Court.
    Error assig~zed was judgment of the Superior Court.
    Wm. Wilhelm and James B. Reilly, with them Joseph W. Moyer and James Scarlet, for appellant.
    U. 131. Berqer, district attorney, with him Samuel H. and D. IT'. Kaercher, John 1?~ Whalen and C. A. Snyder, for appellee.
    June 22, 1905:
   OPINIoN BY

MR. JusTIoE BRowN,

John T. Shoener was elected and commissioned clerk of the court of quarter sessions of the county of Schuylkill for the. term of three years from the first Monday in January, 1900. During the three years that he served as such clerk he received from applicants for liquor licenses and for transfers of the same a fee of, ~6.00 on each application. This fee is fixed and directed to be paid by tbe Act of July 30, 1897, P. L. 464. He kept an account of the fees he so received and made return of them to the county authorities, but retained them for judicial determination as to whether they belonged to him or the county. Several days before his term expired he received a note from the controller of the county, of which the following is a copy:

“ Pottsville, Pa., December 30, 1902.
“ To John T. Schoener,
“ Clerk of the Courts of Schuylkill County, Pa.
“Dear Sir:—
In accordance with the opinion of Judge Marr in the case of the County of Schuylkill vs. you and in behalf of the County, I ask you to make settlement on or before December 31, 1902, with the County Treasurer, for all license fees, with interest, and other County funds now in your possession. I would also call your attention to the fact that you have not made settlement with the County Treasurer for the past six months, and would ask you to do so at once. In case of failure on your part to do so by December 31, 1902, I will be obliged to institute proceedings both civil and criminal against you.
“ Yours respectfully,
“ H. J. Muldoon, Controller.”

This notice, for a reason hereafter to be stated, was not heeded, and on January 3, 1903, the deputy controller of the county made an information against the appellant, charging’ him with having retained and converted to his own use the fees received by him for filing applications for liquor licenses and for transfers of them. At the succeeding November sessions of the court of quarter sessions of the county, on this information, an indictment was found against Shoener containing thirteen counts, the first, second, third, fifth, sixth, seventh, ninth, tenth and eleventh charging him, in the language of the 65th section of the Act of March 31, 1860, P. L. 382, with having embezzled and converted to his own use the license fees collected by him during his term. The thirteenth charged him with embezzlement of the fees paid on applications for the transfer of licenses. On a trial of the indictment he was acquitted by the jury on these nine counts. The fourth, eighth, and twelfth charged him simply with having failed to pay over the license fees, “ when thereunto legally required by the county of Schuylkill, or its legally authorized officers, to the treasurer of the county of Schuylkill, he being the proper officer authorized to demand and receive the same.” The result of the trial, then, was an acquittal of the defendant on the charges of converting the license fees to his own use and a con viction of having failed to pay them over under an allegation that demand had been made upon him to do so. A motion in arrest of judgment and for a new trial having been denied and sentence imposed, an appeal was taken to the Superior Court, and, after considering the many questions raised, that court sustained the appellant’s conviction: Commonwealth v. Shoener, 25 Pa. Superior Ct. 526.

On this appeal we regard as the fundamental question involved the sufficiency of the evidence to show that a legal demand had been made on the appellant to pay over the fees to the county before this prosecution was instituted, or rather whether, at the time the demand is alleged to have been made, he was bound to regard it. Conceding that the letter from the controller of December 30, 1902, was a demand, and made by the proper officer, what was the situation at that time ? The offense charged was committed then or not at all, for there is no pretense that any other demand was ever made.

The county of Schuylkill brought suit in the common pleas to recover from the appellant the license fees received in the year 1900. As the question involved depended on no disputed facts, the county and the defendant submitted the determination of it to the court on a case stated. The facts agreed upon were, that John T. Shoener, clerk of the court of quarter sessions, had received from each applicant for a license at the January Term, 1901, a fee of $5.00, paid to him under the Act of 1897, P. L., 464, the third section of which provides : “ Every person intending to apply for license as aforesaid under the provisions of this or any other Act of Assembly in any city or county of this commonwealth, on and after the passage of this Act, shall file with the clerk of the court of quarter sessions of the proper county his, her or their petition, at least three weeks before the first day of the session of the court at which the same is to be heard, and shall, at the same time, pay said clerk five dollars for expenses connected therewith.; and said clerk shall cause to be published two times in three newspapers designated by him, one of which may be printed in the German language, a list containing the names of all such applicants, their respective residences, and the place for which application is made; and the cost of publication shall not exceed the usual rates charged by such newspapers ; the first publication shall not be less than fifteen nor more than twenty-five days before the time fixed by the court; Provided, The amount to be paid for such advertisement shall not, in the aggregate, exceed the five dollars provided in this section to be paid by such applicant for expensesthat there were 1,076 applicants for licenses at that term of the court, and the appellant received from them $5,880; that he retained the said sum and refused to pay it into the county treasury, for the reason that the act of assembly created the money thus collected as a special fund for the expenses of advertising’ and his own legal expenses incident thereto, and that after paying all expenses out of the fund made up from the said $5.00 paid by each applicant, the balance remained due to him and was not an earning of the fees under the meaning of the salary act of 1876, but was in the nature of a special fee for special services rendered. Under this statement of facts it was agreed that the court should decide whether the fees belonged to Shoener or to the county, and enter judgment accordingly, each party reserving the right to appeal to this court from the judgment to be so entered. On December 22, 1902, judgment was entered on the case stated in favor of the county of Schuylkill for $5,380, the amount of the license fees collected. On January-3, 1903, as already stated, the information was made against the appellant on which this indictment was found. On January 9, 1903—less than three weeks from the time the judgment was entered—the defendant appealed to this court, and on May 4, 1903, the judgment below was affirmed: Schuylkill County v. Shoener, 205 Pa. 592.

By the decision in that case it was judicially determined that the license fees collected by the appellant belonged to the county of Schuylkill. After notice from him that he was retaining these fees for judicial determination as to who owned them, the county agreed with him that the question of their ownership should be judicially determined not only by the court below, but by this court. It is true, as is stated in the opinion of the Superior Court, our decision did not change the law as to the ownership of the fees; it simply announced the law to be that the fees never belonged to the defendant, but were the property of the county of Schuylkill from the time he received them; and, therefore, as held by that court, his mistake as to the law did not relieve him from responsibility.

The appellant has been acquitted of embezzling and converting the moneys to his own use and convicted of failing to pay them over when legally required to do so on demand made. The only demand ever made on him to pay over was the letter of the controller of December 30, 1902, if it is to be regarded as a demand within the meaning of the statute. It was made at a time when the determination of the question of the ownership of the fees was pending in the courts by agreement of the county of Schuylkill, the only party entitled to them if they did not belong to the defendant. It was competent to make such an agreement. How could any demand have been made at that time that the defendant was bound to heed ? It was his right to ignore it, and in doing so a sufficient answer to the county making it would have been, “You have agreed that the courts shall first determine to whom these moneys belong before I am to be called upon to pay.” In the civil court the liability of the defendant could not have been enforced until it was first fixed and determined in accordance with the agreement between the county and himself, and, in a criminal court, where every presumption is iii favor of innocence and the criminal statutes are to be strictly construed, how can it be pretended that the appellant had criminally failed to pay over on demand ? The failure to pay on demand, as contemplated by the statute under which he is indicted, is a failure to pay that which, at the time the demand is made, clearly belongs to the county making the demand, and does not apply to a case where demand is made to pay during the pendency of a dispute as to who is entitled to the money, and which dispute, by agreement of both parties to it, is pending determination in the courts. If, in compliance with the notice •received from the controller, Shoener had paid over these license fees during the pendency of the question of their ownership, and it had been subsequently determined by the court that they belonged to him, they might have been lost to him, for by such a payment his right to recover back would be very doubtful. In refusing to pay over at the time the alleged demand was made he did just what any other man, similarly situated and with due regard to his rights, would have done; and it is a perversion of the 65th section of the act of March 31, 1860, to attempt to apply it to a case like this. The only evidence of a demand to pay over was the letter. This was written, and received by the appellant, at a time when the county, by its own agreement, could not have enforced any civil liability against him, and in refusing to comply with the notice to pay he was standing on his right not to do so until it was determined that the county was entitled to receive the money.

The learned trial judge charged the jury that the institution of the suit in the common pleas of the county was a legal demand for the payment of the money, and should be regarded as such a demand in the prosecution of the ap>pellant on the. counts charging him with failure to pay over on demand. In the civil courts constructive demands may be and are recognized, but not so in a criminal court in the prosecution for an offense having as one of its statutory ingredients a refusal to pay on demand. A demand there means actual demand. The only actual demand that the commonwealth pretends was made-was the controller’s letter. It was written after the institution of the civil suit and after the distinct agreement by the county that the question of the defendant’s liability should be judicially determined. Before being so determined there was no liability to be enforced against him civilly, and, therefore, no demand to be made upon him that he was bound to recognize. He has been acquitted on the counts charging him with the conversion of the public funds to his own use, and there was no evidence to sustain the conviction on the charge that he had failed to pay over after having been legally thereunto required on demand made. The eleventh assignment in the Superior Court complains of the error of the court below in instructing the jury that there had been legal demand made upon the defendant to pay over the fees. This assignment* should have been sustained. If there had been proper instructions as to a legal demand, the defendant would have been acquitted on the counts on which he was convicted. The remaining assignments need not be considered.

The judgment of the Superior Court is reversed, as is that of the court below, and the defendant is discharged from his recognizance.

Me. Justice Mestrezat,

concurring:

I concur in reversing this judgment. I would go a step further than the opinion of this court and hold that the controller of Schuylkill county had no authority to make a demand upon Shoener for the payment of the fees and hence there had been no demand made upon the defendant prior to the institution of this prosecution as required by the act of March 31, 1860, under which the indictment was found. The proper officer to make the demand under this act is the “ person authorized to demand and receive the same.” It is conceded that the controller had no authority to receive the fees from Shoener and it logically follows that the controller was not the proper officer to make the demand upon him for their payment. This is a criminal proceeding and the statute authorizing it should be strictly construed.


source: Caselaw Access Project

author: Mb. Justice Mesteezat, dissenting:

license: Public Domain

text:
    Sample v. Pittsburg.

      Constitutional law—Local legislation—City of Pittsburg—City of Allegheny —Act of April 20, 1905, P. L. 221.
    The act of April 20, 1905, entitled, “An Act providing that where two cities are contiguous, and in the same county, the smaller may be annexed to the larger, prescribing the method of proceeding and the effect of annexation; providing for the division of such enlarged cities into wards, for the apportionment of common council, and for the indebtedness of such cities,” violates article III, section 7, subdivision 2, of the constitution, which provides that the general assembly “shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, borough or school districts,” inasmuch as the only two cities in the commonwealth that “are contiguous and in the same county,” are the cities of Pittsburg and Allegheny, and the clear intent of the act is to legislate locally for them alone. In determining that the act is unconstitutional the court will consider as without merit the contention that some time in the future there may be two other cities which may become contiguous and in that event can be consolidated under the provisions of the act.
    Potter, J., dissents.
    Citizens and taxpayers of Allegheny City may maintain a bill in equity to restrain the city of Pittsburg and its municipal officers from taking any proceedings under the act of April 20, 1905, to annex the city of Allegheny to the city of Pittsburg.
    A statute providing for the annexation of one city by another is a law “regulating the affairs” of cities within the meaning of article III, section 7, subdivision 2 of the constitution of Pennsylvania.
    Argued May 10, 1905.
    Bill in equity, No. 117 Miscellaneous Docket by Thomas G. Sample, Caspar C. Heckel and John M. Allen v. The City of Pittsburg, a municipal corporation, and William B. Hays, Mayor, James S. Wrightman, President of Select Council and R. B. Ward, President of Common Councils of the City of Pittsburg.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Bill in equity to restrain defendants from taking any proceedings under the act of assembly, approved April 20, 1905, to annex the city of Allegheny to the city of Pittsburg.'

      William A. .Stone, Harvey Henderson and W. C. Gill, for plaintiffs.
    This bill classifies or attempts to classify by location the cities that may be annexed or consolidated. “ Classification which is grounded on no necessity and has for its sole object the evasion of the constitution, will not be encouraged: ” Scowden’s Appeal, 96 Pa. 422; Ayars’s Appeal, 122 Pa. 266.
    The Cook law is local and special legislation, and is prohibited by article III, section 7, of the constitution: Frost v. Cherry, 122 Pa. 417; Morrison v. Bachert, 112 Pa. 322; Com. v. Patton, 88 Pa. 258; Scowden’s App., 96 Pa. 422; Blankenburg v. Black, 200 Pa. 629; York School Dist’s. App., 169 Pa. 70; McCarthy v. Com. ex rel., 110 Pa. 243; Ruam Street, 132 Pa. 257; Wyoming St., 137 Pa. 494; Zeigler v. Gaddis, 44 N. J. L. 363; State v. Newark, 53 N. J. L. 4 (20 Atl. Repr. 886); People v. Knopf, 183 Ill. 410 (56 N. E. Repr. 155).

      Wm. B. Modgers, with him T. D. Carnahan, for defendants,
    cited : Gilchrist v. Strong, 167 Pa. 628; Blankenburg v. Black, 200 Pa. 629.

      A. Leo Weil, for intervenors,
    Pittsburg chamber of commerce and petitioning registered voters of Pittsburg and Allegheny.
    June 22, 1905:
   Opinion by

Mb. Justice Mesteezat,

This is a bill filed in this court by the plaintiffs, who are citizens and taxpayers of Allegheny City, to restrain the defendants, the city of Pittsburg and William B. Hays, mayor, James S. Wightman, president of select council, and R. B. Ward, president of common council, from taking any proceedings to annex the city of Allegheny to the city of Pitts-burg under the provisions of an act of assembly, commonly known as the “Cook law,” entitled “An act providing that where two cities are contiguous, and in the same county, the smaller may be annexed to the larger;, prescribing the method of proceeding and the effect of annexation ; providing for the division of such enlarged cities into wards, for the apportionment of common council, and for the indebtedness of such cities,” approved April 20, 1905, P. L. 221.

It appears from the averments of the bill that the city of Pittsburg through its mayor and councils have instituted proceedings in the court of quarter sessions of Allegheny county to. have the city of Allegheny annexed to the city of Pittsburg under this act of assembly. The bill avers, inter alia, that the two cities are cities of the second class, located in Allegheny county, and are separated from each other by the Allegheny river and the Ohio river, both navigable streams; “ that the said two cities of Pittsburg and Allegheny are the only two contiguous cities in the state of Pennsylvania, and are the only two cities in any county in the state that are contiguous; that there is no other locality in the state of Pennsylvania where there are two cities as classified under the laws of Pennsylvania, nor is there any other locality in the state where any borough or township is contiguous to a city that can be annexed thereto under the present laws of the state of Pennsylvania except by a majority vote of the electors of said borough or town as provided by the constitution of Pennsylvania ; ” and that “ the Cook law, under which the defendants are proceeding, is unconstitutional because prohibited by article III, section 7, subdivision 2 of the constitution, which provides that the general assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” It is further averred that “the Cook law is a local law because its provisions can only apply to one locality, namely, the mouth of the Allegheny river, where it empties into the Ohio river, and for some distance above and below its mouth; that there is no other locality in the state of Pennsylvania to which the Cook law can apply, and it was the intention of the legislature that it should only apply to this locality; that the law is special and class legislation, and is unconstitutional.” The defendants filed an answer in which they denied that the act in question is unconstitutional and aver, inter alia, as follows : “ It may be that the cities of Pittsburg and Allegheny are the only two contiguous cities of the state, situate in the same county; but it is submitted that the time is not far distant when contiguity will exist as to the boundaries of other cities of the state, within the meaning of the act of the general assembly, approved April 20, A. d. 1905, .... and that in the very near future the city of Pittsburg and the city of McKeesport, both of which are in Allegheny county, will be in all probability contiguous.”

The first section of the act of 1905 provides, inter alia, that where two cities, situate in the same county, are or may be contiguous to each other, the city having the smaller population, as shown by the last preceding United States census, may be annexed to the city having the larger population, as shown by the said census. It is further provided in this section that “ for purposes of this act, cities separated by a stream, river or highway shall be included under the term contiguous.” The act then, in several sections, provides in detail the proceedings which shall be taken to carry it into effect.

The subject of this statute is the annexation of one city to another, and it requires no argument to show, and we understand it is conceded, that it must be regulated b}r general legislation. A careful consideration of the act, however, convinces us that it was not intended to be general in its operation throughout the state and that it clearly offends against sec. 7 of article III of the constitution of 1874 which provides that “ the general assembly shall not pass any local or special law .... regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” We do "not deem it necessary to enter into a discussion of the power of the general assembly to classify cities for the purposes of legislation or the multitude of cases decided by this court on the subject. We are concerned here, not with the subject of classification of cities and whether the legislature in enacting the statute in question has transgressed the constitution in that respect, but simply whether the act is local or special legislation in contemplation of the constitutional provision prohibiting such legislation.

This section of the constitution has frequently been the subject of interpretation by this court. Commonwealth v. Patton, 88 Pa. 258, involved the constitutionality of an act of assembly entitled : “ An act to provide for the holding of courts in certain cities of this commonwealth.” The act required that in all counties containing a certain population and having a city with a certain population, situate at a certain distance from the county seat, the judge of the courts of the county should hold a session of court in such city after every regular term of court for the county. This court held the act to be special legislation and in conflict with article III, sec. 7 of the constitution. The trial judge in that case found that Crawford county was the only county to which the act could apply at that time. Mr. Justice Paxsox delivering the opinion says (p. 260) : “ This is classification run mad. Why not say all counties named Crawford, with a population exceeding sixty thousand, that contain a city called Titusville, with a population of over eight thousand, and situated twenty-seven miles from the county seat? Or all counties with a population of over sixty thousand, watered by a certain river or bounded by a certain mountain? There can be no proper classification of cities or counties except by population. The moment we resort to geographical distinctions we enter the domain of special legislation, for the reason that such classification operates on certain cities or counties to the perpetual exclusion of all others. . . . That is not classification which merely designates one county in the commonwealth, and contains no provision by which any other county may, by reason of its increase of population in the future, come within the class.” A subsequent and similar act intended to accomplish the same result, applying to counties and cities of the future as well as of the present, was also declared unconstitutional in Scowden’s Appeal, 96 Pa. 422. Justice Paxson again delivering the opinion says (p. 425) : “ It is no part of our business to discuss the wisdom of this legislation. However vicious in principle we might regard it, our plain duty is to enforce it, provided it is not in conflict with the fundamental law. It requires but a glance at the act to see that it is an attempt to evade the constitution. It is special legislation under the attempted disguise of a general law. Of all forms of special legislation this is the most vicious. . . . The Act of June 12, 1879, P. L. 174 (the act then under consideration), makes no attempt at the classification of cities. It is merely an effort to legislate for certain cities of the fifth class to the exclusion of all other cities of the same class. That is to say, it refers only to cities of the fifth class which are situated in a county having a population of sixty thousand. . . . Classification which is grounded in no necessity and has for its sole object an evasion of the constitution, will not be encouraged.”

McCarthy v. Commonwealth, 110 Pa. 243, involved the consideration of an act providing for payment of salaries instead of fees to county officers and requiring the officers to pay the fees to the treasurer in counties containing a certain population. The act was held to be special legislation and void. In delivering the opinion, Mr. Justice Gordon says (p. 246) : “ But by what process of reasoning is this legislation, which has selected for its operation three or four counties from all those composing the commonwealth, to be justified? Is the justification to be found in the well-recognized legislative power of classification? We think not. It is admitted that classification, even where not specially recognized by nature, custom, the laws of trade, or the constitution, must, in certain cases, be adopted ex necessitate, as in the case of cities, under the Act of May 23, 1874, P. L. 280. . . . There is here, however, a new and complete classification, and not a mere cutting out of one or more cities, designated by population, from the general class, and in this the act of 1874 is distinguishable from that of 1883 (the one then under consideration), in which no general classification is attempted, but a special legislation adopted for certain counties selected from all others, and to be ascertained by their populations rather than by their names. ... If, indeed, such legislation were to be recognized as legitimate, vain would be the constitutional prohibition of local or special laws. But little ingenuity in the way of so-called classification would be necessary in order to isolate every single county, borough, ward, township and school district in the state, and provide for each its own local code.” In Morrison v. Bachert, 112 Pa. 322, we held an act to be local legislation which regulated the -fees of county officers “ except in counties containing moi'e than 150,000 or less than 10,000.” Mr. Justice Pax,son delivering the opinion says (p. 328) : “ That the act in question is in direct conflict with the constitution is too plain for argument. It is only necessary to read the title to this act to see this. It excludes perpetually from its operation all counties having a population of over 150,000 inhabitants. This makes it a local law. If it can exclude Philadelphia and Pittsburg, it may exclude every other county in the state but the one county seeking such special or local legislation. . . . Nor can this legislation be sustained upon any rational theory of classification. In point of fact, there is no attempt at classification; it was a mere exclusion of certain counties.” In Scranton School District, 113 Pa. 176, an act was declared local legislation which provided for the levying of taxes, etc., but having a proviso excluding all cities of the third class which, by an ordinance, would not accept the provisions of the act. Green, J., delivering the opinion says (p. 190): “ The circumstance that the power to determine the question is delegated to another body does not at all affect the question. The practical result is the same, the law of 1875 will be limited to the one or more cities that do accept, and that makes it local. All our recent decisions are to the effect that if local results either are or may be produced by a piece of legislation, it offends against this provision of the constitution, and is void.”

In Davis v. Clark, 106 Pa. 377, an act giving the right to file a mechanic’s lien with a provision that it should not apply to counties having over a certain population was held to be local, and therefore void. Mercxjr, Chief Justice, in the opinion of the court says (p. 384) : “ The main contention is whether the act of 1879 is in conflict with this clause of the constitution ? It shows on its face that it was not intended to apply, and does not apply to the whole state. It assumes what was a well known fact, that some of the counties had each a population greater than 200,000. In the counties of Philadelphia and Allegheny, that greater population had been legally found by the census of 1870. ... It was not, then, a general act, applicable to every part of the commonwealth. It did apply to a great number of counties; but there is no .dividing line between a local and a general statute. ' It must be either the one or the other. If it apply to the whole state it is general. If to a part only, it is local. As a legal principle it is as effectually local when it applies to sixty-five counties out of the sixty-seven, as if it applied to the one county only. The exclusion of a single county from the operation of the act makes it local.” Perkins v. Philadelphia, 156 Pa. 554 involved the consideration of “ an Act to abolish commissioners of public building’s, and to place all public buildings heretofore under the control of such commissioners, under the control of the Department of Public Works in cities of the first class.” The act was held to be local and unconstitutional. Mr. Justice Dean delivering the opinion says (p. 562) : This act purports to be a general law applicable to cities of the first class. We have held, and now adhere to it, that the legislature may lawfully classify cities for corporate purposes, and that an act to promote such purposes is not local or special, merely because, at the date of its passage, there was but one city to which it applied. But it has been decided in case after case since the constitution of 1874 went into effect, in positive, unmistakable language, that if the act was intended to apply to but one particular city, comity or township, and was not intended to and could never apply to any other, it was local and therefore unconstitutional. This act is nominally general; applies in terms to cities in the first class; abolishes commissioners of public buildings for the use of courts and municipal purposes in such cities, created by special acts of assembly, and places all buildings heretofore under their control in the control of the department of public works. At the date of its passage there was just one city, one set of commissioners, one special act of assembly, one public building, to which it could apply; from the very nature of the case, there never could be another city in the first class to which the act could apply, for it transfers to the department of public works, buildings heretofore under the control of such commissioners ; no matter how many cities come into this class, nor how soon they reach it, this act cannot apply to them, for their affairs have not heretofore been regulated by any such act as that of 1870.”

From these and other decisions of the court, it is settled that the test whether a statute is local and special legislation within the prohibition of the constitution is whether it operates upon all counties or cities alike, and when they are properly classified, it acts upon all counties or cities of the same class alike, or whether it operates upon certain counties or certain cities or upon a part of a class of counties or cities and excludes all others. If the latter is the result or effect of the act, and it was so intended to be, it is local or special nothwithstanding it is in terms general. The court will look at the substance and not the form of legislation in determining the question, and a local or special act, repugnant to the fundamental law, will be declared void though it may be disguised as a general act. Classification of cities may be used as a basis for legislation which relates to municipal affairs, but if the legislation concern subjects of general, as distinguished from a municipal character, it passes into the realm of local or special legislation forbidden by the constitution. However disguised, classification can never be successfully invoked for the purpose of evading the constitutional inhibition against local or special legislation.

The answer of the defendants raises the question of the right of the plaintiffs, citizens and taxpayers of Allegheny City, to maintain this bill and test the constitutionality of the act of 1905. We think this question too well settled to require extended discussion: Wells v. Bain, 75 Pa. 39; Wheeler v. Philadelphia, 77 Pa. 338; Pittsburg’s Appeal, 79 Pa. 317. This last case was a bill to restrain the city of Pittsburg and its officers from exercising authority over an adjacent municipality admitted to the city by an ordinance passed in pursuance of an act of assembly, the provisions of which the plaintiffs, citizens and taxpayers of the municipality, claimed had not been complied with by councils in admitting the municipality as part of the city. The defendants denied the right of the plaintiffs to maintain the bill. In sustaining the bill, Mr. Justice Gordon speaking for the court said (p. 324) : “ The right of a private citizen to maintain a bill such as that upon which this case is founded is hardly open for argument. So many are the cases in which such bills have been sustained that one might suppose this matter to be no longer open for debate.” It was also said in the opinion that “ the plaintiff, who is threatened by most burdensome impositions, should have the power to inquire into the right by which the councils of Pittsburg proposed to act in subjecting his person and property to their jurisdiction for the purposes of municipal government and taxation.”

There can be no doubt that the act of 1905 regulates the “ affairs of cities ” in contemplation of the constitution. In Morrison v. Bachert, 112 Pa. 322 the trial court defined “ affairs of counties ” to be such “ as concern counties in their governmental and corporate capacity.” This court, however, thought the definition too narrow a construction of these words and held that “ When it (the constitution) speaks of the affairs of a county, it means such affairs as affect the people of that county.” In that case it was held that an act to ascertain and appoint the fees to be received by certain county officers was an act regulating the affairs of counties. This construction of the clause in question was followed and approved in Frost v. Cherry, 122 Pa. 417, where it was held that this clause of the constitution avoided an act of assembly repealing a section of the fence law of 1700. And in Commonwealth v. Patton, 88 Pa. 258, and in Scowden’s Appeal, 96 Pa. 422, this court held that an act of assembly authorizing the holding of special sessions of the courts of certain counties away from the county seat was a law regulating the affairs of counties and was special legislation and void. In Perkins v. Philadelphia, 156 Pa. 554, it was held that an act of assembly “ regulates the affairs of the city ” which abolished the commissioners of public buildings and placed all public buildings theretofore under their control in the control of one of the departments of the city government. The act under consideration here not only affects the people of the two cities but concerns the two cities in their governmental and corporate capacities. It enlarges the territory and population of one, and deprives the other of its charter and government as a city. It is apparent, we think, that the act is a “ law regulating the affairs of ” the cities within its operation.

Is the legislation in question of local or special operation and, therefore, within the prohibition of article III, section 7 of the constitution ? This is the vital and controlling question in the case and, under the well-established rules of constitutional interpretation and our - own construction of the clause in question, it must be answered in the affirmative. The title of the act clearly indicates the subject of the enacting part and discloses the local and special features of the statute. It shows that the act' was not intended to apply to any two cities of the state so as to make it general in its operation, but conditions are imposed which restrict its application to certain cities, thereby depriving the other cities of the state of the benefit of its provisions. The statute is operative “ where two cities are contiguous and in the same county.” Its provisions can be invoked to annex only two cities and when they are thus situated. Two cities of this description may be annexed to each other and all others are excluded from the operation of the statute. As wé take judicial cognizance of the municipal divisions of the state as well as of their location, we know as averred in the bill and not denied in the answer, that the cities of Allegheny and Pittsburg in Allegheny county are the only two contiguous cities in the state, and that there are no two contiguous cities in any other county in the state. The act, therefore, is limited in its operation to these two cities, and the effect or result of the legislation is the same, and the act as clearly special, as if the names of the two cities had been written in the statute instead of the periphrase used in the description of the cities subject to its operation.

The identification to the two cities intended to be affected by the act is also aided by the provision of the statute that “ for purposes of this act, cities separated by a stream, river or highway shall be included under the term contiguous.” Aside from the contention that the act applies only to cities separated by a stream, river or highway, this clause of the act clearly suggests the two Allegheny county cities as the cities subject to its operation. We judicially know that Pittsburg and Allegheny are the only two cities in the commonwealth separated by a stream or highway, and the fear that that fact would render those cities not contiguous within the meaning of the statute moved the promoters of this legislation to further identify them by inserting this clause in the act. This feature should not and cannot be ignored when the court is called upon to test the constitutionality of the statute as it clearly earmarks the legislation as local and special.

There is no merit in the contention that at some time in the future there may be two other cities which may become contiguous and in that event can be consolidated under the provisions of the act. With a knowledge of the facts, known to the legislature as well as to the court, this is not within the range of probability, but a possibility so remote that it must be excluded from consideration in determining.the constitutionality of the statute. It could only occur if a community adjacent to any of the cities of the state should become sufficiently populous to enable it to become a city and should take the necessary legal steps to make, itself a city and subject to the operation of the act, or if the boroughs lying between and connecting certain cities of the state should, by the requisite legal proceedings, be annexed to those cities or form themselves into a city and thereby connect two existing cities so as to make the act operative. These are simply contingencies within the realm of speculation and entirely too remote to support legislation otherwise repugnant to the constitutional mandate.

The statute requires any two cities desirous of availing themselves of its provisions to be located in the same county. This confines the act in its operation to cities within certain territorial limits and brings it within the domain of special legislation, prohibited by the constitution. The act does not attempt to classify cities on any basis whatever. It provides simply that it shall operate upon two cities situated in the same county. It, therefore, excludes from its provisions and denies its privileges to all cities separated by a county line, or which are not wholly within the same county, although occupying contiguous territory. All cities whose boundaries are coter■minus with the county line are perpetually excluded from the operation of the statute, although other cities may adjoin them at different parts of their boundaries. This distinction made in the act between the cities of the commonwealth is not based upon necessity nor upon any grounds which the law recognizes as justifying classification. Its effect is to restrict the operation of the statute to two cities located in the same territorial division of the state; and when considered in the light of the conceded facts, it fixes with unmistakable certainty the two cities to be consolidated under its provisions. A clearer or more palpable attempt to evade the constitutional prohibition against special and local legislation is not disclosed in any of the numerous bills introduced in the general assembly since the adoption of the present constitution, not excepting the statute, which Mr. Justice Paxson in Commonwealth v. Patton, 88 Pa. 258 very properly characterized as “ classification run mad.”

The present constitution went into effect almost a third of a century ago. Prior to its adoption, there was practically no constitutional restraint on the power of the general assembly to enact local or special legislation. As has been pointed out in the opinions of this court, one of the manifest objects of the adoption of the last constitution by the people of the state was to eradicate the evils of local and special legislation which had grown to such an extent as to make its abuse almost unendurable. Such was the purpose of sec. 7 of article III, which specifies more than fifty subjects on which the general assembly is prohibited from passing' any local or special law. Notwithstanding this emphatic and comprehensive declaration in the constitution against this species of legislation, there has not been a session of the general assembly since its adoption that the framers of legislation have not attempted to evade this provision of the instrument by all the ingenuity at their command. They have done this in the face of repeated warnings of this court that the constitutional mandate would be rigidly enforced. Nearly twenty years ago, in speaking of this provision of, the constitution and the intention of the court to compel a strict observance of it, in Morrison v. Bachert, 112 Pa. 322, Mr. Justice Paxson said (p. 328) : “ It was a wise provision and will be sternly enforced. It is our purpose to adhere rigidly to that instrument, that the people may not be deprived of its benefits. It ought to be unnecessary for this court to make this judicial declaration, but it is proper to do so, in view of the amount of legislation which is periodically placed upon the statute book in entire disregard of the fundamental law. As we view it, this note of warning at this time is needed.” We desire to reiterate and emphasize this admonition. It is within our power, and it is our duty, to strike down legislation repugnant to any provision of the constitution. It is not the province of either department of the government to criticise or question the wisdom of the people in the adoption of any part of their fundamental law; nor' can either department be permitted to ignore or evade its provisions under any pretext or by any device whatever.

We are of opinion that the act of April 20, 1905, providing for the annexation of two contiguous cities in the same county, is local and special legislation within the prohibition of article III, sec. 7 of the constitution and is, therefore, void. It follows that the defendants are without authority to institute or maintain the proceedings taken by them for the purpose of annexing the city of Allegheny to the city of Pitts-burg, and that the plaintiffs are entitled to the relief prayed for in the bill.

decree.

This cause came on to be heard on bill and answer and was argued by counsel, and now, June 22,. 1905, after consideration, it is ordered and decreed that an injunction be issued perpetually restraining the city of Pittsburg, and William B. Hays, mayor, James S. Wightman, president of select council, and R. B. Ward, president of common council of the city of Pittsburg, and each of them, from taking or maintaining any proceedings under the act of assembly, approved April 20, 1905, for the purpose of annexing the city of Allegheny to the city of Pittsburg. It is further ordered that the costs of this proceeding be paid by the city of Pittsburg.

Mr. Justice Potter,

dissenting:

I am not able to agree with the reasoning of the opinion which has been adopted by the majority of the court in this case, nor to accept the conclusion therein set forth. Even if it be true that the act in question was intended to facilitate the union of Pittsburg and Allegheny, yet that fact cannot in itself affect the constitutionality of the act. The fact that legislation meets the needs of some particular locality does not render it obnoxious to the constitution. Perhaps most legislation owes its origin to special or particular needs, which are no less meritorious because they must be included in and satisfied by laws expressed in general terms. In his work, “ Restrictions upon Local and Special Legislation,” Mr. Binney has defined general laws to be such as “ operate uniformly upon all members of any class of persons, places, or things requiring legislation peculiar to themselves, in the matters covered by the laws.” A law is to be regarded as general when it is framed in general terms, is restricted to no locality and operates equally upon all of a group of ^objects whose condition or needs render such legislation appropriate.

The act of April 20, 1905, provides for the consolidation of any two contiguous cities situate in the same county, in the state. It must be admitted that any “ two contiguous cities ” is a general expression. It matters not at how many or how few places in the state there may be two cities which are contiguous. Wherever and whenever there are such, the act would apply. As Mr. Binney says, if the classification be valid, the number of members in a class is wholly immaterial. So that it makes no difference whether there be one or one hundred places in the state which will at the present time fit the conditions of the act, so long as the way is open for other places to come in, as occasion may arise.

But it is suggested that the further limitation of the operation of the act, to cases where two contiguous cities are “ situate in the same county,” makes it local. But why so ? In so far as the language of the act is concerned, no county in the state is excluded from its operation. There are sound reasons why no city should be allowed to extend beyond the boundaries of a single county, and the limitation in that respect, if general, is legitimate.

Under the Act of February 2, 1854, P. L. 21, a local act applying to Philadelphia, it is provided that the boundaries of Philadelphia shall be extended so as to embrace the whole of the territory of the county of Philadelphia. And it is suggested that because there cannot therefore be two contiguous cities in Philadelphia county, that county is excluded from the operation of this act, with the result that the legislation thereby becomes local.

But this court decided squarely in Evans v. Phillipi, 117 Pa. 226, that a statute, general in form, is not to be treated as a local one, simply because of the intervention of some local statute, unrepealed, which prevents it from fairing general effect.

Aside from that, it is difficult to see why the fact that one county in the state is already so filled with a city as to leave room for no other contiguous city within its boundaries, should be any more of an obstacle to the efficiency of a general law, than the fact that in many counties of the state no cities at all exist at the present time. The local act governing Philadelphia may be repealed; and that county may be enlarged, in which case this act would apply to every county in the state. And contiguous cities may grow up in any county, which, under the terms of this act, may in due time be annexed to each other and consolidated into one municipality.

I would uphold the constitutionality of the act of May 20, 1905, and dismiss this bill.


author: Mb. Chief Justice Mitchell,

text:
    Huston, Appellant, v. Freemansburg Borough.

      Negligence—Damages—Fright—Mental suffering.

    In an action of trespass to recover damages foi^injuries sustained by the negligent act of another, there can be»no recovery of damages from fright or other jnerely mental suffering unconnected with physical injury.
    Argued March 7, 1905.
    Reargued May 11, 1905.
    Appeal, No. 59, Jan. T., 1905, by plaintiff, from order of C. P. Northampton Co., Dec. T., 1903, No. 36, refusing to take off nonsuit in case of Sarah Elizabeth Huston v. Freemansburg Borough.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Scott, J.

      At the trial the court entered a compulsory nonsuit on the ground that the injuries sustained were from fright or shock alone, unaccompanied by any injury to the person.
    From the record it appeared that on May 11, 1908, the defendant borough in excavating a hole in a street exploded some dynamite and it was claimed that the shock of the explosion so affected George M. Huston, plaintiff’s husband, who was recovering from typhoid fever, that he died within two weeks.

      Error assigned was refusal to take off nonsuit.

      Harry C. Cope, for appellant.
    The leading English case, Victorian Ry. Commrs. v. Coultas L. R. 13 App. Cases, 222, which is authority for all the others in this country, has been dissented from and has not been followed, in the recent English case of Dulieu v. White & Sons, L. R. 2 K. B. (1901) 669, which is fully commented on and partly quoted in Homans v. Boston Elev. Ry. Co., 180 Mass. 456 (62 N. E. Repr. 737). All the above leading cases are fully reviewed and, discussed here. The case of North German Lloyd Steamship Co. v. Wood, 18 Pa. Superior Ct. 488, recognizes that it is a fact that “ the nervous system is a part of the physical organization.”
    The rule was Condemned in Gulf, etc., Ry. Co. v. Hayter, 47 L. R. A. 325 (Supreme Court of Texas); Watkins v. Mfg. Co., 131 N. C. 536 (42 S. E. Repr. 983); Cameron v. New England Tel., etc., Co., 182 Mass. 310 (65 N. E. Repr. 385); Smith v. Tel. Cable Co., 47 L. R. A. 323; 1 Sutherland on Damages, sec. 21; 1 Beven on Negligence, 76.

      Russell C. Stewart, for appellee.
    There can be no recovery for injuries resulting from shock: Fox v. Borkey, 126 Pa. 164; Ewing v. Ry. Co., 147 Pa. 40; Linn v. Duquesne Boro., 204 Pa. 551; Mitchell v. Ry. Co., 151 N. Y. 107 (45 N. E. Repr. 354); Spade v. R. R. Co., 168 Mass. 285 (47 N. E. Repr. 88); Ward v. R. R. Co., 47 Atl. Repr. 561; Smith v. Telegraph Cable Co., 174 Mass. 576 (55 N. E. Repr. 380); White v. Sander, 168 Mass. 296 (47 N. E. Repr. 90).
    June 22, 1905 :
   Opinion by

Mb. Chief Justice Mitchell,

The learned judge below not admitting, but conceding for the purpose of his view, that there was evidence of negligence and of proximate cause, sufficient to carry the case to the jury, nevertheless refused to take off the nonsuit. We do not concede either point, and this case might be affirmed on either. But we have had the case reargued before the full court,' to settle finally the main question that there can be no recovery of damages from fright or other merely mental suffering unconnected with physical injury.

The principle was really decided in Fox v. Borkey, 126 Pa. 164, and has been confirmed and enforced in Ewing v. Pittsburgh, etc., Ry. Co., 147 Pa. 40, and Linn v. Duquesne Boro., 204 Pa. 551. Ewing v. Railroad, is a particularly strong case for it was decided on a demurrer to a statement setting forth a collision of cars through the negligence of the defendant, by which the cars were overturned and thrown from the track against the dwelling house of the plaintiff, subjecting her to great fright, fear and nervous excitement and distress, whereby she became sick and disabled from her usual work, etc. The question was thus squarely presented on its own merits, stripped of all complicating circumstances, and this court said unanimously per curiam that there was no cause of action.

The question came up again in Linn v. Duquesne Borough, 204 Pa. 551, and with the same result. But oijr Brother Fell reviewed the principal authorities outside of this state, and showed that “ the decided trend of decision both in this country and in England is against the maintenance of such an action, or the allowance for mental suffering as an element of damages when distinct from physical injury.”

The industry of counsel in the present case has furnished us with a few other cases favorable to his contention. But they do not show any sound reason for a change of our view. All of the cases are of recent and unhealthy growth, and none of them stands squarely on the ancient ways.' In the last half century the ingenuity of counsel, stimulated by the cupidity of clients and encouraged by the prejudices of juries, has expanded the action for negligence until it overtops all others in frequency and importance, but it is only in the very end of that period that it has been stretched to the effort to cover so intangible, so untrustworthy, so illusory and so speculative a cause of action as mere mental disturbance. It requires but a brief judicial experience to be convinced of the large proportion of exaggeration and even of actual fraud in the ordinary action for physical injuries from negligence, and if we opened the door to this new invention the result would be great danger, if not disaster to the cause of practical justice : Spade v. Boston R. R. Co., 168 Mass. 285; Mitchell v. Rochester Ry. Co., 151 N. Y. 107. If, therefore, the question were new, we should see no reason to reach a different conclusion. But it is settled for this state, and is no longer open to discussion. . . . .,

Judgment affirmed.


author: Mb. Justice Mestbezat,

text:
    Neely v. Philadelphia, Appellant.

      Boad law—Streets—Deed—Dedication—Damages.

    A conveyance of land bounded by a public road or a street gives the grantee title to the middle of the road or street, if the grantor has title to it, and does not expressly or by clear implication reserve it.
    A call for a street as a boundary which has been projected by a municipality, but not opened, does not ordinarily raise the presumption of dedication which will estop the owner from claiming damages when it is actually opened.
    Where land is conveyed as bounded by a street which is plotted on the city plan, but not opened, the grantee takes the fee in the land bounded by the street and, by implication, acquires an easement over the bed of the unopened street, unless circumstances attending the conveyance and description or grant negative such implication.
    Where an easement or other right is not expressed and is sought to be implied as attached td the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction.
    An owner of a large lot of land which included the bed of a plotted and unopened street conveyed by deed a fraction of an acre of this land. The starting point of the description of the land was definitely fixed on the side of the plotted but unopened street as a land mark, and by reference to an artificial point in the ground. The land was then described by courses which were given in degrees, and fractions of a degree, and by distances which-were given in feet and inches and fractions of an inch. Held, that the grantee took no easement by implication over the plotted but unopened street.
    Argued Jan. 24, 1905.
    Reargued May 11, 1905.
    Appeal, No. 123, Jan. T., 1904, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1903, No. 3572, on verdict for plaintiff in case of Henry B. Neely, executor of Charles Blanchard, deceased, v. Philadelphia.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from report of viewers.
    At the trial when James Lewis, a witness for plaintiff was under cross-examination, he was asked this question : “ Q. You have heard read here two deeds, where Mr. Blanchard sold the portion of his property abutting on the bed of the street to Mr. Hancock, and he sold the portion in rear of that also, fronting on Glenwood avenue, and under the law, and under those circumstances, the bed of the street, as far as the title remained •in Mr. Blanchard, was subject to an easement both of Mr. Hancock and Mr. Strong, their heirs and assigns. Now, I ask you under those circumstances, this piece of property being subject to an easement or right of way of the abutter, what is the value of that property in 1896 ? ”
    Objected to. Objection sustained. Exception for defendant. [1]
    “ Q. If the piece of property lying in the bed of Glenwood avenue belonging to the Blanchard estate were subject to the right of way of the abutters, Mr. Hancock and his heirs, as well as subject to the easement of the property adjoining it towards Twentieth street, what would have been the value in 1896 of this piece of ground? ”
    Objected to. Objection sustained. Exception for defendant. [2]
    Similar questions were asked other witnesses; and objections were sustained. [3-6]
    Defendant presented, inter alia, the following point:
    3. Under the facts of the ease, the plaintiffs are entitled to recover only the value of the lot subject to the right of way or easement which’ they gave their grantees, and they could not use it in such a way as to interfere with their right to have a front on Glenwood avenue. Answer : Refused. [9]
    Verdict and judgment for plaintiff for $3,500. Defendant appealed.

      Errors assigned were (1-6) rulings on evidence, quoting the bill of exceptions; (9) above instructions, quoting them.

      John H. Maurer, assistant city solicitor, with him Gceorge E. Eill and John L. Kinsey, city solicitor, for appellant.—
    Where a deed describes land as bounded by a street which at the time is plotted but unopened, the grantee takes title in fee to the land as bounded by the street, and an easement only over the bed of the unopened street. The title to the bed of the street remains in the original holder: Whitaker v. Phœnixville, 141 Pa. 327; Gamble v. Philadelphia, 162 Pa. 413; Cole v. Philadelphia, 199 Pa. 464; Brooklyn Street, 118 Pa. 640; Hancock v. Philadelphia, 175 Pa. 124.

      Joseph deE. JunJcin, for appellee.
    Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property, and the other res gestee of the transaction: Union Burial Ground Society v. Robinson, 5 Wharton, 18; Bellinger v. Union Burial Ground Society, 10 Pa. 135; Paul v. Carver, 26 Pa. 223; Cox v. Freedley, 33 Pa. 124; Trutt v. Spotts, 87 Pa. 339.
    June 22, 1905:
   Opinion by

Mb. Justice Mestbezat,

The questions involved in this case and our decisions, including those cited here by defendant bearing thereon, have been examined and discussed in the very recent case of Fitzell v. The City of Philadelphia, 211 Pa. 1 in an elaborate opinion by Mr Justice Dean, and we, therefore, may omit a discussion of the legal principles applicable to this class of cases. There is but a single question in this case, and it is whether the grant by the executors of Charles Blanchard, deceased, to Joseph Hancock in 1887, contains an implied covenant of an easement over the strip of land in the bed of Glenwood avenue in front of tbe land conveyed to Hancock. The descriptive words in the grant to Hancock affecting the question presented here are as follows : “ All that certain lot or piece of ground . . . . described according to a survey .... as follows, to wit: Beginning at a point on the northwest side of Glenwood avenue as laid out on the city plan four feet southwest from the southwest corner of the brick office building owned by the Blanchard estate; thence on a line at right angles with Glen-wood avenue northwest 210 feet to the right of way of the connecting railway; thence south fifty-eight degrees thirty-two minutes west 236 feet two and one-half inches to a point in the centre of Twenty-first street as iaid down and confirmed on the city plans ; thence extending along the centre of Twenty- ■ first street laid down as aforesaid south eleven degrees twenty-one minutes west 286 feet three and one-eighth inches to a point in the intersection of the centre of Twenty-first street with the northwest side of Glenwood avenue, and thence extending along the northwest side of Glenwood avenue laid down as aforesaid north fifty-eight degrees and thirty-two minutes east 430 feet nine inches to the place of beginning, containing one and sixty-one one hundredths acres more or less.”

When the conveyance to Hancock was executed and delivered, Glenwood aveiiue between Twentieth and Twenty-first streets had been plotted on the city plan and confirmed by the board of surveyors, but had not been opened as a street. At that time and prior thereto it “ never had any existence except on paper.” Blanchard’s executor, the plaintiff, claims that the northern half of the bed of Glenwood avenue abutting the Hancock land and for which damages are claimed here, was not subject to the servitude of Hancock and his grantees, prior to the actual opening of the avenue, and that the damages must be assessed against the city free and discharged of such servitude. The court below so held and the city has appealed.

In the Fitzell case, Mr. Justice Dean says: Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestee of the transaction.” He then adds: “ This principle is recognized in Union Burial Ground Society v. Robinson, 5 Wharton, 18, and has never been doubted; many remarks have been made in subsequent cases as to other features of this case inconsistent with the judgment in that case, but the controlling principle has never been questioned.” In Brooklyn Street, 118 Pa. 640, Green, J., delivering the opinion says (p. 646) : “ When a municipal government lays out streets upon the land of a private citizen, it is not the act of the owner in any sense, and hence there is no necessity for an implication of a covenant against the owner to give his land to the public without compensation, nor even to dedicate it to public use. Why, then, shall these implications be made in a case where the street is laid out by municipal action and the owner does nothing whatever as to the public, and nothing as to his private grantee, except simply to refer, as matter of description in his grant, to a street laid out, but not opened, by public authority.” Mr. Chief Justice Lewis speaking for the court in Paul v. Carver, 26 Pa. 223, says : “ The paramount intent of the parties, as disclosed from the whole scope of the conveyance (granting lands situate on a street), and the nature of the property granted, should be the controlling rule.” In Union Burial Ground Society v. Robinson, 5 Wharton, 18, Mr. Justice Kennedy delivering the opinion quotes from a Massachusetts case as follows : “ If by the terms of the description the road is necessarily excluded, it is equivalent to an express declaration that no part of the road is intended to be conveyed; and it is perfectly clear that the fee in the road cannot pass as appurtenant to the land adjoining.” He then adds: “ What is here said is particularly applicable whenever the quantity of land conveyed is small, and its extent is described with great nicety; as in all conveyances almost of ' city or town lots or parts thereof. And in the present case the ground intended to be conveyed is described with remarkable, if not very unusual degree of nicety and minuteness, as if it were intended to preclude all possibility of including any more than came within the metes and bounds, as set out, not merely in feet and inches, but limited even to the very fraction of an inch.” In Cox v. Freedley, 33 Pa. 124, the conveyance was of land bounded by the side of the street and the contest was over the title to the bed of the street. In the opinion it is said: “ In deciding this question in favor of the plaintiff, we admitted that the intention of the parties was to control the construction of the deed. . . . The intention of the parties, as deduced from the language of the instrument, was the criterion of construction, and in making that deduction, the court would look at the circumstances in which the conveyance was made.”

Applying these rules in interpreting the grant under consideration, it is clear that the parties intended to limit the conveyance to the land within the description, and to exclude the strip or piece covered by the northern half of Glenwood avenue as well as any implication of a right to an easement over it. Blanchard purchased of Blight a large tract of land and the starting point on the ground, given in the conveyance, is the intersection of the center line of Twenty-first street with the center line of Glenwood avenue, as the streets -were laid down on the city plans. The first course extends eastward along the center line of the avenue which is the south fine of the premises, giving to the grantee title to the one-half of the bed of the projected avenue. When, however, Blanchard’s representatives convey to Hancock, they make the northwest side of the avenue the south line of the land granted, thereby retaining the title to the half of the bed of the avenue. This line is thirty feet north of the Blight fine. The description of Hancock’s land, it will be observed, begins, not on the street, but “ on the northwest side of Glenwood avenue as laid out on the city plan four feet southwest from the southwest corner of the brick office building owned by the Blanchard estate.” The starting point in the description of the land is, therefore, definitely fixed on the side of a plotted but unopened street as a land mark, and by reference to an artificial point on the ground. The land is then described by courses which are given in degrees and fractions of a degree and by distances which are given in feet and inches and fractions of an inch. To this minuteness in detail of description are added as boundaries the right of way of the connecting railway and the center of Twenty-first street. The quantity of land conveyed is not a lot or an indefinite amount of land, but a fixed and certain acreage of one and sixty-one one hundredths. This was carved out of a large tract of land which included the bed of the plotted and unopened street. In addition to these facts, there is another significant and material, if not controlling fact, that in describing the land granted, the center line of Twenty-first street is made the west line of the premises conveyed, thereby including in the grant the one-half of that street; and the northwest side, and not the center, of Glenwood avenue is made the northwest line of the premises, thereby excluding from the grant the one-half of the avenue. We think also the evidence shows that at the time of the conveyance to Hancock, Twenty-first street was physically opened and in use by the public up to Glenwood avenue, thereby affording the owner of the premises an outlet to the city.

We think it clear that the description of the premises and the attending circumstances, the “ res gestee of the transaction,” negative the implication of an easement over Glenwood avenue in favor of Blanchard’s grantee of the Hancock land. It is difficult to see how a grantor could more effectively exclude such an implication than is done in the description in the deed from Blanchard to Hancock. The grantor took every precaution, except declining to make the grant, that any person could take to confine his grant to the limits designated in his deed, and to hold to the contrary would be to declare that the owner of land abutting on a street which is unopened and simply plotted on the city plan cannot, under any circumstances and by the use of any descriptive terms, convey it without an implied covenant that the grantee shall have an easement over the land in the bed of the street. Such is not the law of this commonwealth and is not supported by reason or precedent.

It may now be regarded as settled by our decisions that a conveyance of land bounded by a public road or street gives the grantee title to the middle of the road or street if the grantor had the title to it and did not expressly or by clear implication reserve it; that a call for a street as a boundary which has been projected by a municipality, but not opened, does not ordinarily raise the presumption of dedication which will estop the owner from claiming damages when it is actually opened; and that where land is conveyed as bounded by a street which is plotted on the city plan but not opened, the grantee takes the fee in the land bounded by the street and, by implication, acquires an easement over the bed of the unopened street, unless the circumstances attending the conveyance and description of the grant negative such implication.

In conclusion we may repeat, as pertinent here, what Mr. Justice Dean says in the Fitzell case : “ The city has appropriated 1888 square feet of plaintiff’s land for a public street; assume that under the statute they cannot build upon it, since it was put upon the city plans and thereby swell damages, but they have not lessened' its value by private grant of an easement. Their damages are substantial and capable of compensation and on that basis they should be assessed.”

The judgment is affirmed.


author: Pee Ctjeiam,

text:
    Martin, Appellant, v. Megargee.

      Trover—Conversion—Stock—Fraud—Contract—Speculative dealings.

    A woman owning stock assigned it with a general power of attorney with the understanding that the assignee should use the stock as collateral in stock speculation for their joint account. The assignee gave a receipt for it, and agreed to return the stock on demand. The assignee sold the stock and the proceeds were lost in the speculation on the joint account. Held, that an action of trover would not lie against the assignee for the stock.
    Argued May 11, 1905.
    Appeal, No. 376, Jan. T., 1904, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1899, No. 875, sustaining exceptions to referee’s report in case of Adele G. Martin v. Monroe W. Megargee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Exceptions to report of George McCurdy, Esq., referee.
    From the record it appeared that the action was in trespass by capias for the conversion of stock delivered by the plaintiff to the defendant. The referee found in favor of the plaintiff.
    Exceptions to the referee’s report were sustained, Me Michael, J., filing the following opinion:
    The testimony shows that there had been a course of dealings between the plaintiff and defendant, in which dealings the plaintiff had loaned money to the defendant to enable him to speculate in stocks for their joint benefit; and in prior transactions considerable profits had been made, and the plaintiff had received her share of these profits—had been repaid the sums of money which she had advanced, and a considerable amount in cash, which was her share of the profits. Thus, on the sum of |1,000 advanced by her to him for stock speculation, she received a profit of |770, and on a loan of $500 she received a profit of $120.
    The testimony further shows that the plaintiff had placed the certificates of stock which are the subject of this suit in the hands of the defendant for the purpose of enabling him to speculate on their joint account. It is true that she received receipts from the defendant for the stock, by which he agreed to return the stock on demand, and it is also true that she testified that the stock was to be temporary collateral, but she further testified as follows : “ I gave it to him with the understanding that he was going to give it to his broker.”
    The examination in chief and the cross-examination of the plaintiff developed the fact that she fully understood what she was doing, and that, as the defendant had been successful in prior speculations, she entrusted him with the shares of stock which are the subject of this controversy for the purpose of further speculation. And after this stock was assigned to defendant, the plaintiff got further profits.
    We think that this testimony brings the case within the ruling of Duffield v. Miller, 92 Pa. 286.
    Undoubtedly, if the stock assigned by the plaintiff to the defendant had been hypothecated for the purpose of their joint speculations and swept away, she would have had no right to recover in this form of action ; and the fact that the defendant sold the stock for the purpose of raising money and applying it to their speculations does not vary the principle. The plaintiff authorized the defendant to use her stock for the purpose of speculation, and clothed him, through a power of attorney, with the rights of ownership. He used the stock, was unfortunate in his speculation, and the stock was lost.
    The plaintiff transferred the stock to the defendant for the purpose of using it as collateral in their stock speculations, and authorized the defendant to make use of it' by a general power of attorney. The stock was sold and the proceeds lost in speculations. We are of opinion that the plaintiff no longer had a property in the chattel, general or special, or the actual possession or the right to immediate possession, which are fundamental to a right to maintain an action of trover.
    It is true that the stock was sold by the defendant and not merely hypothecated, but she had clothed him with authority to do this when she assigned to him the certificates, with power of attorney indorsed thereon. As was said in Duffield v. Miller, 92 Pa. 286, above cited: “ When the plaintiff authorized the managers of a failing bank to use his bonds to raise money, he must have known that it might not be in their power to return them. At any rate, there was a risk, and he assumed it. Having been pledged by his authority, the pledgee has a right to sell for nonpayment of the money borrowed, and such sale passed the title. At the time this suit was brought the bonds had been sold and the plaintiff’s rights divested. He owned nothing that could be the subject of an action of trover. All that was left him was a right of action upon his agreement. It is well settled that to maintain trover the plaintiff must have a property in the chattel, general or special, and the actual possession or the right to immediate possession: Mather v. Trinity Church, 3 S. & R. 509; Castor v. McShaffery, 48 Pa. 437; 1 Chitty on Pleading, 148, and cases there cited.”
    ■ The referee has based his conclusions of law upon the case of Dow v. Emerson, 11 W. .N. C. 267. That was a case of habeas corpus. It was decided that the relator should not be discharged because there was evidence of deliberate fraud. But the point decided in Duffield v. Miller, 92 Pa. 286, was not before the court, nor is there anything inconsistent in the two rulings.
    The first, second and third exceptions to the report of the referee are sustained, the report is set aside and judgment is entered for the defendant.

      Errors assigned were in sustaining exceptions to referee’s report.

      J. E. Brinton, for appellant,
    cited: Dow v. Emerson, 11 W. N. C. 267.

      Wm. F. Johnson, with him A. 8. L. Shields, for appellee.
    June 22, 1805:
   Pee Ctjeiam,

Judgment affirmed on the opinion of the court below.


author: Pee Curiam,

text:
    York County v. Thompson, Appellant.

      Judgment—Opening judgment—Report of county auditors—Appeal nunc pro tunc—Public officers.

    A judgment against a county treasurer entered on a report of county auditors, although unappealed from within the statutory period will be opened, and the county allowed an appeal nunc pro tunc, where depositions, in support of a petition to open, show that the county was defrauded. In. such a case it is for a jury to determine how far the treasurer is a party to the fraud, or responsible for the loss.
    Argued May 15, 1905.
    Appeals, Nos. 205 and 206, Jan. T., 1904, by defendant, from order of C. P. York Co., Jan. T., 1901, No. 195, and Jan. T., 1902, No. 228, opening judgment and allowing an appeal nunc pro tunc in case of York County v. William O. Thompson.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Petition to open a judgment entered against the county treasurer on report of county auditors, and for leave to appeal nunc pro tunc. Before Bitteng-er, P. J. *
    After Zeigler’s Petition, 207 Pa. 181, was decided, and the record of the case returned to the lower court, depositions were taken which tended to show that the county was defrauded, and that the defendant was a party to the fraud. The court made an order opening the judgment and permitting the county to appeal nunc pro tunc.

      JError assigned was the order of the court.

      Henry C. Niles, with him George JE. Neff., for appellant.

      J. S. Black, with him JE. J). Zeigler, county solicitor, and Charles A. Hawkins, for appellee.
    June 22, 1905 :
   Pee Curiam,

The law governing this case was settled when the case was here before, Zeigler’s Petition, 207 Pa. 131, and in accordance with that decision the court below had evidence on which to open the judgment.

That the county was defrauded is not denied, and how far the appellant was party to the fraud or responsible for the loss is, under the evidence, clearly a question for a jury.

Judgment affirmed.


author: Per Curiam,

text:
    Gantz v. Kintzing, Appellant.

      Contract—Evidence—Credibility of witness.

    In an action on a contract where the testimony of the plaintiff is directly contradicted by the testimony of the defendant on the material issue in the case, but twelve witnesses who knew the defendant testify that they would not believe him on oath, a judgment on a verdict for plaintiff will be sustained.
    Argued May 15, 1905.
    Appeal, No. 138, Jan. T., 1905, by defendant, from judgment of C. P. York Co., Jan. T., 1904, No. 77, on verdict for plaintiff in case of George M. Gantz v. W. F. Kintzing.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a contract.
    Yerdict and judgment for plaintiff for $7,778.
    On a motion for a new trial Stewart, J., filed the following opinion:
    This rule will have to be discharged and there is very little that can be profitably said on the subject. The contract between the plaintiff and the defendant was a verbal one. There were certain negotiations leading up to the meeting between them to go to Hanover. They did go there, however, and had a meeting with some people whom the plaintiff had interested in the starting of a company for the manufacture of wire cloth. The result was not an agreement with the Hanover people, and for the time being was unsuccessful. Nevértheless, the plaintiff testified that the defendant agreed that, if he should make a sale of wire cloth machinery to the Hanover people, the plaintiff should have one-half of the profits on the sale, and he did within a few days thereafter make such contract.

      This was purely a question of fact and had to be found by the jury, if found at all, upon the testimony of the plaintiff. It was denied by the defendant, but twelve witnesses were called who knew the defendant and each of them testified that he would not believe the defendant on oath.
    The jury evidently disbelieved the defendant. This eliminated all testimony in his behalf from the case. So that if the jury believed the plaintiff’s testimony they could not do otherwise than find for him, and I am not inclined to disturb their finding.
    As to the question of damages, the plaintiff only recovered what he claimed, although there was evidence upon which if he had claimed more he would have recovered more. He claimed to be entitled to one-half and the evidence showed that the profits were much larger than he supposed. In view of this, I do not see that the damages were excessive or should be reduced.
    The case was not an ordinary case of brokerage, and, therefore, the rules applicable to that class of cases do not apply.
    The rule for a new trial is discharged and judgment is directed to be entered on the verdict upon payment of the jury fee.

      Error assigned among others was in refusing binding instructions for defendant.

      Nevin M. Wanner, for appellant.

      Henry 0. Niles, with him George E. Neff, for appellee.
    June 22, 1905 :
   Per Curiam,

This judgment is affirmed on the -opinion of the court below, refusing a new trial.


author: Pee, Cueiam,

text:
    Cooper v. Leaman, Appellant.

      Will—Vested and contingent remainder—Estate in fee—Marketable title.

    Testatrix devised land to her daughter in fee, but added in the next clause of the will, “ And in the event my daughter should die single, unmarried and without issue, it is my will and I hereby give, bequeath and devise all my said estate, real and personal, as aforesaid, unto my dear beloved mother and to her heirs.” The daughter, after the death of the grandmother, whose sole heir she was, and after the death of two children whom she had had, contracted to sell the land to another. Held, that she had an estate in fee simple and could make a good marketable title.
    Argued May 15, 1905.
    Appeal, No. 131, Jan. T., 1905, by defendant, from judgment of C. P. Lancaster Co., April T., 1905, No. 11, on case stated to determine marketable title to real estate in case of Elizabeth B. Cooper v. Jere M. Leaman.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    By the terms of the case stated it appeared that Harriet Brandt died on June 13,1904, leaving a last will and testament, dated January 9,1878, in which she provided, inter alia, as follows : “ I give, bequeath and devise all my estate, real and personal, which I may die seized and possessed of, to my only daughter, Lizzie Shearer, and to her heirs ; and, in the event of my daughter, Lizzie Shearer, should die single, unmarried and without issue, it is my will, and I do hereby give and bequeath and devise all my said estate, real and personal, as aforesaid, to my dear beloved mother, and to her heirs.” Mary Brandt, who was the mother of Harriet Brandt, died before the daughter, leaving no other heir, and Lizzie Shearer, who is the plaintiff, was married November 26, 1895, to Amos Cooper, and she had two children, both of whom, however, died prior to the death of testatrix.
    The plaintiff agreed, in consideration of the sum of $1,600, to convey to the defendant, in fee simple, a lot of ground, and tendered him a deed of conveyance and demanded the purchase money, but he refused to accept the said deed, alleging that the title was defective, in that the will of Harriet Brandt only vested in her a life estate.
    The court in an opinion by Landis, P. J., entered judgment for plaintiff. Defendant appealed.

      Error assigned was in entering judgment for plaintiff.

      W. II. Hensel, for appellant.
    No paper-book or appearance for appellee.
    June 22, 1905 :
   Pee, Cueiam,

Testatrix devised the land to her daughter in fee, but added in the next clause of the will: “ And in the event my daughter, Lizzie, should die single, unmarrited and without issue, it is my will and I hereby give, bequeath and devise all my said estate, real and personal, as aforesaid, unto my dear beloved mother and to her heirs.”

The contingency has not happened, for the daughter is married and has had children, though there are none now living. Under our cases the testatrix by such clause is presumed to mean the death of the devisee during her own lifetime: Morrison v. Truby, 145 Pa. 540.

But even if that rule of construction should not be invoked and the plaintiff surviving her husband should die without having other children, so that the devise over should still be held effective, plaintiff under it, by the death of her grandmother, has now a vested remainder in fee. Her deed, therefore, will pass her present estate, whatever it be, and a remainder in fee, to the grantee.

Judgment affirmed.


text:
    Dietrich v. Lancaster, Appellant.

      Practice, C. P.—Rule of court—New trial—Evidence—Review.

    A rule of court which provides that reasons for a new trial where not founded on evidence in the cause must be verified by affidavit, is a good and reasonable rule, and will be upheld by the appellate court. The court below is the best judge of the application of its own rules.

      Negligence—Instructions—Refusal of points.

    Points for charge are properly refused which closed with a request for instructions that there could be no recovery in the case, and ignore facts involved which are clearly for the jury.
    Submitted May 16, 1905.
    Appeal, No. 144, Jan. T., 1904, by defendant, from judgment of C. P. Lancaster Co., May T., 1901, No. 69, on verdict for plaintiff in case of Abram B. Dietrich v. City of Lancaster. '
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Verdict and judgment for plaintiff for $2,500.
    On a rule for a new trial Landis, P. J., filed the following opinion:
    The first reason upon which the defendant bases its request for a new trial in this case is, that the court erred in refusing to affirm defendant’s first, second and third points. I have, consequently, carefully examined the charge of the jury and the answers to the points, to ascertain whether these objections are well founded, and I am satisfied that they are not. The points all close with the request for instructions that there could be no recovery in the case, and ignore the facts involved, which were clearly for the jury. To my mind the affirmance of any of them would have been manifest and reversible error: Whitmire v. Montgomery, 165 Pa. 258. No serious harm can, however, come to the defendant thereby, for, if I am wrong, the record is in shape to be easily reviewed.
    The second reason involves after-discovered testimony, and it was not filed in accordance with the rules of court. Rule 17, page 34, directs that “ where the reasons for such motion or application are not founded upon the evidence in the case, the facts must be verified by affidavit; ” but no affidavit was attached at the time the reasons were filed, nor when the court granted this rule. Only on March 14, 1904, was an affidavit appended thereto, and this was done without leave of court. This late action on the part of the defendant should not be considered as curing the original defect, and, because of it, we feel that the depositions taken in support of the application ought not to be considered.
    Rule for a new trial is discharged.

      Errors assigned were (1, 2) refusal of points; and (3) in refusing to consider the depositions filed in support of reason for new trial.

      E. M. Gilbert, for appellant.

      W. IT. Sensei and Wm. 0. Eehm, for appellee.
    June 22, 1905:
   Per Curiam,

The rule of the court below that reasons for a new trial when not founded on evidence in the cause must be verified by affidavit is not only a reasonable but a good rule, and it does not need to be said again that the court is the best judge of the application of its own rules.

Judgment affirmed on the opinion of the court below refusing a new trial.