text:
    Mitchell v. Phillips, Appellant.

      Ejectment — Husband and wife — Conveyance by husband and wife.

    In an action of ejectment where the plaintiff claims under a deed from her husband, and the defendant under a sheriff’s sale on an execution against the husband, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where there is evidence that at the time of the conveyance to the plaintiff by her husband, the latter was indebted to a co-partnership on an unsettled mutual account which the husband believed at the time was in his favor; that he retained enough personal property to meet such indebtedness if it should be decided that he wás liable; that he had no intention to defraud the firm which was his only creditor; and that his motive in making the conveyance was to provide for his wife generally and particularly against apprehended machinations of a brother who had made trouble for him in the past.
    Argued April 8, 1912.
    Appeal, No. 107, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1907, No. 342, on verdict for plaintiff in case of Rebecca R. Mitchell v. W. J. Phillips, et al.
    Before Feel, C. J., Brown, Mestrezat, Stewart and Mjoschzisker, JJ.
    Affirmed.
    Ejectment for land in the borough of Forty Fort. Before Ferris, P. J.
    At the trial the court returned a verdict for plaintiff.
    On a rule for a new trial Ferris,. P. J., filed the following opinion:
    At the trial it appeared (1) that the common source of title was Joseph T. Mitchell, husband of the plaintiff; (2) that, by a deed dated January 25th, 1902, ¿rid duly recorded two days later, he conveyed the. land in dispute to his wife for the expressed consideration of one dollar and natural love and affection; (3) Parol evidence was given which,.if believed by.the.jury, would justify them in finding (a) that lie was indebted at tbe time of tbe conveyance to bis wife, (b) that be retained personal property sufficient to meet sucb indebtedness, (c) that this indebtedness arose from an unsettled mutual account between bimself and a firm named Hyndman & Garney, and that Mitcbell believed that upon settlement of tbeir affairs tbe firm would be found to be indebted to bim, (d) that be bad no actual intent, in making tbe conveyance to bis wife, to defraud, binder, or delay tbe said firm, wbicb was bis only creditor, (e) that be was at that time, and bad been for years, a market gardener and expected to continue in that business in another county of this State, (f) that bis motive in making tbe conveyance in question was to make provision for bis wife, generally, and particularly as against apprehended machinations of a brother who bad made trouble for bim in tbe past.
    On tbe part of tbe defendant tbe evidence showed (1) that Hyndman & Garney, about six months after tbe conveyance by Mitcbell to bis wife, obtained judgment against Mr. Mitchell before a justice of tbe peace for one hundred ninety-five dollars and nineteen cents ($195.19); (2) that a transcript of this judgment was filed in tbe Common Pleas, and by proper proceedings tbe land in question was sold by tbe sheriff to Fred B. Davis, an attorney, who, with bis wife, conveyed tbe same to W. J. Phillips, tbe defendant, for tbe consideration, expressed in tbe deed, of two thousand, six hundred dollars ($2,600); (3) at the sheriff’s sale referred to, a notice was given by or on behalf of Mrs. Mitcbell that tbe land levied upon and advertised for sale belonged to her and not to her husband, tbe execution defendant; (4) parol evidence was given wbicb, if believed, would warrant tbe jury in finding that Mr. Mitcbell was notified by tbe justice of tbe peace before tbe conveyance by Mitcbell to bis wife, that Hyndman & Garney bad placed in bis bands for collection a claim against Mitcbell, wbicb tbe justice states was tbe identical claim for which judgment was obtained in a suit before him after the conveyance. This is denied by Mr. Mitchell who says that the only notice he received from the justice was after the judgment and to the effect that the judgment had been obtained.
    The case was submitted to the jury with instructions that though indebted, a man may make provision for his wife by a voluntary conveyance of land, if, nevertheless, he retains sufficient property in his hands from which his creditors, by suit and execution, could compel payment, if necessary, unless such voluntary conveyance were a part of an actual scheme to defraud his creditors. Later on in his charge the trial judge used this language: “The idea is simply this, gentlemen. That that principle of law is intended to prevent fraud. And a conveyance which has no tendency to defraud anybody is good. If it was intended to defraud the creditors which a man had at the time, or if its tendency was to do it, so as to keep them out of their money, or hinder or delay them, why then it would be void. ... ... On the other hand there is testimony here given by himself, Mr. Mitchell, that he had been endeavoring for a long time to get a settlement with Hyndman & Garney; that they kept his pass book and would not let him have it; and that such was the condition of things, as I remember his testimony, at the time this deed was made. The question might arise in your minds, could he have had the purpose in his mind that a settlement might be in their favor, result in their favor and against him, and that he would try and hinder them from getting their money by putting the property in his wife’s name?......If you believe that he made this deed to his wife in order to hinder and delay creditors which he had at the time he made the deed, including Hyndman & Garney, then your verdict should be for the defendant, because in that case the deed would be void under the statute.”
    Under all the testimony in the case there could be no doubt that the judgment under which the sheriff’s sale took place represented an indebtedness to Hyndman & Garney existing at the time of the conveyance to the wife. And it not being shown that there were any subsequent creditors at all, and it being perfectly apparent that the firm of Hyndman & Garney was an existing and not a subsequent creditor and that the question was distinctly submitted to the jury whether the conveyance to the wife tended to hinder, delay or defraud that particular firm, we do not think that, though the instructions were not so full and complete, perhaps, as they should have been were the rights of subsequent creditors in question, nevertheless they were correct with reference to existing creditors to which class Hyndman & Garney belonged, and could not have injured the defendant who claimed under that firm.
    Being of opinion that the case was clearly for the jury and not being satisfied that a new trial should be granted for any of the reason's assigned, the motions are denied and a new trial refused.

      Errors assigned were various rulings and instructions.

      L. Floyd Hess and W. Alfred Valentine, for appellant.
    Where property is claimed by a married woman, she must show by evidence which does not admit of a reasonable doubt, either that she owed it at the time of her marriage, or else acquired it afterwards, by gift, bequest or purchase. In the case of a purchase after marriage, the burden is upon her to prove distinctly that she paid for it with funds which were not furnished by the husband: Gamber v. Gamber, 18 Pa. 363; Keeney v. Good, 21 Pa. 349; Peirson v. Duncan, 162 Pa. 187; Heiges v. Pifer, 224 Pa. 628; Billington v. Sweeting, 172 Pa. 161; Sutton v. Guthrie, 188 Pa. 359; Coates v. Gerlach, 44 Pa. 43; Heath v. Page, 63 Pa. 108; Ketner v. Donten, 15 Pa. Superior Ct. 604; Renninger v. Spatz, 128 Pa. 524; Werner v. Zierfuss, 162 Pa. 360.
    April 29, 1912:

      John D. Farnham, for appellee.
    The phrase “indebted at the time” (of a voluntary conveyance) must mean some debt bearing same proportion to the property retained, which may render its payment doubtful: Mateer v. Hissim, 3 P. & W. 160; Wilson v. Howser, 12 Pa. 109; Posten v. Posten, 4 Wharton (Pa.) 27; Miller v. Pearce, 6 W. & S. 97.
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the Common Pleas.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    Patterson v. Hughes, Appellant.

      Evidence — Witness — Competency—Party dead — Act of June 11, 1891, P. L. 287 — Mortgage.
    1. A living witness whose competency is to make competent evidence which otherwise would be incompetent, must be called in the interest of and by the person representing the right of the deceased party to the contract or thing in action. The calling of such a witness by the adversary is not within the contemplation of the Act of June 11, 1891, P. L. 287.
    2. On a scire facias sur mortgage where the mortgagee is dead at the time of the trial, and it appears that the mortgage was given by the mortgagor as security for the debt of her brother to the mortgagee, the brother is a witness with an adverse interest, inasmuch as he will be liable over to the mortgagor if a judgment goes against her on the scire facias; and he is not made a competent witness by the fact that the mortgagor calls as a witness one of the use plaintiffs to whom the mortgage had been assigned, to testify to things happening in the lifetime of the mortgagee; nor in such a ease is the mortgagor competent to testify that she was induced to sign the mortgage by representations made by the attorney of the mortgagee that the brother’s property would be ample to pay his indebtedness. Even if she were competent such evidence would be irrelevant and immaterial. '

      Argued April 9, 1912.
    Appeal, No. 294, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1900, No. 408, on verdict for plaintiff in case of Robert E. Patterson to the use of Mary H. Elmer, Roberta Patterson and Frank E. Patterson v. Caroline A. Hughes.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Fuller, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict by direction of the court for $10,180 on which judgment was subsequently entered for $5,832.88. Defendant appealed.

      Errors assigned, were the rejection of Cyrus Houghton and the defendant as witnesses.

      James L. Lenahan, with him D. O. Coughlin, for appellant.
    Where the principal seeks to enforce a contract made by his agent he is bound by the representations made by the agent at the execution of the contract though in making them the agent exceeded his authority: Providence Steam Engine Co. v. Lochiel Iron Co., 2 Pears. 178; Keough v. Leslie, 92 Pa. 424; McNeile v. Cridland, 168 Pa. 16; Meyerhoff v. Daniels, 173 Pa. 555; Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165; Cloud v. Markle, 186 Pa. 614; Schweyer v. Walbert, 190 Pa. 334; Griswold v. Gebbie, 126 Pa. 353; Posten Transfer Co. v. Fisher, 12 Luz. Leg. Reg. 113; Rheinstrom v. Brewing Co., 28 Pa. Superior Ct. 519.
    We contend that Cyrus Houghton was a competent witness. The court refused to receive his testimony for the reason that he might be liable over to the defendant and that he was therefore an interested party.
    Even though he were liable over, it was not such an interest as would qualify him: Spott’s Est., 156 Pa, 281; McMurray’s App., 101 Pa. 421.

      April 29, 1912:

      W. 8. McLean, Jr., and W. 8. McLean, for appellees,
    cited: Cake v. Cake, 162 Pa. 584.
   Opinion by

Mr. Justice Moschzisker,

In 1898 C. H. Hougbton was indebted to General Robert E. Patterson upon six mortgages in tbe aggregate sum of $37,000, with interest. In March of that year tbe defendant gave tbe mortgage in suit for $6,000 to General Patterson. Tbe defendant contended that this mortgage was given as collateral security for tbe debt covered by tbe six prior mortgages, while tbe plaintiffs contended that it was given in payment of tbe accrued interest on those mortgages. This action was brought in July, 1900, upon a praecipe averring default in tbe payment of interest. In April, 1906, tbe mortgage in suit was assigned by General Patterson to tbe present use plaintiffs, and in tbe following July General Patterson died.

Upon tbe trial, after proving tbe mortgage and assignment, tbe plaintiffs called Frank E. Patterson, one of their number, to prove tbe default; be testified in substance that be was tbe agent for tbe mortgagee, that interest bad been paid on tbe mortgage up to September, 1899, and that no interest bad been paid thereafter. This constituted tbe plaintiffs’ case. Tbe defendant then called tbe same witness for cross-examination, and when so testifying be stated, inter alia, that the mortgage in suit was not given as collateral but in payment of accrued interest on the debt of Hougbton, and that it bad never been extinguished or paid off by tbe latter or any one else.

Tbe defendant then called Hougbton to tbe stand and offered to prove that be bad not received all tbe moneys covered by tbe six original mortgages executed by him, that tbe mortgage in suit was given as collateral security for tbe loans to him, and that be bad subsequently settled and paid bis loans in full and that ¡•¡ucb settlement included the “wiping out” of tbe present mortgage. The refusal of this testimony is covered by the first three assignments of error.

The defendant argues that if Houghton be viewed as a witness with an adverse interest, then in view of the testimony given by Frank E. Patterson on cross-examination the former’s evidence was competent under the Act of June 11, 1891, P. L. 287. This, however, cannot be sustained, for in Cake v. Cake, 162 Pa. 584, we ruled that a living witness whose testimony is to make competent evidence which otherwise would be incompetent, must be called in the interest of and by the person representing the right of the deceased party to the contract or thing in action, and that the calling of such a witness by the adversary was not within the contemplation of the act. But the defendant urges that the witness was not one with an adverse interest. In passing on this latter contention we must view the offer ruled upon as it was made; thus accepting it, the witness had a material interest in the result of the suit, an interest that the judgment in the case would operate upon, for an essential part of the offer was to show that the mortgage in suit was given as collateral security for the payment of money due by the witness to the deceased mortgagee; if that were true, then a judgment in favor of the plaintiffs could be offered in evidence in a subsequent suit by the present defendant against the witness to recover from him as principal money which the former would be obliged to pay as surety. When we bear in mind that a part of the offer was to show that the original debt covered by the alleged collateral had been paid in full, an excerpt from the opinion in Marshall v. Franklin Bank, 25 Pa. 384, is particularly appropriate in connection with the rulings complained of in the present case; there Mr. Justice Knox says, “It is conceded that John Marshall, who took defense to the scire facias was a surety, and that George A. Creacraft the person whose deposition was offered and rejected, was one of the principal debtors. The defense was, substantially, that the judgment had been paid, and it was to prove payment that the principal debtor was offered as a witness. Upon the failure of this defense, the principal was, doubtless liable to the surety .... and this----disqualifies him from testifying on the ground of interest.” As we said of certain witnesses in Espy v. Allison, 9 Watts 462, 465, “It cannot be considered that their liability or interest was the same, whether the plaintiff succeeded in this action or not, .... We therefore think they were not competent witnesses” ; and so it was here. The first three assignments are overruled.

The fourth assignment complains of the refusal of an offer to show by the defendant, that when the mortgage in suit was presented to her for execution she objected to the amount and said that she would only give one for $5,000 as collateral security for Houghton’s indebtedness in case his property should be insufficient, and that the attorney for the mortgagee (one Reader, who was not called by either side as a witness) replied that the amount would make no difference because Houghton’s property was amply sufficient to pay his mortgages and she would never have to pay anything. This was objected to upon the ground that the witness was incompetent to testify to such matters occurring prior to the death of the mortgagee. While disposing of this assignment we cannot do better than adopt the language of the learned court below in dealing with this branch of the case: “We think that the ruling was clearly correct not only on the ground of the defendant’s incompetency but also on the ground......that the testimony if admitted would have been entirely irrelevant. Competency of the witness could only be predicated upon the Act of June 11, 1891, P. L. 287, made operative by the testimony of Frank E. Patterson, but the latter’s testimony in chief pertained only to payment of interest, his testimony when called as for cross-examination did not open the door according to the construction of that act by the decisions (inter alia Cake v. Cake, 162 Pa. 584), the matter embraced in the offer did not occur between him and the defendant, nor in his presence or hearing (see language of the act), and, finally, the matter was irrelevant because her liability on the mortgage would not be effected by its admission in evidence.” The assignment is overruled.

Since the fifth assignment was not referred to at bar and is not covered in the printed argument, it is dismissed as abandoned.

The judgment of the court below is affirmed..


text:
    Patterson, Appellant, v. Hughes
    (No 2)

      Mortgage — Payment — Interest—Practice.
    1. On a scire facias sur mortgage it appeared that the mortgago amounting to $6,000 was given by the mortgagor as collateral security for the payment of accrued interest on six mortgages which the mortgagor’s brother had executed to the mortgagee. The accrued interest was $5,400, and it did not appear why the mortgage was given for $6,000. In a settlement in full between the brother and the mortgagee, one of the six mortgages, the amount of which was $5,000 was repudiated by the brother, and such repudiation was accepted, and settlement made accordingly. On this mortgage there was $2,100 interest, which the defendant contended was wrongfully included in the claim against her, and the evidence sustained her contention. Held, that the sum of $2,100 which had been included in the verdict rendered at the trial, was properly deducted when judgment was entered for the plaintiff on the verdict.
    2. In such a case the practice of directing a verdict for plaintiff for the whole amount and adjusting the credit on a motion for judgment non obstante veredicto, is not good practice, although approved by the parties, and is not to be taken as precedent.
    Argued April 9, 1912.
    Appeal, No. 88, Jan. T., 1912, by plaintiffs, from judgment of C. P. Luzerne Co., Oct T., 1900, No. 408, in verdict for plaintiff in case of Robert E. Patterson to the use of Mary H. Elmer, Robert Patterson and Prank E. Patterson v. Caroline A. Hughes, now intermarried with William C. Sponsler.
    April 29, 1912:
    Before Pell, C. J., Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Fuller, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in deducting from the verdict the sum of $2,100 with interest thereon.

      W. 8. McLean and W. 8. McLean, Jr., for appellants.
    No printed brief for appellee.
   Opinion by

Mr. Justice Moschzisker,

This is an appeal by the plaintiff in the same case in which we have just disposed of the appeal of the defendant. As there recited, in 1898, C. H. Houghton was indebted to General Robert E. Patterson upon six mortgages in the aggregate sum of $37,000 with interest. In March of that year the defendant gave her mortgage to General Patterson in the sum of $6,000 to cover accrued interest on these other mortgages. After-wards Houghton paid off his mortgages, and in the settlement then had he claimed that no consideration had been given for one of them, amounting to $5,000; whereupon this mortgage with the interest chargeable thereto was remitted, and Houghton was allowed a credit accordingly. The present action was upon the $6,000 mortgage given by the defendant, and on trial it was contended by her that $2,100 interest remitted in the settlement of the $5,000 mortgage was wrongfully included in the mortgage in suit. On the other side it was contended that only $600 remitted interest was embraced in the present mortgage. It was admitted by the plaintiffs that, although the defendant’s mortgage was given for $6,000, only $5,400 of the interest was actually due by Houghton at that date; but it was contended that, since Houghton had been given credit for the full $6,000 in the account kept between himself and General Patterson, they were entitled to recover the face of the mortgage. The court below gave binding instructions to find for the plaintiffs in the full amount claimed, stating that, in disposing of the motion for judgment non obstante veredicto, it would pass upon and determine the deduction to which the defendant was entitled.

Subsequently the court below entered the following order: “We adjudge that credit should be given now, non obstante veredicto; that the original principal be deemed $5,400, as of March 7th, 1898, with payments thereon of $180. March 2nd, 1898, $180. September 23rd, 1899, and $2,100. November 2nd, 1899, leaving balance unpaid as of May 17th, 1910, the date of verdict, $5,682.88, to which should be added $150 for attorney’s commission, making total $5,832.88; that the verdict be reduced accordingly, and judgment be entered thereon in favor of the plaintiffs and against the defendant in the sum of fifty-eight hundred thirty-two dollars and eighty-eight cents ($5,832.88) with interest from May 17th, 1910. The motion for judgment non obstante veredicto is allowed pro tanto and denied to any greater extent.”

Neither the appellant nor appellee raise any objection to the practice pursued by the court below in thus reducing the judgment; both desire that we shall dispose of the substantial question raised by the assignments of error, viz, on the merits as shown by the uncontradicted testimony, was the defendant entitled to any deductions, and if so, what? The opinion of the learned court below states: “The testimony of Frank E. Patterson is very explicit indeed that the mortgage in suit was given for accrued interest which amounted at the time to only $5,400, and included the $2,100 which was subsequently credited. The defendant received no consideration for the mortgage herself, but simply pledged her property thereby for arrears of interest owing by her brother Houghton, and, therefore, it would be manifestly unjust to enforce the mortgage against her property for any amount in excess of those arrears actually owing as adjusted on the settlement. Why the mortgage was drawn for $6,000 instead of $5,400 is not clearly explained..... Between her and the mortgagee the mortgage was for nothing more than .....payment of back interest, drawn for some reason in excess of the true amount, but not thereby imposing upon her any liability for the excess, nor disentitling her to credit for the later deductions.” We agree with this view of the case and an examination of the printed testimony convinces us that the defendant was undoubtedly entitled to a reduction of $2,100; not $600 only, as contended by the appellant. Although the witness Frank E. Patterson stated that $1,500 was paid by Taylor (the agent of the mortgagee), through Houghton, on the $5,000 mortgage which was subsequently repudiated and remitted, In failed to say that it was so credited; in fact he states that this payment was credited on the general mortgage account, and when recalled to the stand he unequivocally said, “I understand his honor’s question to be, what was the amount of interest charged against the repudiated mortgage on March 7, the date of the Hughes mortgage (the mortgage in suit). Assuming my calculations to be correct it was just $2,100 debit against it,” and the question put by the court which brought forth this reply was stated thus, “When we know the exact amount of interest due on the 7th of March, 1898, on the mortgage which was repudiated, we know the exact amount for which she would be entitled to have credit for on the contention of the defendant in this case.”

We are satisfied that the court below reached a proper and just determination on the issues presented, and the assignments are overruled; but this is not to be taken as an approval of the practice pursued, or, in that respect, as a precedent for the future.

The judgment is affirmed.


text:
    Price v. People’s Bank, Appellant.

      Contract — Building contract — Delay — Affidavit of defense.

    In an action to recover a balance alleged to be due on a building contract, an affidavit of defense is sufficient which sets up that the building had not been completed within the contract time; that defendant was entitled to a sum stated as liquidated damages for delay as provided by the contract, and that the defendant, a bank, was prevented by the delay from beginning business and obliged to carry salaried officers whose services were nonproductive because of the lack of a building.
    Argued April 10, 1912.
    Appeal, No. 79, Jan. T., 1912, by defendant, from order of C. P. Luzerne Co., Oct. T., 1911, No. 859, making absolute rule for judgment for want of a sufficient affidavit of defense in case of S. B. Price and A. R. Cease, trading as S. B. Price & Co. v. People’s Bank of the Borough of Parsons, now doing business as The Citizens Bank of the Borough of Parsons.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    . Assumpsit on a building contract. Before Gar-man, J.
    From the record it appeared that the plaintiff claimed $1,744.53 with interest, alleged to be due on a building contract. An affidavit and a supplémental affidavit of defense were filed. The defendants did not challenge the correctness of the amount claimed, but averred non-liability because the plaintiffs had failed to comply with the provisions of the contract requiring them to furnish a bond guaranteeing to replace and repair any defects found in the building. The affidavits were filed more than a year after the date of the completion of the building; they contained a general averment that the roof leaked, due either to the construction or the materials used by the plaintiffs, but no particulars as to the number or character of the leaks or the cause thereof were set forth, and there was no averment of any attempt made to remedy the same or claim for the cost of so doing. The next defense was a claim for $675, liquidated damages for 135 days’ delay at $5 per day, because the plaintiffs had not completed the building within the required time and the defendants had thereby suffered certain losses, and in that connection an averment of the following provision contained in the contract, viz: “Sixteenth. Should this contract not be completely performed by the first day of January, 1910, as hereinbefore provided, or by such day thereafter as may be certified by the architect in consequence of an extension of time which the architect may have allowed for the performance of extra work, or by reason of fire, cyclone, strike or lockouts as hereinbefore provided, then the contractors shall pay the owners the sum of five ($5) dollars per day for each day’s delay, which amount shall be deducted out of the final payment under this contract, this amount not to be regarded as a penalty, but as liquidated damages for default.” A rule for judgment for want of a sufficient affidavit of defense was made absolute; the defendant has appealed and assigns this for error.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      G. Gomegys, with him Henry A. Gordon, for appellant,
    cited: Malone v. Phila., 147 Pa. 416; Streeper v. Williams, 48 Pa. 450; Westerman v. Means, 12 Pa. 97; Brown v. Gourley, 214 Pa. 154; Stover v. Spielman, 1 Pa. Superior Ct. 526; Bailey v. Stone Co., 44 Pitts Leg. J. 56; Hall v. Crowley, 87 Mass. 304 (81 Am. Dec. 745).
    April 29, 1912:

      James L. Lenahan, for appellee,
    cited: Perna v. McFadden, 33 Pa. Superior Ct. 76.
   Opinion by

Mr. Justice Moschzisker,

The plaintiffs sued to recover a balance due under a contract for the costruction of a bank building erected by them for the defendant corporation, and secured judgment for want of a sufficient affidavit of defense. While the first ground of defense as averred in the affidavits might have been insufficient to prevent judgment, we feel that the second was well and sufficiently averred. The plaintiffs agreed in the contract that “the building shall be completed on or before the first day of January, 1910,” and the statement of claim shows that the defendant did not take possession until May 16, 1910, and that the building was not formally accepted by the architects until July 8, 1911, without any averment of an extension of time. The affidavits of defense aver the stipulation in the contract for liquidated damages for delay, and that “the plaintiffs failed to complete the building.....on or before the first day of January, 1910, as required and agreed upon----and did not complete the same until May 16, 1910.” The facts and circumstances of noncompletion are averred with sufficient particularity to indicate that the structure was not in a fit condition for occupancy until the latter date; further, that the defendant corporation was duly organized and ready to begin business as a bank and that during the period of the delay it was prevented from so doing and obliged to carry salaried officers whose services were nonproductive because of the lack of a building; these averments, if true, would show the fact that the defendant had suffered losses. The damages to which the defendant is entitled, whether the delay was due to any fault on its part, whether the time for the completion of the building was extended or the stipulation for liquidated damages waived, are questions that can only be determined when all the facts are developed on trial. All we now decide is that the affidavits of defense were sufficient to prevent a summary judgment.

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


author: Mr. Justice Mosci-izisker, Mr. Justice Brown,

text:
    Minsinger v. Rau, Appellant.

      Constitutional law — Republican form, of government — Taxation • — Representation — Classification of school districts — Title of act— School law — Act of May 18,1911, P. L. 809.

      1. Where an act has been the product of the deliberate thought of a commission of prominent citizens of the Commonwealth who have worked upon it for several years, and has been passed by two legislatures after prolonged consideration before final approval by the governor, the appellate court will not set it aside as unconstitutional unless the breaches of the fundamental law are so glaring that there is no escape.
    2. The establishment, maintenance and support of a system of common schools having been imposed upon the legislative department of the government, it must employ agencies to accomplish that object and the manner of their selection is peculiarly within' its discretion. Thus the legislature may provide that school directors shall be appointed by the judges, and that when so appointed they may levy taxes for the support of the common schools. When the legislature provides such a system of taxation to be enforced by its agents thus selected, it is a direct assertion and not a delegation of power.
    3. The Act of May 18, 1911, P. L. 309, called the School Code does not offend against the provision of the Constitution of the United States which guarantees to every state a republican form of government, and against the principle that taxation and representation must go together.
    4. The provision in Section 524 of the Act of May 18, 1911, P. L. 309, that the taxing power in districts of the first class is to be exercised by nonelective boards is more apparent than real, inasmuch as the legislature itself has practically fixed the tax levy at a maximum of six mills, and simply leaves to its agents the privilege of collecting not less than five mills in any one year.
    5. The provisions of the Act of May 18, 1911, P. L. 309, dividing the state into school districts according to population, and directing that in districts of the first class the directors or board of public education shall be appointed by the courts is not an improper or unconstitutional exercise of legislative power.
    6. The courts in passing upon the validity of such an act as the School Code of May 18, 1911, P. L. 309, may determine that the act is constitutional in general without declaring minor provisions of the act unconstitutional, if the question of the constitutionality of such minor provisions is not raised directly in the ease under consideration.
    7. The Act of May 18, 1911, P. L. 309, does not violate Art. Ill, See. 3, of the Constitution of Pennsylvania as being defective in title; nor in the provisions requiring the judges of the Common Pleas to appoint the school directors in districts of the first class, does it violate Sec. 26, of Article V, of the Constitution, which ordains that all laws relating to courts shall be general and of uniform operation.
    Brown, Mestrezat and Stewart, JJ., dissent.
    Argued Jan. 8, 1912.
    Appeal, No. 12, Oct. T., 1912, by defendants, from decree of O. P. No. 3, Allegheny Co., Aug. T., 1911, No. 222, awarding injunction in case of Jacob Minsinger v. Leonard Rau, et al., Constituting the Board of School Directors of Mt. Washington Sub-School District.
    Before Pell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The case turned upon the constitutionality of the Act of May 18, 1911, P. L. 309.
    The court overruled the demurrer filed to the bill and granted an injunction.

      Error assigned was the decree of the court.

      Andrew G. Smith and Wm. 3. Dodds, with them Oliver K. Eaton and Saul Schein, for appellant.
    It is submitted that in substituting a judge-appointed school board for an elective body, the legislature has abolished “Republican Form of Government,” and has “abridged the privileges or immunities of citizens of the United States.” Furthermore, the method of taxation is not “due process of law”: Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. Repr. 1064); Hagar v. Reclamation Dist. 108, 111 U. S. 701 (4 Sup. Ct. Repr. 663); Murray v. Hoboken Land & Imp. Co., 59 U. S. 272; Davidson v. New Orleans, 96 U. S. 97.
    The School Code offends against provisions in the State Constitution relating to Classification, Special legislation, Title of the Act, and in several other respects: Com. v. Mathues, 210 Pa. 372; Beaver County Indexes, 6 Pa. C. C. R. 525.
    The general assembly is created a department with the sovereign power of taxation, and there is no express provision authorizing a delegation of that power. Whoever asserts competency to delegates assumes the burden of showing constitutional authority clearly implied: Schultes v. Eberly, 82 Ala. 242 ( 2 So. Repr. 345).
    Where the board authorized to levy the tax is appointed and not elected, it is not under the control of the people of its district and such taxation is without the people’s consent, and therefore such a delegation of the power to tax is not within the reason of the rule permitting the legislature, by implication, the right to delegate the power to tax: State v. Ashbrook, 154 Mo. 375 (55 S. W. Repr. 627); O’Neil v. Ins. Co., 166 Pa. 72; Parks v. Wyandotte County Com’rs, 61 Fed. Repr. 436.

      W. B. Rodgers, for appellee.
    The establishment, maintenance and support of a system of common schools having been imposed upon the legislature it follows that it must employ agencies for the accomplishment of the object. The manner of the choice or appointment of the agents is peculiarly within the judgment of the legislature because the school system is a charity of the State and large sums of the moneys of the State are annually required to be appropriated to the schools: Speight v. People, 87 Ill. 595; Wharton v. School Directors, 42 Pa. 358; Philadelphia v. Fox, 64 Pa. 169; Com. v. Moir, 199 Pa. 534; Perkins v. Slack, 86 Pa. 270.
    May 6, 1912:
    There is no question as to the power of the legislature to require the judges of the Common Pleas to make the appointment: Commonwealth v. Collier, 213 Pa. 138; Sharpless v. Phila., 21 Pa. 147; Penna. R. R. Co. v. Pittsburgh, 104 Pa. 522; Durach’s App., 62 Pa. 491; Jermyn v. Scranton, 186 Pa. 595.
    So far as taxation is concerned and the powers of the directors, under the law, there is no difference between school districts and other municipal corporations. Both are agencies of the State to accomplish public purposes and created to do so. As respects both the power of taxation is granted by the legislature: Mellor v. Pittsburgh, 201 Pa. 397; Wharton v. School Directors, 42 Pa. 358.
    It is too late to raise any question as to classification: Sugar Notch Borough, 192 Pa. 349.
   Opinion by

Mr. Justice Mosci-izisker,

The plaintiff averred in his bill, filed June 3, 1911, that he was a citizen and resident of Allegheny county; that the defendants were directors of Mt. Washington Sub-School District, Pittsburgh, in which he owned real estate and paid taxes; that these defendants (elected under the old law) were about to expend $6,500 in the purchase of a site for a new school building; that they were expressly prohibited from so doing by the recent School Code; and prayed for an injunction. The defendants demurred upon several grounds all of which attacked the constitutionality of the act in question. The demurrer was overruled and the injunction granted; this is assigned for error.

The Act of May 18, 1911, P. L. 309, called the School Code, was the product of the deliberate thought of a commission of prominent citizens of the Commonwealth who worked upon the statute for several years; after prolonged consideration it passed two legislatures before final approval by the governor, and we are now asked to set it aside as unconstitutional. This we should not and cannot do unless the alleged breaches of the fundamental law are so glaring that there is no escape: Gottschall v. Campbell, 234 Pa. 347, and cases there cited. The constitution requires the legislature to provide and support a thorough and efficient system of schools for the education of the children of the Commonwealth, and this is what was undertaken by the code. The act divides the State into four classes of school districts and provides that in districts of the first class the directors or board of public education shall be appointed by the courts. The appellants broadly contend that this offends against the Constitution of the United States, which guarantees to every State a republican form of government, and against the principle that taxation and representation must go together, and more particularly they attack the attempted classification as illegal.

The establishment, maintenance and support of a system of common schools having been imposed upon the legislative department of the government, it must employ agencies to accomplish that object, and the manner of their selection is peculiarly within its discretion. The school district is but an agency of the Commonwealth, and there is no inherent right in the electors of any particular locality to vote for directors; subject to constitutional restrictions the State may provide any method for the selection of its agents it may see fit, and the methods employed need not be alike in all instances. The Commonwealth has the power to designate its agencies in connection with school taxes, and the school districts are the agents in this respect When the legislature provided a system of taxation for the maintenance of public schools to be enforced by its selected agents, it was a direct assertion and not a delegation of power. “The legislature may provide agencies through whom to exercise the power of taxation, ......Accordingly, from the beginning of our government, the legislature have divided the State into counties, townships, school districts, boroughs and cities, and have provided for the appointment or election of certain tax officers......This has been not so much a delegation of the power of taxation......as an exercise of it through and by means of chosen agencies ...... The constitution and habits of the body (the general assembly) unfit them for applying rules which it is their province to prescribe. They are obliged to act through chosen agencies when providing for the revenues of the State. State taxes ......, common schools and all state objects, have to be entrusted to agents, though the power that controls them resides in the legislature”; Sharpless v. Philadelphia, 21 Pa. 147, 181; also see Com. v. Moir, 199 Pa. 534, 542; Phila. v. Fox, 64 Pa. 169, 183; Erie School District v. Fuess, 98 Pa. 600; Ford v. Kendall Borough School District, 121 Pa. 543; Knisely v. Cotterel, 196 Pa. 614. The objection that under the School Code the taxing power in districts of the first class is to be exercised by nonelective boards, is more apparent than real. Section 524 of the act provides: “The total annual school tax levy, made in any one year by any school district of the first class, shall not be less than five nor more than six mills on the dollar of the total assessment of all property assessed and certified for taxation therein.” Practically the legislature itself has fixed the tax levy at a maximum of six mills and simply leaves to its agents the privilege of collecting not less than five mills in any one year; this cannot properly be objected to as unrepublican or as an unlawful delegation of legislative power to an unrepresentative body.

The power to classify school districts is not an open question in Pennsylvania (Sugar Notch Boro., 192 Pa. 349; Com. v. Gilligan, 195 Pa. 504; Com. v. Guthrie, 203 Pa. 209), and no court should set up its idea of the necessity for or the reasonableness of a scheme of classification against the will of the people expressed through the legislature, unless it is clear that the latter has gone beyond constitutional limits in defining the classification objected to. The Act of 1911 establishes school districts based upon population, and this is the method of classification long recognized in the law of our State. Such classification has been supported when applied to cities, counties and townships, and we can conceive of no reason why it should not be sustained when applied to school districts. In Sugar Notch Boro., supra p. 357, we said, “There is no constitutional objection to the classification of school districts any more than of cities. Both are included in the same clause of the constitution prohibitory of local and special legislation, and there is no argument against classification of one that is not equally forcible against the other....... Classification may become as necessary for school districts as for cities. The needs and capabilities of school districts may differ as substantially, if not as widely as those of cities. They differ in the number and authority of the school officers, the extent and mode of assessing and collecting school taxes, etc. It would be a most unfortunate clog on the improvement of our school system if Philadelphia, Pittsburgh, Allegheny and other cities could not have their high schools.... or even their kindergartens, without the necessity of imposing the expense of a similar establishment on every borough and sparsely populated township in the State”; and in Com. v. Gilligan, supra p. 511, “Recognizing that a large population compressed into a small territory may have the same necessity for a somewhat differently constituted board of government for the business affairs of its schools, that it has for its strictly municipal affairs, it (the act under consideration) provides a special system for districts so specially situated. This is the legitimate office of classification, and therefore is not local or special within the prohibition of the constitution.......Whether the variations as to the boards of direction or control are wise is a legislative not a judicial question.” Also see Com. v. Guthrie, 203 Pa. 209, and Erie School District v. Smith, 195 Pa. 515. Since in enacting the code the legislature founded the distinction in school districts upon population, the standard repeatedly approved by this court, it would be an unwarranted exercise of power to set aside the classification or declare the act unconstitutional by reason thereof. The cases already cited show that we have been most liberal in our view concerning the right to classify school districts, and this certainly is not an occasion when we should depart from that attitude. As the statute is drawn, to set aside the classification would destroy the structure of the act and require us to declare it void as a whole. We must assume that the distinction in districts was deemed essential to the school system intended to be developed by the code, and there is no evidence contained in the act which justifies a judicial finding that the classification was adopted for other than legitimate purposes; every classification, ex necessitate, recognizes the requirement for differences in legislation; hence, none can be condemned by merely pointing to such differences. It may be that some of the details of the present act will prove invalid, for it would be difficult to draw such an elaborate piece of legislation and avoid this possibility, but none has been called to our attention the striking down of which would disturb the scheme of classification or nullify the statute. In Stevenson v. Henderson, 234 Pa. 478, the only ease thus far decided under the School Code, we sustained the validity of a levy of the occupation tax therein provided for, against the contention that it was invalid because of undue classification. We conclude that the objection to the classification is not well taken.

In the case at bar the only matters directly involved are the powers of and the limitations upon school authorities in districts of the first class to raise money and contract for the erection of school houses, and we shall not undertake to pass upon the constitutionality or construe all the various sections of this statute; that can be done from time to time as cases arise thereunder involving the validity of its different provisions. Here we are concerned with the general question of the validity of the code and with the particular provisions that relate to the facts of the case at bar, and it is not necessary nor would it be wise to determine unrelated questions. We have given heed not only to the principal reasons urged by the appellants against the act, but so far as they might affect its general validity we have considered all the minor grounds of attack; although Section 2819, relating to the kind of stone which shall be used in the erection of school houses in districts of the first class, etc., may well be condemned as local legislation because it covers matters in no conceivable way peculiar to such districts as distinguished from other districts, and while it with other sections and provisions may be justifiably open to criticism on this and other grounds, we are not called upon to decide any of these questions at the present time. In the words of our Brother Potter, in Gottschall v. Campbell, supra, “This feature, together with several other matters of detail to which reference has been made in the argument, is not essentially involved in the main purpose of the statute. Any such questions are of minor importance, and if they arise in the future course of business in the court, they can be more fully presented and argued in detail, and the precise questions involved can be more fully considered than at the present time.” Speight v. People, 87 Ill. 595, is strong in support of the views here taken, both as to classification and taxation; but the citation of decisions from the courts of other states where the constitutions and conditions are different, is of little or no avail in a case like this.

In addition to the grounds of attack already referred to, the appellants raise the usual objection of insufficiency of title. A title need not be an index; it must not be misleading, but if it fairly gives notice of the subject and substance of an act, it is sufficient. A short general comprehensive title is more desirable than a long one which attempts to point out all the details of a statute. If there are provisions not covered by the title, they do not affect the validity of the act as a whole unless they are vital in character and it is apparent that without them the lawmakers would not have enacted the legislation; we are not convinced that any of the matters called to our attention by the appellant can be thus classed. The code is entitled, “An act to establish a public school system, etc.”; this is a most comprehensive expression, not restricted to or conveying the idea of a mere codification of existing laws, and thereunder the general assembly has, in accordance with the constitutional mandate, provided for the maintenance and support of a thorough and efficient system of public schools.

The appellants also contend that Section 202 of the act, requiring the judges of the Common Pleas to appoint the school directors in districts of the first class, is a violation of Section 26, of Article Y, of the Constitution, which ordains that all laws relating to courts shall be general and of uniform operation. Time out of mind nonjudicial administrative duties have been put upon the judges of the Court of Common Pleas, particularly in the appointment of bodies to be used as public agencies, and the power of the legislature to do this was sustained in Com. v. Collier, 213 Pa. 138. We have never- considered such legislation to be within the constitutional restrictions relied upon by the appellant; a-s said by our Brother Brown, in Com. v. Collier, supra, “It is to be presumed that the people, with the knowledge that for years before they adopted the present constitution judges of the Common Pleas had been directed by acts of assembly to appoint mercantile appraisers, boards of revision of taxes, and other officers, ...... left the judges ...... to continue to appoint when directed to do so by the legislature.” Also see Knisely v. Cotterall, supra. For half a century or longer the judges of Philadelphia have appointed the members of the board of education and the board of revision of taxes; and in Blankenburg v. Black, 200 Pa. 629, an act to make the latter board elective was declared unconstitutional.

We have attempted to touch upon and dispose of all the points urged by the appellants which are directly involved in the case or which go to the validity of the code as a whole; but, as already indicated, we are not persuaded that any of them is of a nature which requires us to set aside the statute as unconstitutional legislation. Under the provisions of the Act of 1911 (Sec. 209), the defendants were to serve in office until the organization of their successors in November, 1911 (Sec. 202),' but they are expressly forbidden to contract for any new property (Sec. 2811), that power being reserved to the directors to be selected in accordance with the code; therefore, the learned court below committed no error in granting the injunction prayed for.

The assignments are overruled and the decree of the court below is affirmed at the cost of the appellants.

Dissenting Opinion by

Mr. Justice Brown,

May 6, 1912:

Though the Constitution has imposed upon the legislature the duty of providing for the maintenance and support of a thorough and efficient system of public schools, and this duty must be discharged, the legislature may not, in discharging it, disregard constitutional prohibitions. What the Constitution forbids the legislature to do, it dare not do, even in providing for the maintenance and support of a thorough and efficient system of public schools, and the “Commission of prominent citizens of the Commonwealth” who framed the School Code of 1911 ought to have understood this and been able to draft an act free from flagrant disregard of the supreme law of the State.

The demurrer to the bill filed in the court below sets forth a number of reasons why the Act of 1911 should be declared unconstitutional, but a consideration of only two of. them will suffice to show that the demurrer ought to have been sustained. The act divides the school districts of the State into four classes, as follows: Each school district having a population of five hundred thousand (500,000), or more, shall be a school district of the first class; each school district having a population of thirty thousand (30,000), or more, but of less than five hundred thousand (500,000) shall be a school district of the second class; each school district having a population of five thousand (5,000), or more, but of less than thirty thousand (30,000), shall be a school district of the third class; each school district having a population of less than five thousand (5,000) shall be a school district of the fourth class.

Classification of school districts is not forbidden by the Constitution: Sugar Notch Borough, 192 Pa. 349; Com. v. Gilligan, 195 Pa. 504; Com. v. Guthrie, 202 Pa. 209; and if the complaint of the appellants were only as to the classification of the school districts of the State, they could not be heard. But heed surely ought to be given to their contention that, under the guise of a general classification of the districts, the Act of 1911 produces, and was passed for the undoubted purpose of producing, local and special results. It constitutes the cities of Philadelphia and Pittsburgh districts of the first class; it makes the directors in. those districts appointive; it provides that districts of the second, third and fourth classes shall collect an occupation tax on all male citizens over twenty-one years of age of at least $1.00; it provides that in districts of the first class certain workmen only may be employed on school buildings, and attempts to regulate the wages which shall be paid to them; it prohibits directors in districts of the first class from using cut stone in school buildings unless the same shall be prepared in the district; and it gives to the electors outside the districts of the first class the right to elect school directors, but denies this franchise to the citizens of the school districts of the first class. The legislature has, in effect, said to the people of Philadelphia and Pittsburgh that while citizens in other districts of the state may be trusted to manage their school affairs, they cannot be so trusted. It is difficult to conceive of legislation more local and special in its character, making this uncalled-for distinction between the citizens of the two leading municipalities of the State and those of all other localities. “It is not only local and special, but odious in its discrimination”: Davis v. Clark, 106 Pa. 377. In McCarthy v. Commonwealth, 110 Pa. 243, this court had before it an act of assembly which directed that the fees belonging to county officers in counties the population of which exceeded one hundred thousand, but was less than one hundred and fifty thousand, should be turned over to the county treasurer, and the officers compensated by salaries, and, in holding that the act offended against the Constitution, we said, through Mr. Justice Gordon, “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 tbe case of cities, under the Act of May 23, 1874, P. L. 230 ......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.”

While school districts may be constitutionally classified — and their classification must also of necessity involve different conditions in the different classes — there cannot be a classification which is manifestly intended to have as its real purpose special legislation for certain districts. Classification based upon actual necessity is one thing; but when it is apparent that, under the plea of necessity, the ulterior object of the legislature is special legislation for certain .districts, the attempted classification is but a mere subterfuge to evade the Constitution; and courts will look at the substance and not the sum of legislation in determining whether a statute is local or special, repugnant to the fundamental law, though disguised as a general act: Sample v. Pittsburgh, 212 Pa. 533. If local results either are or may be produced by an act of assembly, it offends against the Constitution and is void: Scranton. School District’s Appeal, 113 Pa. 176. “The underlying principle of all the cases is that classification, with the view of legislating for either class separately, is essentially unconstitutional, unless a necessity therefor exists, — a •necessity springing from manifest peculiarities clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others”: Ayars’ Appeal, 122 Pa. 266. In the light of these unavoidable utterances by this court, and of many more like them, I confess my utter inability to follow any process of reasoning that attempts to sustain the Act of 1911. What was said by Mr. Justice Paxson in Scowden’s Appeal, 96 Pa. 422, may well be repeated here: “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.” When the act was passed, Philadelphia and Pittsburgh were the only two cities which could have become, under it, school districts of the first class, and how can it possibly be doubted that the legislature intended to legislate specially for them when it provided, inter alia, that the people in those two cities should not vote for school directors; that the directors in those districts should be limited, in building and furnishing schoolhouses, to the employment of certain kinds of labor at certain rates, which they had no voice in establishing; that no cut stone could be used in the erection of a school building in a district of the first class, unless prepared in a stone yard in the district; that in all other parts of the state voters could choose their school directors; that the directors in other districts could build schoolhouses out of any material they might see fit to use, without regard to where it came from, and that the male citizens in all classes of districts except the first should be compelled to pay at least $1.00 of an occupation tax, from which the male citizens of the first class districts were exempt. No conceivable ground of necessity justified these startling discriminations, which must be read as local or special legislation, intended as such, and, therefore, coming within the clear prohibition of the constitution, unless there is to be expunged from it that clause which declares that the general assembly shall not pass any local or special law “regulating the management of public schools, the building or repairing of schoolhouses, and the raising of money for such purposes.” The majority of the court concede that some of the provisions of the Act of 1911, relating to school districts of the first class, “may well be condemned as local legislation,”' because they cover matters “in no conceivable way peculiar to sucb districts as distinguished from other districts.” What is there so peculiar to the cities of Philadelphia and Pittsburgh that their people ought not to have the same right that is given to the people in all other parts of the state — to elect their own school directors?

The people of the State have vested the taxing power absolutely in the legislature, and it cannot delegate that power wholly or in part to either of the other departments of government, to any individual or to any board or commission. Delegatus non potest delegare. An exception to this rule — more apparent than real, however — is the power which the legislature may give to municipal authorities to assess and collect taxes for local purposes: Durach’s Appeal, 62 Pa. 491; Pennsylvania Railroad Company v. Pittsburgh, 104 Pa. 522. “There is an exception to the rule that the legislature cannot delegate the power of taxation, which has already been referred to. It is an exception as old as the rule itself; has its origin in the same causes; and is justified by the same governmental reasons. The local municipalities are, viewed in one aspect, the agents of the state for the purposes of local government; viewed in another aspect they are the local legislature, directly representative of and responsible to the people of their respective territories. The principle that taxation can only be by consent of the people to be taxed, acting through their representatives authorizes taxation by local authorities for local purposes, and discountenances interference in such matters by the representatives of other portions of the State. Long settled usage confirms this reasoning; and it is a firmly established doctrine that the power of local taxation for local purposes may be exercised by municipalities. In authorizing the local governmental bodies to exercise the power, the legislature may be regarded in theory, not really as delegating the power (for it is a power which belongs to the locality rather than to the government at large) but as laying down a general rule for the exercise, by the municipalities, of the power which belongs to them”: Gray, Limitations of Taxing Power, 281. “There is, nevertheless, one clearly defined exception to the rule, that the legislature shall not delegate any portion of its authority. The exception, however, is strictly in harmony with the general features of our political system, and it rests upon an implication of popular assent, which is conclusive. The exception relates to the case of municipal corporations”: Cooley on Tax., (2d Ed.), 63. Such corporations are considered parts of the machinery of the government, governmental agencies, necessary and most effective to manage the local affairs of the people residing in the designated locality, and, by custom immemorial, a portion of the political powers of the State has been delegated to them, to be exercised in local administration. But school directors are not municipal officers. They are not invested with any of the municipal powers, nor are they charged with the performance of municipal functions: Chalfant v. Edwards, 173 Pa. 246; Dillon Municipal Corporation, Sec. 25; Heller v. Stremmel, 52 Mo. 309.

While the legislature may authorize municipal authorities to levy taxes for local purposes, because municipalities are but the agents of the State, and their authorities are elected directly by the people from whom the taxes are to be collected, the Act of 1911 goes far beyond this. In school districts of the first class school directors are not to be elected by the people. They are not even to be appointed by the legislature, but are to be appointees of the judges of the courts of common pleas, who, strictly speaking, are not the representatives of the people. They represent only the law, chosen for that purpose at long intervals. In these appointees of an intervening branch of the State government the legislature has undertaken to vest the power of taxation. The people who are to be taxed will have no voice in the selection of those who are to tax them. The scheme is one of bald taxation without representation and strikes at the very root of a republican form of government, for taxes are a grant of the people, and the grant must be made by their immediate representatives. The people are not to be taxed except by their own consent or that of officers truly representing them: Keasy v. Bricker, 60 Pa. 9. “From the very dawn of our liberties the principle most unquestionable of all has been this: that the people shall vote the taxes they are to pay, or be permitted to choose representatives for the purpose.” Cooley, J., in Detroit Board of Park Commissioners v. Detroit, 28 Mich. 228. “Self taxation, or taxation by officers chosen by or answerable to those directly interested in the district to be taxed, is inseparable from that protection of the right of property that is either expressly or impliedly guaranteed by all written constitutions, under our system of government. Of all the powers of government the one most liable to abuse is the power of taxation. If placed in hands irresponsible to the people of the district to be taxed, its abuse is a mere question of time”: Parks v. Wyandotte County Board of Com’s, 61 Fed. Repr. 436.

In Schultes v. Eberly, 82 Ala. 242, the question before the court was the constitutionality of an act of the legislature investing trustees appointed by the act, eo nomine, and their successors, to be appointed by the state superintendent of education, with the power to levy taxes for school purposes, and, in holding that the act could not be upheld, it was said: “It is useless to waste discussion to show that the ‘Cullman school district’ is not a municipal corporation. Speaking of such districts as corporate bodies, Judge Dillon says: ‘Considered with respect to the limited number of their corporate powers, the bodies above named rank low down in the scale or grade of corporate existence; and hence have been frequently termed quasi corporations. This designation distinguishes them, on the one hand, from corporations aggregate, and on the other, from municipal corporations proper, such as cities or towns acting under charters, or incorporating statutes, and which are invested with more functions and a larger amount of corporate life.’ 1 Dillon Munc. Corp., Sec. 25; Heller v. Stremmel, 52 Mo. 309. The people have no voice in the selection of the trustees, nor in the management and control of the public schools, the building of school houses, or any of the local affairs of the district. The first trustees are appointed eo nomine, in the act, and their successors by the state superintendent of education. They are clothed with all the executive powers pertaining to the purposes of the corporation, and are vested with the highest attribute of legislative power, to levy and collect a tax. Exclusive of the trustees, the corporation has no function; it does not possess what has been said to be the distinguishing feature of a municipal corporation proper, the power of local government in a corporate capacity; and the cardinal principle of self-taxation is ignored. It has no features in harmony with our system of republican government. However earnest may be the interest in popular education, and however great may be the desire to contribute to its spread and advancement, we cannot afford, in order to accomplish an end so benevolent and beneficial to break down the constitutional safeguards of property, which the sovereign people have ordained for their protection. If the authority of the legislature to delegate the power to tax to the trustees of this district is upheld, the constitutional limitations upon the power of the general assembly, counties and municipal corporations, are vain and delusive. Similar corporations, to an indefinite number, may be created, covering the entire territorial area and population of the state — subordinate agencies despotic sub modo, being governed by trustees of legislative appointment with power to impose a tax on the people, to whom they are under no official accountability, who have clothed them with no authority, and who are appointed without the consent of those who are to pay the tax, directly or indirectly expressed. If this can be done for educational purposes, it may be done for any other public purpose. Such legislation, first induced by a patriotic desire to secure the great desideratum of popular education, calculated to lull vigilance, may become misgovernment, subversive of the fundamental and distinguishing principles of republican institutions.” In the comparatively recent case of Vallelly, et al., v. Board of Park Commissioners (Supreme Court North Dakota), 111 N. W. Repr. 615, an act of the legislature authorized a board appointed by the city council, without the consent of the people, to levy general taxes. In declaring it unconstitutional, the court said in part: “It has become a well-recognized principle of constitutional law that local boards and councils elected by the people are bodies to which the power to tax may be delegated. This is so upon the principle that the legislative power to levy taxes rests with the people; and, so long as the people have a voice in the selection of bodies to which the power to tax is delegated, the constitutional restriction is not violated. The power of the legislature to delegate the authority to levy taxes is generally held to be limited to boards or councils elected by the people, and is not sanctioned when delegated to those appointed, when the appointment has not been assented to by a vote of the people. This limitation is recognized under the principle that all powers of taxation are reposed in the people, and, unless the people assent by vote to the appointment or election of the taxing authorities, the law authorizing such powers of taxation to those not thus assented to is repugnant to the Constitution, and not to be upheld. The power to levy taxes is one of the most important of legislative functions. If abused, it may amount to a practical confiscation of property. A power so far-reaching should not be reposed in any one not directly responsible to the people. If appointed by the people, and abuses follow, a remedy by removal is in their hands; otherwise, redress is so remote as to be without practical results. Regardless of Section 180, of the Constitution, the delegation of the taxing power to a person or board without some assent by the people could not be sustained. The power to tax is a legislative power and cannot be delegated to boards or commissions whose appointment has not been in some way assented to by the people.”

It is no answer to the contention that the legislature has delegated the power of taxation to school directors in school districts of the first class, that it has fixed the limit of the tax: to be levied and collected in those districts. It has not, as it might have, fixed definitely the rate of taxation in those districts but has delegated to boards to be appointed by the judiciary an absolute discretion and power to tax within certain limits, and the people who are to be taxed by such boards have no voice as to what the rate of taxation shall be. While a minimum below which and a maximum above which these appointed boards cannot go have been designated in the act, the authority to fix the rate of tax between the designated limits has been delegated to the boards and can be exercised according to their arbitrary discretion. Until they determine the rate of taxation to be levied within the districts for which they are appointed, no one in those communities can determine from the Act of 1911 what the tax is or will be. Until the boards act, the rate of tax is an unknown quantity. Indeed, until they do act, there, is no tax provided, for an undetermined tax is no tax in law. The determination of the amount or rate of a tax to be imposed is as essential in the exercise of taxing power as the designation of the property to be taxed, or the time for its collection or enforcement: State v. Ashbrook, 154 Mo. 375. All of the foregoing authorities, and many more that might be cited, announcing a fundamental principle of a republican form of government, have been ignored in sustaining the Act of 1911; and this is to be deplored.

The court below should have declared the Act of May 18, 1911, to be local or special legislation, so far as it relates to school districts of the first class, and an unauthorized attempt on the part of the legislature to delegate its power of taxation. I would, therefore, reverse the decree and dismiss the bill at appellee’s costs.

Mestrezat and Stewart, JJ., concur in this dissent.


author: Mr. Justice Mestrezat,

text:
    Bahny, Appellant, v. Levy.

      Statute of limitations — AcJcnowledgment of debt.

    In order to take a debt out of the bar of the statute of limitations by an acknowledgment or promise to pay, the acknowledgment or promise to pay must be made to the creditor or his known agent. Declarations made to a stranger are insufficient.
    Argued April 9, 1912.
    Appeal No. 137, Jan. T., 1911, by plaintiff, from judgment of C. P. Luzerne Co., Dec. T., 1903, No. 58, on verdict for defendant in case of Hortense L. Bahny v. Eva J. Levy, Executrix of Leon Levy, Deceased.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for money had and received. Before Lynch, P. J.
    The opinion of the Supreme Court states the case.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were in giving binding instructions for the defendant and in various rules respecting offers of evidence by plaintiff.

      May 6, 1912:

      John T. Lenahan, with him Edward A. Lynch, for appellant.

      F. W. Wheaton, with him James L. Lenahan, for appellee.
   Opinion by

Mr. Justice Mestrezat,

We can see no merit in this appeal. The action was brought, as the record shows, more than a year and a half after the death of the alleged debtor, and to enforce a claim, which, if it ever had any merit, had been an existing indebtedness for nearly eight years. The claim was made up of various items aggregating eighty thousand dollars. Levy died March 4, 1902, and the action was brought in October, 1903. The offers of evidence, the rejection of which is assigned for error, were refused because the claim offered to be proved differed from that laid in the statement, and was also barred by the statute of limitations. The reasons assigned by the learned trial judge clearly sustain his rulings in rejecting the evidence offered by the appellant. After commenting at length on the items of claim contained in the statement and amended statements filed by the plaintiff the learned judge said, inter alia: “It is perfectly apparent from the reading of this statement of items set out by the plaintiff, that every item here has long since been barred by the statute of limitations before this suit was brought. For this reason in addition to the other reasons given the objection is sustained and the offer is not admitted.”

The attempt to toll the statute was not successful. There was no offer to prove an acknowledgment of the debt or a promise to pay it to the plaintiff, but to an alleged agent of the plaintiff. The offer was fatally defective in not proposing to show that Levy knew that Jacobosky was the agent of the plaintiff or that he told Levy that he was authorized to act in the matter for the plaintiff. There was no evidence in the case to show the existence of such facts. The offer was, therefore, properly excluded. In Bott v. Stoner, 2 Penny. 154, 158, we said: “There was nothing in the evidence offered to show that Staman communicated to Stoner the fact that he was authorized by the plaintiff to speak with him on the subject, and the evidence offered was therefore rightly rejected.” Mercur, J., delivering the opinion in Wesner v. Stein, 97 Pa. 322, said: “The acknowledgment must be made to the creditor or his known agent, and by the debtor himself, or by some one authorized to act for him.” A declaration made by the deféndant to a stranger to the suit or cause of action is not sufficient to take the case out of the statute of limitations: Kyle v. Wells, 17 Pa. 286.

The correctness of the rulings of the learned tidal judge is so apparent that further discussion is unnecessary. The court below committed no error in rejecting the offers of evidence and directing a verdict for the defendant.

The judgment is affirmed.


text:
    Trustees of the Proprietors of Kingston v. Lehigh Valley Coal Company, Appellant.

      Equity — Equity practice — Exceptions — Appeals.
    1. Where a bill in equity involves the construction of a lease and the findings of fact and conclusions of law of the trial judge relating to the construction of the lease are not controverted by exceptions, the correctness of the construction of the lease by the lower court cannot be passed upon by the appellate court.

      Lease — Agricultural lease — Waste — Mining of coal.

    2. It seems that a lease made in 1821, the operative words being “demise, set and to farm let,” is a lease of the surface only, and if the lessee mines coal on the premises he commits waste.
    3. Where a lessee who is in possession of premises under a lease for agricultural purposes only mines coal and thereby makes passageways, he cannot use such passageways for the pujóse of mining coal from other lands. To permit him to do so would be inequitable in that it would be allowing him to profit by his own wrong.
    Argued April 10, 1912.
    Appeal, No. 128, Jan. T., 1912, by defendant from decree of C. P. Luzerue Co., Oct. T., 1910, No. 8, on bill in equity for an injunction in case of Trustees of the Proprietors of Kingston v. Lehigh Valley Coal Company.
    Before Pell, C. J., Mestrezat, Potter, Stewart and Mosohzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court.

      F. W. Wheaton, with him P. F. O’Neill and J. B. Woodward, for appellant.
    By the common law of England a tenant for life or years was not liable to an action for waste, unless he was restrained by particular words in his lease from committing waste, because it was in the power of the person who created the estate to impose such terms on the tenant as he thought proper, and if he did not, it was his own loss: 2 Coke’s Inst. 145; 4 Coke’s Inst. 299; 2 Blackstone’s Com. 282, 283; Coke on Littleton 54; Cruise’s Digest of Real Propriety 5, 35, 68; 3 Thomas’ Coke (2d Am. Ed.), 191 Note M; Green v. Cole, 2 Wm. S. Saunders, 252 Note; 1 Washburn on Real Property (6th Ed.), 129, Sec. 270; Mitchell on Real Estate and Conveyancing, 126; Moore v. Ellsworth, 3 Conn. 483; Neel v. Neel, 19 Pa. 323.
    Tenants in dower and by the counrtesy were answerable for waste at common law, but tenants for life or years were first made liable for waste by the statute of Marlborough (Marlbridge), 52 Henry III, Cap. 23, Sec. 2:2 Blackstone’s Commentaries, 224; Neel v. Neel, 19 Pa. 323.
    The statute of Marlborough was never in force in Pennsylvania: Report of the Judges, 3 Binn. 595; Roberts’ Digest of British. Statutes (2d Ed.) 8; Mitchell on Beal Estate and Conveyancing, 126; Neel v. Neel, 19 Pa. 323.
    The apparent reason is, that the statute was not suitable to this country, and the principle of the enactment was illy adapted to the conditions of a wild, unsettled territory where clearing the land to make room for actual occupation was of paramount importance and necessity, and people had to waste that they might live.
    The usual operative words of a lease are “demise, grant and to farm let” : Krider v. Lafferty, 1 Wharton (Pa.) 303.
    “Set” means “set over,” and. is equivalent to the word “lease”: Standard Dictionary; Greenaway v. Adams, 12 Vesey, Jun., 395; Lynde v. Hough, 27 Barbour (N. Y.) 415; Auman v. Auman, 21 Pa. 343.
    The decree is erroneous in enjoining haulage through the demised premises: MacSwinney on Mines, 32.

      J. E. Jenkins, with him A. L. Turner and W. H. Goodwin, for appellee.
    The first branch of appellant’s argument upon the construction of the John Bennett lease, raises at the bar of the appellate court a question not “finally passed upon by the court” below, because waived by the appellant in the exceptions there filed: Beatty v. Harris, 205 Pa. 377; Swope v. Snyder, 209 Pa. 352; Benjamin v. Zell, 100 Pa. 33; Welch v. Miller, 210 Pa. 204; Carpenter v. Lancaster, 212 Pa. 581; Turner v. Whitaker, 9 Pa. Superior Ct. 83; Moore v. Adams, 29 Pa. Superior Ct. 239.
    It has never been held that the statute of Marlbridge is not in force in Pennsylvania.
    It is not included in the report of the judges. It is, however, cited as in force by Jackson & Gross, in their work on Landlord & Tenant, Sec. 101.
    The report of the judges is not conclusive.
    The question whether a statute is in force in Pennsylvania depends not alone on the report of the judges, as we find it in Roberts’ Digest of British Statutes: Warren v. Steer, 118 Pa. 529.
    British statutes passed prior to the date of colonization abrogating or amending the common law should be considered as accompanying the common law itself, and forming an integral part of it: Lyle v. Richards, 9 S. & R. 322; Guardians of the Poor v. Greene, 5 Binn. 554.
    No Pennsylvania statute defines waste or expressly prohibits its commission.
    Waste in Pennsylvania by tenant for years must be a wrong against his landlord upon common law principles; or by the operation of the statute of Marlbridge; or by the necessarily implied prohibition of Gloucester; or by 13th Edw. 1; or else tenant for years is not now impeachable of waste.
    But by dicta and adjudications in a great number of cases it has been assumed or held that tenants for life and years are and from the earliest times have been impeachable of waste in Pennsylvania, unless exempt by express words or necessary implication; and that the thing severed becomes the property of the landlord: Shultz v. Barker, 12 S. & R. 272; Tammany v. Whitaker, 4 Watts 221.
    No exemption from waste is expressed in the lease of 1821: Earle v. Arbogast, 180 Pa. 409; Smith v. Chappel, 25 Pa. Superior Ct. 81; MacSwinney on Mines, 52; Saunders’s Case, 5 Co. 12a.
    For sixty years the parties construed the contract as a lease for farming purposes: Weld v. Hornby, 7 East. 195; Griffin v. Fellows, 81* Pa. 114; Broom’s Legal Maxims, 682.
    The continued use by defendant of the tunnels underlying plaintiff’s land is an injury to the reversion, and enjoinable: Wolf v. Christman, 202 Pa. 475; Laning v. Darling, 209 Pa. 254; Walters v. McElroy, 151 Pa. 549; Bussier v. Weekley, 11 Pa. Superior Ct. 463.

      May 6, 1912:
   Opinion by

Mr. Justice Mestrezat,

The questions involved in this appeal, as stated by the defendant, the appellant here, are (a) whether the lease made to Bennett in 1821, the operative words being “demise, set and to farm let,” was a lease of the surface only, to be used for agricultural purposes merely, or a lease of the entire solum without impeachment of waste, and (b) whether the plaintiff can restrain the use of the underground passageways, made by appellant in mining the coal, for the removal of coal from other lands, the tenant in possession not objecting and no harm being done to the reversion by such use.

The learned trial judge filed an exhaustive opinion and answered the numerous points of the parties which raised all the questions of fact and law in the case. Certain exceptions were filed by the defendant which were overruled by the court in banc, and an injunction was granted as prayed for in the bill. In disposing of the exceptions, the learned court said, inter alia: “As a result of the trial on the merits, the trial judge found against the defendant on every point in the controversy. The defendant has filed exceptions which do not controvert the correctness of the court’s finding that (1) the plaintiff’s title to the coal underlying this land is good and the defendant has no. title; and (2) the mining of the coal by the defendant was unlawful and a trespass. Having accepted defeat on the main controversy, the defendant’s exceptions now raise only two incidental questions: (1) The bill should be dismissed because the persons claiming to hold the offices of trustees for the proprietors are not entitled to that office, and therefore had no authority to cause this bill to be filed. (2) The court erred in continuing the injunction to restrain the use of the underground passages.”

The legal effect of the Bennett lease was determined by the trial judge in his opinion and answers to the several points. He held that the lease was for agricultural purposes only, and conferred no authority on the lessee to mine and remove coal from the premises or to use the passageways resulting from the removal of the coal. The findings of fact and law from which the judge drew his conclusion as to the interpretation of the lease were not, as suggested by the court below, excepted to and passed upon by the court in banc. Hence, they cannot be considered here, and that eliminates the first question suggested by the appellant company as one of the questions raised and argued by it. Rule 67 of the equity rules provides: “Upon appeal to the Supreme or Superior Court such matters only as have been so excepted to and finally passed upon by the court shall be assignable for error.” Speaking of the rules of equity practice and their enforcement, the present Chief Justice, delivering the opinion in Beatty v. Harris, 205 Pa. 377, says, inter alia: “They (the rules) expressly direct that the exceptions filed shall cover all objections to rulings on evidence, findings of fact or law, and to the decree of the court; the power is given the judge or the court in banc to sustain or dismiss exceptions, and to confirm, modify or change the decree entered......The object of these rules is to afford an opportunity for a careful review of the rulings made at the trial and of the findings of the court. The rules are mandatory, and their, violation cannot be overlooked.” This language was substantially repeated in the very recent case of Page v. Lytle, 229 Pa. 198.

In the court below, the appellant company tried the case on the theory that the Bennett lease was a conveyance in fee of the premises. It asked the court to find as a matter of law that “the intention of the parties was to pass the whole estate, mineral and surface,” which was refused, but the answer of the court is not excepted to nor assigned for error. On the other hand, the trial judge found as a matter of law, in answer to plaintiff’s request, that the mining of the coal by the defendant with the consent of the plaintiff’s tenant and payment of royalties therefor to the tenant constituted a waste of plaintiff’s reversion by the tenant, a trespass in the nature of waste by the defendant, and a fraud upon the plaintiff. This finding was not excepted to nor assigned for error here. In the present condition of the record, we are at a loss to see how we can consider or determine whether the Bennett lease is a lease without impeachment of waste.

It may, however, be suggested in passing that in a lease for a term of years, where not otherwise provided in the instrument, we have no doubt the tenant was in 1821, as he is now, impeachable for waste. The several remedial statutes on the subject, enacted since 1821, do not define waste nor confer any rights, but simply provide a remedy for what is recognized as a wrongful act and a violation of existing rights. The statutes of Marlborough and Gloucester seem to have been regarded in the same light. Lord Coke says: “Neither this act (Gloucester) nor the statute of Marlbridge doth create new kind of wastes, but do give new remedies for old wastes; and what is waste, and what not, must be determined by the common law”: 2 Inst. 300-1. That waste by a tenant for life or years was an actionable injury to the remainderman or reversioner has been assumed in numerous cases in this court and the lower courts, beginning with the earliest reported decisions. We have held that the statutes allowing the writ of estrepement are simply declaratory of the common law authority of the courts, and that they were passed because the courts did not exercise their authority by injunction to prevent waste as freely as they should have done: Byrne v. Boyle, 37 Pa. 260, 262. Griffin v. Fellows, 81* Pa. 1.14, was an action of ejectment brought by one claiming under the trustees of Providence, another of the seventeen certified townships of Luzerne county. The defendant claimed under the original lessee whose lease, dated in 1796, was very similar to the one under which the defendant here claims, but in the habendum clause contained the additional words: “with every privilege of mines and minerals of whatever description.” The trial court there held that the defendant was not impeachable for waste in opening and working coal and stone mines on the distinct ground that the estate of the lessee was enlarged by the words above quoted, used in the habendum which, in a deed, determines what estate is granted. In discussing the question involved in the case, the learned trial court in an elaborate opinion, adopted by this court, said inter alia (p. 122): “It is an important fact in the case that there were no open mines or quarries on the premises at the date of the lease; that mining of coal was first commenced by the tenant in 1810, and quarrying stone in 1855 or 1856. These acts were to the prejudice of the reversioner, and were undoubtedly waste, operating as a forfeiture of the term and entitling the lessor to recover the premises by ejectment, unless they were authorized by the lease, or the forfeiture was by some act of his......In a lease designed merely for agricultural purposes there is no occasion to say anything in regard to the mines or minerals, where there are no open mines, unless it is intended to grant some interest therein. When they are mentioned it must be considered that there was a purpose in doing so.” The court further held that its interpretation of the lease was sustained by the fact that the lessee had for more than half a century operated the mines with the knowledge of the lessors, who had regularly received the stipulated rent. In the case at bar the operative words in the lease are simply “demise, set and to farm let,” without any words in any part of the lease referring to the minerals, which were never opened on the premises. For sixty years immediately subsequent to the letting the parties had treated the lease as one for agricultural purposes only.

The other and only question properly determinable here, the right of the appellant to use the passageways through the coal, requires but brief consideration. We are not impressed with the argument of the appellant company that it should he permitted to continue its trespasses on the plaintiff’s premises by using the passageways because “the public is in urgent need of all the coal that can be mined at the present time.” The issue here is not between “the public” and the plaintiff, but between the latter and the appellant company which, as determined by the court, was not the owner of the coal and was a trespasser in mining and removing it. It is true that the tenant or the appellant company holding under him was in possession of the land under the lease for agricultural purposes, but only for such purposes. The company did not own the coal and was not authorized by the lease to remove it. In mining the coal, therefore, it was a trespasser; and in using the passageways made by its own wrongful act, it is simply continuing its trespasses against the reversion, which a court of equity, regardless of there being a remedy at law, will always enjoin: Walters v. McElroy, 151 Pa. 549. As said by the learned trial judge, to permit the appellant company to continue the use of the passageways would be inequitable in that it would be allowing it to profit by its own wrong.

The decree is affirmed.