author: Rice, P. J., Judge Morrison

text:
    Commonwealth v. Miller, Appellant
    (No. 2).

      Criminal law — Bribery—School director — Receipt.
    On the trial of an indictment of a school director for receiving a bribe from a teacher, a receipt signed by the teacher and approved by the defendant as secretary of the school board may be explained by parol evidence, where it shows on its face such ambiguity as to the amount as requires explanation.

      Appeals — Failure to print testimony — Assignments of error.

    On an appeal the onus is on the appellant to make out his assignments of error affirmatively, and he must furnish in the record and on his paper-book all that is necessary for that purpose. If without fault of the appellee, evidence given on the trial, which is alleged to be essential to a correct determination of an assignment of error, is not brought up. with' the record, the appellant has no right to object to a disposition of the assignment upon facts recited by the judge in the ruling to which exception was taken.

      Evidence — Witness—Motives of interest — Prior statements.

    Where a witness is charged directly or inferentially with testifying under the influence of some motive prompting him to make a false statement, it may be shown that he made a similar statement when the imputed motives did not exist, or when motives of interest would have induced him to make a different statement of facts. ,

      Evidence — Testimony—Improper question.

    It is not sufficient as a general rule to show that an improper question either in form or substance has been put to a witness; it must appear, in order to justify a reversal, that an answer was received which tended to injure the case of the appellant.

      Argued March 16, 1906.
    Appeal, No. 242, Oct. T., 1905, by defendant, from judgment of Q. S. Schuylkill Co., Nov. T., 1905, No. 1,014, on verdict of guilty in case of Commonwealth v. John A. Miller.
    Before Rice, P. J., Porter, Henderson, Morrison, Or lady, Head and Beaver, J J.
    Affirmed.
    Indictment for bribery. Before Marr, J.
    At the trial when D. S. Hering was on the stand, after examination and cross-examination, the commonwealth made the following offer on re-examination:
    District Attorney Berger: It appearing from the evidence, the witness having- been examined in chief by the commonwealth, and upon cross-examination by the defense, that improper motives were imputed to the witness upon the stand by the imputation of counsel in his testimony in chief, that he had paid to Miller, the defendant, the sum of $15.00' for his appointment, was a fabrication of recent date, and was not made until after his application for a school by the same board, or the board of which the defendant was a member, had been refused for the term commencing with 1905, the commonwealth proposes to show by the witness upon the stand that at the time that he received the check offered in evidence or soon thereafter, for $23.00, upon the Schuylkill Trust Company, which check represented Ills monthly salary of $38.00 less the $15.00 which was deducted for the payment of the defendant, Miller, that he told C. A. Aukerbrand, a merchant who cashed this check, of the contract which he had with Miller, the defendant, and of the deduction by Miller, the defendant, of the sum of $15.00 out’of the proceeds of his second month’s salary; it also appearing from the evidence that the witness was charged by counsel, Mr. Shepherd, that he had not told anybody else about this occurrence previously to the defeat of the prosecutor, who is the father-in-law of the witness, for the office of school director at the last spring election, and the witness having stated as follows : “ I did not say, I did not talk about it before,” and having been asked then by counsel for. the defense whom he told, and the witness having stated that he told his wife and Aukerbrand and that he told his brother and his father and Brown, and his uncle at a time when he was still teaching under his appointment and before he had been refused a reappointment, the commonwealth proposes to show a part of the transaction having been brought out, what the whole transaction was, and what he did tell to Aukerbrand, to his wife, to his brother, to his uncle, and to Brown, at a time when a motive for fabrication did not exist.
    Mr. Schalck: The proposed inquiry and line of testimony is objected to by the defense, because there is nothing on the record in this case to warrant the assertion and claim of the commonwealth’s counsel upon which this proposition or application is now based. The cross-examination of the witness does not sustain the charges or allegations of the commonwealth’s counsel, the record simply showing inquiries as to the time when this witness made complaints or statements to others of the matters now alleged by him on the witness stand, and having been answered by the witness, there was no further inquiry as to any particulars, nor was there any inquiry as to any conversations had between this witness and anybody else ; no such conversation or no part of any such conversation has been inquired into by counsel for the defense; and the mere fact of counsel having asked the witness the times when he made statements or complaints of this character does not' warrant the introduction of the particular conversation which this witness may have had with other persons. If this evidence is competent for any purpose at all, it is not competent at this stage of the case; there has been no evidence introduced by the defense as yet to warrant the admission of testimony as now proposed; after such evidence, if any, shall have been introduced, and made a part of the case, the question may then arise, whether or not the evidence now proposed is competent at all, and then only in rebuttal of such evidence as the defendants may give on their part. The defendant’s counsel have not inquired into any conversation between this witness and anybody else, and therefore it is improper to recall the witness now to give any conversation between himself and others. Under all the law and all the authorities such testimony is limited to the testimony of the witnesses to whom the consonant declaration may have been made or alleged to have been made, and then only competent as evidence in rebuttal; but there is no law, no authority, no precedent for asking this witness', the chief witness of the commonwealth, under the excuse or allegations now made to repeat as part of his testimony in chief, or as a part of the commonwealth’s testimony at this stage of the case, his statements and his declaration made to third parties in the absence of the defendant Miller; it is purely inter alios acta, and if admissible under any circumstances, it is under no circumstances a part of the commonwealth’s case in chief; when it is offered at the proper time in rebuttal, it can be further discussed if there should be occasion therefor.
    The Court: The witness on the stand under cross-examination, having been asked by counsel for the defense whether he told the story which he has given upon the stand to any other person besides Brown, his father-in-law, and the witness having-in response to that question said that he did, and then being-asked by counsel to whom he had told that story, and in reply to that question has given the names of the parties to whom he told the story; and now the counsel for the commonwealth in pursuance of those questions desires to ask the witness what it was he told the witnesses whose names he gave to counsel for the defense in response to their questions, we think the evidence is admissible and we admit it.
    Defendant excepts. Bill sealed. [1, 2]
    Mr. Berger: We desire to make an offer upon the record. We desire to show by the report book, which it has been shown by the testimony of the commonwealth was furnished to D. S. Hering, the teacher, and the witness upon, the stand, which book contains a blank form of receipt for the teacher’s monthly salary, that D. S. Hering, the teacher, did not receipt in that blank form of receipt for the salary for the month of November, 1904, but that he signed his name to the said receipt as teacher and made a notation, which notation, according to a key or system understood by the witness, indicates the amount of money which he received for that month’s pay, which sum is less than his month’s salary.
    In this connection we desire to say that this book shows that for every other month’s salarjr the teacher receipted in full. We propose to follow this offer by showing that every other blank receipt in that book covering the term during which Hering, the witness, was appointed, and during which he taught, is properly filled up and receipted for the full amount of the monthly salary, and we propose to follow that up by showing that this report book was presented- and" produced to this board of school directors, of which the defendant was a member from time to time, and delivered into the custody of the board at the close of the term.
    Mr. Schalck: This is objected to because the paper referred to, the entries referred to, do not bear out the allegation of the commonwealth’s officer, and are inconsistent and in conflict with the commonwealth’s own case, the commonwealth’s testimony already showing from this witness that he has been paid his salary for the October month ending in the middle of November, $38.00, by the check of Mr. Kraus for that amount, $38.00 drawn to his order, received by him, the witness, and indorsed and collected by him, and, therefore, his entry in this book as to the payment, or alleged nonpayment, of his salary for the school month ending November 18,1904,' and the failure of this witness to fill up the blanks in that' receipt signifies nothing, and is no evidence in this case; in-connection with this the book produced does show that he did receive his pay in full for the month ending October 14, 1904, which is the month’s pay that is in question here in the case now on trial, to wit: the sum of $38.00, and he receipted for it, filled it up himself, and that this is conclusive answer to the allegation of the commonwealth’s counsel in their offer; as to the hieroglyphics or marks, whatever it may be, which it is alleged that this witness made at the bottom of the receipt signed by him for his pay for the month ending November 18, 1904, we object that it is unintelligible, incomprehensible, and that it is not in the power of the witness to make hieroglyphics or marks of this kind which no one can comprehend but himself and then undertake to testify to those, and give them in evidence years afterward in corroboration of wrhat testimony he may give in court. The whole of the proposed evidence is incompetent, irrelevant and immaterial. It is further objected to that it is not proposed simply to have this witness look at an entry made by him at the time in order to refresh his recollection, but it is proposed to give in evidence, as substantive evidence to go before this court and jury, hieroglyphics which-no judge, no lawyer and no juror can understand or comprehend, and which this man alone professes to be able to explain; that sort of tiling is not evidence in any case.

      I call the attention of the court to the check Daniel Kraus, already in evidence, dated November 26, 1904, to the order of. D. S. Hering for the sum of 138.00 for the month’s-pay due this man ending November 14, as shown by his own record and indorsed by D. S. Hering and C. A. Aukerbrand and collected by due process in bank.
    The Court: We admit the testimony.
    Defendant excepts. Bill sealed. [3, 4, 5]
    C. A. Aukerbrand, recalled.
    Mr. Berger: We offer him in rebuttal to rebut the imputation cast upon the witness for the commonwealth, D. S. Hering, that his testimony in connection with the payment of the $15.00 for this school was of recent fabrication, and that he was a corrupt witness and influenced by improper motives, because of the fact that he had not been reappointed to a school, and because of the further fact of his relationship to the prosecutor in this case.
    Mr. Schalck : Objected to because there is no testimony upon the record, nor anything else upon the record in this case, that would warrant the introduction of the proposed evidence by way of rebuttal as now proposed to be given; the cross-examination of the witness, Hering, by counsel for the defense has not developed or placed upon record any evidence adverse to the witness in the direction now proposed, and there being no such evidence before this court or jury for the purpose stated, or alleged by commonwealth’s counsel, it is improper and incompetent now to offer to rebut where there is nothing to rebut ; the so-called imputation, if any, referred to by the counsel for the commonwealth may, or may not, have reference to some statements or arguments of counsel which, however, are matters of frequent occurrence in the trial of all causes; and arguments of counsel are not evidence nor are they such matters upon the record of a case as would warrant the introduction of testimony as now proposed, and alleged rebuttal of alleged imputation or innuendos or arguments; the defendant’s testimony has been free from any question of this character, and raises no such issue as is now pi'oposed to be met by the testimony of this witness in the alleged rebuttal; the defendant’s testimony has in nowise referred to any such matters, nor has the defendant offered any contradictory or conflicting statements or declarations of the witness, Hering, to impeach his veracity or to affect his credit so as to warrant the introduction now of the evidence here proposed as rebutting testimony. This testimony is, therefore, clearly incompetent, irrelevant and inadmissible.
    Mr. Berger: The matter having been fully argued during the morning session we have nothing to offer.
    Mr. Schalck argues points.
    The Court: You having attacked this witness on the stand by cross-examination for the purpose of showing that he was not elected to a school during the past year, then having developed by your cross-examination whether or not he had urged Mr. Brown, the prosecutor, to bring the suit; then in your opening address to the jury counsel having boldly charged that this prosecution was brought for the purpose of revenge, it seems to us that it would come clearly within the ruling of this Brown case if we understood it correctly.
    (Mr. Schalck argues question further.)
    The Court: We admit the evidence.
    Defendant excepts. Bill sealed. [6]
    Moses Hering, sworn.
    Mr. Berger: This is under the same offer, the same testimony.
    Mr. Farquhar: The same offer that was made as to the previous witness, to show that he had told the same story to this witness prior to his being turned down as a teacher.
    Mr. Berger: During midwinter and before any motive for fabrication or falsification existed.
    Mr. Schalck: Objected to for the various reasons stated in previous objections which are considered as being again repeated.
    Admitted.
    Defendant excepts. Bill sealed. [7]
    Jonathan Hering, sworn.
    Direct examination by Mr. Berger : “ Q. Where do you live? A. Down Washington Township. Q. What relation are you to D. S. Hering ? A. I am his father. Q. Did D. S. Hering, your son, tell you about the transaction he had with Miller, over at Rock when he was appointed to the Conrad school ? ” .
    Mr. Schalck : It is the same offer previously made I presume?

      Mr.. Berger: And the same objection.
    The Court: And the same ruling, and the same exception.
    Defendant excepts. Bill sealed. [8]
    Defendant on cross-examination was asked as to certain declarations made by him to one Ferrebe.
    • Mr. Schalck: That is nothing that is warranted by any examination on the part of the defendant’s counsel. He was not asked anything concerning any other applicants or what intercourse or what conversation he had with them or any particulars.
    The Court: We admit the question and seal a bill to the defendant.
    Defendant excepts. Bill sealed. [11,12]
    “ Q. Did not you ask Harry Ferrebe as you were going along the road what would be in it for you if you gave him that school ? A. No, I did not. Q. Did you have no such conversation with him ? A. No, sir, not that way. Q. Did you ask him whether there would be a divy in it for you ? A. No, sir. Q. What did you say concerning a divy or money for the appointment, to Ferrebe, if anything ? A. There was not anything said about any divy. Q. What conversation did you have with him about this appointment? A. He asked me about the school; he was talking English, and I was talking German. Then I asked him, I asked him how are you in it with the rest ? that ended the whole business, he said something that I did not understand. Q. Then he made some answer to that, you did not understand it? A. No, I did not. Q. Why did not you ? A. I did not understand him. Q. Why did not you understand him, did not he speak loud enough? A. No, he did not. Q. He spoke too low, you did not hear him plainly, is that it? A. Yes, sir. Q. Is that all that was said between you and Harry Ferrebe concerning that school on the way to the place of meeting? A. Yes, sir. Q. Nothing said about money ? ”
    Defendant presented this point:
    2. The testimony of disinterested witnesses of the good character of the defendant for honesty and integrity is positive and substantive testimony, and is of itself sufficient to raise a doubt as to the guilt of the defendant of the matters charged upon him in this indictment, and may alone be sufficient to work tbe acquittal of the defendant in this case. Answer: Evidence of good character is substantive and positive proof in the prisoner’s behalf and may give rise to a reasonable doubt, which would not otherwise exist, by making it improbable that a man of such character would commit the offense charged; but when the jury is satisfied beyond a reasonable doubt under all the evidence that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which may follow from that view of the case. [13]
    Verdict of guilty, upon which judgment of sentence was passed.

      jErrors assigned were (1-8,11,12) rulings on evidence, quoting the bill of exceptions, (13) above instructions, quoting it.

      A. W. Sohalelc, with him B. S. Bashore and W. F. Shepherd, for appellant.

      Guy E. Farquhar, John F. Whalen, O. E. Berger and I A. Heed, district attorney, for appellee.
    June 30, 1906:
   Opinion by

Rice, P. J.,

The defendant was a school director of Washington township, and was indicted and convicted upon a charge of soliciting and receiving from Daniel S. Herring a bribe of $15.00 to influence his action upon the application of Herring for appointment as teacher.

A considerable part of the testimony adduced by the commonwealth has not been returned with the record, but it is conceded that Herring testified that the defendant demanded, and Herring promised to pay, the bribe at the adjourned meeting of the board, on June 25, 1904, at which Herring received the appointment. His testimony as to the bribe being demanded and promised was unequivocally denied by the defendant.

The school opened in September, 1904, and on October 15, following, an order was issued for $38.00, the first month’s salary, and the money was paid thereon by the treasurer to the defendant, to be delivered to Herring. On November 24, following, two orders were issued in Herring’s favor, one for $38.00, his salary for the preceding month, and one for $10.00, his expenses in attending teachers’ institute, and upon these orders the treasurer delivered to the defendant checks payable to Herring corresponding in amounts to the orders. In December the defendant gave Herring these two checks, and his own check for $23.00. Thus far the testimony as to the payment of Herring’s salary is in harmony. But Herring testified that these checks were all that he received, and that-the difference of $15.00 was retained by the defendant in pursuance of the agreement above referred to, while the defendant testified that at the time he delivered the three checks to Herring he also paid him $15.00 in cash.

This preliminary statement of the principal question's of fact leads up to a consideration of the questions raised by the third, fourth and fifth assignments of error. It appears that when the defendant delivered the checks to Herring, he also delivered to him what is called “ the teacher’s monthly report book.” A page of this book was prepared and set apart for each school month, the parts of this record or report material here being the blank receipt to be filled and signed by the teacher and the blank approval of the monthly report to be signed by the secretary of the board. The receipts of Herring for other months showed the payment of $38.00, but for the month.ending November 18, 1904, the approval, signed by the defendant as secretary of the board, reads: “Approval. — Filed, examined and approved the 31 day of Dec. 1904. J. A. Miller, Secretary.”

Immediately under this is the receipt which reads :

“ Received, the ................. day of ......... 190 , from the Secretary of............District, Order No............, of this date on. the Treasurer of the District for....................Dollars........cents, which, when paid, will be my salary in full for the time embraced in the above report.
X D. S. Herring, Teacher.

The question is as to the admissibility of these entries in the teacher’s report book, and of Herring’s explanatory testimony to the effect that the marks following the dollar mark in the receipt were a form of notation chosen by him to express the number twenty-three. In the determination of this question, it is to be borne in mind : first, that this receipt was for the second month of Herring’s service ; second, that he testifies it was signed by him directly after the three checks above referred to had been delivered to him by the defendant in payment of his salary for the first two months; third, that the approval signed by the defendant bears a later date. If Herring told the truth as to the time when he signed the receipt; to be more explicit, if the receipt in its present form was before the defendant, when he signed the approval, it is not to be treated as a mere private memorandum of Herring, which only could be referred to by him to refresh his recollection, but was itself evidence. Taken in connection with the other entries in the book, it laid ground for argument to the jury that if the defendant had turned over to Herring his full pay for the two months, it was not likely that he would have signed the approval without objecting to or questioning the peculiar form— $ " A —iu which Herring, with apparent design, had chosen to indicate the amount received. True, he may not have been affected with notice that the marks meant twenty-three, but the jury were warranted in finding that notice was brought home to him that Herring had not receipted for $38.00, but had receipted in a form which required explanation. His conduct in view of such notice was a relevant and significant fact; it invited the very kind of explanation that was given. We conclude, therefore, that the receipt was admissible in evidence, and, being so, the case presents no exception to the general rule that parol evidence is admissible to explain receipts: Sheaffer v. Sensenig, 182 Pa. 634; Wingate v. Mechanics Bank, 10 Pa. 104.

The question of the admissibility of the rebutting testimony embraced in the sixth, seventh and eighth assignments of error depends for its correct determination upon the testimony given by D. S. Herring when under cross-examination by the defendant’s counsel. Unfortunately, however, the latter testimony has not been returned with the record. The reason assigned for this omission is that it was taken before the official shorthand reporter was called in, and the notes of it, which were taken by the trial judge, were not filed and have been lost or mislaid. But this does not affect the applicability of the general rule, that “ the onus is on the plaintiff in error to make out his assignment affirmatively, and he must furnish in the record and on his paper-book all that is necessary for that purpose : ” Aiken v. Stewart, 63 Pa. 30. If without fault of the appellee evidence given on the trial, which is alleged to be essential to a correct determination of an assignment of error, is not brought up with the record, the appellant, surely, has no right to object to a disposition of the assignment upon the facts recited by the judge in the ruling excepted to.

In discussing the assignment it will be well to keep in mind certain dates. The bribe was alleged to have been solicited and promised in June, 1904. Herring taught during the school year beginning in September, 1904. This prosecution was begun in October, 1905, and the case was tried in the following month. Herring, as we have seen, was the principal witness for.the commonwealth. It is conceded that upon his cross-examination the facts were elicited, (1) that Brown the prosecutor, and the father-in-law of Herring, was defeated for school director in February, 1905, and blamed the defendant for his defeat; (2) that at the election of teachers in the ensuing summer Herring was dropped and lost his school. The only relevancy these facts had was to show motive for the' prosecution and the witnesses’ bias, and that the defendant’s counsel elicited and relied upon them for that purpose is shown by the bill of exceptions. In such a direct conflict of testimony as that between Herring and the defendant as to the principal facts, evidence of this kind, whether drawn out upon the cross-examination of the witness or introduced by the opposite party, is not only relevant, but, if not rebutted nor explained, may have great weight with the jury. The testimony admitted in rebuttal was to the effect that about the time the bribe is alleged to have been paid, and before the imputed motive could have existed, the witness narrated the facts to others substantially as he narrated them upon the witness stand. The leading decisions of our Supreme Court bearing upon the question of the admissibility in evidence of such previous statements of a witness are: Henderson v. Jones, 10 S. & R. 322; Craig v. Craig, 5 Rawle, 91; Good v. Good, 7 Watts, 195; McKee v. Jones, 6 Pa. 425 ; Bricher v. Lightner, 40 Pa. 199; Zell v. Commonwealth, 94 Pa. 258 ; Hester v. Commonwealth, 85 Pa. 139; Clever v. Hilberry, 116 Pa. 431; Crooks v. Bunn, 136 Pa. 368 ; Thomas v. Miller, 165 Pa. 216. We reviewed these cases at length in Commonwealth v. Kay, 14 Pa. Superior Ct. 376, and reached the conclusion that a mere conflict of testimony is not, alone, a sufficient reason for the admission of such proof, and in the later case of Commonwealth v. Brown, 23 Pa. Superior Ct. 470, where the subject was re-examined, we added, that the general rule as to hearsay testimony ought not to be relaxed even though the conflict be such as is explainable only upon the theory that the testimony of one of the opposing witnesses is a pure fabrication. But in the latter case we said: While it is not in general permissible to support a ,,witness' “ by evidence that he had made former statements similar to his testimony, yet there are well-recognized exceptions to the general rule. The authorities generally agree, that in contradiction of evidence tending to show that the witness’s account of the transaction was a fabrication of recent date, it may be shown that he gave a similar account before its effect and operation could be seen, or before there could have been any inducement to fabricate; also that where he is charged directly or inferentially with testifying under the influence of some motive prompting him to make a false statement, it may be shown that he made a similar statement when the imputed motive did not exist, or when motives of interest would have induced him to make a different statement of facts.” The learned trial judge with better knowledge than we can have of the course pursued in the cross-examination of Herring, and of the use sought to be made of the facts elicited, held that the case was brought within the above-stated principles. We are not convinced that this was an erroneous conclusion; therefore these assignments are overruled.

The testimony of- Herring quoted in the first and second assignments was of the same nature, and for the reasons already stated was admissible in connection with the testimony of the witnesses to whom he narrated the facts. If there was technical error in not excluding it until the defendant had closed his case, we cannot see that it was an error which prejudiced the defendant in any way.

The eleventh and twelfth assignments of error relate to the cross-examination of the defendant in regard to an offer made by him to one Ferrebee to give to Ferrebee for a consideration the position subsequently given to Herring. As was said by Justice Williams in Commonwealth v. Wilson, 186 Pa. 1, “ upon a trial for a specific crime, the evidence should bear some relation to the question of the defendant’s connection with the particular crime charged.” It has not been made clear to us that the questions put to the defendant related to any matter concerning which he had testified in chief, nor is it clear that proof of such an offer as was referred to in the questions would have been admissible for any of the exceptional purposes for which proof of independent crimes is admitted. But it is not necessary to express a deckled opinion upon that question because the defendant unequivocally and emphatically denied having made any such offer as was referred to. The effect of the commonwealth’s failure to elicit the incriminating evidence from the defendant and to adduce any such evidence from other witnesses was quite as likely to be prejudicial to the commonwealth as otherwise. It is not sufficient, as a general rule, to show that an improper question, either in form or substance, has' been put to a witness ; it must appear that an answer was received which tended to injure the case of the appellant: Commonwealth v. Craig, 19 Pa. Superior Ct. 81. We find no reversible error in either of these assignments.

The answer to the defendant’s point as to the effect of “ character ” evidence was the same as that given to a similar point in the other case against the defendant in which we herewith file an opinion. Therefore the thirteenth assignment of error is overruled.

The ninth and tenth assignments of error do not require discussion.

All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below with direction that the sentence be fully carried into effect.

Judge Morrison

dissents on the question raised by the first, second, sixth, seventh and eighth assignments.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Clauchs v. Pittsburg, Appellant.

      Plumbers — Municipalities—Penalty—Action—Act of June 7, 1901, P. L. 493.
    An action cannot be maintained under the Act of June 7,1901, P. L. 493, in the name of the city of Pittsburgh without its consent to recover the penalty provided by the act for conducting the business of a plumber without a license.
    Argued April 24, 1906.
    Appeal, No. 60, April T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 152, on appeal from justice of the peace in case of Fred Clauchs v. City of Pittsburg.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and. Head, JJ.
    Affirmed.
    Appeal from justice of the peace.
    The opinion of the court below was as follows :
    The first exception to the record of the alderman is : “ The alderman had no jurisdiction for the reason that the action was brought in the name of the" city of Pittsburg, but without the knowledge, consent or authority of said city.” The 71st section of the act of June 7, 1901, known as the “Plumbers’ Act,” P. L. 493, provides that the “fine shall be recoverable before any alderman of police magistrate in said cities by summary proceeding, and shall be sued for in the name of such city.” The suit was brought before an alderman of the city, and in the name of the city of Pittsburg, but, so far as the record shows, without the knowledge, consent or authority of the city. The case of City v. Strawbridge, 4 W. N. C. 215, is relied upon as authority that the suit cannot be maintained without the authorization or approval of the city. The principal reason assigned for the decision in that case is that the city “ may be obliged" to pay large sums for costs in proceedings with which it has had no concern.” That reason cannot obtain in actions commenced in the city of Pittsburg, for the reason that the 2d section of the act of February 10,1859, applicable to the city of Pittsburg, provides, that “ the mayor, alderman and citizens shall not be liable for the costs in any suit in which the corporation may be plaintiff unless the institution of the said suit has been authorized by the mayor, alderman and citizens of said city: ” Thompson’s Digest, 1. But the first section of the act of April 13, 1859, seems to me to preclude the bringing of suit in the name of the city without its consent. That act provides: “No suit shall be brought by any city officer in the name of the city without notice in writing or in person to the regular city solicitor: ” Thompson’s Digest, page 1. Impliedly, then, suits in the name of the city are to be instituted by some one of its officers, but even its officers cannot institute suit without due notice to the city solicitor. It would seem, therefore, that suit may be entered relying on the city’s approval of the suit after it has been entered, but notice is required to be given to the city solicitor before the suit is instituted. Reading the second section of the act of February 10, 1859, which prevents the city from liability for costs unless the suit is authorized, and the first section of the act of April 13, 1859, which prevents the institution of suit by any city officer without notice to the city solicitor, we have the whole subject covered, and a complete and ready means provided for the institution of suits in the name of the city; first, the authorization by the corporation, and second, the proper notice to the chief law officer of the said city.
    I am, therefore, of the opinion that the first exception must be sustained. While this disposes of the entire case, and makes it unnecessary to consider the other exceptions, it is proper to remark that my present opinion is that the Plumbers’ Act of 1901, P. L. 493, does apply to journeymen plumbers and all other persons carrying on or working at the business of plumbing, etc., and that the obtaining of a license by a firm or corporation upon the examination of one member thereof, or of its superintendent, permits such firm or corporation to engage in the business of plumbing, but does not permit any person to do the work of a plumber unless such person is licensed. I do not think any unlicensed person can do the manual and mechanical work required, though an unlicensed person may be a member of a firm or corporation carrying on the business. The purpose of the act seems to me to be to secure better sanitary conditions in the city by seeing that the important work of plumbing, upon which depends so largely the healthful conditions' of the buildings and houses of the city and thereby the health of the occupants of those buildings and houses, shall only be done by skillful and approved mechanics, and therefore it provides that at least one member of the firm or corporation shall be licensed, permitting others not licensed to be interested in the business, but requiring that every person doing the manual or mechanical work of the business shall be examined and-licensed, thus securing skilled labor in the most important part of the business. This purpose would be defeated if one skillful mechanic could take under the protection of his license any number of unskilled persons to do the most important part of the work. Having sustained the first exception, the judgment of the alderman must be reversed, and restitution awarded of the fine and costs.
    And now, May 16,1905, the first exception is sustained, the judgment reversed and restitution of the fine and costs awarded to the plaintiff in error.

      Error assigned was the judgment of the court.

      John Marrón, of Marrón MeGirr, for appellant.

      William U. Me Clung, with him William A. Jordon, for appellee.
    June 30, 1906:
   Per Curiam,

The questions raised in the court below by the third, fourth and fifth exceptions to the alderman’s record were not argued before us, and as we conclude the court was right in reversing the judgment of the alderman upon the first exception, those questions will not be considered. Little, if anything, can be added profitably to the opinion filed by the court upon the constriietion of the two acts of 1859 ; the conclusion is irresistible that they confer no right upon any person to make the city plaintiff in an action, who would not have had the right before their enactment and independently of them.

True, the act of 1901 does not expressly declare that an action in the name of the city may not be brought by any person, without the city’s consent. But neither does it declare that this may be done; and, bearing in mind that no part of the penalty goes to the informer, and that the act is a definition and regulation of the police power “ on a subject which is one of municipal concern,” Beltz v. Pittsburg, 211 Pa. 561, we think it clear that the right claimed cannot be implied from any of its provisions. Such express provision and ground for clear implication both being absent from the statutes called to our attention, and the city through its proper officer having neither authorized the bringing of the suit nor assented to the continuation of it after it was brought, the court was right in sustaining the exception.

Judgment affirmed.


text:
    Rabinowitz, Appellant, v. Kenah.

      Appeals — Statement of question involved — Paper-books—Non-pros.
    Where an appellant fails to print in his paper-book a statement of the question involved, the appeal will be non-prossed. The rule as to such statement is in the highest degree mandatory, and admits of no exception.
    Argued May 14, 1906.
    Appeal, No. 142, April T., 1906, by plaintiff, from judgment of C. P. Beaver Co., Dec. T., 1905, No. 24, on case stated in suit of Samuel J. Rabinowitz v. William H. Kenah, trading as Kenah Bros.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady; Head and Beaver, JJ.
    Appeal non-prossed.
    Case stated in ejectment. Before Wilson, P. J.

      Error assigned was the judgment of the court.
    The paper-book of the appellant did not contain a statement of the question involved.

      Harry ' Calhoon, for appellant.

      William B. Outhhertson, with him Frank E. Reader, for appellee.

      June 30, 1906:
   Per Curiam,

A consideration of this case has led us all to the conclusion that it was correctly decided in the court below for the reasons given in the opinion filed. If, therefore, the rule of our court as to statement of questions involved had been complied with, the judgment would be affirmed. But there was total failure to comply with the rule. And it is declared to be ‘‘ in the highest degree mandatory and admitting no exception.” We could not refuse to enforce it without self-stultification; fortunately no injustice will result from its enforcement.

The appeal is non-prossed, costs to be paid by the appellant.


text:
    DeHaven’s License.

      Liquor law — Wholesale license — Discretion of court — Record'—Review.
    The Superior Court will not reverse an order of the quarter sessions refusing a wholesale liquor license where there is nothing in the proceedings brought up by the certiorari showing an abuse of discretion of the court below, if the proceedings themselves are regular in every respect.
    Argued May 16, 1906.
    Appeal, No. 154, April T., 1906, by Robert L. DeHaven, from order of Q. S. Butler County, Feb. Term, 1906, No. 32, refusing^ a wholesale liquor license In re Application of Robert L. DeHaven.
    Before Rice, P. J., Portee, Henderson, Moeeison, Oready, Head and Beayee, JJ.
    Affirmed.
    Petition for wholesale liquor license. Before Galbreath, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Joseph B. Bredin, with him F. X. Kohler, for appellant.

      John R. Kenninger, for appellee.
    June 30, 1906:
   Per Curiam,

The single assignment of error is: “ The court erred in refusing the application of R. L. DeHaven for a wholesale license.” But in the appellant’s statement of the question involved the first is : “ Whether in a borough having a wholesale liquor trade of between three to four thousand dollars per annum, the refusal of all wholesale license on the only grounds of not necessary, is a judicial discretion or an arbitrary one.” This is a broader question than that raised bj*- the assignment of error, and even though it were to be conceded that under the facts above stated the court ought to have granted one or more applications, it would not follow from an affirmative answer to the question that the court erred'in not granting the appellant’s application. But apart from this consideration, the facts recited in the statement of the question are not before us, therefore the question as stated is not before us. “ An appeal from an order refusing a liquor license brings up nothing for review, which would not have been brought up by certiorari prior to the Act of May 9, 1889, P. L. 158. It does not bring up the evidence nor the rulings of the court upon questions of evidence. There is no mode provided by law for bringing them upon the record. The discretionary power to grant or refuse liquor license applications is vested exclusively in the court of quarter sessions. When the legislature deems it wise, if it ever shall, to invest the appellate court with power to review such proceedings upon their merits, they will undoubtedly provide a mode' whereby the evidence and rulings made on the hearing may be brought upon the record. Until such mode is provided our investigation upon appeal must necessarily be confined to the record : ” Weaver’s License, 20 Pa. Superior Ct. 95.

We are referred to Gemas’s License, 169 Pa. 43, and other cases which hold that where the only ground for refusal of the license is not a valid one under the statute, and there is no other ground for refusing it, there is error. There is no dispute as’to this proposition, but it is equally well settled, that if the court does not set forth its reason, it will be presumed on appeal that the license was refused for a legal reason and not arbitrarily; also, that if the court sets forth a legal reason, the presumption that its order was judicial and not arbitrary cannot be rebutted by an argument from evidence that the court ought to have reached a different conclusion. As already suggested, this must necessarily be so in. the absence of any mode whereby the evidence, and the judge’s knowledge of relevant facts, can be brought upon the record. No permissible view we may take of the proceedings brought up by the certiorari would justify us in holding the order to be an abuse of discretion. This being so, and the proceedings being regular in every respect, the order is affirmed.


author: Morbison, J., Rice, P. J.,

text:
    Auman v. Hough, Appellant.

      Tax sale — Evidence—Warrant—Assessment—Identification of unseated land.

    An assessment of 207 acres of unseated land in the name of “Thomas Carothers ” will not sustain a tax sale of a part of 407 acres of land warranted in the name of “James Crowthers,” where there is no evidence to indentify the 207 acres as a part of the 407 acres.
    Argued March 6, 1906.
    Appeal, No. 3, March T., 1906, by defendant, from judgment of C. P. Clinton Co., Jan. T., 1902, No. 106, for plaintiff on case tried by court without a jury, in suit of William Auman v. Nathan Hough et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Ejectment for 207 acres of unseated land in Logan Township.
    The case was- tried by Mayer, P. J., without a jury under the act of April 22,1874.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff.

      J. A. B. Miller and T. O. Hippie, for. appellant.
    — The recitals in the patent offered in evidence by the plaintiff are conclusive against him, that the correct warrantee name of the tract in dispute is James Crowthers: Olewine v. Messmore, 128 Pa. 470.
    The word James is as much the part of the name of a person or thing named James Crowthers, as is the name Crowthers, under the acts of assembly: Hamaker v. Whitecar, 1 Walker (Pa.), 120; Philadelphia v. Miller, 49 Pa. 440; Philadelphia v. Lyman, 56 Pa. 488; Brotherline v. Hammond, 69 Pa. 128; Baines v. Alker, 207 Pa. 234.
    If we regard the name Carothers as a family name,- or as a species of class name, which we think admissible, then we may also classify the names Thomas and James as distinguishing names. The appellant therefore contends that the name Thomas Carothers does not tend to identify a tract of land properly named James Crowthers, but would tend to negative the idea that the James Crowthers tract was intended to be assessed, to mislead the owner, and to distinguish the tract as another or different tract than the James Crowthers warrant.
    It will be found in every case decided by the courts of Pennsylvania, from Stewart v. Shoenfelt, 13 S. & R. 360, to Schreiber v. Moynihan, 197 Pa. 578, that if the assessment were sustained at all it was because of the presence in the assessment of the name either of the warrantee, or of present or former owner; or of a claimant under a title good or bad; or of a person connected at some time with the possession; or where the assessment contained an element of description in the nature of adjoiners or waters located thereon.

      G. K. Wright, with him S. D. Ball, for appellee.
    — As the assignments of error refer to the findings of fact, the law is well settled that this court will not go behind the findings of facts found by the court below, under the reference law of April 22, 1874: Jamison et al. v. Collins, 88 Pa. 359 ; Griffith et al. v. Sitgreaves, 90 Pa. 161; Brown et al. v. Dempsey, 95 Pa. 243; Brown, Early & Co. v. Boom Co., 109 Pa. 57; Gonser v. Smith, 115 Pa. 452; Com. v. Manufacturing Co., 151 Pa. 265; Snyder v. Steinmetz, 6 Pa. Superior Ct. 341.
    It has been ruled in several cases that the commissioners, in cases of irregularity, have authority to make the assessment under the curative provisions of the act of 1815: Devinney v. Reynolds, 1 W. & S. 328; Hubley v. Keyser, 2 P. & W. 496; Hess v. Herrington, 73 Pa. 438.
    The name of the warrantee and the township are circumstances of description, but not conclusive, and if they do not accord with the actual facts, the identity of the land may be established by any other competent evidence which is satisfactory to the jury: Miller v. Hale, 26 Pa. 432.
    It especially worthy of note in the case before this court, that there is no evidence that James Crowthers, or anyone claiming under him, has ever appeared at the said county of Clinton, to return his land for assessment as the law contemplates, to pay the tax on his land, or call at the office to inquire as to these matters; hence he has no right to complain of precision in the same: Dunden v. Snodgrass, 18 Pa. 151; Franklin Coal Co. v. Bertels, 109 Pa. 550.
    June 30, 1906:
   Opinion by

Morbison, J.,

This is an action of ejectment brought to recover possession of 207 acres of unseated land, said to be located in Logan township, Clinton county. The plaintiff claimed under a treasurers’ sale of unseated lands, made January 26, 1893, for the nonpayment of taxes attempted to be assessed for the years 1890 and 1891. The treasurers’ sale and the deed made in pursuance thereof are conceded to be regular, if there was a valid assessment of the land described in the writ of ejectment. It is also conceded that the title attempted to be made by said sale and deed was regularly conveyed to the plaintiff prior to the commencement of this «suit.

The parties, by agreement filed, waived a jury trial and submitted the case to the court under the Act of April 22, 1874, P. L. 109, and the court having entered a final judgment in favor of the plaintiff for the land described in the writ, the defendants appealed to this court.

The integrity of the judgment rests upon the sufficiency of the assessment of the land described in the writ as unseated land, for the years 1890 and 1891. The learned court finds as a fact that: “ 207 acres of unseated land in the warrantee name of ‘ Thomas Carothers ’ were assessed in Logan township, Clinton county, for the years 1890 and 1891 andwalued at f207.” The learned court also finds that “ on September 10,1794, a warrant was issued by the commonwealth to ‘James Carothers ’ for 400 acres of land adjoining land granted on the same day to William Hammer on the south. In pursuance of this warrant a survey was made December 2, 1794, and returned into the land office on September 28, 1795, as containing 407 acres and three perches. The survey as returned calls for the William Boyd, William Hammer and Andrew Moore tracts as adjoiners.”

The court further finds, in substance, that although the whole of the land described in the warrant was formerly located in Centre county, by legal proceedings establishing the boundary lines between the counties of Centre and Clinton, 207 acres of the tract of unseated land in the name of “ Thomas Carothers ” were in the county of Clinton, and that this land was a part of the 407 acres, and the same land assessed and sold by the treasurer as above stated.

Exceptions were filed by the appellants to the findings of fact and conclusions of law, and among these exceptions is one attacking the validity of the proceedings of the commissioners appointed to run and mark the boundary lines between the counties of,Centre and Clinton. The view we take of this case does not require a decision upon the question of the validity of the work and report of said commissioners, and, for the purposes of the present decision, we will assume that the learned court is correct in finding that: “ The commissioners ran and marked the boundary line between the two counties and made and filed the drafts required by the statute.”

This brings us to the real question in the case, i. e., is the assessment sufficient upon which to rest a valid sale of unseated lands for the nonpayment of taxes ? It is conceded on all hands that the land intended to be assessed and sold by the county treasurer was a part of the 407 acres and three perches described in the warrant of September 10, 1794, and the survey of December 2,1794. Now, turning to that warrant and survey we find that it was in the name of “ James Crowthers ” and not “James Carothers,” as found by the learned court in his findings of fact. There is not in this record a scintilla of evidence upon which to rest the finding of fact that the warrant was in the name of “James Carothers.” In our opinion, the mistake of the learned judge in assuming that the name was “ Carothers ” led him to the erroneous conclusion that the assessment of the land in dispute for the years 1890 and 1891, in the name of “ Thomas Carothers,” was a valid assessment. We have already seen that the learned court found that the land in question was assessed in the warrantee name of “ Thomas Carothers,” but there is no evidence in the record that any land was warranted in the name of “ Thomas Carothers ” in Logan township, Clinton county, and, on the contrary, the undisputed evidence and the certificate from the land office are that there is no tract of unseated land in the county of Clinton warranted in the name of “ Thomas Carothers.” It is a conceded fact that the land to which the learned court attempts to attach the assessment in the name of “ Thomas Carothers ” is a part of the land warranted to “ James Crovvthers ” on September 10, 1794.

A careful examination of the evidence convinces us that there is nothing in the assessment, upon which the tax title is based, which will lead to the identification of the land described in the writ. It is not identified in the assessment by the number of acres contained in the original warrant; it is not identified by the name of the warrantee, as the assessment is “ Thomas Carothers,” while the correct warrantee name is “ James Crowthers ”; there is no warrant number given in the assessment, no adjoiner, and there is nothing referred to in the assessment itself which will fill the requirements of the law as established by numerous cases. Note here that the assessment is neither in the Christian nor surname of the warrantee.

In Bachop v. Critchlow, 142 Pa. 518, the question of the validity of an assessment is considered, and on page 526 the Supreme Court, by Mr. Justice Clark, said: “ His treasurers’ deeds were not shown to cover the premises in dispute; the name of S. Critchlow had in no way been connected with the title to the land, good or bad. There must be some element of identity in the assessment itself, leading to a knowledge of the land assessed, — a description of the land, or some circumstance, number, or-adjoinder, associated or connected with it, ora name connected at some time with the title to the land, good or bad.”

The doctrine so plainly laid down in the above case is not new, as we find, in substance,' the same rule in Lyman v. City of Philadelphia, 56 Pa. 488. In that case Agnew, J., on page 499, said : “Authorities were also multiplied to show that it had often been held that the land must be in somewise identified from something appearing in the assessment; and that the assessment of lands is a matter resting upon the written evidence of it found or once actually existing in the commissioners’ office.” In that case the assessment was : “ Turnbull John, 401 acres, at 25, $100.25, tax, 80.” The attempt was made to sustain a tax sale of the James Trembel 400 acres of land on this assessment, but on an elaborate consideration, the Supreme Court held that the assessment and sale would not convey the James Trembel land.

In our opinion, there is no material difference in that case and the present one. If an assessment in the name of John Turnbull was not good as to the land of James Trembel, how can it be said that an assessment of 207 acres of land in the name of “ Thomas Carothers ” will sustain a tax sale of a part of 407 acres of land warranted in the name of “James Crowthers ” ?

In Fisk v. Corey, 141 Pa. 334, we find the same doctrine plainly stated. The Supreme Court, by Mr. Justice Clark (p. 347), said: “ There is no evidence upon the face of the assessment sufficient to go to a jury upon the question of identification ; . . . . Although the decisions were not formerly to this effect, it is now well settled that the land must be in some way identified, from something appearing in the assessment; and this rests the proof of identification solely upon wliat is found or once existed in the commissioners’ office: Philadelphia v. Miller, 49 Pa. 440; Lyman v. Philadelphia, 56 Pa. 488. . . . Assessment is, from its legal requirement, and the necessity for preserving its evidence, a written entry, and must depend upon the records of the commissioners’ office, and not upon parol testimony, or the private duplicate of the assessor.”

The learned court below seems to have felt the necessity of helping out the assessment by parol and other evidence. One of his material findings of fact is that “ it appears on their draft filed in the commissioners’ office of Clinton county that 207 acres of a tract of unseated land in the name of ‘ Thomas Carothers ’ were in the county of Clinton, and has for its adjoiners the William Boyd and William Hammer tracts.” But this matter was in no way connected with the assessment, and it was entirely incompetent evidence for the purpose of attaching the “Thomas Carothers” assessment to the “James Crowthers” land. ^ Again the learned court finds that: “ The location of the James Carothers tract of land on the ground is well established by the testimony of the surveyors, and .adjoins the William Boyd and William Hammer tracts for which it calls.” But this finding of fact is wholly immaterial because there is no land warranted in the name of “ James Carothers,” and there is nothing in the assessment itself which leads to the identification of the land described in the writ.' Again the learned court finds : “ There can be no doubt that the 207 acres of land assessed and sold in the name of ‘ Thomas Carothers’ tract was the land covered by the ‘ James Carothers ’ warrant and survey, and we therefore find it as a fact that 207 acres of land assessed and sold by the treasurer of Clinton county to the county commissioners was the ‘James Carothers’ tract, although assessed and sold in the name of ‘Thomas Carothers.’ ” But the learned court found these facts from evidence de hors the assessment, that is, mainly from the report of the commissioners fixing the boundary line betweeñ Centre and Clinton counties and proof of the adjoiners of the James Crowthers warrant. However, these facts were not referred to in the assessment and there was no evidence in the commissioners’ office, a part of the assessment, which connected it with the “ James Crowthers ” land. In our opinion, the assessment of 207 acres of land in Logan township in the name of “ Thomas Carothers,” without more, is wholly insufficient to support a tax sale of any portion of the warrant granted in 1794 for 407 acres and three perches of land in the name of “ James Crowthers.” We find no evidence in the record that any man named “ Thomas Carothers ” was ever in possession or claimed possession of the land in dispute, nor do we find that any man of that name ever claimed title, good or bad, to said land, and, therefore, we think the assessment in that name is wholly void as to the “ James Crowthers ” land.

We think it of some consequence that the owners of the 407-. acre tract believed it to be all in Centre county, and it was offered to be proved that this tract was all assessed in that county and the taxes regularly paid thereon. This fact relieves the owners from any culpability in seeking to escape the payment of taxes on the land.

We find in^ the record the testimony of H. A. Myers, assessor' of. Logan township, that he did not and would not assess any of the James Carothers land to “ Thomas Carothers,” because he supposed it was in Centre county, and he knew it as the “ James Carothers ” tract nearly all of his lifetime. Samuel Elgin, another assessor of Logan township for 1891, testified that he did not intend to assess this land in the name of “ Thomas Carothers ” ; that he was seventy-one years old and knew the land as the “ James Carothers ” tract. William Rishell also testified that he knew the land as the “ James Carothers ” tract. John Caris also testified that he knew it by the same name. It thus seems that the name “ James Carothers ” had become attached to this land by the people in that vicinity using the erroneous name “ Carothers ” instead of “ Crowthers.” It can be inferred from the evidence that some of the witnesses supposed that the “ Thomas Carothers ” and “James Carothers” tracts were not the same. This shows how misleading it would be to assess any part of the “ James ” tract in the name of “ Thomas.” And an assessment in the latter name, without more, would not point with sufficient certainty to the “ James Crowthers ” land.

In our opinion, the weight of the evidence indicated that the land was not generally known in the neighborhood of its location as the “Thomas Carothers” tract, but by some people as the “James Carothers.” We therefore conclude that the learned court erred in finding as a fact that the land in question was ever so generally known by the name of “ Carothers ” as to justify assessing it in that name. But possibly the evidence would justify a finding that an assessment of the land in the name of “ James Carothers ” would be sufficient. But we cannot assent to the conclusion that an assessment of this land in the name of “ Thomas Carothers ” was sufficient to lead to its identification. It is fairly deduoible from the evidence that “Thomas Carothers” was, as to the land in question, a myth.

The learned court below in support of his conclusions relied on Woodside v. Wilson, 32 Pa. 52; Strauch v. Shoemaker, 1 W. & S. 166 ; Glass v. Gilbert, 58 Pa. 266; Franklin Coal Co. v. Bertels, 109 Pa. 550, and McClements’ Appeal, 2 Pa. Superior Ct. 443.

In Woodside v. Wilson the plaintiff recovered under a treasurers’ deed for 100 acres of land, assessed as part of tract No. 1,302, in the name of .E. Rockwell, and sold for the taxes of 1850 and 1851; and gave evidence on the trial to show that the assessor intended to assess No. 152, a donation tract in Richmond township, included in the eighth district of donation

lands. It .was conceded that the number given in the assessment was wrong, but the validity of the assessment, as- stated by Thompson, J. (p. 57),turned on the point that “the land was known in the assessment-books, and in the neighborhood, by the name of Rockwell, the person in whose name it was assessed and sold, and who had been in fact an owner and taxpayer on it for ten years. This fact would necessarily give it a designation as his land, and Mr. Reynolds, or a purchaser from him, would most naturally expect to find it taxed in that name.” In that opinion Judge Thompson refers to Dunn v. Ralyea, 6 W. & S. 475 : “ That was the case of donation tract No. 1,031, assessed by No. 1,029, in the name of Jacob Herring-ton. The sale was held invalid, for both the number and the name were wrong. Jacob Herrington never had any interest nor property in 1,031; and if the owner, in looking after his land, had examined the assessments, he would not have found his number there ; and as Herrington was an entire stranger to it, never having been a claimant, agent, or otherwise interested in it, he could not possibly have discovered, in this deep disguise, his own land; on the contrary, it was calculated to beguile him into the belief that his land was not assessed at all, or that someone had paid the tax.” The above quotation is from the opinion of Thompson, J. (p. 56). That case holds in harmony with Woodside v. Wilson that if the assessment had been in the name of someone having or claiming an interest in the land, it might have been sufficient, although the number was wrong. We are unable to see how either of the above cases tends to sustain the assessment in the present case. In it there is no number given, no description or designation, except the name “ Thomas Carothers ” and the number of acres, and the acres embrace only a part of the original tract warranted to “James Crowthers.” The learned court below sustained the assessment in the name of “ Thomas Carothers,” although he “ was an entire stranger to it, never having been a claimant, agent, or otherwise interested in it.”

In Strauch v. Shoemaker, the real question decided is stated in the syllabus thus : “ When unseated land is sold for the payment of taxes, the title of the real owner, whatéver it may be, passes to the purchaser, whether it be assessed and sold in his name, the name of the warrantee or a stranger, and whether the person in whose name it is taxed and sold has or has not any title.” That case cannot be' tortured into a ruling that unseated land can be sold on an assessment which does not lead to an identification of the land intended to be charged. But if it does bear such a construction, it has been many times overruled by the decisions of the Supreme Court in subsequent cases, which clearly hold that the assessment must lead to identification of the land. Really what Strauch v. Shoemaker decides, in view of the more modern cases, is that unseated lands, sufficiently identified in the assessment, may be sold for the nonpayment of taxes and the whole title to the land passed notwithstanding the fact that it is not assessed in the name of the owner. In that case the dissenting opinion of Huston, J., is worthy of consideration in connection with the modem decisions.

In Glass v. Gilbert it is held as stated in the syllabus : “ To pass title by tax sale, the assessment must contain some element either of circumstances -or name which leads to identification of the land. Although there be no other element of description, if the name in which it is assessed has become linked to the land by some known claim of title or possession, it is a source of identification and will support the assessment.” In that case Agnew, J. (p. 290), said: “ In this case Benjamin Combe’s name became associated and connected with the land by his purchase of the Whitman claim, and this afforded a means of identifying the land assessed in his name as 800 acres in Rush township.” Thus it clearly appears that the assessment was in the name of a person claiming to own the land or an interest therein.

Franklin Coal Co. v. Bertels, is authority for the proposition that: “ A sale of unseated land for taxes passes the title to the purchaser although the land may not have been taxed and sold in the name of the real owner. In such a case, however, the land must be identified and distinguished in the' assessment as the same land as that in controversy; and in case of dispute the question of identification is for the jury.” But that case must not be understood as holding that the question of identification can go to the jury, except on sufficient evidence. This is squarely ruled in McClements’ Appeal, 2 Pa. Superior Ct. 443, where President Judge Rice (p.459) said: “The burden of proof was on" the plaintiffs, and while the question of identity is one of fact, to be decided by the jury, a jury has no more right to infer the fact without proof than the court.” In our opinion, McClements’ Appeal is strong authority against the conclusion of the learned court below on the facts in the present case, and although it is cited by the court below, to our mind, its doctrine calls for a reversal of the judgment under consideration.

Franklin Coal Co. v. Bertels, is not very satisfactorily reported, but it does clearly appear that the land was' assessed for many years in the name of Joseph Newbold, and that it was surveyed for the heirs of Joseph Newbold, and it further appears that the land in question was commonly known by the people who knew- the tract, and by the taxing officers, as the Joseph Newbold tract. Upon this state of facts the court submitted the question of identification to the jury, and on appeal the Supreme Court said: “The questions of the identity of this tract being the one that was assessed and sold, as well as whether there was such a severance of a part of the tract by a distinct line of demarkation so as to leave the rest unseated, were well and carefully submitted to the jury.” That case is authority for the proposition that the identity of the land is for the jury where there is sufficient evidence, and -the Supreme Court agreed with the court below that the evidence was sufficient to carry the questions in dispute to the jury. We do not regard that case in conflict with Fisk v. Corey, 141 Pa. 334, and Bachop v. Critchlow, 142 Pa. 518, but if it can be regarded as in conflict with those cases, it must fall, becatrse they are much later and much more thorough discussions of the questions involved than we find in Coal Co. v. Bertels.

Our conclusion is, upon a careful consideration of the evidence and authorities, that if the present case had been tried before a court and jury, there was not sufficient evidence to carry to the jury the question of the identification of the land assessed in the name of “ Thomas Carothers ” in Logan township, and that the assessment will not support a tax sale of the 207 acres of the warrant granted in 1794 for 407 acres and three perches of land in the name of “ James Crowthers.”

The learned judge erred in not directing judgment in favor of the defendants, and the judgment is now reversed and judgment granted in favor of the defendants for the land described in the writ.

Rice, P. J.,

dissenting:

It is to be noticed that this case was tried by the court without a jury. It is needless, to say that the judge’s findings of fact, if there was any evidence to support them, are as conclusive upon appeal as a verdict of a jury. In order to reverse this judgment we must overturn the judge’s finding that the 207 acres of land assessed and sold in the name of Thomas Carothers was the land covered by the James Carothers warrant and survey. I am unable-to concur in the conclusion that this finding of fact is wholly unwarranted by evidence in the case. In addition to the facts stated in the opinion of the learned judge below, it is not out of place to call attention to the evidence tending to show that the commissioners appointed to run the county line designated this 207-acre tract as the Thomas Carothers tract in the map which they filed, that there is no tract in the warranty name Thomas Carothers, that it was known in the community by the name Thomas Carothers, that from 1878 to 1882 this tract was assessed in the name of Thomas Carothers, and also from 1884 to 1899 it was so assessed. Taking the evidence as a whole I do not think we can say as matter of law that the assessment was not sufficient to lead to identification. “ In making out an actual assessment of unseated land which has been sold for taxes, much liberality has always been shown by the courts in receiving evidence. . . . Until all the evidence bearing upon the question of assessment is in, it would be unsafe for the court to pronounce its effect.” Agnew, J.', in Lyman v. Philadelphia, 56 Pa. 488. As illustration of the principle, land lying in one township may pass under an assessment and sale for taxes ' describing it as lying in another, provided there are other means of description sufficient to identify the land, “of which, generally, the jury are the judges Stewart v. Shoenfelt, 13 S. & R. 360; Miller v. Hale, 26 Pa. 432. In McClements v. Downey, 2 Pa. Superior Ct. 443, we said: “ The authorities agree, if we understand them correctly, that an assessment is not required to contain in itself all the circumstances which are necessary and sufficient to identify the land without resort to other evidence. It must be ‘ a source of identification ’; it must “ lead to identification.’ For example, if the assessment be in the name of some person who has been an occupant of the land, or of some person who has claimed title to the land, those facts need not, and ordinarily would not, appear on the face of the assessment, but may be proved by evidence aliun.de. Where the circumstances which are relied on to show the association of the name given in the assessment with the land claimed, rest in parol, as they must in many cases, the question of identification must necessarily be submitted to the jury as a question of fact: Franklin Coal Co. v. Bertels, 109 Pa. 550; Woodside v. Wilson, 32 Pa. 52.”

The foregoing suggestions indicate tbe reasons which impel me to the conclusion that the judgment of the court below should be affirmed.

Orlady, J., joins in the dissent.


author: Head, J.,

text:
    Commonwealth v. Sunderlin, Appellant.

      Criminal law — Indictment—Grand jury — Presentment.

      ■ A bill of indictment against public officers was prepared and sent up by the District Attorney on the direction of the court following a presentment by the grand jury recommending such course of action. The defendants moved to quash the indictment because the presentment did not show affirmatively that the subject with which it dealt was given in charge by the court to the grand jury. The motion was overruled. On appeal it appeared that the charge of the court to the grand jury printed in the appellee’s paper-book and not challenged, distinctly and specifically gave the very matter in question to the grand jury. It was also alleged that witnesses were called and sworn before the grand jury without authority. It did not appear that any witnesses were in fact called or sworn. Held, that the action of the lower court in refusing to quash the indictment was proper.
    An indictment is sufficient where each count plainly charges the offense intended in language practically identical with that used by the legislature in defining the offense. If more detailed information is necessary to enable the defendant to prepare his defense, an application for a bill of particulars is the proper remedy.

      Criminal law — Public officers — Indictment—Evidence—Expert witness.

    On the trial of an indictment against county commissioners for fraudulent acts connected with contracts for county bridges, commissioners of a neighboring county who had not seen the bridges in question, and had no experience in purchasing material for bridges, or in erecting them, and who were neither engineers nor mechanics, are not competent to testify as to the market price of the bridges in question.
    In such a case testimony of a witness should be excluded which is merely an estimate of what would be the average cost of a bridge he would build, according to his own plans, on one of the áites in question; but the written bid of a bridge company for one of the bridges in controversy is admissible.

      Appeals — Assignments of error — Practice, Superior Ct.

    The onus is upon an appellant to make out his assignments of error affirmatively.
    The appellate court will not reverse on account of the reception or rejection of written evidence without being furnished either with the paper in question, or a copy of it.
    Argued April 19, 1906.
    Appeal, No. 17, Ocfc. T., 1906, by-defendant, from judgment of Q. S. Potter Co., Dec. T., 1904, No. 35, on verdict of guilty in case of Commonwealth v. D. A. Sunderlin.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladv and Head, JJ.
    Reversed.
    Indictment against county commissioners for being illegally interested in contracts for public bridges. Before Thomas, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-8) refusing to quash indictment; (14-20) various rulings on evidence referred to in the opinion of the Superior Court.

      W. K. Swetland, for appellant.
    — The record does not show that the matters contained in the indictment were given in charge to the grand jury by the court: Com. v. Green, 126 Pa. 531; McCullough v. Com., 67 Pa. 30; Com. v. Kulp, 5 Pa. Dist. Rep. 468.
    It is well settled by the decisions of our courts that the names of the witnesses must be indorsed by the district attorney upon the bill of indictment: Commonwealth v. Wilson et al., 6 Kulp, 40; Commonwealth v. Price, 4 Kulp, 289 ; Commonwealth v. Frescoln, 11 Lanc. L. Rev. 161; Jillard v. Commonwealth, 26 Pa. 169; Commonwealth v. Schall et al., 5 York, 139.
    A defendant has the right to have the indictment certainly and precisely in the description of the crime charged, that a verdict may clearly indicate what he has been relieved of or what he has to suffer: Commonwealth v. Johnson, 13 Pa. C. C. Rep. 543 ; Randolph v. Commonwealth, 6 S. & R. 398; Commonwealth v. Gillespie, 7 S. & R. 469.
    We submit that the witnesses were not qualified under the evidence to give any intelligent opinion as to the market price: Railway Co. v. Vance, 115 Pa. 325 ; Curtin v. Ry. Co., 135 Pa. 30; Michael v. Pipe Line Co., 159 Pa. 99 ; Galbraith v. Phila. Co., 2 Pa. Superior Ct. 359.

      L. T. Hoyt, for appellee,
    cited: Com. v. Hurd, 177 Pa. 481; Com. v. Taylor, 2 Pa. Dist. Rep. 743; Com. v. Dietrich, 7 Pa. Superior Ct. 515 ; Williams v. Com., 91 Pa. 493; Com. v. McCoy, 10 Pa. Superior Ct. 598; Com. v. Ault, 10 Pa. Superior Ct. 651; Com. v. Miller, 2 Parsons, 480; Com. v. Kaas, 3 Brewster, 422; Com. v. Carson, 2.1 Pa. Superior Ct. 48; Com. v. Mentzer, 162 Pa. 646.
    June 30, 1906:
   Opinion by

Head, J.,

In disposing of this case we cannot see that any good purpose would be subserved by a separate discussion of each one of the score of assignments of error presented by the record. Eight of these assignments attack the correctness of the ruling of the court below refusing to quash the indictment, and to sustain a motion in arrest of judgment, made after verdict, based on the same reasons as was the motion to quash.

The prosecution in this case was not begun in the usual way by an information and a preliminary hearing before a committing magistrate resulting in the defendants being committed or - held to bail for a trial in court; but the bill was prepared and sent up by the district attorney on the direction of the court, following a presentment by the grand jury recommending such a course of action. The defendants were public officers, being county commissioners of Potter county, and the public generally was interested in the manner in which they conducted themselves in office and transacted the public business committed to tbeir care. The court might rightfully then charge the grand jury to investigate the public and official conduct of the defendants and make any presentment following thereon which such investigation would warrant, and if a presentment recommending the submission of a bill resulted, the power and duty of the court to so order would be beyond question. So much is expressly decided in Commonwealth v. Hurd, 177 Pa. 481. But it is argued, the presentment does not show affirmatively that the subject with which it deals was given in'charge by the court to the grand jury. Why should it ? The grand jury is composed of laymen drawn from the body of the county. They are not learned in the law or expected to be. There is no form in which their presentment is to be framed and no requirement of statute or precedent as to what it shall contain. If, in substance, that body presents that it has investigated the conduct of certain public officers and suggests that an indictment be sent up, what law demands that their presentment must show affirmatively that their action was responsive to some previous action on the part of the court, or originated in a disclosure made by some member of the jury itself ? There can be no presumption that a question upon which a grand jury has acted, and upon which it would confessedly have power to act, if duly submitted by the court, was acted on without such submission. The appellant has not attempted to establish the allegation of fact upon which his argument is based. His paper-book does not exhibit any transcript of the charge to the grand jury, although “ the onus is upon the plaintiff in error to make out his assignment affirmatively: ” Aiken v. Stewart, 63 Pa. 30. If the charge to the grand jury could not be brought on the record to show just what the court had given them in charge, a grand juror might have been called to testify that the subject-matter of their presentment had not been formally brought to their notice by the court and thus the fact could be made to appear: Com. v. Green, 126 Pa. 531. But the'appellee prints in its paper-book what purports to be a complete copy of the charge of the court to the grand jury, the correctness of which is not challenged, from which it appears that the very matter in question was distinctly and specifically given in charge to the grand jury by the court. The whole argument on this branch of the case, resting as it does on an unwarranted presumption, itself drawn from an alleged fact which does not exist, must be regarded as unsound. The same liné of reasoning leads us to a like conclusion as to the argument based on the allegation that witnesses were called and sworn before the grand jury without authority. It does not appear that any witnesses were in fact called or sworn. The presentment simply states that from “the evidence we have had before us” we recommend, etc., but is silent as to the character of the evidence referred to. This may have consisted solely of an examination of the public records of the county or other documentary evidence, and again wre can find no warrant for the assumption, based on the language above quoted, that any witnesses were either called or sworn.

A careful examination of the bill discloses no substantial defects in its structure. Each count plainly charges the offense intended, in language practically identical with that used by the legislature in defining the offenses. More than this cannot be required. If more detailed information was necessary to enable the defendants to prepare their defense, an application for a bill of particulars was the proper remedy.

As the case must go back for another trial on account of the action of the court below we are about to consider, any discussion of the several assignments alleging error in portions of the charge and answers to points becomes unnecessary. No controlling questions of law are raised by these assignments, and the situation as to the testimony, at the conclusion of the next trial, may be entirely different from what it was before, and will doubtless receive adequate treatment at the hands of the learned trial court.

We are forced to the conclusion, however, that the court below fell into a serious error in the admission of the evidence complained of in the eleventh and twelfth assignments. The witnesses, Putnam and Reese, were county commissioners of Tioga county and as such officers had signed contracts for several iron or steel bridges erected in that county during their terms- of office. They identified the plans of these bridges, showing their length, width of roadway and weight-carrying capacity, and testified to the prices paid for these structures. These plans and the contracts based on them were offered and admitted in evidence over the objection of the defendants, and their admission constitutes the fourteenth assignment of error. Had this testimony been accompanied or followed by proof of the fact that the bridges which were actually constructed in Tioga county did, in fact, correspond, in material, workmanship, strength, durability and value, with the plans, we do not say that, in an investigation of this character, such evidence might not properly aid the jury in arriving at a conclusion on the main issues involved. But the witnesses were wholly unable to say anything on that all-important subject. Neither of them had ever purchased any material of which a bridge is composed or had any experience whatever in the work of erecting such material into a bridge structure. Neither was an engineer or mechanic of any kind. Neither could design a bridge or any part of it, calculate the weight, strength or cost of the material necessary to be used, nor even determine whether the bridges they bought were composed of iron or steel, or of material that was new or second hand when the bridges were built. The testimony, therefore, as to the cost of the bridges in Tioga county, and the plans and contracts according to which they were supposed to be constructed was, in our judgment, utterly worthless, because, non constat the plans called for bridges of a certain kind, those actually furnished may have been of very inferior quality and worth even less than the prices paid. We are not furnished with any copies of these various exhibits, however, and if we follow the long-established rule of the Supreme Court, as laid down in Aiken v. Stewart, supra, we would “ not reverse on account of the reception or rejection of written evidence without being furnished either with the paper in question or a copy of it.”

But the witnesses were permitted to go much further. Notwithstanding their statements that they had never seen nor examined either of the two bridges in Potter county which were the subjects of investigation, and their repeated denials that they possessed any expert knowledge of bridge material or construction, or indeed any knowledge except that acquired from the making of several contracts for bridges under the conditions already referred to, they were permitted, under objection as to their qualifications, to examine the plans and specifications of the Potter county bridges and then give to the jury their opinion as to the fair market price of such bridges. We cannot but think these witnesses were wholly lacking in the qualifications, the possession of which alone could give to such opinions any value as evidence. It is difficult to conceive that a bridge, a completed structure, built on a particular site, at a particular time, and according to special design, could have a market price, although the various trusses, beams, plates, angles, rivets and bolts of which it is composed, and the labor necessary to assemble and erect them, might and probably would have such price. It is a matter of common observation and experience that men can be found possessed of such special knowledge as would enable them, after a thorough inspection of a bridge, to determine the various classes of material entering into its construction, the quality and cost of each, and who could thus arrive at an intelligent conclusion as to the fair cost of such a bridge. With such evidence before them, along with the price actually paid by the defendants, the manner of letting the contracts and making payments and other like circumstances, the jury could intelligently and properly determine whether the facts established were consistent with the innocence of the defendants, or could only be rationally accounted for on the theory that the charges of corrupt collusion or criminal neglect of duty were well founded.

We think also the testimony of the witness Thomas Leet (thirteenth assignment) should have been excluded. His estimate of what would be the average cost of a bridge he would build, according to his own plans, on one of the sites in question, was entirely irrelevant, and he completely disqualified himself from giving any opinion as an expert on the real question under consideration.

We can see no sound reason for the rejection of the offer of the written bid of the Owego Bridge Company for one of the bridges in controversy. The fundamental question at issue was the honesty and good faith of the defendants in letting these contracts. The bids, if any, made by competing companies would seem to be of considerable importance in such an inquiry. If there were any suspicious circumstances connected with this or other rejected bids, these too should be placed before the jury, who, with the aid of the court, would be able to give all such circumstances their proper weight. But as the record stands we think the defendants were fairly entitled to the benefit of this piece of evidence and, therefore, that it should have been admitted.

Without further elaborating this opinion we think we have sufficiently indicated our reasons for the judgment we are about to enter. The eleventh, twelfth, thirteenth and fifteenth assignments of error are sustained and all the remaining ones are dismissed.

Judgment reversed and a venire facias de novo is awarded.