author: Rice, P. J.,

text:
    International Savings & Trust Company, Appellants, v. Printz.

      Appeals — Hule for judgment non obstante veredicto — Exception—Act of April 22, 1905, P. L. 286 — Quashing appeal.

    ' Where an order discharging a rule for judgment for the plaintiff non obstante veredicto upon the whole record, is not excepted to, an appeal from such order will be quashed. The language of the Act of April 22, 1905, P. L. 286, implies that the party shall request an exception, and if it is not allowed him, he has his remedy whereby he can compel the judge to grant it.
    Argued April 13, 1908.
    Appeal, No. 41, April T., 1908, by plaintiff, from order of C. P. Warren Co., Dec. T., 1905, No. 31, discharging rule for judgment for plaintiff non obstante veredicto, in case of International Savings & Trust Company, Receiver of the Duquesne Mutual Casualty & Indemnity Co., v. A. A. Printz.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Assumpsit for an assessment against a member of an insolvent insurance company. Before 'Lindsey, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Alter & Wright, with them Axtell J. Byles, for appellant.

      Edward Lindsey, with him Earl MacDonald, for appellee.—
    Under various acts of assembly authorizing the entry of rules for judgment non obstante veredicto an exception must be taken to the ruling of the court thereon in order to review the same by writ of error, and if no exception be taken the appeal will be quashed: Yard v. Pancoast, 108 Pa. 384; Dietrich v. Ins. Co., 32 Pa. Superior Ct. 234; Dalmas v. Kemble, 215 Pa. 410; Com. v. Fleming, 157 Pa. 644; Titusville B. & L. Assn. v. McCombs, 92 Pa. 364.

      October 12, 1908:
   Opinion by

Rice, P. J.,

The defendant’s motion to quash this appeal raises a question of practice of some importance. The plaintiff presented a motion for binding instructions in its favor, and after verdict by direction for the defendant moved the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment for the plaintiff non obstante veredicto upon the whole record. A rule to show cause was granted, and after argument was discharged in an opinion filed. Thereupon judgment was entered on the verdict and the plaintiff appealed. The record fails to show that either the charge or the refusal of the plaintiff’s .point was excepted to, or that any exception was requested or granted to the refusal of plaintiff’s motion for judgment non obstante. The provisions of the Act of April 22, 1905, P. L. 286, so far as material in the disposition of the motion to quash, are that “it shall be the duty of the court, if it does not grant a new trial, to so certify the evidence, and to enter such judgment as should have been entered upon that evidence, at the same time granting to the party against whom the decision is rendered an exception to the action of the court in that regard. From the judgment thus entered either party may appeal to the Supreme Court or Superior Court, as in other cases, which shall review the action of the court below, and enter such judgment as shall be warranted by the evidence taken in that court.” We are inclined to the opinion that the words “at the same time granting to the party against whom the decision is rendered an exception to the action of the court in that regard,” imply that the party shall request an exception; for why should an exception be entered if the party apparently, judging from his silence, is satisfied with the decision? This conclusion makes the practice analogous to the practice on refusal of a motion for judgment for want of a sufficient affidavit of defense, and of a motion for judgment non obstante veredicto on a question of law reserved. Appeals have been quashed or the assignments of error dismissed because there was no exception to the action of the court upon such motions. As to the first see Titusville Building & Loan Association v. McCombs, 92 Pa. 364; Commonwealth v. Fleming, 157 Pa. 644; Commonwealth v. Cavette, 23 Pa. Superior Ct. 57; Chambers v. McLean, 23 Pa. Superior Ct. 551, and as to the second, see cases cited in our opinion herewith filed in Philadelphia to use v. Bilyeu, 36 Pa. Superior Ct. 562. But whether a formal motion by the party to enter an exception be necessary or not under the act of 1905, the fact remains that the legislature in its wisdom has provided that there shall be an exception to the decision, and that in this case, none was entered. Undoubtedly the requirement was made for some reason which to the legislature seemed adequate, and it is not apparent why there is not as much reason for the requirement as in the decision of a motion for judgment for want of a sufficient affidavit of defense or a motion for judgment non obstante on a question of law reserved. At any rate, it is not within our province to say that that which the legislature has prescribed is a mere useless formality, the omission of which does not affect the right of review in an appellate court. If it be said that the party against whom the decision is rendered ought not to be prejudiced by the failure of the judge to do his duty, the answer is that the party has a remedy whereby he can compel him to grant an exception if he refuse to do so. Following the practice in analogous cases we are constrained to sustain the appellee’s motion.

The appeal is quashed.


source: Caselaw Access Project

license: Public Domain

text:
    Louderback, Appellant, v. Warner.

      Corporations — Meadow companies — Assessments — Membership — Penn’s Manor Meadow Company.

    The Penn’s Manor Meadow Company, a corporation chartered under the special Act of March 4, 1815, 6 Sm. L. 257, rechartered by the special Act of April 30, 1855, P. L. (1857) 738, and reincorporated under the Act of April 29,1874, P. L. 73, has no power to levy an assessment upon a person who is not a member of the corporation, and whose land, although a part of the area originally surveyed for protection by the company’s works, is. not touched by the work for which the assessment was levied.

      Every statute which authorizes assessments upon the owners for improvement of their lands, ought to be strictly construed. If it admit of two constructions, one consistent with the bill of rights, the other repugnant, it should receive the former.
    Argued Nov. 18, 1907.
    Appeal, No. 212, Oct. T., 1906, by plaintiffs, from order of C. P. Bucks Co., April T., 1904, No. 24, refusing to take off nonsuit in case of Daniel Louderback et al., Trustees of Penns Meadow Company, v. Geo. Warner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover assessments by a meadow company.
    At the trial the court entered a compulsory nonsuit.
    On a rule to take off the nonsuit, Stout, P. J., filed the following opinion:
    By Act of assembly approved March 4, 1815, 6 Sm. L. 257, Robert Crozier and ten others, and their successors, were declared a body corporate under the name of “The Penns Manor Meadow Company,” to have the usual and necessary powers of a body corporate for the period of forty years.
    The act appointed three commissioners for the time being and provided for the election of three trustees annually thereafter, each to serve one year. It was made the duty of these trustees to have dug a main ditch through the main branches of the marsh or meadow, etc., and to keep the same open, etc., and likewise to keep the' bank or sluices at or near the river in good repair; also to keep a regular account of the expenses thereof and to apportion the same amongst the members of the corporation according to the quantity of land held by them, respectively in said meadows. It was also made the duty of each member, his heirs and successors, to pay such trustees his proportion of all the expenses incurred by them for the purposes aforesaid. • It also provided for the survey and valuation of the said marsh at the direction of the company.
    Upon the organization of the company a survey was made and the meadows was found to contain 120 acres and forty-seven perches, with a total valuation of $15;044.60. Of this land eight acres and 137 perches was assessed to Robert Crozier at a valuation of $646, being a part of the farm then owned by said Crozier. All assessments have been based on the survey and valuation thus made to this date.
    By Act of April 30, 1855, P. L. (1857), 738, the said act of incorporation was revived and extended for a period of twenty years, a number of persons not named in the original charter being thereby declared a part of said company.
    Robert Crozier died about 1866 and by proceedings in partition the orphans’ court adjudges the said farm, of which the said eight acres and 137 perches of meadow was a part, to his son, William Crozier.
    The said William P. Crozier mortgaged said farm and upon a foreclosure of said mortgage the sheriff of Bucks county conveyed the farm to Hector C. Watson, who, April 1, 1887, conveyed the same to George Warner, the defendant.
    There is no record evidence to show that any part of said farm was subject to assessments by the Meadow Company.
    The said William P. Crozier, during his ownership of said farm, became a member of said company upon the renewal of its charter by the court of common pleas as hereinafter stated, but the said George Warner, the defendant, never became a member of said company, nor did he do any act from which such membership can be inferred. Nor was any of the work, for which the assessments in suit were made, done upon the defendant’s property.
    The said corporation expired by its own limitation unless it was kept alive by the renewal of the charter by the court of common pleas of Bucks county, under sec. 40 of the corporation act of April 29,1874, providing for the renewal of charters embraced within sec. 2 of said act whose charters are about to expire by lapse of time from their own limitations. It is contended that the defendant is liable for the assessments in suit because the corporation act of 1874, corporations of second class, XVI, provides for corporations “for maintaining or erecting walls or banks of low-lying lands.” This contention cannot be maintained, for two reasons:
    1. Because such corporations were not provided for in the act of April 29,1874, but by the supplementary Act of April 17, 1876, P. L. 30, which was passed about one year after the date of the decree of said court renewing the charter.
    2. Because applications for renewals of charters of the second class must be made to the governor in like manner as an application for an original charter. The court of common pleas has no jurisdiction for the renewal of charters of the second class, and such a renewal would be void and of no effect.
    But it was not intended to be renewed as a corporation of the second class. The court, in its decree of renewal, finds “the same (the certificate) to be in proper form and within the purposes named in the first class of sec. 2 of the act of April 29, 1874.” The purpose declared in the certificate is “to promote and encourage agriculture in reclaiming overflowed lands, ... by erecting and maintaining banks, sluices, creek-ways and ditches for that purpose.” It was clearly the intention of the court and corporators to bring the application within the purposes of the first class, IV, to wit, “the encouragement of agriculture and horticulture.” But it is more than doubtful whether these words as used in said act include companies like the Penns Manor Meadow Company, whose primary object is to reclaim overflowed lands by ditching and draining and to collect the costs thereof from the landowners benefited thereby by assessments or taxes.
    Assuming that said company as originally created under the act of March 4, 1815, had the power to levy assessments or taxes upon the owners of lands within said marshy district for the purpose of drainage without regard to their membership in said company, and that the corporate life of said company was continued by the renewal of its charter by the court of common pleas, does the said company still retain the right to levy and collect assessments and taxes for such purposes? By sec. 40 of the act of April 2, 1874, under which the proceedings for renewal were had, the said company was required to, and did, in fact, expressly accept the provisions of the constitution of this state and the provisions of said act, and also expressly surrendered all privileges conferred by its original charter that are not enjoyed by corporations of its class under said act and the general laws of the commonwealth. It no longer owes its existence to and exercises its functions under the act of April 4,1815, and its supplement of April 30, 1855, but the general corporation act of April 29, 1874. In vain do we look to this act for the right of a corporation formed thereunder to construct and maintain ditches for the purpose of draining marsh lands and to assess and collect the costs thereof from the owners of lands lying within such district who are not members of the corporation. The provision in said act IV, “for the encouragement of agriculture and horticulture,” does not confer it expressly or by necessary implication. The legislature no doubt might have conferred such power if it had seen proper to do so. But it did not. Such a power as is here claimed must be clearly conferred. It cannot be implied from the purposes declared in the certificate of incorporation. The court could not continue any powers not conferred by the corporation act of 1874.
    Rutherford v. Maynes, 97 Pa. 78, arose out of the collection of assessments made by the Greenwich Meadow Company for drainage purposes. The powers there conferred were clear and specified) and the charter was perpetual. It was there said, “every statute which authorizes assessments upon owners for improvement of their lands ought to be strictly construed. If it admit of two constructions, one consistent with the bill of rights and the other repugnant, it should receive the former. It is said that the state makes the owners of this island a quasi-corporation. Be it so. The managers have just the powers, and none other, that are given expressly or by necessary implication.”
    In Abbott’s Municipal Corporations, vol. 2, P. L. 117, in discussing the legislative authority for the construction of drains for the purpose of reclaiming wet lands it is said: “It may be general or special in its terms and like all other grants of power to public corporations is construed strictly.” Again, in speaking of assessments made for such purposes, the same author, on page 1138, says: “The principles controlling and regulating the enforcement and collection of special assessments will also control this particular one. Such provisions are generally strictly construed, operating as the exercise of an arbitrary power directed against private property.”
    But counsel for plaintiffs claim the right to levy and collect said assessments by virtue of the general laws of the commonwealth, and to support this contention cite the act of April 5, 1870, entitled “An act for the drainage of swampy and wet lands,” which provides' “that swampy or wet lands, belonging to several owners disjointly, may be drained at the common expense.” This is a general law, but the rights thus conferred can be exercised only upon the petition of a majority of the owners of such lands to the court of quarter sessions to do certain things, and when those things have been done the owners of such swamp lands become a corporation for the purposes aforesaid. How the plaintiffs, not having brought themselves under the provisions of this act, can now avail themselves of its benefits in the collections of the assessments in suit, was not shown.
    The authorities cited by the plaintiff do not control in the case in hand, because the powers there claimed were clearly conferred and the assessments were made during the life of the original charter.
    Other cogent reasons were urged for the refusal to take off the nonsuit, but, having reached the above conclusions, it will not be necessary to discuss them.
    Now, April 3, 1906, the motion to take off compulsory non-suit is refused.

      Error assigned was refusal to take off nonsuit.

      Herman Yerkes, of Yerkes, Ross & Ross, with him Harry J. Shoemaker, for appellant.
    Plaintiff’s claim arises out of its power to tax and there is no question of a charge running with the land: Wharton v. School Directors, 42 Pa. 358; Com. v. Beamish, 81 Pa. 389; Blake v. People, 109 Ill. 504; Osborn v. People, 103 Ill. 224; Knisely v. Cotterel, 196 Pa. 614; Erie City v. Erie Electric Motor Co., 24 Pa. Superior Ct. 82; Hammett v. Philadelphia, 65 Pa. 146; Rutherford v. Maynes, 97 Pa. 78; Garrett v. Kilpatrick, 13 W. N. C. 384; Robb v. Phila., 25 Pa. Superior Ct. 343; Pittsburg v. Sterrett Sub-District School, 204 Pa. 635.
    The recharter is valid and confers the powers of the original corporation: Freeland v. Ins. Co., 94 Pa. 504.

      H. Spalding, of Fell & Spalding, with him Hugh B. Eastburn, for appellee,
    cited: Rutherford v. Maynes, 97 Pa. 78; Tinicum, etc., Meadow Co. v. Farrell, 8 W. N. C. 502.
    October 12, 1908:
   Opinion by

Rice, P. J.,

By the Act of March 4, 1815, 6 Sm. L. 257, it was enacted that certain persons, who were named in the act, “and their successors,” be a body politic and corporate in law and in fact by the name, style and title of The Penn’s Manor Meadow Company. By the express terms of the act it was to continue in force for forty years and no longer, but by the Act of April 30, 1855, P. L. (1857) 738, it was revived and extended for the period of twenty years thereafter, and in addition to the corporators named in the act of 1815 other persons, who were named, “and their successors ” were declared to be a part of the incorporated company.

In 1875, certain persons, describing themselves as members of The Penn’s Manor Meadow Company, and representing that they were desirous of being rechartered and having said corporation renewed under the provisions of the corporation act of 1874, presented to the president judge of Bucks county their certificate, setting forth, inter alia, the names and residences of the members of the proposed rechartered corporation, and that the purpose for which it was to be carried on was “the same for which the original corporation was formed, viz., to promote and encourage agriculture in reclaiming overflowed lands in Penn’s Manor, Falls township, Bucks county, Pennsylvania, by erecting and maintaining banks, sluices, creekways and ditches for that purpose.” The judge approved the certificate and decreed that the said The Penn’s Manor Meadow Company should be and exist as a new corporation under the provisions of the act of 1874 and of its renewed charter.

The purpose for which the corporation was created in 1815, its original powers in respect of the matters now in question, and the obligations and liability of the members, may be gathered from secs. 2 and 5 of the act. In the former it was provided that “ each member of the company, their heirs and successors, shall pay to the trustees, for the time being, his, her or their proportion of all expenses incurred or to be incurred by the trustees hereinafter named, and their successors appointed as hereinafter mentioned, in such manner as the company at their annual meetings shall from time to time direct.” And sec. 5 provided that the temporary trustees named in- the act, and their successors to be elected by ballot by the members of the company at their annual meetings in January (we quote the language of the section), “shall attend to and have dug a sufficient main ditch through the main branches of the marsh or meadow aforesaid, so as to give all the fall the ground will admit of, and shall keep the same open, and likewise the bank and sluices at or near the river in good repair, and shall keep a regular account of the expenses thereof, which shall be apportioned among the members according to the quantity of land by them respectively held in said meadow, and until it shall be otherwise directed by the company, they shall call on each member to work out his, her or their portion of the expense aforesaid; Provided that the nature of the work and the urgency of the case will admit, and should any member neglect or refuse to make payment, the said trustees shall have power to sue for and recover the same, and all other moneys which shall become due to the company, as other debts of the same amount are recoverable; and cause a survey and valuation of the said marsh to be made when directed so to do by the company.”

The marsh or meadow thus referred to is not described in the act, nor are its. location, boundaries and extent indicated therein, otherwise than by the title under which the company was incorporated. But it appears by the books of the company that upon its organization-the company made, or adopted, a survey and valuation of the meadow, by which it was ascertained that it contained 120 acres and forty-seven perches of land, which was held by the members in severalty, and that their holdings were of varying values per acre. According to this survey and valuation, which have been made the basis of all subsequent assessments, including those in question, eight acres and 137 perches of the land embraced in the meadow, valued at $646, were owned by Robert Crozier, one of the members of the company named in the act of incorporation. By proceedings in partition after his death his title passed to William P. Crozier, who subsequently joined in the proceeding ünder which the company was incorporated. Henry C. Watson acquired his title to the farm, of which these eight acres of meadow land form a part, by purchase at sheriff’s sale upon a mortgage executed by William P. Crozier in 1868, and in 1887 conveyed the land to George Warner, the defendant.

During the period covered by this action the farm was occupied by W. Y. Warner, the defendant’s tenant. The tenant was notified of, attended and participated in meetings of the company, at one time was elected and acted as a trustee, at another time as secretary, and also voted for some of the assessments. In addition to proof of these facts, evidence was given on the trial that the defendant consulted with a trustee about the drainage of the meadow and about opening a ditch through his part of it; that he requested that a meeting of the trustees be called to consider that subject, which he promised to attend, but no meeting was called, and nothing appears to have been done pursuant to his suggestion; that in connection with a settlement of an indebtedness to one of the trustees, incurred by the tenant on behalf of the defendant for building a barn on the latter’s premises, the tenant also paid to the trustee an assessment made by the company, which payment upon being informed of it, the defendant expressed satisfaction with; and that a bill for another year’s assessment was presented to the defendant, which he promised to send a check for, but did not pay.

This action of assumpsit was brought to recover taxes (so called in the resolutions of the company) imposed by the company'in the years 1891,1892,1900 and 1902, being in each year a percentage of the original valuation of the defendant’s land embraced in the meadow. These and similar charges upon other individuals were imposed to meet the expenses, principally of constructing, repairing and maintaining an embankment and sluices to protect the meadow against overflow by tide water.

While there is evidence that these works protect and benefit all of the land in the meadow, including that of the defendant, we find no evidence in the record that any of his land abuts directly upon them; indeed, it was admitted by plaintiff’s principal witness that none of the work for which the assessments were made was done on the defendant’s property.

The contention of the plaintiff, as stated by its counsel, is that The Penn’s Manor Meadow Company is a quasi-municipal corporation for the purpose of opening ditches and keeping in repair banks and sluices upon the lands embraced within the control of the corporation, which would greatly improve their value; that the purpose for which it was created was an improvement in which the public have an interest, and which will advance the general welfare of the locality; that the state may choose such agents in its own way to carry out its commands in regard to taxing or police or other general powers; and that by the charter every landowner who became a corporator became a member of the corporation and subjected the lands held by him to a tax, whether in his name or that of his successor in title, who would stand in his place as-a member of the corporation. Even if that view of the company’s powers be taken, it may well be questioned, whether as against one who never voluntarily became a member of the company, and who did not acquire title to the land in the drainage district until 1887, an apportionment of the expenses incurred in later years according to the varying valuations of the lands made in 1815, is a constitutional mode of taxation according to special benefits conferred, or can be sustained under a power to apportion the expenses among the members according to the quantity of land held by each in severalty. But passing that question, and conceding for present purposes, but without deciding the point, that the rechartered company has the power of taxation, as above claimed, if the original company had it (a proposition open to very serious question, as shown by the opinion of the learned judge below), it is nevertheless indisputable that it has no power to make the expenses incurred by it a charge upon the lands embraced in the meadow or to impose personal liability therefor upon anyone except members of the company. The language of the act is not open to a construction that would enable the company to assess the defendant and collect the assessment by action unless he was a member of the company. Was he a member?

We have recited the evidence as to his acts and declarations after he became owner of the land, and concur with the learned judge below in the conclusion that they are insufficient to sustain a finding that the defendant ever became a member by his own voluntary action, or that he estopped himself by his acknowledgments or conduct to deny that he was a member. Nor did the acts of the tenant in becoming a member and participating as such in the business of the company, even though these were known to and acquiesced in by the defendant, enlarge the powers of the company so as to enable it to charge the land with a portion of the expenses, or to subject the defendant to a personal liability to which he would not have been subject otherwise.

It follows that in order to maintain this action the plaintiff must establish the proposition that no voluntary action on the defendant's part was necessary to make him a member of the company, that by operation of law he became a member the moment he became the owner of the land within the limits of the meadow, and that by reason of the membership thus enforced upon him he became liable to assessment for the purposes contemplated by the act of 1815. In support of their contention counsel cite the following from Cooley on Taxation, which was quoted with apparent approval in Rutherford v. Maynes, 97 Pa. 78: “When any considerable tract of land owned by different persons is in a condition precluding cultivation by reason of moisture and overflow, which embankments and drains would relieve, the public have such an interest in the improvement, and the consequent advancement of the general interest of the locality, as will justify the levy of assessments upon the owners for the purposes of such improvements: Cooley on Taxation 424, and cases cited in note. No doubt general taxation is admissible for this purpose, but the special benefits from enhancements of value must accrue mainly to the owners of the lands, and legislation which imposes the costs upon those who, without the improvements, would be the principal sufferers, is probably in most cases wiser and better.” But it is to be noticed that in the same connection Justice Trtjnkey said: “When there is no consideration other than the improvement of land as property, the authority to levy such assessments is confined within limited bounds,” and further: “Every statute which authorizes assessments upon the owners for improvement of their lands, ought to be strictly construed. If it admit of two constructions, one consistent with the bill of rights the other repugnant, it should receive the former. It is said that the statute malcés the owners of this island a quasi corporation. Be it so. The managers have just the powers, and none' other, that are given expressly or by necessary implication.” The same principle is clearly enunciated in 2 Abbott’s Mun. Corp. 1138, from which the learned judge below quotes as follows: “The principles controlling and regulating the enforcement and collection of special assessments will also control this particular one. Such provisions are generally strictly construed, operating as the exercise of an arbitrary power directed against private property.” Viewing the case in the light of these principles, we observe that the power to tax every owner of land within this comparatively inconsiderable district is not expressly given; nor is there any express declaration in the act that the original membership of the company was confined to owners of land within the district, nor that future membership should be so restricted, nor that any person who should succeed to the title to land of a member should, nolens volens, succeed to his rights and obligations as a member. Nothing of this kind can be implied from the words of the fifth section, in which the powers of the company are defined. If it is to be implied at all it is from the word “successors” as used in the first and second sections. But a careful examination of those sections shows that it is not necessary to supply, by construction, the words “in title” after the word “successors” in order to effectuate the obvious purpose of the legislature. The construction of the word, certainly as used in the first section, to mean successors in membership' to the corporators specially mentioned is quite as appropriate and reasonable. Construing the act as a whole, there seems to be a necessary implication that a' prerequisite of the power to assess a member is his ownership, or at least holding, of land within the district, because as has been seen, the expenses are to be apportioned according to the quantity of land held by the members, but we are not convinced that there is any necessary implication of the power to assess every owner of such land. If the legislature intended to delegate to the company this extreme power, and to make voluntary membership in the company a nonessential to its exercise, it would have been easy to express its grant of power in such manner as to preclude doubt, as was done in the special acts construed in Rutherford v. Maynes, 97 Pa. 78: Robb v. Philadelphia, 25 Pa. Superior Ct. 343; Tinicum & Kingsessing Meadow Co. v. Farrell, 8 W. N. C. 502; Garrett v. Kilpatrick, 13 W. N. C. 384. It need not be declared that it is not within the province of the legislature to thus delegate the power of taxation or to subject an owner of land to the duties and obligations of membership in such corporation without his consent: Nor do we go so far as to say that the proposition of the appellant’s counsel as above stated is not an arguable oxxe. But notwithstanding the able argument of appellant’s counsel we are unable to say that the power they claim to be vested in the company has been expressly given or arises by necessary implication. If on the other hand we take the fifth section of the act as expressing the extent and limits of the power to assess, and hold, as the words of that section read, that it does not extend beyond the assessment of actual members of the corporation, no absurd result will be reached and some of the objections which were held fatal to the act construed in Rutherfoxd’s Case, 72 Pa. 82, will be avoided. See also Philadelphia v. Scott, 81 Pa. 80. We conclude that the learned judge below was right in holding that the plaintiff was not entitled to recover.

The judgment is affirmed.

Head, J., dissents.


author: Beaver, J.,

text:
    Philadelphia Typewriter & Supply Company, Appellant, v. Smith, Hutton & Kirk Company.

      Affidavit of defense — Refusal of judgment — Appeals—Review.
    An order refusing judgment for want of a sufficient affidavit of defense will not be reversed in a doubtful case, and especially in one requiring broad inquiry into facts. In such a case .a jury is the proper tribunal to decide the cause under proper instructions from the court.
    Submitted May 13, 1908.
    Appeal, No. 234, April T., 1908, by plaintiff, from order of C. P. Lawrence Co., Dec. T., 1907, No. 135, discharging rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia Typewriter & Supply Company v. Smith, Hutton & Kirk Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The plaintiff claimed the price of a typewriter sold and delivered to the defendant.
    The affidavit of defense averred that the defendant admits the order and the delivery to it of the typewriter referred to in the plaintiff's statement of claim, and that the price charged is the price agreed upon for the same.
    The defendant on January 12, 1907, was appointed by the plaintiff its selling agent in Lawrence county for the Fox typewriter. At the time that the defendant was so appointed, the plaintiff, through its agent and employees, represented to the defendant that the Fox typewriter was a durable typewriter and would do its work satisfactory, and that it was as good a typewriter as was on the market, and that all typewriters to be sent to the defendant would be in good working satisfactory condition.
    With this understanding and agreement the defendant ordered Fox typewriters of the plaintiff as follows:
    Five typewriters at several different times at the total price of $386.25 of which the defendant paid to plaintiff $303.75.
    That the defendant sold one of the said typewriters.
    That the said typewriters so received were not in a good working condition and are so poorly constructed that they will not do the ordinary work required of a typewriter, that on account of the defective condition of the said typewriters, they are not as represented by the plaintiff to the defendant, and have no market value as a typewriter.
    That the four typewriters unsold, three of which were paid for by the defendant to plaintiff, are not as represented on account of their poor and defective construction, and the same are hereby tendered to the plaintiff. Defendant therefore claims of the plaintiff the sum of $228.75, being the amount paid to said plaintiff, viz.: $303.75, less the price of the typewriter sold by the defendant, viz.: $75.00, or $228.75, for which amount defendant claims judgment against plaintiff.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      W. H. Falls, with him Pettis & McAllister, for appellant.

      H. K. Gregory, with him T. W. Dickey, for appellee.
    October 12, 1908:
   Opinion by

Beaver, J.,

The Act of April 18,1874, P. L. 64, allowing a writ of error to the refusal of judgment for want of a sufficient affidavit of defense was construed shortly after its passage in Griffith et al. v. Sitgreaves, 81* Pa. 378. It was said:

“The act of assembly, authorizing writs of error to be taken when a court of common pleas refuses to enter judgment on the ground of the sufficiency of an affidavit of defense was intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. Its effect is often to produce two writs of error in the same cause, instead of one, and is not to be encouraged. Such writs should be confined to plain errors of law. In doubtful cases, and especially in those requiring broad inquiry into facts, where the court refuses judgment, the matter in controversy should go to the jury as the proper tribunal to decide the cause, under proper instructions from the court.”

This rule has been consistently followed in many later cases, notably Radcliffe v. Herbst, 135 Pa. 568; Ætna Ins. Co. v. Confer, 158 Pa. 598; Ensign et al. v. Kindred, 163 Pa. 638; Security Savings & Loan Assn. v. Anderson, 172 Pa. 305; Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388, which are all to the same effect.

Even if the argument of the appellant should raise a doubt as to the sufficiency of the affidavit of defense in this case, there is not such clear error on the part of the court below as should induce us to reverse its order in refusing to enter judgment for want of a sufficient affidavit of defense.

The order of the court below, refusing judgment for want of a sufficient affidavit of defense, is affirmed and the appeal dismissed at the costs of the appellant.


author: Head, J.,

text:
    Delaware & Atlantic Telegraph & Telephone Company’s License Fees.

      Appeals — Telegraph and telephone companies — License fees — Reasonableness of fees — Nature of the appeal — Act of April 17, 1905.
    The appeal provided by the Act of April 17, 1905, P. L. 183, from a decree determining the reasonableness of license fees imposed by municipalities upon certain public service companies, is not a substitute for the common-law writ of certiorari, but is like an appeal from a decree in an ordinary case in equity, and brings before the appellate court the entire record made up by the exceptions filed to the conclusions of law and fact adopted by the trial court.
    In such a case the findings of fact adopted by the trial judge, when the ascertainment of such facts involves the balancing of conflicting testimony, and the credibility of witnesses, will be regarded by the appellate court as if established by the verdict of a jury. Where, however, such findings are but conclusions or inferences drawn from the testimony that is practically undisputed, it is the duty of the appellate court to examine the evidence and determine for itself whether or not the findings are warranted by it.

      Telegraph and telephone companies — License fees — Reasonableness of fees — Act of April 17,1905, P. L. 183.
    A borough imposed upon a telegraph and telephone company annual license fees which were fixed at $1.00 per pole, $2.50 per mile of wire or cable, and $30.00 per mile of conduit. The court below in proceedings under the Act of April 17, 1905, P. L. 183, found as a fact that the rates were reasonable, and entered a decree accordingly. The appellate court on examination of the testimony found that the fees paid by the company in question and other public service companies aggregated a sum which was about three times the amount paid to the borough’s single policeman during the year for inspection duties. It also appeared that after a conduit was laid and the ground had settled, that the inspection of the conduit was little more than perfunctory. It also appeared that very little time was needed in making an effective inspection of the pole line, and that for several years after a new construction there was but little to apprehend from the natural decay of the material. It also was shown that the different companies made frequent inspections of their own. Held, that the borough should be authorized to charge the company $10.00 per mile for each mile of conduit, $1.50 per mile for each mile of wire, and fifty cents for each pole.
    A municipality may not under the guise of license fees, levy and collect revenue, to be expended in the discharge of municipal obligations.
    Argued Nov. 22, 1907.
    Appeal, No. 189, Oct. T.,1907, by The Delaware & Atlantic Telegraph & Telephone Company, from decree of C. P. Delaware Co., March T., 1906, No. 172, on petition.
    Before Rice P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Decree modified.
    Petition of the Delaware &' Atlantic Telegraph & Telephone Company to determine the reasonableness of license fees imposed by the borough of Sharon Hill. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court below entered the following decree:
    And now, to wit, October 8, 1907, the foregoing exceptions filed by The Delaware & Atlantic Telegraph & Telephone Company are hereby dismissed, and it is hereby ordered, adjudged and decreed that the rates of license taxes as set forth in the ordinances of the borough of Sharon Hill, to wit $1.00 per pole, $2.50 for each mile of wire or cable, and $30.00 for each mile of conduit, are reasonable in order to properly compensate it for the necessary costs of the services performed by it and to be performed by it for the inspection and regulation of the poles, wires, conduits or cables of the said The Delaware & Atlantic Telegraph & Telephone Company, and the said license taxes shall be the maximum sum which the said borough of Sharon Hill shall be authorized to charge as license fees against the said The Delaware & Atlantic Telegraph & Telephone Company.

      Error assigned was the decree of the court.

      William, I. Schaffer, for appellant.
    This proceeding is assimilated to a proceeding in equity and the effect of the findings of fact and law by the court is precisely the same as if the proceeding had been commenced in equity. The act under which the proceeding was commenced (Act of April 17, 1905, P. L. 183) directs that it shall be heard and determined “in the manner and way provided by law for the hearing of cases in equity.”
    The elements which properly enter into a valid license tax levied by a borough against a telephone company are (1) the necessary or probable expense incident to the issuing of the license; (2) the probable expense of such inspection, regulation and police surveillance as the municipal authorities may lawfully give to the erection and maintenance of the poles and wires: Schellsburg v. Western Union Telegraph Co., 26 Pa. Superior Ct. 343.
    The only inspection and regulation that the borough pretends to have made is that by its police officer. It has measured the extreme cost of this to it by its ordinance fixing the policeman’s salary at $240 per year, which covers the inspection, regulation and surveillance of all the poles, wires, conduits, cables and pipes maintained by the various companies operating within the borough limits. The uncontradicted testimony showed that the borough will collect from these various companies under its ordinance $732.88 per year, which is more than three times the amount which it pretends to spend. This shows that the borough under the guise of license taxes is endeavoring to levy a revenue tax and its endeavor is in the teeth of the opinon in Kittanning Borough v. Western Union Telegraph Co., 26 Pa. Superior Ct. 346.
    The taxes levied in this case find no support in the case of Lower Merion Township v. Postal Telegraph Cable Co., 25 Pa. Superior Ct. 306.
    Expenditures by a municipality in filling up trenches and in' repairing and macadamizing streets are not properly to be taken into account in fixing the amount of license taxes: Pottsville Borough v. Pottsville Gas Co., 33 Pa. Superior Ct. 480.
    It ought not to be the rule that the prima facie reasonableness of the license tax levied shall prevail where the taxed company shows the only thing that it can show, i. e., what competent men believe would be an adequate and fair inspection, or that no inspection at all should be made. There is no other answer for a corporation such as the one here seeking relief except to show what a proper inspection was, how it should be made, what it would cost, and that any other inspection would be useless and of no avail.

      Edward P. Bliss, for appellee.
    License fees are not to be held excessive and set aside merely because they are after-wards shown to be somewhat greater than the actual expense of the supervision: Atlantic & Pacific Tel. Co. v. Phila., 190 U. S. 160 (23 Sup. Ct. Repr. 817); Schellsburg v. W. U. Tel. Co., 26 Pa. Superior Ct. 343.
    The character, frequency and extent, of the inspection are within the discretion of the municipal authorities, and their discretion will not be interfered with by the court unless it is shown to have been abused: Beach, Public Corporation, sec. 1255; Dillon, Municipal Corporation, sec. 698a (note); Taylor Boro. v. Postal Tel. Cable Co., 16 Pa. Superior Ct. 344; Taylor Boro. v. Postal Tel. Cable Co., 202 Pa. 583; Kittanning Boro. v. Nat. Gas Co., 26 Pa. Superior Ct. 355.
    The fees which are imposed by the two ordinances, and which have been declared by the court below to be reasonable, have been upheld by the courts of Pennsylvania in a long line of cases: Allentown v. W. U. Tel. Co., 148 Pa. 117; Chester v. Phila. R. & P. Tel. Co., 148 Pa. 120; Chester v. W. U. Tel. Co., 154 Pa. 464; Phila. v. Am. U. Tel. Co., 167 Pa. 406; Ridley Park v. Citizens’ Electric Light, etc., Co., 9 Pa. Superior Ct. 615; Lansdowne v. Electric Light, etc., Co., 9 Pa. Superior Ct. 620; Kittanning Electric Light, etc., Co. v. Kittanning Boro., 11 Pa. Superior Ct. 31; North Braddock Boro. v. Tel. Co., 11 Pa. Superior Ct. 24; New Hope Boro. v. W. U. Tel. Co., 16 Pa. Superior Ct. 306; New Hope Boro. v. Postal Tel. Cable Co., 16 Pa. Superior Ct. 310; Taylor Boro. v. Postal Tel. Cable Co., 16 Pa. Superior Ct. 344; s. c., 202 Pa. 583; W. Conshohocken Boro. v. Electric Light & Power Co., 29 Pa. Superior Ct. 7; Kittanning Boro. v. Gas Co., 26 Pa. Superior Ct. 355.
    October 12, 1908:
   Opinion by

Head, J.,

The Act of April 17,1905, P. L. 183, provides that where any dispute shall arise between a municipality and any telegraph, telephone, light or power company as to the amount of a license fee named in any ordinance for the inspection and regulation, under the police power of such municipality, of the poles, wires, conduits or cables of such company, either party may apply by petition to the court of common pleas of the proper county, to determine the said dispute. After providing the process to bring the other party into court, and for pleadings to raise the issues of fact out of which the dispute has arisen, the act directs that it shall be heard and determined “in the way and manner provided by law for the hearing of cases in equity.” The act then provides in section 4, that “ either party shall have the right of appeal from the order of the court, to the Supreme or Superior Court, as in other cases.”

The present proceeding resulted in a decree, entered by the learned court below, that the annual license fees fixed in the ordinances of the borough of Sharon Hill, to wit: $1.00 per pole, $2.50 per mile of wire or cable, and $30.00 per mile of conduit were properly collectible under the evidence produced, and from that decree this appeal is taken.

Is such appeal but a substitute for the common-law writ of certiorari? If so, our functions are limited to an inspection of the record and a determination whether or not the court had jurisdiction and the proceedings were regular. If the legislature intended the appeal to be of this limited character it would not have been necessary that the right to take it should have been expressly granted. But as the right of appeal has been in terms granted and as the act, in a previous section, had declared'that the cause should be determined “in the way and manner provided by law for the hearing of cases in equity,” we are disposed to hold that this appeal, like one from the decree in an ordinary case in equity, brings before us the entire record m'ade up by the exceptions filed to the conclusions of law and fact adopted by the learned trial court.

In such a case it has been well settled that the findings of fact adopted by the trial judge, when the ascertainment of such facts involves the balancing of conflicting testimony, the credibility of witnesses, etc., will be regarded by the appellate court as if established by the verdict of a jury. Where, however, such findings are but conclusions or inferences drawn from testimony that is practically undisputed, it becomes our duty to examine the evidence and determine for ourselves whether or not the findings are warranted by it.

The learned court below was not called upon, in this proceeding, to exercise'the power possessed by the courts long before the passage of the act now under consideration, viz, to set aside an ordinance because it was unreasonable, oppressive and arbitrary, resulting from an abuse of the powers of the municipality.' The object of this proceeding was simply to determine, from the evidence produced, “the amount of annual license fees which should be paid to the said municipal corporation in order to properly compensate it for the necessary cost of the services performed, or to be performed, by it, for the inspection and regulation of the poles, wires, conduits or cables, of the said telegraph” or other “company.”

The dispute in the present case arose out of the fact that the borough of Sharon Hill claimed the right to levy, from the petitioner and other corporations of its class operating in the borough, annual license fees based on these rates, viz.: $1.00 for each pole erected, $2.50 for each mile of wire strung thereon, and $30.00 per mile for each mile of conduit laid under its streets. Each of these companies, before beginning the work of construction, was obliged to apply for and obtain a permit, for which a charge of $5.00 was made, and to execute and deliver to the borough a bond with satisfactory security conditioned that any streets' or sidewalks affected by such construction should be restored to proper condition and maintained in good order thereafter.

The petitioner itself has constructed in the borough, two and one-fifth miles of conduit, 15.15 miles of wire and ten. poles, so that its annual license fee would amount to $113.88. As there was some common use, by the several companies there operating, of portions of property severally owned, the learned court found that all of the annual fees claimed would be, in addition to the petitioner’s............................. $113.88

Suburban Gas Co.......4.3 miles pipe........ 129.00

Springfield Water Co. .. .4.4 miles pipe.-....... 132.00

Citizens’ Light Co.......175 poles.....$175.00

10 miles wire.. 25.00 200.00

Western Union Tel. Co... 36 poles...... 36.00

27 miles wire.. 67.50 103.50

Chester Traction Co.....42 poles...... 42.00

5 miles wire.. 12.50 54.50

Total $732 88

It was shown that the borough had committed to its single policeman, the duty of inspecting the poles, wires and conduits of the several companies and for this service paid him a salary of $20.00 per month, or about one-third the amount of the annual license fees levied to compensate it for the services performed in the “inspection and regulation” contemplated by the act. It was not alleged or proven by the borough that the inspection thus given was not fully up to any municipal requirement, that it was not adequately compensated in the amount paid the policeman, or that a proper inspection sufficient to enable the borough to discharge every duty it owed to its citizens in the premises could not have been had even for less money.

On the contrary, the testimony offered by the petitioner, which was uncontradicted, tended to prove that when a conduit has been laid underground, when the frosts of the winter and the thaws of the spring have once come and gone, and the overlying surface has been then adjusted to the new conditions, all surface indications marking even the location of the buried conduit will have practically disappeared and inspection of the line thereafter could at best be but little more than perfunctory. It would seem, therefore, that an annual charge of $30.00 per mile would go far beyond the Compensation contemplated by the act.

' As to the pole and wire structure the evidence would fairly lead to the conclusion that for a period of years after new construction there is. but little to apprehend from the natural decay of the material. But such a structure is plainly subject to injury from external causes, high winds, heavy snows and the like and therefore might properly be inspected several times each year by a careful municipality. But both poles and wires may be inspected at the same time, and it is manifest from the testimony that no great amount of time need be spent in making an effective inspection of a pole line. The borough, too, has the benefit of the frequent inspections made by the companies themselves whose business cannot be transacted unless their lines are maintained in efficient working order. The borough is of course not required to accept these inspections as conclusive and may properly supplement them by its own. But the fact that.they are made by competent men and with the end of maintaining the lines in standard condition ought not to be lost sight of in a proceeding like the present.

We are not unmindful, on the one hand, that the object of inspection is the regulation that is to follow, and that reports must be made and so kept that their information is available for the use of councils; whilst, on the other hand, the courts have repeatedly declared that a municipality may not, under the guise of license fees, levy and collect revenue to be expended in the discharge of municipal obligations: Kittanning Boro. v. Telegraph Co., 26 Pa. Superior Ct. 346; Pottsville Boro. v. Pottsville Gas Co., 33 Pa. Superior Ct. 480.

Realizing the difficulty of arriving at the exact sum which a borough should properly undertake to collect, as license fees, from companies like the petitioner, the legislature has wisely provided that the question should be subject to a readjudication at the end of two years. Thus, accumulating experience will beget increased knowledge, serious disputes will more rarely arise and their adjustment will become more easy and accurate.

After endeavoring to give due weight to all of the evidence contained in the record and an attentive consideration to the aim and object of the statute, we have reached the conclusion that the decree, entered by the learned court below, should be so modified as to make the maximum sum which the borough shall be authorized to charge as license fees against the petitioner, $10.00 per mile for each mile of conduit; $1.50 per mile for each mile of wire, and fifty cents for each pole, and the record is remitted to the court below with direction to enter a decree in accordance with this order. The costs of this appeal to be paid by the respondent, the borough of Sharon Hill.


text:
    Commonwealth v. Wilkinsburg Borough, Appellant.

      Appeals — Assignments of error — Evidence—Exceptions.
    Assignments of error to the exclusion of testimony will not be considered where no exceptions have been taken to the rulings of the trial court.
    . Nuisance — Sewer—Municipalities—Boroughs.
    Where a borough has determined upon the construction of a public sewer, or a drainage system, it must so complete the work as not to create a public nuisance. If it does create a nuisance, and is indicted therefor, it cannot defend on the ground that the construction of a proper system would have entailed an expenditure beyond the financial ability of the borough at the time.

      Practice, C. P. — Trial—Charge—Inadequacy of charge — Appeals.
    A complaint that the charge was inadequate will receive no great consideration from the appellate court where it appears that the appellant presented to the trial judge no prayers for special instructions, and failed to invite his attention to the points of the case claimed at the argument on the appeal to have been insufficiently treated.
    Argued April 14, 1908.
    Appeal, No. 9, April T., 1908, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 595, on verdict of guilty in case of Commonwealth v. Wilkinsburg Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for nuisance. Before Patton, P. J., specially presiding.
    • At the trial a witness for defendant was asked this question:
    “Q. I wish you would state, Mr. Weinman, for the benefit of the court and jury, whether what is called the large pipe system containing a very large pipe clear to the river,, was within the powers of the borough to build on account of the expense.”
    Objected to by counsel for the commonwealth as immaterial.
    Objection sustained.
    “Q. Did you estimate the cost of the large pipe system?”
    Objected to by counsel for commonwealth as immaterial.
    Objection sustained.

      Mr. Langfitt: Just so that we may understand your honor’s ruling and not keep asking questions that are in violation of that, do I understand your honor to say that if the borough of Wilkinsburg, in order to take care of its sewage, found out there were only two ways, one by a large sewer system and one by a small sewer system; and if they found further that the larger sewer system would cost a sum of money so large that it was beyond the taxing power of the borough to construct, and that when they so found, they constructed the largest sewer system that was within their financial ability, and thereby took away as much of the offensiveness of the run as it was in their power to take away, that they would still be guilty of a crime?
    The Court: I do not think that is for the consideration of the jury. The jury determines the question of fact, whether or not there is a nuisance there. When it comes to carrying out a verdict by sentence, it is a question how far the court can order the town council of Wilkinsburg to abate the nuisance, but I do not think this jury can pass upon any question except as to whether the borough of Wilkinsburg maintains a nuisance at the present time.
    Objection sustained.
    To which ruling of the court counsel for the defendant except.
    Exception allowed and bill sealed. [3] .
    Other facts appear by the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-4) rulings on evidence, but showing an exception only in the third assignment; (5) that the charge was inadequate.

      Joseph A. Langfitt, of Langfitt & McIntosh, for appellant.—
    The defendant was a municipal corporation. Exercising its best judgment, it had sought to improve the sanitary condition of the town generally, and of the territory abutting on the Nine Mile run in particular. Accordingly, it constructed a sewer under the supervision of competent engineers, and of sufficient capacity to adequately provide for the future growth of the borough and at a cost equal to the maximum legal taxation allowed for such purposes. It was a public enterprise, not an investment for individual profit, the community alone derived the benefit therefrom, and the entire community must suffer from any change made in the present operation of the said sewer system. The court below erred in not permitting evidence to prove these facts: Evans v. Fertilizing Co., 160 Pa. 209; Sullivan v. Steel Co., 208 Pa. 540; Wood on Nuisance, sec. 430; Huckenstine’s Appeal, 70 Pa. 102; Commonwealth v. Reed, 34 Pa. 275; Com. v. Silcox, 161 Pa. 484.
    The charge was inadequate: Com. v. Miller, 139 Pa. 77; Com. v. Goldberg, 4 Pa. Superior Ct. 142.
    Great caution is exercised by the courts in interfering with establishments and erections which tend to promote public convenience: Barnes v. Calhoun, 2 Iredell’s Equity (N. C.), 199; Attorney General v. Perkins, 2 Dev. Equity (N. C.), 38; Gilbert v. Showerman, 23 Mich. 448; Adams v. Michael, 38 Md. 123.

      George B. Lewis, with him H. L. Goehring and George J. Shaffer, for appellee.
    It will not avail as a defense that others with whom the complainant has no concern have contributed to cause the pollution of the waters, against which relief is sought: Joyce on Nuisance, sec. 477; City of New Castle v. Raney, 6 Pa. C. C. Rep. 87; City of New Castle v. Raney, 130 Pa. 546.
    The fact that the defendant in the year 1892, under the supervision of competent engineers, built this sewer of adequate capacity and at a cost equal to the maximum legal taxation allowed for such purposes, cannot avail it as a defense to this prosecution: Com. v. Easton, 8 Northampton, 321.
    Odors so,foul as to restrict proper enjoyment of one’s dwelling house constitute a nuisance: Rodenhausen v. Craven, 141 Pa. 546; Smith v. Cummings, 2 Pars. 92; Howell v. McCoy, 3 Rawle, 256; Stokes v. R. R. Co., 214 Pa. 415; Farver v. American Car, etc., Co., 24 Pa. Superior Ct. 579; Brunner v. Schaffer, 1 Pa. Dist. Rep. 646; Com. v. Rush, 11 Lane. L. R. 97; Joyce on Nuisance, 157; Savile v. Kilner, 26 L. T. (N. S.) 277; Joyce on Nuisance, sec. 166; Evans v. Fertilizing Co., 160 Pa. 209; Fisher v. Reduction Co., 189 Pa. 419; Morgan v. City of Danbury, 67 Conn. 484 (35 Atl. Repr. 499).
    October 12, 1908:
   Opinion by

Head, J.,

The bill of indictment, upon which the defendant was convicted, specifically charged the maintenance, as part of the borough’s system of sewerage, of what is called an “overflow weir.” This was located in a populous section and near to certain public highways. It consisted of a large brick chamber or vault into which a forty-two inch pipe discharged all of the waste from toilets, roof and sink water, etc., that had been collected through the entire system.- From this weir a twenty-four inch pipe conducted, as far as its capacity would permit, the sewage to the Monongahela river. The weir was also provided with an open overflow pipe which discharged whatever passed through it into the waters or upon the banks of an open and ancient water course known as Nine Mile Run. The commonwealth sought to establish, by its testimony, that, in times of ordinary heavy showers and freshets, owing to the small size of its outlet as compared with the receiving pipe, the weir became so filled with sewage, that the open overflow pipe necessarily received and discharged large quantities of it; that in this way not only were the waters of the run contaminated, but foul pools and sinks were formed along its banks, which, when subjected to the heat of the sun, created offensive and noxious odors calculated to disturb the comfort of the citizens and to impair the public health.

That the' testimony was sufficient, if believed by the jury, to establish the existence of such conditions and to trace their cause to the construction and operation of this weir, cannot, we think, be successfully denied after an impartial study of the record before us. True, the defendant was able to offer counter testimony tending to show that the conditions complained of did not have their origin in the weir, but upon this issue of fact we must regard the verdict of the jury as final, unless it appears, upon an examination of the assignments, that some reversible error was committed by the learned trial judge in admitting or rejecting evidence offered or in his final instructions to the jury.

The first, second and fourth assignments complain of the action of the court excluding certain offers of testimony objected to by the commonwealth. No one of these assignments is supported by an exception. Without such exception these offers and rulings are no part of the record before us for review. Following the repeated decisions of this court on this question we are obliged to dismiss these assignments.

The defendant, by way of defense, offered to prove that the construction of a large pipe sufficient to carry all of the sewage directly to the river would have entailed an expenditure beyond the financial ability of the borough at the time. An objection to this offer was sustained. .

There is no legal obligation resting upon a municipality to construct a public sewer system. The time when such a work shall be begun, its plan and design, and the territorial area to be covered thereby are, of course, questions of the highest importance, and their solution has been wisely left to ¡the municipal legislature. The undeniable propensity of men to aggregate themselves into great urban communities, often in sections of the country where nature has not provided large streams of water, has certainly contributed to the difficulties which, in every case, attend the determination of these questions. But when a municipality, after having freely exercised its discretionary power to build or not to build, determines upon the construction of a public sewer, it must so complete the work as not to create a public nuisance. The reasons that compel such a conclusion are, we think, so manifest and have been so often stated that they need not be here repeated. It would seem to follow that it could be no good answer to the case made out by the commonwealth’s witnesses to prove the facts contained in the offer and the learned trial court was therefore right in rejecting it. The third assignment is overruled.

The remaining assignment complains of the charge of the court in that it was inadequate to properly and fairly bring before the jury the defendant’s theory of the case and the testimony supporting it. We may observe here that the defendant presented no prayers for special instructions and failed to invite the attention of the learned trial judge to the points of the case now claimed to have been insufficiently treated.

The position taken by the defendant, is thus set out in the opening of its printed brief. “The defendant did not undertake to deny that there were foul and noisome smells along Nine Mile Run in which the sewer pipe was laid, possibly so strong and disagreeable as to constitute a nuisance, but it did undertake to say that the greater portion of these smells and odors came from the run itself, without material contribution from the overflow weir or sewerj and that standing alone the smells and odors from the weir or sewer, produced by or in consequence thereof, were inconsequential, rarely perceptible and totally insufficient to constitute a nuisance.” It must be apparent that such a line of defense to the bill of indictment raised an issue of fact as to the conditions existing at and near the weir and the cause of such conditions. The learned trial judge, after properly defining a public nuisance and stating the complaint of the commonwealth, then took up the theory of the defense and thus outlined the issue for the determination of the jury: “Of course, unless the building of this sewer makes this nuisance, then the borough of Wilkinsburg would not be responsible. They are not responsible for the filth that is put in this run above Wilkinsburg or below it. They are only responsible, and the only thing they are charged with, is that because they built this weir, and have an overflow in the manner in which it is testified to before you, that that is the cause of the nuisance and that is what they are charged with. It is no defense to them that other people maintain a nuisance, but it is a defense if the weir is not a nuisance.” This was followed towards the conclusion of the charge by this summing up: “The testimony on the part of the commonwealth tends to show that this offensive smell comes from the weir, because of the manner in which it was constructed, and that if the weir was not there, this nuisance, as they allege, would not exist. On the part of the defendant, they claim that this weir has nothing to do with the alleged nuisance. Several witnesses, whose testimony I have called to your attention, testified that the condition of the run above the weir is the same as below. If that is the case of course this would not come from the weir. You must reconcile that testimony as best you can.”

These somewhat lengthy quotations are, to our minds, a complete answer to the allegations that the learned trial judge either mistook the character of the defense offered or unfairly or inadequately presented to the jury the real issue involved. The existence of conditions amounting to a nuisance is almost admitted in the appellant’s own statement from which we have quoted, and the real point of inquiry was the ascertainment of the true producing cause of those conditions. The jury has found that cause to be the weir and overflow pipe maintained by.the defendant, and, as we can discover no reversible error in the record of the trial that resulted in their verdict, we, like the defendant, must accept it as a final determination of the question.

We have examined with care the many authorities cited in the able brief presented by appellant’s counsel, and agree with him that there are many cases in which great commercial or manufacturing enterprises, fruitful of much benefit to the community at large, are attacked as public nuisances. In such cases a judicial warning to the jury of the danger of magnifying petty annoyances and slight discomforts into the elements of a public and common nuisance, would be timely and wholesome. In the present case, however, if the witnesses for the commonwealth truthfully described the sights that met their eyes and the odors that assailed their nostrils, there was but little, if any, occasion for judicial comment along the lines indicated.

The judgment is affirmed and the record is remitted to the court below that its sentence may be carried into execution.


author: Porter, J.,

text:
    Commonwealth ex rel. v. Union Surety and Guaranty Company.

      Trusts and trustees — Mingling trusts with general assets — Insolvency— Corporations.

      ■ The owners of a trust fund held by an insolvent corporation are not entitled to a preference over general creditors in the distribution of the assets of the-company, unless they trace the fund into some specific property, or into some particular moneys or account of the insolvent company which had passed into the hands of its receiver or assignee.

      Appeals — Joint appeals — Separate and distinct claims.

    Parties making separate and distinct claims on a fund with no joint or common right in the claims, have no right to take a joint appeal from a decree disallowing the claims.
    Argued March 11, 1908.
    Appeal, No. 8, March T., 1908, by Hess-Farris Mineral Exploration Company and Barclay Johnson, from order of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 26, dismissing exceptions to auditor’s report in case of Commonwealth ex rel. Attorney General v. Union Surety & Guaranty Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of John R. Fox, Esq., and Charles L. Brown, Esq., auditors.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Paul R. Weitzel, for appellant.

      David Jay Myers, with him Milton C. Work, for appellee. '
    October 12, 1908:
   Opinion by

Porter, J.,

The record clearly shows that the Exploration Company and Barclay Johnson presented separate and distinct claims in the court below, the Exploration Company claiming the sum of $1624, and Barclay Johnson the sum of $232. Each claimed that the fund out of which they, respectively, were entitled to be paid was a special trust fund created for the purpose of paying the coupons which they held. Johnson had no interest in the coupons presented by the Exploration Company and the Exploration Company had no interest in the coupons presented by Johnson. The claims were absolutely separate and distinct and yet the parties have taken a joint appeal, although they have no joint or common right in the claims. The appeal might for this reason be quashed.

The plaintiffs contented themselves by producing evidence in the court below that a fund had been paid into the Trust Company to be by it held in trust to guarantee the payment' of the coupons maturing on certain bonds, and that they, respectively, were the holders of coupons upon which they were entitled to payment out of said fund. They made no attempt to trace the fund and show that it, or anything which had been substituted for it, was the whole or any part of any property or assets which had passed to the receiver. The uncontradicted evidence produced by the appellees established that the fund had been used by the Union Surety & Guaranty Co. in its business and had been mingled with its general funds. That the appellants, because of their failure to trace the trust fund, upon which their claims were based, directly to the assets which passed to the receiver, were not entitled to a preference over the general creditors in the fund for distribution is settled by the authorities cited in the opinion herewith filed in the Appeal of Mary B. Jones, in this same proceeding. The decision in that case disposes of the present appeal.

The decree is affirmed and appeal dismissed at cost of the appellants.


text:
    Koenig, Appellant, v. United Gas Improvement Company.
    Argued Oct. 17, 1907.
    Appeal, No. 78, Oct. T., 1907, by-plaintiff, from decree of C. P. No. 2, Phila. Co.,-Dec. T., 1905, No. 303, dismissing bill in equity in case of Frank Koenig v. The United Gas Improvement Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    October 12, 1908:
   Opinion by

Head, J.,

For the reasons fully stated in Bower et al v. United Gas Improvement Co., which was argued with this case and in which an opinion has this day been filed, ante, p. 113, the appeal is dismissed at the cost of the appellant and the decree is affirmed.


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    Osterhout, Appellant, v. Briggs.

      Judgment — Confession of judgment — Voidable judgment — Exhaustion of power — Striking off judgment.

    Where a judgment is entered on a judgment note prior to its maturity, such a judgment is an actual one, although voidable, and exhausts the warrant of attorney contained in the note,, and if a second judgment is entered on the note after its maturity, and the defendant without notice of the first judgment and without unreasonable delay takes a rule to strike off both judgments, such a rule is properly made absolute.
    Argued March 3, 1908.
    Appeal, No. 19, March T., 1908, by plaintiff, from order of C. P. Wyoming Co., April T., 1903, No. 143, making absolute rule to strike off judgments in case of Lucy B. Osterhout v. H. B. Briggs and S. H. Briggs.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.

      Rule to strike off judgments. Before Terry, P. J.
    The opinion of the Superior Court states the case.

      ■Error assigned was the order of the court making absolute rule to strike off judgments.

      H. S. Harding, for appellant.
    No appearance nor paper-books for appellee.
    October 12, 1908:
   Opinion by

Porter, J.,

The defendants executed and delivered to the plaintiff, for a debt actually owing, on March 17, 1903, their judgment note for the payment of $500, with interest, in three years and nine months after date. The instrument contained a warrant of attorney authorizing a confession of judgment thereon “in any court having jurisdiction, in term time or vacation, at any time after the maturity of this note and before its payment.” The plaintiff caused judgment to be entered under the warrant of attorney, by the prothonotary, on April 1, 1903, before the maturity of the note. On December 18,1906, one day after the maturity of the note, H. S. Harding, Esq., filed a paper, in the same proceeding in which the original judgment had been entered, confessing judgment against the defendants in accordance with the terms of the power of attorney in said note contained,” and at the same time filed a praecipe for a writ of scire facias on said judgment, which execution issued the same day. S. H. Briggs, one of the defendants, on December 31, 1906, filed his petition praying for a rule to stay the fi. fa. and strike off the judgments. There is nothing in the record to indicate that S.-H. Briggs had notice of the entry of either of the judgments prior to the filing of this petition. The court below stayed the fi. fa. and after hearing struck off the judgments. The plaintiff appeals from this order.

The first judgment having been prematurely entered was irregular and voidable at the instance of the defendant, and the appellee having proceeded in the proper manner to avoid this judgment, it was properly stricken off: Eddy v. Smiley, 26 Pa. Superior Ct. 318; Allen v. Krips, 119 Pa. 1. The action of the plaintiff in causing the first judgment to be entered was a complete execution of the power conferred by the warrant of attorney and resulted in the entry of an actual judgment in a court having jurisdiction of the subject-matter; this judgment it is true was irregular and voidable at the instance of the defendant only, but it was not absolutely void, and as against parties other than the defendants it was not even voidable: Crosby v. Massey, 1 P. & W. 229; Hauer’s Appeal, 5 W. & S. 473; Drexel’s Appeal, 6 Pa. 272; Harres v. Commonwealth, 35 Pa. 416; Kohler v. Luckenbaugh, 84 Pa. 258; Harper v. Biles, 115 Pa. 594. The power conferred by the warrant of attorney was exhausted by the entry of the first judgment, although that judgment was irregular and liable to be defeated by the defendants in case they took proper action to that end and did not estop themselves by acquiescence. The second judgment was, therefore, likewise irregular and the court below committed no error in striking it off: Philadelphia v. Johnson, 23 Pa. Superior Ct. 591; s. c. 208 Pa. 645.

The order of the court below is affirmed and the appeal dismissed at costs of the appellant.


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    Smith, Appellant, v. Lindsey.

      Deed — Estate tail — Heirs—Children.
    Although a stricter construction is applied to deeds than to wills, yet in deeds, the intent of the grantor, when legal, is a governing principle in their construction. This applies as well to the words “heirs” or “children” as to any other part of a deed, and they are to be construed as words of limitation or purchase as the intent requires.
    A deed to a woman, her heirs and assigns, which directs in a clause following the description of the land, that “the above described property shall go to the grantee and to her personal children and to no other,” creates in the grantee an estate tail which by the operation of the Act of April 27, 1855, P. L. 368, is enlarged into an estate in fee simple. The words “her personal children” are to be construed in the sense of “heirs of her body.”

      Argued March 3, 1908.
    Appeal, No. 35, Jan. T., 1908, by-plaintiff, from judgment of C. P. Susquehanna Co., April T., 1904, No. 58, for defendant non obstante veredicto in case of Nellie Lindsey Smith v. Jay and George. Lindsey.
    Before Rice, P.- J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Writ in partition. Before Searle, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      A. B. Smith, with him Miller S. Allen, for appellant.
    The words “ personal children ” mean children and not heirs of the body: White v. Williamson, 2 Grant, 249; List v. Rodney, 83 Pa. 483; Hague v. Hague, 161 Pa. 643; Cote v. Van Bonhorst, 41 Pa. 243; Wild’s Case, 6 Coke’s Rep. 288; Curtis v. Longstreth, 44 Pa. 297; Coursey v. Davis, 46 Pa. 25; Kuntzleman’s Est., 136 Pa. 142; Melsheimer v. Gross, 58 Pa. 412; Warn v. Brown, 102 Pa. 347; Gernet v. Lynn, 31 Pa. 94; Karchner v. Hoy, 151 Pa. 383; Oyster v. Oyster, 100 Pa. 538; Oyster v. Knull, 137 Pa. 448; Oyster v. Orris, 191 Pa. 606; Affolter v. May, 115 Pa. 54; Keim’s App., 125 Pa. 480; Giffin’s Est., 138 Pa. 327; Tyler v. Moore, 42 Pa. 374; Hill v. Hill, 74 Pa. 173.

      T. J. Davies, for appellees.
    A stricter rule is applied to deeds than to wills: Huss v. Stephens, 51 Pa. 282; Means v. Presby. Church, 3 W. & S. 303.
    Where the premises and habendum are “repugnant to each other they should be reconciled, if possible, so as to give effect to both:” Tyler v. Moore, 42 Pa. 374.
    ' Allowing the plaintiff the most liberal interpretation possible for the words “personal children,” they cannot be construed to mean more than the heirs of her body, which are words of limitation: Shoup v. DeLong, 190 Pa. 331; Boyd v. Weber, 193 Pa. 651; Shapley v. Diehl, 203 Pa. 566; Simpson v. Reed, 205 Pa. 53; Pifer v. Locke, 205 Pa. 616; Vilsack’s Est., 207 Pa. 611; Schrecongost v. West, 210 Pa. 7; Hastings v. Engle, 217 Pa. 419.
    October 12, 1908:
   Opinion by

Porter, J.,

The question raised by this appeal must be determined by the construction of the deed of Daniel Miles to Ellen Lindsey, who died January 28, 1904, leaving to survive her a husband, Francis Lindsey, and three children, one of whom is the plaintiff and the other two defendants in this action. The plaintiff asserting that she took title as a purchaser under that deed, brought this action of partition. The question turned in the court below upon the right of the surviving husband of Ellen Lindsey to the possession of the land during his life, as tenant by the curtesy, and after a trial in which the question was properly reserved the court entered judgment in favor of the defendant non obstante veredicto. The plaintiff appeals.

The deed from • Daniel Niles to Ellen Lindsey was dated March 17,1903; in the premises thereof Ellen Lindsey was the only party named as party of the second part; the grant was to her, her heirs and assigns, then followed the description of the land granted, and following the description in the granting clause, these words occur: “The above described property shall go to Ellen Lindsey and to her personal children and to no other.” The habendum was “unto the said party of the second part, her heirs and assigns, to the only proper use, benefit and behoof of the said party of the second part, her heirs and assigns forever.” There were covenants of general warranty to Ellen Lindsey, her heirs and assigns. The deed was, in short, a conveyance to Ellen Lindsey, her heirs and assigns, of the land by title in fee simple, unless that title was cut down and restricted to a life estate in Ellen Lindsey, with remainder to her children, by the words “The above described property shall go to Ellen Lindsey and to her personal children and to no other,” following the description of the land in the granting clause of the deed. The contention of the appellant, the plaintiff, is that Ellen Lindsey took but a life estate, with remainder to her children in fee.

Although a stricter construction is applied to deeds than to wills, yet in deeds, the intent of the grantor, when legal, is a governing principle in their construction; this applies as well to the words “heirs” or “children” as to any other part of a deed, and they are to be construed as words of limitation or purchase as the intent requires: Means v. Presbyterian Church, 3 W. & S. 303; Huss v. Stephens, 51 Pa. 282. “The object of all construction is to ascertain the intent of the parties, and it must have been their intent to have some meaning in every part. It never could be a man’s intent to contradict himself, therefore, we should lean to such a construction as reconciles the different parts, and reject a construction which leads to a contradiction:” Wager v. Wager, 1 S. & R. 374; Tyler v. Moore, 42 Pa. 374. This deed contains no words which could be construed as granting an estate in fee simple or fee tail to the children of Ellen Lindsey as the head of a new line of succession, for neither the word “heir” nor any other word indicating an inheritable estate is used in connection with the grant, if there was a grant, of an estate to the children. If, therefore, the effect of the use of the words hereinbefore quoted, following the description in the granting clause of the deed, was to nullify the limitation of the estate to the heirs of Ellen Lindsey, and to cut down her estate to one for life, then her children would take as purchasers, only a life estate. The only persons who could take as heirs, under this grant must be the heirs of Ellen Lindsey, and they must take as such heirs. The intention of the grantor manifestly was that an estate of inheritance should pass under this deed, and the conveyance can properly be construed to effect that result and at the same time give effect to all its provisions. The words “child” and “children” are, in their usual sense, words of purchase, and are always so regarded unless the testator or grantor has unmistakably used them as descriptive of the extent of the estate given, and not to designate the donees. “To this rule, however, there are many exceptions, and it is never applied when the word ‘children’ is evidently intended to define an entire line of succession:” Haldeman v. Haldeman, 40 Pa. 29; Yarnall’s Appeal, 70 Pa. 335. It may here be observed that this deed made no attempt in express terms to create a life estate in Ellen Lindsey. Omitting the description and bringing into direct connection the grant to Ellen Lindsey and her heirs and the words following the description, which the appellant contends nullified that grant, the intention of the grantor may be made to more clearly appear. “The party of the first part, . . . does grant, bargain, sell, alien, enfeoff, release, convey and confirm unto the party of the second part, her heirs and assigns” (here follows the description), “The above described property shall go to Ellen Lindsey and to her personal children and to no other.” The manifest intention of the testator was by the words thus added to qualify the meaning of the word “heirs” as used in the grant and to restrict it to the direct lineal descendants, but not to change the character in which those descendants should take. He used the words “her personal children” to indicate the whole line of direct succession, in the sense of “heirs of her body.” The meaning was the same as if he had written in the deed a grant to “Ellen Lindsey and her heirs, being the heirs of her body.” The effect of the words used by. the grantor was to cut down the estate which passed under the deed to Ellen Lindsey from an estate in fee simple to an estate tail general. The children of Ellen Lindsey did not take as purchasers under this deed, which manifestly intended to make Ellen Lindsey the head of the line of succession and to limit that succession to her lineal descendants, the heirs of her body: Boyd v. Weber, 193 Pa. 651; Shapley v. Diehl, 203 Pa. 566; Vilsack’s Estate, 207 Pa. 611; Schrecongost v. West, 210 Pa. 7; Hastings v. Engle, 217 Pa. 419; Simpson v. Reed, 205 Pa. 53. Ellen Lindsey took under this deed an estate tail general, which under the Act of April 27, 1855, P. L. 368, is enlarged into an estate in fee simple, and her surviving husband is entitled to possession of the land as tenant by the curtesy.

The judgment is affirmed.


text:
    Commonwealth ex rel. Riley v. Hudock, Appellant.

      Liquor law — Selling on Sunday — Penalty—Justice of the peace — Record — Place of selling — Act of February 26, 1855, P. L. 53.
    A judgment entered by a justice of the peace for the penalty prescribed by the Act of February 26, 1855, P. L. 53, for selling liquor on Sunday, cannot be sustained on certiorari where there is nothing on the record of the justice charging the defendant with having committed the offense within the county which limited the jurisdiction of the justice, and it does not appear that the defendant had waived the irregularity by appearing and going to trial.
    Argued March 5, 1908.
    Appeal, No. 59, March T., 1908, by defendant, from judgment of C. P. Luzerne Co., May T., 1907, No. 8, sustaining judgment of justice of the peace in case of Commonwealth ex rel. W. L. Riley, Agent Anti-Saloon League, and to the use of the Middle Coal Field Poor District, as well as to himself, v. Michael Hudock.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Certiorari to judgment- of justice of the peace. Before Fuller, J.
    The opinion of the Superior Court states the case.

      Error assigned was the judgment of the court.

      Thomas F. Farrell, with him Hugh A. Shovlin, for appellant.

      James L. Lenahan, for appellee, filed no printed brief.
    October 12, 1908:
   Opinion by

Porter, J.,

This was an action of debt brought before a justice of the peace to recover the penalty, prescribed by the second section • of the Act of February 26, 1855, P. L. 53, for selling liquors on Sunday. The justice entered judgment for the amount of the penalty against the defendant, who by writ of certiorari removed the record to the court of common pleas, by which court the judgment was affirmed. The defendant appeals. The first section of the act of 1855 makes it unlawful for any person to sell liquors on Sunday, the second section imposes a penalty for the offense, to be recovered before any mayor, aider-man, burgess or justice of the peace, as debts of like amount are now by law recoverable, in an action of debt brought in the name of the commonwealth, as well for the use of the guardians of the poor, for the overseers of the poor, of the township, ward or borough, as for the person suing; the third section provides that every person who shall violate the provisions of the statute shall, in addition to the civil penalty imposed by the second section, be taken and deemed to have committed a misdemeanor, and shall on conviction thereof, in any criminal court in this commonwealth, be fined in any sum not less than $10.00 or more than $100, and be imprisoned in the county jail for a period not less than ten or more than sixty days, at the discretion of the court. The action for the penalty, under the second section of the statute, while in form, an action of debt, is in its nature and effect a proceeding for a criminal offense: Commonwealth v. Betts, 76 Pa. 465. Notwithstanding the general language used in both the second and third sections of the act, the action for the penalty prescribed by the second section as well as the prosecution for the misdemeanor provided for by the third section must be had in a court within the jurisdiction of which the offense was committed. The defendant in this case was duly served with a summons, but he did not appear, judgment having been entered against him by default, and he cannot be held to have waived any of the irregularities of the proceeding, as the defendant was held to have done by appearance and going to trial in Commonwealth v. Burkhart, 23 Pa. 521. The technical formalities of a summary conviction are not insisted on with the same strictness in an action for a penalty, which under an act of assembly or ordinance is to be recovered as debts of like amount are recoverable, yet the essential principles governing such proceedings, necessary for the protection of the citizens, have never been relaxed and many of them are as applicable to an action, which in its nature and effect is a proceeding for the punishment' of a criminal offense, although in form an action of debt, as to a summary conviction: Commonwealth v. Davison, 11 Pa. Superior Ct. 130. The law does not require a formal written complaint in actions of debt of this character, but in the present case the plaintiff saw fit to put his complaint in writing and the justice entered it at length upon his docket and embodied it in the transcript as a part of the record proper, as the basis of the action. Had the complaint as thus entered by the justice in his record set forth all the elements sufficient to constitute an offense under the statute and within the jurisdiction of the justice, then a finding that the defendant was guilty of the offense charged and the entry of judgment against him for the penalty would have been sufficient: Garman v. Gamble, 10 Watts, 382. Had there been no written complaint setting forth the time, place and manner of the commission of the offense, but had the judgment embodied a finding that the defendant had, within the county which limited the jurisdiction of the justice and at a certain time performed the act necessary to constitute the offense, that would have been sufficient to sustain the judgment for the penalty. President-Judge Rice said, in Commonwealth v. Davison, 11 Pa. Superior Ct. 130, “It is essential that the record shall contain a finding, set forth in express terms, or to be implied with certainty, that a special act has been performed by the defendant, and that it shall describe or define it in such a way as to individuate it, and show that it falls within an unlawful class of acts.” It should always be made to appear in the record that the offense was committed within the jurisdiction of the justice. The record in the present case cannot reasonably be said to indicate, either in the statement of the offense with which the defendant was charged or in the judgment entered by the justice, that the offense was committed within the county of Luzerne, or even in the state of Pennsylvania. This defect is fatal to the validity of the judgment. The case is ruled by Commonwealth v. Davison, supra, and Commonwealth v. Phelps, 170 Pa. 430.

The judgment of the court of common pleas of Luzerne county and the judgment of the justice of the peace are reversed.