author: Rice, P. J.,

text:
    Quigley, Appellant, v. Reiff.

      Taxation — Farm land — Mansion house — Township lines — Act of ■ July 11, 1842, P. L. 321.
    Where an owner of a farm divided by township lines, builds a new dwelling house across the township line from his old house, and removes his family to the new house, but does not divide the land in any way, and does not conduct a new business thereon, but installs a farmer in the old house, who farms the land on shares as a tenant under some control of the owner, the whole farm becomes taxable in the township in which the new house is situated.
    Argued Nov. 17, 1908.
    Appeal, No. 247, Oct. T., 1907, by plaintiff, from decree of O. P. Chester Co., No. 474, In Equity, dismissing bill in equity in case of George Quigley v. J. B. Reiff, Tax Collector of East Vincent Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Bill in equity for an injunction. Before Butler, J.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing the bill.

      W. E. Bushong, for appellant. —
    This case is ruled by the Act of July 11, 1842, P. L. 321, sec. 59, “That hereafter the assessors of the several counties within the Commonwealth, shall, on seated lands, make the assessment in the township in which the mansion house is situated, where township lines divide a tract of land.”
    July 14,1909:
    The dwelling house on the farm in which the owner resides must be regarded as the mansion house of the farm within the meaning of the act: Bausman v. Lancaster County, 50 Pa. 208; Com. v. Wheelock, 13 Pa. Superior Ct. 282; Follett v. Butler County, 219 Pa. 509.

      Truman D. Wade, for appellee,
    cited: Com. v. Wheelock, 13 Pa. Superior Ct. 282.
   Opinion by

Rice, P. J.,

The plaintiff was the owner of a farm, containing sixty-four acres of land, intersected by the boundary line between East Vincent and East Pikeland townships, seven acres of the land being in the former township and fifty-seven in the latter. Up to the year 1906 there was but one dwelling house on the premises, and as it and the farm buildings were in East Vincent township, the whole tract was assessed and the taxes thereon were paid in that township. But prior to the time when school taxes for the year 1906 were levied on the entire tract by the authorities of East Vincent (these being the taxes in question) the plaintiff moved from this old dwelling house to a new one, the erection of which he had just completed, on the East Pike-land part of his farm. Thereupon the assessor of East Pikeland assessed the entire tract upon the assumption that this new dwelling house was the “mansion house” of the tract within the meaning of the act of 1842. The plaintiff, claiming it to be such, paid to the collector of that township the tax levied upon the entire tract for the year 1906, but refused to pay the tax levied by the authorities of East Vincent for the same year, and filed this bill to restrain the collector from collecting it. If there were nothing more in the case there would be scarcely room for argument that the plaintiff was taxable in East Vincent upon the whole or any part of the tract. But it appears that about the time he moved into the new house Frank P. Leighton went into occupancy of the old house, and conducted the farm and dairy for about a year, under an oral agreement with the plaintiff. It is undisputed that under this agreement the plaintiff furnished the farm implements, eight of the twelve cows, two of the four horses, the chickens, one-half of the fertilizer and seed, and that each was to have one-half of the produce of the farm and pay one-half of the taxes. The plaintiff testified that under their agreement Leighton was subject to his control in the conduct of the farm and was a mere employee. Leighton in his testimony denied this, and asserted that he had the right of control, but he admitted that the plaintiff gave him advice and even directions as to the conduct of the farm in some particulars which he followed, one instance being directions as to crops to be planted, that he came upon the farm from time to time for his own purposes, as, for example, hauling wood, “something like that, or posts for himself,” and that he sought to exercise general supervision. Whilst there was evidence which would have sustained a finding that the plaintiff retained and exercised complete control of the conduct of the farm, yet we are unable to say that it was manifest error for the court to find that by the oral agreement under which Leighton entered he was tenant of the farm under a rental of one-half the produce. This finding being supported by evidence, and not being manifestly erroneous, must be accepted by us as establishing the fact, but the other undisputed facts above referred to should be considered in connection therewith in determining the relation of the new dwelling house to the tract, and the further significant fact should be borne in mind that no particular part of the land around the new dwelling house was marked off and separated from the remainder of the tract by fence or other visible monument.

Section 59 of the Act of July 11, 1842, P. L. 321, provides, “That hereafter the assessors of the several counties within this commonwealth, shall, on seated lands, make the assessment in the township in which the mansion house is situate, where township lines divide a tract of land.” In any view of the case the act is applicable. There is a division of a tract of land by the boundary line of two townships. The question for decision is, what, at the time of the assessment, was the extent of the tract so divided; stating the question more precisely, does it result from the facts above referred to that there was such constructive severance of the house in which the plaintiff dwelt from the remainder of the tract as prevented it from being considered by the assessor as the mansion house of the tract? We cannot agree that it stands in the same relation to the entire tract as did the house in the borough to the tract in question in Commonwealth v. Wheelock, 13 Pa. Superior Ct. 282. That was the dwelling of persons who had no connection with the title to or interest in the farm, and was not used directly or indirectly in the farming operations. This is the dwelling house — the mansion house — of the owner of the tract; it was upon the tract and not visibly separated from it; it was not used for any other purpose than as his dwelling house; no business separate and apart from the farming of the land was carried on in it, as was the case in York Haven Water & Power Company’s Appeal, 212 Pa. 622; it was so situated as to enable the owner to oversee the farming operations, the use made of his property employed therein, the compliance of his farmer with the stipulations of their agreement and the requirements of good husbandry; and it is justifiable by the evidence to say that it was actually used for that purpose. In Bausman v. Lancaster County, 50 Pa. 208, the precise question for decision was whether or not the act applied when a portion of the farm with the mansion house was in a township and the remaining portion was in an adjoining city. In deciding this question the court said: “This act was plainly remedial. It aimed to prevent the mischief which would flow from contests between the assessors of adjoining municipal divisions, respecting the right and duty of assessing property intersected by the division lines of districts, and it guarded against the low valuation which assessments of an entire property in parcels tended to produce. It should, therefore, receive a liberal construction, both as a remedial statute and as tending to produce equality of taxation.” The same principles were adhered to in the decision of Bennethum v. Eckert, 7 W. N. C. 373. Viewing this case in the light of this rule of construction and the considerations referred to in the earlier part of Justice Strong’s opinion as having led to the enactment of the law, we are of opinion that its true intent and meaning will be carried out by holding that under all the facts the dwelling house of the plaintiff was the mansion house of the entire tract, and not simply of that portion of it upon which the superstructure stands. We are of opinion also that he must be regarded as the “principal occupant” of the tract; so that the same result is reached, even though it be conceded, as argued by the appellee’s counsel, that the act of April 5, 1842, P. L. 240, extended to Chester county by the act of June 23,1842, P. L. 302, controls, and not the act of July 11, 1842, P. L. 321.

The decree is reversed, the bill is reinstated and an injunction is awarded as prayed for in the bill, the costs to be paid by the appellee.


source: Caselaw Access Project

license: Public Domain

text:
    Singer Sewing Machine Company, Appellant, v. Follett.

      Landlord and tenant — Distress—Appraisers—Reputable freeholders— Act of March 21,1772, Sec. 1,1 Sm. L. 370.
    A person who is a resident of the borough and county in which goods are distrained, and owns real estate in fee in an adjoining county of a neighboring state, is a freeholder, not only at common law, but also within the meaning of the Act of March 21,1772, Sec. 1, P. L. 370.
    Argued Nov. 20, 1908.
    Appeal, No. 202, Oct. T., 1908, by plaintiff, from judgment of C. P. Bradford Co., May T., 1906, No. 470, on verdict for defendant in case of Singer Sewing Machine Company v. Grant R. Follett.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace. Before Fanning, P. J.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      July 14,1909:

      L. T. Hoyt, of Hoyt & Schrier, for appellant. —
    We contend that the proceedings were defective in that the property dis-trained was not appraised by two reputable freeholders within the meaning of the act of assembly: Hazlett v. Mangel, 9 Pa. Superior Ct. 139; Snyder v. Boring, 4 Pa. Superior Ct. 196; Com. v. Meredith, 5 Binney, 432; Clippinger v. Creps, 2 Watts, 45; National Cash Register Co. v. Kirkpatrick, 16 Pa. Dist. Rep. 256.

      H. F. Maynard of H. F. Maynard & Son, with him, A. L. Laws, for appellee,
    cited: Barnard v. Field, 1 Dall. 348; Fitter v. LaBreure, 1 S. & R. 363; Penman v. Wayne, 1 Dall. 241.
   Opinion by

Rice, P. J.,

One of the requisite qualifications of appraisers in a distress for rent is that they shall be “reputable freeholders:” Act of March 21,1772, sec. 1,1 Sm. L. 370. An examination of the decisions defining the terms “ freeholder,” and “ freeholder of the county,” shows that the meaning to be ascribed to them in the construction of statutes depends to some extent on the context, and the purpose for which the qualification is prescribed. For example, having regard to these considerations, it has been held in some cases outside this commonwealth involving the interpretation of the latter term that residence in the county is the essential qualification, in others that it is the ownership of a freehold situate in the county. So in interpreting the term “freeholder” in the section of the act of 1810 relating to stay of execution it was held in Clippinger v. Creps, 2 Watts, 45, that it was to be presumed that the legislature intended it to be understood as it was defined in the earlier act of 1725. “ When a subsequent act,” said Rogers, J., “dispenses with bail from a freeholder, which it exacts from others, we are to take it that the legislature has reference to freeholders as understood in the statute.” But we know of no Pennsylvania decision which holds that to be qualified as an appraiser of goods distrained for rent the freeholder’s estate must be absolutely unincumbered, or that it must be situate in the commonwealth. Nor do we see any substantial ground for adding either of these qualifications by judicial construction to those that the legislature has seen fit to prescribe. In the present case the appraiser whose qualifications are principally questioned was a resident of the borough as well as of the county wherein the goods were distrained and the appraisement was made, and was the owner of real estate in fee in an adjoining county in the state of New York. The court held that he was a freeholder, not only at common law but also within the meaning of the statute, and that conclusion is concurred in by the majority of the judges of this court who heard the case.

The assignments of error are overruled and the judgment is affirmed.


author: Morrison, J.,

text:
    Sackett v. Fast, Appellant.

      Judgment — Opening of — Forgery—Estoppel—Evidence.
    1. If a person stands by and consents, either by words or impliedly, to his name being signed to a note and to the delivery of that note for value to one who believes the signature to be genuine, such person cannot thereafter escape liability on the ground that he did not sign the note nor give prior authority to someone to sign it for him.
    2. Where the defendant in a confessed judgment petitions the court to open the judgment on the ground that his signature to the note was a forgery, and the plaintiff in answer avers that she expected to prove at the trial that the defendant signed the note, the plaintiff is not estopped from proving at the trial that while defendant did not sign the note himself, he permitted the note to be delivered knowing that his name had been signed by another person.
    Argued April 21,1909.
    Appeal, No. 157, April T., 1909, by defendant, from judgment of C. P. Fayette Co., June T., 1905, No. 84, on verdict for plaintiff in case of Louisa R. Sackett v. Francis M. Fast and Jacob Cover.
    Before Rice, P. J., Porter Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Issue to determine the validity of a judgment. Before Van Swearingen, J.

      The facts appear by the opinion of the Superior Court.
    Plaintiff presented this point:
    1. If the jury find that Jacob Cover stood by and saw Francis Fast hand the note in suit with his, Cover's, own name signed to the note with the name of Francis Fast as one of the makers thereof and saw Francis Fast deliver the same to W. C. Sackett, as representative of the plaintiff, and saw the said W. C. Sackett accept that note and deliver up to Fast the old note which was signed by said Francis Fast and Jacob Fast and made no objection thereto, it is immaterial whether the name of Jacob Cover was written to the new note by himself or by Fast. Answer: This point is affirmed if the jury believe that the defendant stood by and saw the note delivered under these circumstances, knowing his name to be signed to the note, and made no objection to its delivery. [2]
    Defendant presented these points:
    1. A forged instrument cannot be ratified by the party whose signature has been forged, and therefore no act, declaration, delay or omission on the part of Jacob Cover would make him liable on the note in suit, unless the jury finds from the evidence that, at the time of the making of the note, his name was signed to it by himself, or someone else by his authority. Answer: Refused. The law on this point is covered in our general charge. [3]
    3. Unless the jury find from a preponderance of the evidence that Jacob Cover either signed or authorized the signing of his name to the note in suit, before the note was delivered to the plaintiff, the note is a forgery and the verdict must be for the defendant. Answer: Refused. The law on this point is covered in our general charge. [4]
    4. The burden is on the plaintiff, and remains on the plaintiff, throughout the whole case, to satisfy the jury by a preponderance of the evidence that Jacob Cover either signed the note in suit, or authorized the signing of his name to said note, before it was delivered to the plaintiff, and unless the jury finds from a preponderance of the evidence that Jacob Cover did so sign or authorize the signing of said note, the note is a forgery and the verdict must be for the defendant.
      Answer: Refused. The law on this point is covered in our general charge. [5]
    The court charged the jury in part as follows:
    [Ordinarily when a person’s name is forged to an instrument that forgery cannot afterwards be ratified by the person whose name has been forged, but in this case as we have already said, even if you should believe that the name of Jacob Cover was signed to this note by some person other than himself and without authority at the time the name was signed, if you believe that the incident testified to by Mr. Sackett actually occurred and that Jacob Cover stood by in his own home knowing that his name was upon this note, and allowed it to be delivered to Mr. Sackett, as the representative of Miss Sackett, without making any objection thereto, then he would be bound by that signature and your verdict should be for the plaintiff in this case.] [6]
    Verdict and judgment for plaintiff for $1,216.36. Defendant appealed.

      Errors assigned were (2-6) above instructions, quoting them.

      C. C. Higbee, of Sterling, Higbee & Matthews, with him John S. Christy and H. S. Dumbauld, for appellant. —
    The plaintiff could not recover without proof that the defendant signed the note: Ravenswood Bank v. Reneker, 18 Pa. Superior Ct. 192; Fyan v. Cessna, 10 Atl. Repr. 29; Allen v. Nat. Bank, 10 W. N. C. 188; Romans v. State, 37 N. E. Repr. 1040; McHugh v. Schuylkill County, 67 Pa. 391; Harris v. Harris, 154 Pa. 501; Shannon v. Castner, 21 Pa. Superior Ct. 294.

      II. F. Detmler, Robinson, McKean & Martin and D. Ikf,. Hertzog, for appellee. —
    He, Cover, stood by, after agreeing to sign it, and saw Fast sign his, Cover’s, name, to it and deliver it to Sackett. It is not disputed on the part of the appellant that, if either the first or second condition existed, Cover is bound. The claim of the appellee is that he is just as fully bound by the third condition. And that is the question involved in the affirmance of plaintiff’s point which forms the basis of the second assignment of error: Fitzpatrick v. Engard, 175 Pa. 393; Gardner v. Gardner, 59 Mass. 483; Howie v. Lewis, 14 Pa. Superior Ct. 232.
    July 14, 1909:
   Opinion by

Morrison, J.,

The plaintiff caused a judgment to be entered on a promissory note containing a warrant of attorney to which the names Francis M. Fast and Jacob Cover were signed. Cover presented a petition and later a supplemental petition averring that the said note was a forgery as to him and prayed’that the judgment might be opened. The plaintiff filed an answer in which she averred that she expected to be able to prove at the trial that Cover signed the note. The court below subsequently made the following order: "After due consideration of the testimony, the rule is hereby made absolute and the judgment is opened as to Jacob Cover to permit him to make his defense. The note on which judgment was confessed to stand as the statement or narr. and the petition and supplemental petition to stand as an affidavit of defense. Let the defendant enter his plea. Same day defendant pleads non assumpsit.”

On the trial of the issue the jury found a verdict in favor of the plaintiff and the learned court refused a motion for a new trial and entered judgment on the verdict, and from that judgment Cover appealed. Counsel for appellant states the question involved as follows: “In a feigned issue to determine whether a note is a forgery it is error for the court to instruct the jury that the plaintiff is entitled to recover in any one of three events: 1. If the defendant signed the note. 2. If he authorized someone to sign it for him. 3. If he permitted the note to be delivered, knowing that his name was written thereon and to refuse to instruct that the verdict should be for the defendant unless the jury found that the defendant signed the note or authorized someone to sign it for him.

“Such instruction is also erroneous when the plaintiff in a pleading filed by her, under a rule of court, admitted that defendant did not authorize the signing of the note.”

The learned counsel concedes in his argument that if the defendant signed the note or authorized someone to sign it for him, he is liable. But he takes issue with the court on the proposition that: “If Cover stood by and saw Francis Fast hand the note in suit with his, Cover’s, own name signed to the note with the name of Francis Fast as one of the makers thereof and saw Francis Fast deliver the same to W. C. Sackett, as representative of the plaintiff, and saw the said W. C. Sackett, accept that note and deliver up to Fast the old note which was signed by said Francis Fast and Jacob Fast and made no objection thereto, it is immaterial whether the name of Jacob Cover was written to the new note by himself or by Fast.” The court affirmed the above proposition, which was plaintiff’s point, as follows: “This point is affirmed if the jury believe that the defendant stood by and saw the note delivered under these circumstances, knowing his name to be signed to the note, and made no objection to its delivery.” In our opinion, there being evidence from which the jury could find the facts assumed in the point, the court correctly stated the law in the affirmance thereof.

The learned counsel for appellant raises the question by defendant’s first point that a forged instrument cannot be ratified by the party whose signature has been forged. But if the facts were as stated in the plaintiff’s point, there was no question of forgery in the case. Suppose that Francis M. Fast did make the note and sign his own name and that of Jacob Cover to it without Cover being present or having any knowledge of it and then Fast presented the note to Cover and procured his consent to the delivery of the note to the plaintiff’s agent and Cover saw it so delivered, there would be no forgery in such a transaction and Cover’s approval of it before there was any intention or attempt to fraudulently deliver the note would exclude any attempt to ratify a forgery. But the present case does not require going to the extent stated in the above supposition because the evidence warranted the jury in finding that the note was made in the presence of W. C. Sackett, agent for plaintiff, Francis M. Fast and Jacob Cover and that Cover knew it was to be delivered for the benefit of the plaintiff and actually saw it delivered to her agent in exchange for the other note. If the jury found the latter to be the true transaction, then there was not a shadow of forgery in it and Cover was bound as effectually as if he had taken the pen in his own hand and signed the note and then delivered it himself. Of course the jury either found that the transaction was as above stated or that Cover signed the note or gave prior authority to someone else to sign it for him. In either event Cover was bound beyond all question.

We are surprised to hear able counsel contend that if a man stands by and consents, either by words or impliedly, to his name being signed to a note and to the delivery of that note for value to one who believes the signature to be genuine, that such person can thereafter escape liability on the ground that he did not sign the note nor give prior authority to someone to sign it for him. We think the law is not so: Fitzpatrick v. Engard et al., 175 Pa. 393.

In Story on Agency, sec. 51, it is said: “If the principal is present and verbally or impliedly authorizes his agent to fix his name to a deed it becomes the deed of the principal and is as much binding on him as if he had personally sealed and executed it.” See also Meacham on Agency, sec. 96, citing many American and English cases; also Gardner v. Gardner, 59 Mass. 483. But under the evidence the jury could find a state of facts which would estop Cover from denying that he signed the note. “If one by his acts, or silence, or negligence, misleads another, or in any manner effects a transaction whereby an innocent person suffers loss, the blamable party must bear it:” Story’s Equity Jurisprudence, secs. 386, 387. See also Howie v. Lewis, 14 Pa. Superior Ct. 232.

The appellant’s counsel contends on a very fine technical theory evolved for this case that the plaintiff could not recover without proving that Cover signed the note because of what is called an admission in her answer to Cover’s petition and supplemental petition. In considering this question it should be borne in mind that the plaintiff did not pretend to have any personal knowledge of what took place at the time the note was made and delivered to her agent. In her answer she said: “That she did not see Jacob Cover sign the note but was sure he did and expects to be able to prove it at the hearing on the rule or the trial of the case if the judgment is opened, and that the note was accepted solely on the credit of the signature of Cover.” Under this averment of the plaintiff the learned counsel gravely argues that the only question which ought to have been submitted to the jury was, Did the defendant sign the note? That is to say, because the plaintiff made answer on information and belief that Cover signed the note and being unable to prove that, then she should have been denied the right to prove the actual facts, governing the making and delivery of the note, which as effectually bound Cover as if he had signed it himself. We think this proposition is entirely too sharp and technical to be adopted by a court of justice in the trial of a case like the one under consideration. Moreover, this position being taken under a rule of the court below, we are quite willing to follow the disposition of that question adopted by that court. In disposing of the motion for a new trial the learned judge said: “The note having been taken as the narr. the plaintiff was at liberty to establish the binding effect of it on the defendant, Cover, by whatever evidence was competent for that purpose. Defendant pleaded the general issue. The answer filed by plaintiff to the rule to show cause why the judgment should not be opened, did not constitute any part of the pleadings as designated by the court, and had nothing to do with the case at the time of trial.” We may add that the way the judgment was opened and the issue made up placed the burden of sustaining the execution of the note by Cover on the plaintiff, and to maintain this issue she was at liberty to offer any competent evidence, and we think she maintained this issue by producing evidence which warranted the jury in finding in her favor. We think the case was very fairly tried and presented to the jury by the learned court below, and from an examination of the testimony we are led to the conclusion that under the clear instructions of the court the jury found a correct verdict.

The assignments of error are all dismissed and the judgment is affirmed.


text:
    Murray v. Real Estate Title Insurance & Trust Company, Appellant.

      Banks and banking — Checks—Forgery—Notice—Time—Question for jury.

    1. The duty of a depositor in a bank upon discovering that it has paid and charged to his account, either a check bearing his forged signature as drawer, or his check on the forged indorsement of the payee, is to promptly notify it of the forgery. A delay of a week or two weeks after the discovery of the forgery, is too late, and will be so found by the court as a matter of law. The fact that the discovery of the forgery was not made until after the forger’s death, is immaterial if the depositor does not notify the bank for a week or two weeks after the discovery.
    2. The reason for the rule is based on the right of the bank to proceed immediately and promptly against the wrongdoer, and to take what measures it may deem proper to recover the money. If it does not receive prompt notice, it may lose its opportunity. The court cannot say as a matter of fact and of legal certainty that after the death of the forger the bank can do nothing.
    Argued Oct. 23, 1908.
    Appeal, No. 119, Oct. T., 1908, by defendant, from judgment of C. P. No. 5, Phila. Co., June T. 1906, No. 5,141, on verdict for plaintiff in case of Maggie G. Murray v. The Real Estate Title Insurance & Trust Company of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a check. Before Martin, P. J.
    The facts appear by the opinion of the Superior Court.
    Defendant presented this point:
    10. Under the law and the evidence, the delay of the plaintiff to notify defendant of the alleged forgery was such as to discharge the defendant from liability, and your verdict should be for the defendant. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $1,076.25. Defendant appealed.

      Error assigned among others was (2) above instruction, quoting it.

      July 14, 1909:

      Paxson Deeter and John C. Bell, with them Humbert B. Powell, for appellant. —
    When the indorsement of the payee to a check has been forged and the check paid thereunder, the payee may not recover from the drawer, when she, the payee, has not given prompt notice of the forgery and has delayed an unreasonable time in demanding repayment: Rick v. Kelly, 30 Pa. 527; Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46; States v. First Nat. Bank, 203 Pa. 69; McKenzie v. British Linen Co., L. R. 6 App. Cas. 82; William Ewing & Co. v. Dominion Bank, L. R. (1904) Appeal Cases, 806; Leather Mfg. Bank v. Morgan, 117 U. S. 96; McNeely v. Bank of North America, 221 Pa. 588.
    The court erred in leaving to the jury whether the plaintiff was guilty of such delay in notifying the title company as to bar recovery. Whether notice was given “promptly,” “within a reasonable time,” under the facts of this case, was a question of law for the courts: Case v. Morris, 31 Pa. 100; Haly v. Brown, 5 Pa. 178.
    The plaintiff delayed an unreasonable time and failed promptly to give notice of the forgery and demand repayment: States v. First Nat. Bank, 203 Pa. 69; United States v. Nat. Exchange Bank, 45 Fed. Repr. 163; Shepard & Morse Lumber Co. v. Eldrige, 171 Mass. 516; Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46; Cooke v. United States, 91 U. S. 389; National State Bank v. Weil, 141 Pa. 457.

      Charles L. McKeehan, with him Henry A. McCarthy, for appellee,
    cited: Shepard & Morse Lumber Co. v. Eldrige, 171 Mass. 516; Leather Mfg. Bank v. Morgan, 117 U. S. 96; Cooke v. United States, 91 U. S. 389; National State Bank v. Weil, 141 Pa. 457.
   Opinion by

Rice, P. J.,

The plaintiff, through her agent, W. G. Rothermel, negotiated a sale of her real estate, and the purchaser deposited the purchase money with the defendant who was to act for him in the settlement. Upon the settlement Rothermel delivered her deed and received the check of the defendant drawn on itself and payable to her order for the portion of the purchase money coming to her. The check purports to have been indorsed by the payee by her mark, to which Rothermel and another were witnesses, then by Rothermel and then by the Third National Bank, which guaranteed the prior indorsement and received payment from the defendant. The verdict of the jury, interpreted in the light of the evidence and charge of the court, established the facts that the payee did not indorse the check by her mark, did not authorize Rothermel to indorse it, and did not ratify his act; in short, that what purports to be her indorsement is a forgery. According to undisputed testimony the settlement was made and the check was delivered to Rothermel on June 12; it was paid by the defendant on the forged indorsement on June 13; on the latter date the plaintiff received information that the settlement had been made on the preceding day and that Rothermel had received payment; but she did not learn until after Rothermel’s death by his own hand in August that he had received a check payable to her order and had obtained payment by a forged indorsement of her name; and between one and two weeks after her discovering that fact she notified the defendant that the indorsement was a forgery. She says: “It must have been a week or two weeks. I cannot say positively, but I know I hesitated for a long time. ”

In order to relieve the case from unnecessary complications, it should be stated that the plaintiff’s delay in discovering the forgery was so far explained by her testimony as to circumstances which we have not mentioned that the court would not have been warranted in declaring as matter of law that that would preclude her from recovery. The question is, whether she is precluded by her delay in notifying the defendant of the fact after she discovered it.

The duty of a depositor in a bank,' upon discovering that it has paid and charged to his account, either a check’ bearing his forged signature as drawer, or his check on the forged indorsement of the payee is to promptly notify it of the forgery: McNeely Co. v. Bank of North America, 221 Pa. 588. The cases cited 'in the appellant’s brief show that the rule that notice of a forgery must be given “promptly” and “within a reasonable time” is applicable to a variety of cases, and having regard to the reason of the rule it must be held applicable here. As was said by the learned referee in United Security, Life & Trust Co. v. Central National Bank of Philadelphia, 185 Pa. 586, “in the course of business the duty of prompt notice of a discovered forgery is a portion of the commercial law of the state.” The particular question upon which counsel disagree in the present case is as to the legal effect of a failure to comply with the rule. Without citing and reviewing earlier cases we think this question is substantially answered in the case of McNeely Co. v. Bank of North America, 221 Pa. 588, which was not reported at the time of the trial of the case now before us. There two distinct views were presented: one, that the plaintiff was not barred of recovery unless by its failure to promptly notify the bank of the forgeries the latter had lost rights over against other parties, and that the burden was upon the bank to show such loss; the other, that the plaintiff, by reason of its failure to promptly notify the bank of its discovery of the forgeries, could not recover, even though the bank had offered no evidence that it could have protected itself and the plaintiff had not shown that it could not, if prompt notice had been given. The latter was held by the referee and the court below, to be the correct view, and upon appeal their conclusion was approved by the Supreme Court in the following clear and unequivocal language, after an elaborate and thorough discussion of the question: “The only reasonable and logical rule is the one adopted by the referee and the court below. Our own cases are in harmony with it, and it is approved by high authority. A different one would be putting a premium upon the laches of a depositor, and give to a dishonest one opportunity to help a forger to escape.” In support of this conclusion Mr. Justice Brown, who delivered the opinion said: “As soon as a bank learns that it has paid a check on a forged signature of a depositor, or on a forged indorsement on his check, it is its duty to promptly restore to the depositor’s account what was improperly taken from it, and its right at the same time is to proceed against those who wrongfully got the money. This right is to proceed immediately, and to the promptness with which a bank is able to exercise it recovery is often due. When a depositor withholds from his bank his knowledge of the forgery, he withholds from it this right to proceed promptly for its own protection. It may or may not be able to recover from the forger by promptly proceeding against him, but its right is to try by so proceeding; and when one of its depositors discovers that it has innocently sustained a loss, he ought, not only in all good conscience, but as a legal duty, to notify it at once of its mistake, for by withholding from it what he has discovered, he can, as just stated, gain nothing, but it may lose all. A forger may be insolvent or beyond the reach of civil or criminal process, but, by prompt proceedings against him, others may become interested in him and come to his assistance, who after delay may not do so. This incident to a bank’s right to promptly proceed against a forger is not to be overlooked. Whenever a depositor knowingly withholds from it knowledge without which it cannot so proceed in an effort to protect itself, he ought to be regarded, when he comes to enforce alleged rights against it, as having withheld from it a substantial right, without regard to what might or might not have resulted from a prompt exercise of that right.” Further on in the opinion he said: “Delay by a depositor in giving notice to a bank means .not only its enforced delay in proceeding against those liable to it, but means loss of evidence as well; and if the rule for which appellant contends should prevail, a bank might be deprived of the opportunity of showing that prompt proceeding on its part would have resulted in its recovering for its loss. And again, in a suit brought by a depositor against a bank to recover the amount which it may have improperly paid on a forgery, the issue is the forgery. This issue ought not to be complicated with another, and a speculative one, as to whether anything might have been recovered from the forger, if prompt notice had been given to the bank of the forgery. The only reasonable and logical rule is the one adopted by the referee and the court below.”

The learned counsel for the plaintiff do not question the general proposition that the payee of a cheek who seeks to recover from a drawee who has paid the check on a forgery of the payee’s signature must be prompt in giving notice of the forgery. Nor do they contend that where prompt notice was not given it is incumbent on the drawee to show that he has been actually damaged by the plaintiff’s delay. What they contend for is that mere delay will not estop the plaintiff in a case where it affirmatively appears that no prejudice can have resulted therefrom, and that this is such a case. It is supposed that this is such a case, because, as argued by plaintiff’s counsel, after Rothermel’s death knowledge of the forgery was useful either to the defendant or the Third National Bank only to enable them to go against Rothermel’s estate, and claims against his estate were just as good three weeks after his death as one day after his death. But while the probability may be very strong that the defendant could have done nothing between the date when the plaintiff discovered the forgery and the date when she notified it of the fact that would have bettered its position, yet we do not see how it can be declared with legal certainty that it could have done, nothing. The fact remains that it lost its right to try by reason of the plaintiff’s delay in the performance of a positive legal duty, and, therefore, she must be deemed to have withheld from it a substantial right, without regard to what might or might not have resulted from a prompt exercise of that right. Notwithstanding the undisputed fact that the forger died before the discovery of his forgery, we are of opinion that the rule as above stated is applicable to the case, and that her duty to give prompt notice was not affected by the fact referred to.

The court submitted to the jury the question whether the plaintiff promptly notified the defendant, with instructions that if she did not the defendant was entitled to a verdict in its favor. If the question of the defendant’s liability was to be submitted to the jury, the manner in which it was submitted in the part of the charge quoted in the first assignment, was as favorable to the defendant as it had a right to ask. But it is contended that the question whether the notice was given “promptly” or “within a reasonable time,” was, under the undisputed facts, a question which the court should have decided in the negative by an affirmance of the defendant’s tenth point. The defendant’s place of business and the plaintiff’s residence were in the same city. While there was evidence which may have excused the plaintiff’s delay in discovering the forgery, there is no evidence which is excusatory or explanatory of the delay after she discovered it. The law of commercial paper “is founded throughout the civilized world on the utmost promptness, diligence and good faith:” Iron City National Bank v. Fort Pitt National Bank, 159 Pa. 46. Notice of forgery in cases of this kind is to be given “promptly and according to the circumstances and usage of the business:” Iron City National Bank v. Fort Pitt National Bank, 159 Pa. 46. There are in this case no circumstances from which it can be inferred that notice given “a week or two” after the discovery of the forgery was prompt notice, and it certainly would not be so held in similar transactions relating to commercial paper to which the rule requiring prompt notice applies. It is not necessary to declare that it was the plaintiff’s imperative duty to give notice the following day, but it seems quite clear that under the admitted facts, and having regard to the nature of the transaction, the usage of the business and the purpose of notice, the plaintiff did not give notice “promptly” or “within a reasonable time.” It is one of those cases in which it was within the province of the court to declare the conclusion as matter of law. See Learning et al. v. Wise, 73 Pa. 173; Cunningham v. Wanamaker, 217 Pa. 497; National State Bank v. Weil, 141 Pa. 457; Cook v. United States, 91 U. S. 389. The general rule that when facts are ascertained and undisputed, and only one inference can be drawn from them, what is reasonable time is a question of law for the court is applied with particular strictness in transactions relating to commercial paper.

The second assignment of error is sustained and the judgment is reversed.


text:
    Clark’s Estate.

      Guardian and ward — Investing funds — Deposit in bank — Surcharge.
    1. A guardian of three wards who opens a bank account in his name as guardian, in a bank of which he is a director, and where he has his own and his firm’s accounts, such account bearing interest on balances at four per cent and subject to check without notice, cannot be surcharged with a loss by failure of the bank, because he kept $1,200 of his wards’ moneys in the bank for eight months, without otherwise investing it.
    2. In such a case the guardian is all the more excused for failing to invest, if it appears that'he did not mingle any of the trust moneys with his own, kept accurate accounts of the trust fund, was diligent in making investment of their moneys, and is not shown to have known of any investment for the fund that was lost, or to have known that the bank was insolvent.
    3. All that a court of equity requires of trustees is common skill, prudence and caution. Executors, administrators or guardians are not liable beyond what they receive, unless in case of gross negligence; when they act as others do with their own goods and in good faith, they are not liable.
    Argued April 26, 1909.
    Appeal, No. 148, April T., 1909, by Anna S. Morrison, from decree of O. C. Allegheny Co., Sept. T., 1908, No. 341, dismissing exceptions to adjudication in Estate of Samuel Clark et al., Minors.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Exceptions to adjudication. Before Over, J.
    The opinion of the Superior Court states the case.

      Error assigned was in dismissing exceptions to adjudication.

      Andrew Herron Mercer, for appellant. —
    All that a court of equity requires from trustees is common skill, common prudence and common caution. Executors, administrators or guardians are not liable beyond what they actually receive, unless in case of gross negligence; for when they act as others do with their own goods and with good faith and are not guilty of gross negligence, they are not liable: Fahnestock’s Appeal, 104 Pa. 46; Neff’s App., 57 Pa. 91; Eyster’s App., 16 Pa. 372.

      July 14, 1909:
    The directors of a bank are not liable for loss resulting from the frauds of an officer of the bank, unless they have been guilty of gross neglect, which means an absence of that diligence that ordinary prudent men in the conduct of such business would have exercised: Mason v. Moore, 4 L. R. A. (N. S.) 597; Keller’s App., 8 Pa. 288.

      Howard Zacharias, with him Harry Diamond, for appellee.—
    Appellee contends the guardian was negligent in allowing the balance on hand to remain uninvested in bank for a period of more than nine months: Law’s Estate, 144 Pa. 499; Evans’s Est., 7 Pa. Superior Ct. 142; Neff’s App., 57 Pa. 91.
   Opinion by

Morrison, J.,

David Morrison was appointed guardian of Robert, Samuel and Theodore Clark, minor children of Richard Clark, deceased, on December 10, 1897, and continued to act in that capacity until September 27,1907, when he died. He opened an account as David Morrison, guardian, in the Enterprise National Bank of which he was a director. His first deposit was on February 3, 1898. The account was, at all times, subject to check without notice, and bore four per cent interest on balances. The guardian also kept a book account, exclusively for said guardianship fund. The entries in this book, as well as the bank book, show that the items of receipts, expenditures and deposits were all promptly and correctly entered. No other funds were mixed with the trust moneys. The receipts chiefly consisted of pension and rents and the disbursements were for taxes, repairs, insurance and personal expenses of his three wards. The receipts from the estate exceeded the disbursements.

On March 7, 1903, the guardian invested $2,000 of the trust funds in a mortgage on the property of one Edward Williams. On January 9, 1905, there was to his credit in the Enterprise National Bank, $819.99, and on October 18, 1905, there was $1,110.81 credited to this account. On the latter date the bank was closed by the proper authorities, and by reason of the defalcation and death of the cashier, said bank went into the hands of a receiver. He afterwards credited $75,76 to said account, making a total of $1,196.57. The guardian immediately opened another guardianship account in the Manchester Savings Bank and Trust Company. On May 28, 1907, he invested $1,400 of said trust funds in a mortgage from Elizabeth Gwynne, and at the time of his death he had a cash balance in said trust company to his credit. The guardian filed, February 5, 1903, a statement with the register showing a balance on hand of $1,948.68, and on February 10, 1906, another triennial statement showing a balance in his hands of $3,230.97. This balance included the Williams mortgage. The decedent had, at the time said Enterprise National Bank closed its doors, three other accounts therein; his account as treasurer of Allegheny Commandery, of his firm, Morrison Brothers, and his own private account. Up to the date of closing its doors said bank was of good financial reputation, had large deposits and was deemed sound and solvent by its directors, depositors and the community at large.

The receiver paid two dividends on account of said deposit, leaving a balance due the guardian of $957.26. We have stated the above facts from the appellant’s history of the case, at length, because we understand that they are substantially correct and that the appellee agrees therewith. The question involved is the liability of the guardian for the loss of $957.26 because he did not invest it in a mortgage or other good security, but allowed it to remain in the bank to the credit of his account as guardian from January 1, 1905, to October 18, of the same year, when the bank failed. The account filed by Anna S. Morrison, executrix, came before Judge Over, auditing judge, who allowed the credit for said $957.26, and the new guardian excepted to this allowance and on consideration, Judge Over dismissed said exception. The new guardian renewed the exceptions and on hearing before the court, Hawkins, P. J., vacated the former decree and surcharged the accountant with the said sum in bank and entered a final decree accordingly. To this decree Judge Over filed a vigorous dissenting opinion. It is from said decree of the court that this appeal comes before us.

The opinion of the court by Hawkins, P, J., says: “The principle is well settled that a trustee may keep trust funds on deposit for a reasonable time while seeking an investment; but if he allows them to remain there by way of investment, he will be liable to make good the resultant loss: Law’s Est., 144 Pa. 499. What will be considered a reasonable time will depend on circumstances, Noble’s Est., 178 Pa. 460, and the proof here shows that investment of the fund in authorized securities might have been made at any time during the eight months which elapsed prior to the bank’s failure. The opportunity to invest made it the duty of the guardian to avail himself of it; and if he had done so the fund would be intact. And there was this additional reason for prompt action that being a director in the bank he presumptively knew of its insolvency. The loss was therefore caused by accountant’s neglect of duty and he ought to bear it.” The above opinion contains all the reasons given by the court for overruling the auditing judge and surcharging the accountant. In our opinion, the dissenting opinion by Over, J., furnishes quite satisfactory reasons for holding that the accountant ought not to be surcharged. We do not think that Law’s Est., 144 Pa. 499, sustains the court in surcharging the accountant with the money lost in the bank. In that case the orphans’ court was reversed for charging the trustee with money lost by the failure of the Bank of America under very similar circumstances to those in the present case. In fact the only substantial difference in the two cases is that the money lost in the Law case was a much larger sum than in the present one, but it only remained in the bank about three months before the failure while in the present case the fund remained in the bank about eight months. In the Law case Mr. Justice Clark for the Supreme Court said: “As a general rule the measure of care and diligence required of a trustee is such as would be pursued by a man of ordinary prudence and skill in the management of his own estate: Fahnestock’s Appeal, 104 Pa. 46. It is equally well settled, however, that a trustee who invests the funds belonging to a trust on personal security does so at his own risk. This is so well settled that a citation of authorities is unnecessary. ... So, also, executors, trustees, or guardians will not be liable if, in the ordinary discharge of their duty, they deposit the assets temporarily in a bank, although the bank fail. But the trustee must be careful to make the deposits in the name of the trust estate, and not to his personal credit, and not to mix the trust funds with his own; otherwise he will be hable.” Citing cases.

Judge Hawkins next cites his own case of Noble’s Est., 178 Pa. 460, which was affirmed by the Supreme Court on his opinion. But in that case the guardian mingled his ward’s money with his own so that it was impossible to trace the investments made for his ward. Therefore, he was surcharged with interest on the principal, etc. We are unable to see that that case has any bearing on the present one. David Morrison did not mingle his ward’s funds with his own nor with any other fund; he kept an accurate account of all receipts and disbursements on account of his wards and he kept a separate bank account of their funds in his name as guardian. The learned counsel for appellee states in the first sentence of his argument: “The only question in this case is whether or not the deceased guardian left the balance on deposit belonging to his wards in bank on an account hearing interest at the rate of four per cent per annum for a period of time longer than was necessary to secure a good and legal investment for the amount of this balance.” It must be borne in mind that it is a conceded fact that this account was subject to check on any date and therefore it was not an investment made at the risk of the guardian. It is expressly decided in Law’s Estate that the allowance of interest on such an account will not change the transaction into an investment.

A weak attempt was made to show that the guardian might by diligence have found an investment of this money on a mortgage during the eight months it remained in the bank. It is not shown, however, that the guardian had any knowledge of an opportunity to safely invest the money in a mortgage. The fact that this guardian made several other investments in good mortgages for his wards indicates that he was not negligent. The language of the learned auditing judge applies with much force to this phase of the case. “As he is dead, we cannot know certainly what efforts he made; but judging from the faithful and methodicál manner in which he managed his ward’s estate, and made mortgage investments, it can be inferred he made reasonable efforts to invest the amount in his hands in securities designated by the statutes. Not having the same opportunity as a trust company, he should not be held to as strict a liability.”

The testimony offered by the exceptant to show that a certain trust company could have furnished a mortgage for $800 to $1,000 while the fund in question lay in the bank is not very material. It is not shown that the guardian had any knowledge of this and if he did he may have had good reason for rejecting the mortgage. Counsel for appellee contends that the authorities cited by appellant’s counsel are not applicable to the facts in this case, and he especially refers to Neff’s App., 57 Pa. 91, and Fahnestock’s App., 104 Pa. 46, and Eyster’s App., 16 Pa. 372, but we think the principle considered and discussed in those cases does apply. In Neff’s Appeal it is stated in the syllabus: “All that a court of equity requires of trustees is common skill, prudence and caution. Executors, administrators or guardians are not liable beyond what they receive unless in case of gross negligence; when they act as others do with their own goods and in good faith, they are not liable.”

In Fahnestock’s Appeal the same principle is recognized. In it, Mr. Justice Clark said: “A reasonable degree of vigilance and the exercise of good faith is the standard of the trustee’s duty. The office is often a thankless one, and if, as we said in Eyster’s App., 16 Pa. 372, guardians or trustees are to be held responsible for all negligence, and are not allowed the exercise of a reasonable discretion and prudential care in the management of their trusts, it will deter prudent men from assuming the office which in itself is sufficiently onerous and already undertaken by such men with reluctance.”

In Bartol’s Est., 182 Pa. 407, it was held as stated in the syllabus: “A trustee will not be surcharged for a loss which has occurred to the trust estate if he has exercised common skill, common prudence and common caution: but, he will be held responsible for supine negligence or for wilful default.” To the same effect is Semple’s Est., 189 Pa. 385.

But there is another consideration which admonishes us to be cautious about surcharging this accountant. He had three wards, and the amount of money remaining in the bank during the eight months in question was only about $1,200. If this belonged to one ward it might be argued with some force that there was negligence in leaving that sum in an open account in the bank. But when that sum is divided by three, it is not certain that a guardian ought to be adjudged guilty of negligence and liable to a surcharge when he only kept in bank about $400 for each ward as in case of sickness or accident he might be called upon to use the money.

But the learned court attached some importance to the fact that the guardian was a director in the bank and he presumptively knew of its insolvency. We think this inference was well answered by Judge Oveb in his dissenting opinion as follows: “Had he known of it would he not have withdrawn his own, the firm’s and the Allegheny Commandery accounts? And that he did not, rebuts any presumption against his integrity that might arise because he was a director, and it is also rebutted by the character of the man as shown by his faithful administration of his trust.

“There has surely been no wilful default by the guardian in this case, and as it seems clear that he has exercised the care, diligence and discretion in managing this estate that any ordinary man would in the conduct of his business, he cannot be charged with supine negligence, and he should not be held liable for the loss on the deposit in bank.”

The decree of the orphans’ court is reversed and record remitted with instructions to restate the account by allowing credit to the accountant for the money in the Enterprise National Bank; the costs of this appeal to be paid by the appellee


text:
    Newhouse’s Estate.
    July 14, 1909:

      Decedents’ estates — Claims against — Promissory note — Payment—Findings of fact.

    A finding of fact by the orphans’ court that a note of the decedent presented at the audit ten years after the date of the note, had not been paid, will not be reversed where such finding is based on competent evidence, and there is no manifest error.
    Argued April 22, 1909.
    Appeal, No. 149, April T., 1909, by John S. Deibler, from decree of O. C. Westmoreland Co., May T., 1908, No. 19, dismissing exceptions to adjudication in Estate of Josiah Newhouse.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Exceptions to adjudication. Before Steel, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were in answering exceptions to adjudication.

      Z. T. Silvis, for appellant.

      D. C. Ogden, with him Wm. T. Dorn and Clarence L. Hugus, for appellee.
   Opinion by

Morrison, J.,

The sole complaint in this case is that the learned judge of the orphans’ court erred in allowing payment, out of the decedent’s estate, of. a $300 judgment note and interest thereon, dated November 2, 1896, payable one year after date to John D. Cassidy. The note was under seal, and this imports a consideration. The evidence warranted the learned judge in finding, as a matter of fact, that the note was given in a settlement between New-house and Cassidy. After the note was signed by Newhouse, it was handed to Mr. Bair by Cassidy, the payee, for safekeeping. It was placed in an envelope and remained in the possession of Bair & Lane for about ten years, until after the death of Newhouse, when it was taken by Cassidy and presented for payment at the audit of the Newhouse estate.

We find nothing in the case to warrant a serious contention that the note was not a valid and legal obligation against New-house. The appellant, however, earnestly contends that on March 7, 1900, Josiah Newhouse and wife conveyed to John D. Cassidy a farm consisting of 106 acres and 134 perches for the sum of $2,500; that in the deed it was stated, “that the said John D. Cassidy hereby agrees to pay and discharge all liens and incumbrances against the above described premises and this deed is made subject to the payment of the same.” At the same date Cassidy executed a purchase money mortgage to New-house for $1,000. It appears in evidence that there were judgments amounting in the aggregate to about $1,500 against the Newhouse farm at the date of the conveyance. The amount of these judgments and the $1,000 mortgage about equaled the purchase money of the farm. The $300 note to Cassidy was not entered as a judgment and it was not a lien or incumbrance at the date of the conveyance, March 7, 1900. On account of the lapse of time and of the transaction above referred to, counsel for appellant earnestly contends that the learned court erred in not inferring that the said $300 note had been paid or else that it was not a bona fide debt and was not intended to be paid.

The learned court had the advantage of hearing the witnesses testify and of an examination of all of the papers offered in evidence. At the close of the hearing and of the argument and after consideration of the exceptions, the learned judge must have been very familiar with the whole case. It is apparent that he was not convinced that he ought to infer that the $300 note was not a valid obligation nor was he convinced that he ought to infer from what was before him that said note had been paid.

Upon a careful review of the evidence and due consideration of the exceptions and the arguments of counsel, we are all of the opinion that this case does not disclose such error as calls for a reversal of the decree of the court below. After all, the questions before the court were of fact to be found from oral testimony and inferences to be drawn from such testimony and the writings and other circumstances in evidence, and the learned court below was in a much better position to weigh the evidence and draw the inferences than we can be placed by the printed records placed before us. It would seem that if the note in question had been paid when the farm was conveyed, New-house would have made some effort or arrangement to get his note which was in the hands of Bair as a custodian, at least it would seem likely that Newhouse would have notified Bair that the note was paid. We are not convinced of reversible error on the part of the court below.

The decree is affirmed and the appeal dismissed at the costs of the appellant.


text:
    Commonwealth, Appellant, v. Herr.

      Constitutional law — Title of act — Garb of teachers — Act of June 27, 1895, P. L. 395 — Religious worship.

    1. The Act of June 27, 1895, P. L. 395, entitled, “An Act to prevent the wearing in the public schools of this Commonwealth, by any of the teachers thereof, of any dress, insignia, marks or emblems indicating the fact that such teacher is an adherent or member of any religious order, sect or denomination, and imposing a fine upon the board of directors of any public school permitting the same,” is sufficient in title, and does not violate sec. 3, art. Ill, of the constitution of Pennsylvania.
    2. The title of the act is sufficient to cover the provisions relating to the suspension and disqualifying of teachers who violate the act and to cover the provisions relating to the fining of individual directors, of the deprivation of the directors of their office or their disqualification for office.
    3. The statement in the title that the fine is to be imposed on “the board of directors,” whereas the penal provision contained in the body of the act is directed against the director or directors who offend, does not render the act unconstitutional.
    4. The act does not violate the fifth and fourteenth amendments of the constitution of the United States, in that it subjects the individual school director to punishment for the acts of his associates as a body, when he may not be in any way responsible for them.
    5. The act is not to be construed, so as to impose a penalty on a director who has done his duty. It is only directed against such directors as have failed to comply with the provisions of the act.
    6. The act does not violate secs. 3 and 4 of art. I of the constitution of Pennsylvania relating to religious worship and belief. The provision in the act, “That no teacher in any public school of this commonwealth shall wear in said school or whilst engaged in the performance of his or her duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination,” does not disqualify any person from employment as a teacher, “on account of his religious sentiments.” It is directed against acts, not beliefs, and only against acts of the teachers whilst engaged in the performance of his or her duties as such teacher.
    7. The religious freedom and the rights of conscience guaranteed by the constitution, do not necessarily and always stand in the way of the enforcement of laws commanding or prohibiting the commission of the acts even by those who conscientiously believe it to be their religious or moral duty to do or to refrain from doing.
    8. The right of the individual to clothe himself in whatever garb his taste, his inclination, the tenets of his sect, or even his religious sentiments may dictate is no more absolute than his right to give utterance to his sentiments, religious or otherwise. In neither case can it be said that a statute cannot restrain him from exercising these rights whenever, wherever and in whatever manner he conscientiously believes it to be his moral or religious duty to do so.
    Argued Nov. 13, 1908.
    Appeal, No. 188, Oct. T., 1908, by plaintiff, from order of Q. S. Lancaster Co., April T., 1908, No. 21, sustaining demurrer to adjudication in case of Commonwealth v. Amos R. Herr et al., the Board of School Directors of the School District of Mount Joy Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment against school directors for failure to enforce the Act of June 27, 1895, P. L. 395, relating to the garb of school teachers. Before Landis, P. J.
    Demurrer to indictment.
    The case turned on the constitutionality of the act of June 27, 1895.
    The court entered judgment for the defendants on the demurrer.

      Error assigned was the order of the court.

      A. M. DeHaven and John E. Malone, with them J. W. Johnson, district attorney, and S. V. Hosterman, assistant district attorney, for appellant. —
    The act does not violate art. Ill, sec. 3, in that its subject is not clearly expressed in its title: Blood v. Mercelliott, 53 Pa. 391; Com. v. Clymer, 217 Pa. 302.
    The real test is: Are all the matters treated of in the act cognate to the general subject expressed in the title, however diverse they may seem to.be as between themselves: Kelley v. Mayberry Township, 154 Pa. 440; Com. v. Charity Hospital, 198 Pa. 270; Com. v. Railway Co., 219 Pa. 11; Com. v. Jones, 4 Pa. Superior Ct. 362; Sugar Notch Borough, 192 Pa. 349.
    The act does not violate the fifth amendment to the constitution of the United States in that it deprives a citizen of his property by fine, and of his office by forfeiture, by making him liable individually for the acts of his associates. ,
    The act does not violate art. I, sec. 2, of the constitution of Pennsylvania in that it deprives men of the inherent and indefeasible right to acquire and possess property, and pursue their own happiness: Com. v. Vrooman, 164 Pa. 306; Swing v. Munson, 191 Pa. 582; Sweeny v. Hunter, 145 Pa. 363; Com. v. Beatty, 15 Pa. Superior Ct. 5; Com. v. Moir, 199 Pa. 534.
    The act does not violate art. I, sec. 3, of the constitution of Pennsylvania, which declares that, “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. ... No human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given, by law, to any religious establishments or modes of worship:” Com. v. Lesher, 17 S. & R. 155; Specht v. Com., 8 Pa. 312; Reynolds v. U. S., 98 U. S. 145; Davis v. Beason, 133 U. S. 333 (10 Sup. Ct. Repr. 299); Latter Day Saints v. U. S., 136 U. S. 1 (10 Sup. Ct. Repr. 792).
    The act does not violate art. I, sec. 4, of the constitution of Pennsylvania which declares that, “No person who acknowledges the being of a God and a future state of rewards and punishments, shall, on account of his religious sentiments be disqualified to hold any public office or place of trust or profit under this commonwealth:” Hysong v. School District, 164 Pa. 629; O’Connor v. Hendrick, 184 N. Y. 421 (77 N. E. Repr. 612).
    July 14,1909:

      W. U. Eensel, for appellees. —
    The title of the act does not give due notice of its provisions: Dorsey’s App., 72 Pa. 192; Union Passenger Ry. Co.’s App., 81* Pa. 91; Com. v. Kebort, 212 Pa. 289; White on Constitution of Pennsylvania, p. 226; Com. v. Hazen, 207 Pa. 52; Hatfield v. Com., 120 Pa. 395; Rogers v. Manufacturers’ Improvement Co., 109 Pa. 109; In re Road in Borough of Phœnixville, 109 Pa. 44; Com. v. Moorhead, 7 Pa. C. C. Rep. 513; Quinn v. Cumberland County, 162 Pa. 55; Barnes v. Philadelphia, etc., R. R. Co., 27 Pa. Superior Ct. 84; Com. v. Penn Forest Brook Trout Co., 11 Pa. Dist. Rep. 349; Schall v. Norristown, 6 Leg. Gaz. 157; Beckert v. Allegheny City, 85 Pa. 191; Cassel’s Appeal, 8 Lanc. L. R. 260; Com. v. Farley, 6 Pa. C. C. Rep. 433; Com. v. Frantz, 135 Pa. 389.
    The act is unconstitutional and void because it proposes to punish one person for the omission of another — to punish the individual for the offenses of a corporate body, a municipal unit: Huber v. Reily, 53 Pa. 112; Wallen v. Lake, 2 Northampton, 69; Butler Twp. School District’s Case, 158 Pa. 159.
    It violates the state constitutional provisions against liberty of conscience.
   Opinion by

Rice, P. J.,

Taking up the objections urged against the validity of the Act of June 27, 1895, P. L. 395, in the order in which they are set forth in the brief of the appellees’ counsel, the first question to be considered is whether the act violates sec. 3, art. Ill of the constitution which declares that no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title. The title reads: “An act to prevent the wearing in the public schools of this commonwealth, by any of the teachers thereof, of any dress, insignia, marks or emblems indicating the fact that such teacher is an adherent or member of any religious order, sect or denomination, and imposing a fine upon the board of directors of any public school permitting the same.” As the subject clearly expressed in the title is the prevention of certain acts by common school teachers, anyone interested in the subject would, upon reading the title, naturally be led to presume that the bill contained provisions germane to the subject and calculated to effect the object to be attained. He also would naturally be led to presume that included in them were provisions calculated not only to deter school directors from permitting teachers to transgress the law but also to deter teachers themselves from transgressing it. The title need not embody all the distinct provisions of the bill in detail, nor, as has been said repeatedly, serve as an index or digest of its contents; it is sufficient if the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into what is contained in the body of the bill. “A recent admonition from the Supreme Court in Com. v. Rapid Transit Street Ry. Co., 219 Pa. 11, indicates the true spirit of the constitutional requirement and suggests that brevity which does not mislead should be aimed at in the construction of the titles of statutes. Such a title, though general, will cover all details and collateral matters naturally and properly incident to the subject: Stegmaier v. Jones, 203 Pa. 47: ” Com. v. Darmska, 35 Pa. Superior Ct. 580; Weiss v. Swift & Co., 36 Pa Superior Ct. 376. Viewing this title in the light of these well-settled principles, it cannot be declared insufficient upon the ground that it does not expressly mention the provisions relating to the suspension and disqualifying of teachers who violate the act.

The objection that the title is misleading, and therefore defective, because no mention is made therein of the purpose to fine individual directors, or to deprive them of their offices or to render them ineligible to appointment or election if they violate the law, is next to be considered. It is to be noticed that the provisions of the act relating to the deprivation of a school director of his office, and to his ineligibility to appointment or election do not come into operation until after a second conviction. They are not necessarily involved in the present case, and their validity need not be discussed. Even if they be invalid— a point we do not decide — the invalidity of the provision subjecting the offending directors to indictment and fine would by no means follow. The other punitive provisions are separable therefrom and may be rejected — we do not intimate that they must be — without drawing with them the provision upon which this prosecution depends: Com. v. Caulfield, 27 Pa. Superior Ct. 279; Com. v. Martin, 35 Pa. Superior Ct. 241, at p. 248, and cases there cited; Com. v. Dougherty, ante, p. 338.

But, it is claimed that the title, even as to the imposition of a fine, is misleading, because, as argued by appellees’ counsel, it indicates that the fine is to be imposed on “the board of directors,” whereas the penal provision contained in the body of the act is directed against the director or directors who offend. If in framing the title the intention had been to indicate that the fine was to be imposed upon a corporate or quasi corporate body, as distinguished from the individuals who compose it or the officers who direct its affairs, it is reasonable to suppose that some other form of expression would have been used than “board of school directors.” Under our common school system a “board” of school directors is not such a legal entity as can be made to' respond, to civil or criminal process. As used in this connection, it must be regarded as a mere name or form of expression to indicate a number of persons appointed or elected to sit in council for the management or direction of the affairs of a school district, the latter and not the board being the corporate entity. It is impossible to conceive of the imposition of a fine upon a board of school directors apart from the directors personally. And, surely, no one reading this title could reasonably infer therefrom that the intention was to do the vain thing of imposing a fine which could not be enforced against any person, natural or artificial. On the contrary, the plain and natural inference to be drawn from the words of the title would be that the body of the bill contained a penal provision calculated to deter the members of the governing body from permitting the forbidden act. This seems to be an appropriate occasion for quoting again the apt language of Allegheny County Home’s App., 77 Pa. 77: “It will not do, therefore, to impale the legislation of the state upon the sharp points of criticism, but we must give each title as it comes before us, a reasonable interpretation, ut res magis valeat quam pereat.” Without further elaboration, we conclude, that the title is sufficiently comprehensive as well as sufficiently precise and clear to sustain the provisions of the act involved in this case.

The next objection urged against the act is that it violates the fifth and fourteenth amendments of the constitution of the United States, in that it subjects the individual school director to punishment for the acts of his associates as a body when he may not be in any way responsible for them. It is obvious, we think, upon a mere reading of this objection in connection with the clause of the statute to which it relates that the objection is based on an erroneous interpretation of the clause. It is “the public school director failing to comply with the provisions of this act,” who is made subject to indictment and fine. It would require a very strained and indeed wholly unwarranted interpretation of these words in a penal statute to hold that a director, who in good faith has done what he could officially to comply with the provisions of the act, but has been outvoted by his associates, has failed to comply with them. One of the elementary rules in the construction of statutes is to adopt such construction, if it be fairly possible, as will avoid a conclusion that would make it unconstitutional. The presumption always is that the legislature does not intend to violate the constitution, and this controls in doubtful cases. Besides this, the act furnishes very satisfactory evidence that the legislature did not intend to punish such a director as we have spoken of. It first declares that, “it shall be the duty of said school board to permanently suspend such teacher,” etc., and then that, “any public school director failing to comply with the provisions of this act shall be guilty of a misdemeanor,” etc. The law does not confer the power, nor impose the duty, on a single director, to suspend a teacher. He must, however, do his duty as a member of the board and when he has done that, he has complied with the provisions of the law. This is evidently what the legislature meant, not that he must do that which he cannot do himself. If the legislature had intended the absurdity and injustice of punishing a director who has done his duty and exhausted the power the legislature gave him, it would not have used language which reasonably imports that each director is punishable by fine for his own dereliction only.

The remaining objections urged against the act are that it violates secs. 3 and 4 of art. I of our constitution which so far as material here read as follows:

Sec. 3. “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; .... no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preferences shall ever be given by law to any religious establishments or modes of worship.”

Sec. 4. “No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth.”

The inhibition of the act is thus expressed: “That no teacher in any public school of this commonwealth shall wear in said school or whilst engaged in the performance of his or her duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.” A violation of the foregoing provision subjects the teacher to suspension from employment in the district for one year, and a second offense to permanent disqualification to teach in the district. If the question for our decision were whether the act prohibited by this legislation is contrary to the letter or the true intent and meaning of the sections of the constitution above quoted, or of the constitutional prohibition against the appropriation or use of public school money for the support of any sectarian school, it would be sufficient for us to say that it has been authoritatively and conclusively answered in the negative by the Supreme Court in Hysong v. Gallitzin Borough School Dist. et al., 164 Pa. 629. So also if the question for our decision were whether the legislation was necessary in order to carry into effect, in the administration of the public schools, these constitutional provisions, the answer would have to be in the negative. The question is not, what do these sections empower the legislature to do, but what limitations do they impose upon the general legislative power vested in the general assembly by sec. 1, art. II of the constitution. This question did not arise in the case cited, and it is an obvious mistake to suppose that the legislation must fail because the effort to accomplish the same result through the courts was ineffectual. The legislature may exercise all the powers of a legislative character that are not prohibited to it by the state or federal constitutions: Com. v. McCloskey, 2 Rawle, 369. Nothing but a clear violation of the constitution, “a clear usurpation of powers prohibited” will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void: Sharswood, J., in Penna. R. R. Co. v. Riblet, 66 Pa. 164. The right of the judiciary to declare a statute void and to arrest its execution is one which, in the opinion of all courts, is coupled with responsibility so grave that it is never to be exercised except in very clear cases. “The party who wishes to pronounce a law unconstitutional takes upon himself the burden of proving beyond all doubt that it is so:” Black, J., in Erie & Northeast R. R. Co. v. Casey, 26 Pa. 287; quoted with approval by Sterrett, J., in Powell v. Com., 114 Pa. 265. “Nor are the motives of the legislature, real or supposed, in passing an act open to judicial inquiry or consideration. The legislature is the lawmaking department of the government, and its acts in that capacity are entitled to respect and obedience until clearly shown to be in violation of the only superior power, the constitution:” Mitchell, J., in Com. v. Moir, 199 Pa. 534. “Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives:” Cooley’s Const. Lim. (7th ed., 1903) 184. Again the learned author says, and this is quoted with approval in Com. v. Moir, 199 Pa. 534: “The rule of law upon this subject appears to be, that except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the state, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest-the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon -points of right, reason and expediency with the lawmaking power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the constitution, and the case shown to come within them Cooley’s Const..Lim. (7th ed.) 236. We have been led to bring prominently into view these generally accepted principles that govern the courts in the determination of such a question as we have before us, because we deem it the most appropriate mode of answering some of the arguments, which, it seems to us, are pertinent only to the question of the necessity for, and the expediency and wisdom of, the legislation. These are legislative, not judicial, questions, and they will not be discussed here.

We cannot assent to the proposition that the intent or the effect of the legislation is to disqualify any person from employment as a teacher “ on account of his religious sentiments.” It is directed against acts, not beliefs, and only against acts of the teacher whilst engaged in the performance of his or her duties as such teacher. It is true the acts prohibited are those which may indicate, and indeed may be dictated by, the religious sentiments of the teacher. Therefore we are led to the broader inquiry whether this constitutes an infringement of the “natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences,” or contravenes the accompanying declaration that “no human authority can, in any case whatever, control or interfere with the rights of conscience.” No man’s religious belief may be interfered with by law. As was said by Justice Williams in Hysong v. Gallitzin Boro. School District, 164 Pa. 629, the rights of conscience are no less sacred than the rights of property; test oaths and religious disqualifications belong to a period further back than the memory of the present generation can reach, and it is to be hoped they may never be restored. But broad as are these declarations of our constitution, and sacred as are the religious freedom and the rights of conscience they secure, yet it must be apparent to any person upon reflection, and has been repeatedly declared by the highest judicial authority, that they do not mean, unqualifiedly, that it is beyond the power of the legislature to enact any law which will restrain individuals from doing that which, if it were not for the law, their consciences would teach them to be their moral or religious duty. Indeed it is impossible to see how civil government could exist, if the dictates of the individual conscience were in every instance where they come in conflict with the law of the land the paramount rule of action. Speaking of the act of congress which forbids plural marriages in territories and places under the exclusive dominion of the United States, Chief Justice Waite said: “Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The first amendment to the constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States so far as congressional interference is concerned. The question to be determined is whether the law now under consideration comes within this prohibition.” Then, for the purpose of ascertaining the meaning of the terms religious freedom, he reviewed the history of the times in which the constitutional provision relating thereto was adopted and in the course of his reasoning in support of the conclusion that it was not intended to prohibit legislation forbidding polygamy, even by those adherents of a sect who believed it to be their religious duty to practice it, he used the following language which is pertinent to the discussion of the question before us: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practice to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Many other illustrations may be found in decided cases of the general principle that the religious freedom and the rights of conscience guaranteed by the constitution do not necessarily and always stand in the way of the enforcement of laws commanding or prohibiting the commission of acts even by those who conscientiously believe it to be their religious or moral duty to do or refrain from doing them. For example, not to go outside of Pennsylvania, a Jew who refused to be sworn in the trial of a case on Saturday because it was his Sabbath was fined: Stansbury v. Marks, 2 Dall. 213. The conscientious scruples of a Jew to appear in court and attend to the trial of his case on the same day were held to be no ground for the continuance of his cause: Philips v. Gratz, 2 P. & W. 412. The act prohibiting all worldly employment upon the first day of the week has been held not to be in contravention of the constitutional rights under consideration, even where applied to persons whose religious belief leads them to observe another day of the week as their Sabbath: Com. v. Wolf, 3 S. & R. 48; Specht v. Com., 8 Pa. 312. The same was held to be true as to persons who conscientiously believe it to be their religious duty to labor the first six days of the week and to keep the seventh day as the Sabbath: Waldo v. Com., 9 W. N. C. 200. Adherents of a religious organization who deem it their duty by divine command to go into the streets and there preach the gospel and who as a regular part of their service use the drum, are not exempted by the constitution from the operation of a .city ordinance which prohibits the use of a drum or other musical instrument on the street without permit from the mayor: Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355. The case of Com. v. Lesher, 17 S. & R. 155, is not directly pertinent to the question before us, but the remarks of Chief Justice Gibson which though made in a dissenting opinion were approved in Specht v. Com., 8 Pa. 312, and have not been questioned or qualified in any later case that has come to our notice, seem to be very pertinent. He said: “ It is declared in the constitution that no human authority can, in any case, control or interfere with the rights of conscience. But what are those rights? Simply a right to worship the Supreme Being according to the dictates of the heart, to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which is not prejudicial to the common weal.” Then after speaking of the views of Mr. Jefferson upon the subject he proceeded: “ He denies the right of society to interfere only where society is not a party in interest, the question, with its consequences, being between the man and his Creator; but as far as the interests of society are involved, its right to interfere on principles of self-preservation is not disputed. And this right is insolvable into the most absolute necessity; for, were the laws dispensed with, wherever they happened to be in collision with some supposed religious obligation, government would be perpetually falling short of the exigence. There are few things, however simple, that stand indifferent in the view of all the sects into which the Christian world is divided.” The right of the individual to clothe himself in whatever garb his taste, his inclination, the tenets of his sect, or even his religious sentiments may dictate is no more absolute than his right to give utterance to his sentiments religious or otherwise. In neither case can it be said that a statute cannot restrain him from exercising these rights whenever, wherever and in whatever manner he conscientiously believes it to be his moral or religious duty to do so. That the right to wear a particular garb is not as absolute and as free from legislative control as that was expressly conceded by the Supreme Court in Hysong v. Gallitzin Boro. School Dist., 164 Pa. 629, in the following terms: “The legislature may, by statute, enact that all teachers shall wear in the schoolroom a particular style of dress and that none other shall be worn, and thereby secure the same uniformity of outward appearance as we now see in city police, railroad trainmen, and nurses of some of our large hospitals.” It is urged that this part of the opinion is obiter dictum. It is true the precise question whether the legislature could enact such a law was not before the court, and it may be conceded that for that reason the utterance is not a binding authority. Nevertheless it was pertinent in the discussion of the question then before the court, and was evidently made upon due deliberation. Besides that, the obiter, if so it may be regarded, comes from so high a source that it is entitled to great respect from us. Moreover, the proposition is so well supported by sound principle, that we believe it to be unassailable. But any public school teacher who is restrained by the act of 1895 from doing that in the schoolroom which his conscience or his religious sentiments dictate, would just as plainly and to the same extent be restrained by such a statute as is described in the case cited. Another case that may be appropriately referred to in this connection is O’Connor v. Hendrick, 184 N. Y. 421. It was there held in a well-considered opinion that a regulation established by the state superintendent of public instruction, who had implied authority under the statute to establish regulations as to the management of the public schools, prohibiting teachers in public schools from wearing a distinctively religious garb while engaged in the work of teaching therein was a reasonable and valid exercise of the power vested in him. This is the only other decision that has been brought to our notice which deals with the precise question of the validity of a rule or statute of that nature.

The system of common school education in this commonwealth is the creature of the state, and its perpetuity and freedom from sectarian control are guaranteed by express constitutional provisions. Subject to these, the power to support and maintain an efficient system of public schools, wherein all the children of the commonwealth above the age of six years may be educated, is vested in the legislature. This carries with it the authority to determine what shall be the qualifications of the teachers, but in prescribing them the legislature may not make religious belief or church affiliation a test. Nevertheless, the power of the legislature to make reasonable regulations for the government of their conduct whilst engaged in the performance of their duties must be conceded. Primarily it is the province of the legislature to determine what regulations will promote the efficiency of the system and tend to the accomplishment of the object for which it was established. It is only where such regulations are clearly shown to be. in violation of the fundamental law that the courts, even though entertaining a different opinion from that of the legislature as to the necessity for or the wisdom or expediency of adopting them, may annul them. As shown by the preamble of the act under consideration, the legislature deemed it “important that all appearances of sectarianism should be avoided in the administration of the public schools of this commonwealth.” This was the ostensible object of the legislation, and we can discover no substantial ground for concluding that it was not the sole object which the legislature had in contemplation. Nor are we able to conclude either that the object was beyond the scope of legislative power, or that the regulation adopted has no just and proper relation to that object.

The judgment is reversed, the demurrer overruled with leave ' to the defendant to plead the general issue and the record is remitted with a procedendo.