author: Oblady, J.,

text:
    Pittsburg’s Petition.

      Constitutional law — Legislature—Extra session — Proclamation of governor — Act of February 7, 1906, P. L. 7 — Municipalities.
    Where the governor has issued a proclamation convening the general assembly in extraordinary session to meet on a day stated to consider legislation upon certain subjects designated, he may subsequently before the date of the meeting issue another proclamation setting forth additional subjects for the consideration of the general assembly at its extraordinary session.
    The Act of February 7,1906, P. L. 7, entitled, “An Act to enable cities that are now, or may hereafter be, contiguous or in close proximity, to be united, with any intervening land, other than boroughs, in one municipality; providing for the consequences of such consolidation, the temporary government of the consolidated city, payment of the indebtedness of each of the united territories, and the enforcement of debts and claims due to or from each,” is within the scope of one of the reasons stated by the governor for calling an extra session of the legislature in 1906, viz: “to enable cities that are now, or may hereafter be contiguous, or in close proximity, including any intervening land to being united in one municipality in order that the people may avoid the unnecessary burdens of maintaining separate municipal governments.”

      Constitutional law — Local legislation — Municipalities—Union of municipalities — Act of February 7, 1906, P. -L. 7.
    The Act of February 7,1906, P. L. 7, entitled “ An Act to enable cities that are now, or may hereafter be, contiguous or in close proximity, to be united, with any intervening land other than boroughs, in one municipality; providing for the consequences of such consolidation, the temporary government of the consolidated city, payment of indebtedness of each of the united territories, and the enforcement of debts and claims due to or from each,” does not violate section 7, article III of the constitution forbidding local or special legislation.
    Classification of cities with the view of legislating for every class separately, is essentially unconstitutional unless a necessity therefor exists, — a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others. Laws enacted in pursuance of such classification and for such purposes, are, properly speaking, neither local nor special.
    The fact that at the time of the passage of the act of February 7, 1906, the cities of Pittsburg and Allegheny were the only ones in the state to which the legislation would technically apply, does not alone make the act unconstitutional. The act applies to coming years as well as to the present.

      Constitutional law — Due process of law — Annexation of cities.

    The Act of February 7,1906, P. L. 7, is not contrary to that “ due process of law,” guaranteed by the Federal constitution, in providing that the electors of the consolidated territory shall determine the question of the annexation of the lesser city, instead of permitting the majority of the electors of the lesser city to decide it.
    Argued Oct. 9, 1906.
    Appeal, No. 37, April T., 1907, by D. Hunter, Jr., et. al. from order of Q. S. Allegheny Co., Dec. T., 1905, No. 71, annexing the city of Allegheny to the city of Pittsburg.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Affirmed.
    Petition to annex the city of Allegheny to the city of Pittsburg. Before McClung, P. J.

      The opinion of the Superior Court states the case.
    The appellants filed in the court below the following exceptions :
    1. The act of assembly under which this petition is filed is local or special legislation, in conflict with article III, section 7, of the constitution of the state of Pennsylvania, and is unconstitutional.

      2. The proclamation of the governor of Pennsylvania, convening the general assembly in special session, does not designate the subjects of legislation embraced and contained in the act of assembly under which this petition is filed, and the said act is therefore in violation of article III, section 25, of the constitution of the state of Pennsylvania, and is unconstitutional.
    3. If the paper, or letter, promulgated by the governor of the state of Pennsylvania, on January 9, 1906, shall be held to be a call or authority for legislation thereunder, the said paper or letter does not designate the subjects of legislation embraced and contained within the act of assembly under which this petition is filed, which act therefore is in violation of article III, section 25, of the constitution of the state of Pennsylvania, and is unconstitutional.
    4. “ The act of the general assembly under which these proceedings are had, is in violation of the law of the land, it being unfair, unjust and unequal; and is in conflict with the rights and privileges reserved by the people to themselves, in that it permits the qualified electors of the larger city to overpower or outnumber those of the lesser city, and to annex the lesser city without the vote or consent of a majority of the qualified electors of the lesser city.
    5. The act of assembly under which this petition is filed for annexing of the city of Allegheny to the city of Pittsburg is in conflict with article I, section 9, paragraph 10, of the constitution of the United States, in that it impairs the obligations of the contract existing between the city of Allegheny and your respondents, by which they are to be taxed only for the government of the city of Allegheny and for improvements, repairs and expenditures incidental to the government of said city of Allegheny, and the attempt to subject them to the increased taxes and burdens of an additional or enlarged city government, by legislation, is in violation of article I, section 9, paragraph 10, of the constitution of the United States, and therefore is unconstitutional.
    6. The act of general assembly under which this petition is filed is in conflict with article Y, of the amendments to the constitution of the United States, because if the city of Allegheny shall be annexed in pursuance of the petition filed in this case, it will be depriving your respondents of their property without due process of law, and is therefore unconstitutional. Said annexation of the city of Allegheny to the city of Pittsburg will add additional taxes to the property of your respondents, and create additional burdens without compensation, and will depreciate the value of the property, in violation of said article Y of the amendments to the constitution of the United States, and they, therefore, will be deprived of their property.
    7. The act of assembly under which this petition is filed is in conflict with article XIY of the amendments to the constitution of the United States, because the said annexation of the city of Allegheny to the city of Pittsburg deprives your respondents of their property without due process of law. The additional taxes and burdens which the property of your respondents will have to bear in case the annexation takes place will cause a large depreciation in the value of the property of your respondents.

      Hrrors assigned were (1-7) dismissing exceptions as aboAre, quoting them; and (8) in entering the decree of annexation.

      W. A. Stone, of Stone Stone, Harvey Henderson and Wm. C. Grill, for appellants.
    — The act of assembly in question is local or special legislation, in conflict with article III, sec. 7, subdivision 2, of the constitution of the state of Pennsylvania.
    The law in question is local because it excludes cities that are contiguous or in close proximity; that have boroughs intervening, and, therefore, does not apply to all cities contiguous or in close proximity : Appeal of the City of Scranton School District, 113 Pa. 176 ; Davis v. Clark, 106 Pa. 377 ; Perkins v. Philadelphia, 156 Pa. 554.
    If the evident intention was to limit the applications of »the law to one locality, it is in conflict with article III, sec. 7, subdivision 2 : Sample v. Pittsburg, 212 Pa. 533 ; Commonwealth v. Patton, 88 Pa. 258 ; Scowden’s Appeal, 96 Pa. 422; Davis v. Clark, 106 Pa. 377 ; McCarthy v. Commonwealth, 110 Pa. 243; Morrison v. Bachert, 112 Pa. 322; Appeal of City of Scranton School District, 113 Pa. 176 ; Weinman v. Passenger Railway Co., 118 Pa. 192 ; Frost v. Cherry, 122 Pa. 417; Ruan Street, 132 Pa. 257; Wyoming Street, 137 Pa. 494; Perkins v. Philadelphia, 156 Pa. 554; Philadelphia v. Westminster Cemetery Co., 162 Pa. 105 ; York School Dist.’s Appeal, 169 Pa. 70; Sugar Notch Borough, 192 Pa. 349; Blankenburg v. Black, 200 Pa. 629.
    The law in question is unconstitutional because it is not designated by the proclamation of the governor calling the special session at which it was passed. Article IV, sec. 12, of the constitution of Pennsylvania, provides that the governor “ may, on extraordinary occasions, convene the general assembly : ” Wells v. Missouri Pacific Ry. Co., 110 Mo. 286 (19 S. W. Repr. 530) ; Davidson v. Moorman, 2 Heiskell (Tenn.), 575.
    The law in question is in violation of the law of the land, it being unfair, unjust and unequal, and is in conflict with the rights and privileges reserved by the people to themselves, in that it permits qualified electors of the larger city to overpower or outnumber those of the lesser city, and to annex the lesser city without the vote or consent of the qualified voters or electors of the lesser city, and the method for consolidation under the law in question is not by “ due process of law: ” Murray v. Hoboken Land, etc., Co., 59 U. S. 276.
    N. T. Watson and W. B. Rodgers, for appellee.
    — The act was within the scope of the proclamation: Kilgore v. Magee, 85 Pa. 401; Perkins v. Philadelphia, 156 Pa. 539 ; Phila. v. McMichael, 208 Pa. 297; Baldwin v. State, 21 Tex. App. 591 (3 S. W. Repr. 109) ; Morford v. Unger, 8 Iowa, 82; Craig v. First Presbyterian Church, 88 Pa. 42; State v. Shores, 31 W. Va. 491 (7 S. E. Repr. 413) ; Governor’s Proclamation, 19 Col. 333 (35 Pac. Repr. 530).
    The act is not local: Wheeler v. Philadelphia, 77 Pa. 338 ; Blankenburg v. Black, 200 Pa. 629 ; Sharpless v. The Mayor, etc., of Phila., 21 Pa. 147 ; West Philadelphia Borough, 5 W. & S. 281; Little Meadows Borough, 28 Pa. 256 ; s. c. 35 Pa. 335.
    November 19, 1906:
   Opinion by

Oblady, J.,

On November 11, 1905, the governor of the commonwealth, by virtue of the authority vested in him by article IV., section 12 of the constitution, issued á proclamation convening the general assembly in extraordinary session to meet on January 15, 1906, to consider legislation upon seven designated subjects; the first being, “ to enable contiguous cities in the same counties to be united in one municipality in order that the people may avoid the unnecessary burdens of maintaining separate city governments.” On January 9, 1906, by a pi’oclamation reciting that “an extraordinary session of the general assembly of the commonwealth of Pennsylvania has .been called,” as above stated, the governor designated four “ additional subjects for the consideration of the general assembly with a view to legislation at the said session with respect to them ; ” the fourth being “to enable cities that are now, or may hereafter be contiguous or in close proximity, including any intervening land, to be united in one municipality in order that the people may avoid the unnecessary burdens of maintaining separate municipal governments. This fourth subject is a modification of the first subject in the original call, and is added in order that the legislation may be enacted under either of them as may be deemed wise.” Pursuant to these proclamations the general assembly convened in extraordinary session, and enacted among others, the statute which gives rise to this controversy. It is entitled “ an act to enable cities that are now, or may hereafter be, contiguous or in close proximity, to be united, with any intervening land other than boroughs, in one municipality; providing for the consequences of such consolidation, the temporary government of the consolidated city, payment of the indebtedness of each of the united territories, and the enforcement of debts and ’claims due to or from each; ” and w.as approved by the governor on February 7, 1906, P. L. 7. The councils of the city of Pittsburg directed the mayor of that city to fi]e a petition in the court of quarter sessions of Allegheny county praying “that the cities of Pittsburg and Allegheny shall be united and become one city,” as provided by the said act. When the petition was presented an order was made fixing March 8th, for the hearing of the petition, after notice had been given to the mayor of Pittsburg and the mayor of Allegheny, the clerk of the councils of each of the said cities, and publication in three named newspapers in the county. The present appellants, who are resident citizens, and owners of property in the city of Allegheny, filed exceptions to the petition, and an answer thereto, and after due hearing the court filed a decree in which the exceptions filed were dismissed, the proceedings held to be regular, and in conformity with the act of assembly; and directed, that an election should be held, to enable the lawful voters to vote for or against the consolidation of the two cities. This election resulted in a majority of 20,154 out of a total vote of 37,864 in the two cities in favor of consolidation, and on June 16th, the court “ ordered, adjudged and decreed that the city of Allegheny, the lesser city, be annexed and consolidated with the city of Pittsburg, the greater or larger city, so that they form but one city in the name of the city of Pittsburg,” from which decree this appeal was taken.

It is earnestly contended by the appellants that the whole proceeding must fall; because, first, the act in controversy is not within the terms of the proclamation of the governor convening the general assembly; second, it is local or special legislation in conflict with the constitutional prohibitions; third, it is unfair, unjust and unequal in that it permits the electors of the larger city by their votes to annex the lesser city without the consent, and against the protest of a majority of the electors of the lesser city, and hence it is not by “ due process of law ” as guaranteed by the federal constitution.

The constitution of our commonwealth declares that, “the supreme executive power shall be vested in the governor who shall take care that the laws be faithfully executed,” (art IV., sec. 2) ; “ he shall from time to time give to the general assembly information of the state of the commonwealth and recommend, to their consideration such measures as he judge expedient,” (sec. 11) ; that, “he may on extraordinary occasions, convene the general assembly,” (sec. 12). By article III., section 25, it is provided, “when the general assembly shall be convenéd in special session there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session.”

It must be conceded that the determination as to whether an occasion exists for an extraordinary session is a matter entirely for the executive: Cooley’s Constitutional Limitations, 6th ed., 187. The form in which the general assembly is to be convened, the requisites of the proclamation, and the measure of the notice to be given to the members of that body are not prescribed by the constitution, hence no challenge lies to either the necessity for such a meeting, or the correctness of the precedent notice. Had the governor chosen to issue as many proclamations to consider legislation as there were subjects embraced in the two he did issue, it would be at most a matter of form and not of substance. He is not restricted in regard to this, and the fact that he did issue one did not exhaust his authority. "While it is mandatory upon the executive to designate the subjects to be considered by the general assembly, it is outside our duty to go beyond the words of the law to inquire whether all of the other precedent formalities have in fact been complied with. The law before us is certified by both houses and approved by the governor, with adequate proclamations convening the legislature which are equal to the constitutional requirement, and whether the first subject-item in the original is sufficiently comprehensive to warrant the enactment of the statute now under consideration is not material, inasmuch as the fourth subject-item of the second or amendatory proclamation is unquestionably so. Moreover, the designation of the subject, so far as this case is concerned, is in no wise ambiguous; and that it was clearly understood by the legislature, and that this enactment was responsive to the call of the governor, is clearly shown by the title to the act itself, as above quoted.

It is urged that this act is in conflict with the constitutional prohibition contained in the seventh section, of article III., to wit: “ The general assembly shall not pass any local or special law, regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.” This section has been a fruitful source of litigation, and the decisions of the courts are not in entire harmony in regard to its application to the many acts of assembly which have, been submitted for review. As stated in Perkins v. Philadelphia, 156 Pa. 539 : “ It is almost wholly prohibitory; it enjoins very few duties, but the ‘ thou shalt not’s ’ number more than sixty”; and, as stated by Judge Mitchell in his dissenting opinion thereto, “ It is a barbed wire fence around all legislative action, bristling with points of danger even to the most honest, and desirable, and essential laws. A literal adherence to all its provisions would have stopped the wheels of government, and so this court was forced to hold when the'first great question of the needs of municipal legislation came before it. Some elasticity was absolutely indispensable, and it was found in the principle of classification. I make these observations and this illustration to call special attention to the necessity for reading the constitution, where it relates to the powers of the legislative branch of the government, in a broad and liberal way, looking to its spirit as more controlling than its mere words. If the statute does not offend against the spirit, does not really do the thing which the constitution means to prohibit, then it should be sustained, although its form may be liable to objection under the strict words of the prohibition. It must be conceded in the light of our many authorities that the legislature may classify cities according to population, and to legislate upon some subjects at least for each class separately: ” The welfare of the state and one of the chief purposes of legislation would be struck down by such a decision.” In Clark’s Estate, 195 Pa. 520, the Supreme Court reiterate the same thought, vizthat the constitutional restrictions had to a great extent to be expressed in general terms, and the inadequacy of language to express the purpose with entire precision, as well as the determination of the framers of the instrument to make the j>rohibition effective at all hazards, led to its embodiment in terms that are liable to cover with the letter, cases that are not within the spirit and real intent. Constitutions are not to receive a narrow or technical or too literal construction; they get their authority from the adoption of the people, and they are to be read in a broad, and as far as possible, an untechnical way to carry out their real purpose.

The creation of municipal corporations has been said to be an attribute of that sovereignty which regulates the affairs of thé people and their government, the é essential requisites being territory and. population. The review of tbe underlying principles and authorities sustaining them is concisely and clearly stated by the present Chief Justice of the Supreme Court in Commonwealth v. Moir, 199 Pa. 534, as follows: “ Municipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the legislature, and subject to change, repeal or total abolition at its will. They have no vested rights in their offices, their charters, their corporate powers, or even their corporate existence. This is the universal rule of constitutional law, and in no state has it been more clearly expressed and more uniformly applied than in Pennsylvania. . . . The fact that the action of the state toward its municipal agents may be unwise, unjust, oppressive, or violative of the natural or political rights of their citizens, is not one that can be made the basis of action by the judiciary. . . . This court is not authorized to sit as a council of revision to set aside or refuse assent to ill-considered, unwise or dangerous legislation. Our only duty and our only power is to scrutinize the act with reference to its constitutionality, to discover what if any provisions of the constitution it violates.” Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words. When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the constitution which is not even mentioned in the instrument: Cooley’s Constitutional Limitations, chapter 7, sec. 6. A constitution is not to receive a technical construction like a common-law instrument or statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them: Commonwealth v. Zephon, 8 W. & S. 382: and it matters not how arbitrary the enactment may appear to those who feel dissatisfied with or injured by it: Commonwealth v. Vrooman, 164 Pa. 306. “ The restrictions of the constitution upon legislation apply to direct legislation, not to the incidental operation of statutes constitutional in themselves upon other subjects than those with which they directly deal: ” Sugar Notch Borough, 192 Pa. 349.

It was said in Wheeler v. Philadelphia, 77 Pa. 338, which was decided the year following the adoption of the constitution : “ Legislation is intended not only to meet the wants of the present, but to provide for the future. It deals not with the past, but in theoiy, at least, anticipates the need of a state,, healthy with a vigorous development. It is intended to be permanent. At no distant day Pittsburg will probably become a city of the first class; and Scranton, or others of the rapidly growing interior towns will take the place of the city of Pittsburg, as a city of the second class. In the meantime, is the classification as to cities of the first class bad because Philadelphia is the only one of the class? We think not. Classification does not depend upon numbers.” The rule is stated in Lloyd v. Smith, 176 Pa. 213, that “ a law which does not exclude any one from a class, and applies to all the members of the class equally, is general,” and the converse is also true that a law which does permanently exclude any one from the class must be special. The fact that the law applies to only one county now would not be a sufficient objection if in the natural progress of events under existing laws, others may grow into the class hereafter. But the way must be clear for .them to do so: Blankenburg v. Black, 200 Pa. 629. If by any reasonable construction of the language the act is constitutional, such must be adopted. A construction which compels the court to declare an act unconstitutional must be plain, and positive, and peremptory: Sharpless v. The Mayor, etc., of Phila., 21 Pa. 147; clearly, palpably, plainly and in such manner as to preclude doubt or hesitation: Speer v. School Directors, etc., of the Boro. of Blairsville, 50 Pa. 150.

In Weinman v. Railway Co., 118 Pa. 192, the court says: “ For purposes of local government the state is subdivided into counties, townships and other municipal and quasi-municipal corporations. Each class of these sub-divisions has purposes to subserve that are peculiar to it, and needs to be invested with the powers necessary to that end. Generally speaking, all the members of each class have the same local functions to perform. Classification therefore upon this basis has been recognized, and a statute relating to all the townships, all the school districts, or all the members of any particular divisions of the state, has been held constitutional. It has been found desirable to divide cities into classes upon the basis of their population. The needs of a great city with half a million or more of people are somewhat different in many respects, from the needs of a city with ten thousand. The organization of their local governments, and the management of their municipal affairs will be quite unlike. Each of these classes requires legislation peculiar to itself; but such legislation must be applicable to all the members of the class to which it relates, and must be directed to the existence and regulation of municipal powers and to matters of local government.”

The underlying principle of all the cases is that classification, with the view of legislating for every class separately, is essentially unconstitutional unless a necessity therefor exists,— a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others. Laws enacted in pursuance of such classification and for such purposes, are, properly speaking, neither local nor special. They are general laws, because they apply alike to all that are similarly situated as to their peculiar necessities. All legislation is necessarily based on a classification of its subjects, and •when such classification is fairly made, laws enacted in conformity thereto cannot be properly characterized as either local or special: Ayars’s Appeal, 122 Pa. 266. The necessity spoken of by the court in Wheeler v. Philadelphia, 77 Pa. 338, was the necessity of escape from the intolerable inconveniences of uniformity of regulations under circumstances and needs essentially different. And in general with reference to public matters and legislative usage, necessity means great, or urgent public convenience. Thus viewers under the act of June 13, 1836, are required to examine and report “ whether the road desired be necessary for a public or private road ” etc. It cannot be contended that anything more is meant than public convenience: Commonwealth v. Gilligan, 195 Pa. 504.

The act under review presents a phase of the legislative authority that differs in many respects from the decided cases, and the exigencies which justified and made necessary “ classification of the state’s agencies” are now presented with equal merit to warrant the consolidation of cities. Both of the cities affected by this proceeding are of the second class, and the consolidated city remains, in that class, so that the relation of the municipality to the state is not in any way changed. The mutation will be, that the two cities will be united into one, and under the same legislative and executive officers, so that all the departments having charge of the health and education of the people, the protection of their lives and property will be administered under a uniform and comprehensive system assuring better results with a more homogeneous government. Many acts of the legislature have provided for the creation of counties and boroughs and townships, and when by reason of new and unexpected conditions, it was deemed expedient by the legislature to redefine the subdivisions of the state as the necessity therefor arose, to change their boundary lines; to annex adjoining and adjacent corporations of like character; to permit a borough or township to be annexed to an adjoining city; to divide a county and erect a new one therefrom. In the judgment of the legislature the time has now arrived when, to the powers already given to the local municipalities, there should be added the authority to enable cities that are now or may hereafter be contiguous or in close proximity to be united into one municipality.

We must go outside of the words of the statute to give it a local or special application. The terms imposed by the bill —contiguous or in close proximity — not only apply to reason, but they are founded on the common sense of mankind, as it could hardly be possible that cities not contiguous or in close proximity to each other could ever be united. Intervening municipalities or large areas of land would be an absolute bar to a uniform and coherent administration of municipal latv. Under this act all cities that are contiguous may consolidate. There is no qualifying language of any kind excluding from the class, any contiguous cities. There is nothing in the act to localize it by geographical description, and it applies to all citiés in the commonwealth. It embraces all cities, which are or may come into like situation and circumstances. The qualifications named are not artificial like the act which was held unconstitutional in Sample v. Pittsburg, 212 Pa. 533, which provided, “ for purposes of this act cities separated by a stream, river or highway shall be included under the term contiguous.” Even if we have recourse to statistical and geographical facts of which the courts take judicial notice, we find that under the last census of 1900 there is but one city of the first class, three of the second class, and twenty-one of the required population necessary for the third class. In addition to these there are eighteen boroughs having a population of over 10,000, and a number of others which, if the same proportion of increase in population is upheld during the present as the last decade, will have the required population to entitle them to a city government, and they are so located as to be reasonably within .the terms of the present act. Many instances could be noted, showing the rapidity increasing centers of population which in but a few years will be in a position to accept the provisions of the act. They will not necessarily do so, but in the natural progress of events it is to be expected that some of them will. This act affords the opportunity to such cities to centralize the administration of the law “ in order that the people may avoid the unnecessary burdens of maintaining separate city governments” as suggested in the proclamation of the governor. The appellants with great frankness say that “the question whether Pittsburg and Allegheny ought to be consolidated or not is a legislative question, and not a judicial one. The courts will consider only the law of the case, wholly unaffected by either the desire for consolidation in Pittsburg, or the opposition to it in Alleghany. The question of expansion, zeal, enterprise and pride in having a large city in the western part of the state are outside the pale of consideration of the courts.” It must be accepted as definitely settled, that a municipal corporation is a creature of the state; it derives its powers from the state; the power that makes can unmake, change or modify. The public good must always be the controlling question, and to effectuate this the whole lawmaking power is committed to the legislature. Its command must prevail unless it clearly transgresses the constitutional declaration: Gas & Water Company v. Downingtown Borough, 175 Pa. 341; Lloyd v. Smith, 176 Pa. 213 ; Sugar Notch Borough, 192 Pa. 349; Commonwealth v. Gilligan, 195 Pa. 504.

The cities of the commonwealth are divided into three classes by the Act of June 25, 1895, P. L. 275. The organization of the cities of the third class is provided for by the Act of May 23, 1889, P. L. 277, to wit: “ Whenever a majority of the electors of any town or borough, or of any two or more contiguous towns or boroughs, situate within the limits of the same county, and having together a population of at least 10,000 according to the last preceding census, shall vote at any general election in favor of the same ” after the corporate authorities of such towns or boroughs shall direct an election to be held upon the question of becoming a city.

It may be that at the time of this enactment the cities of Pittsburg and Allegheny were the only ones in the state to which the legislation would technically apply. This fact alone does not mate the act unconstitutional. The extraordinary development of the natural resources of this commonwealth, and the increasing number of its industrial manufactories have developed centers of population which within the past half century have changed from mere hamlets to thriving boroughs and cities. This legislation applies to the coming years as well as to the present; while it provides for a present condition as to these two cities, it anticipates what will be the apparent necessities within a few years, of a number of 'cities of the third class which will come within the limitations of this act, — contiguous or in close proximity to another city.

The prescribed conditions mentioned in the act are fairly met by the facts developed on the hearing of this case. It is undisputed that Pittsburg and Allegheny are contiguous cities of the same class. It is also apparent that the judgment of the legislature in permitting such consolidation is approved by a very large majority of the voters within the consolidated territory, and while popular approval of an act has nothing to do with its constitutionality, it is significant of the demand for just such legislation, if it can be legally effected. The first legislature after the adoption of the constitution authorized the incorporation of a city whenever a majority of the electors of any town or borough, or of any two or more contiguous towns or boroughs having a population of at least 10,000, shall vote at any town election in favor of the same (Act of May 23, 1874, P. L. 230), and after this lapse of time, the legislative declaration that it was right and necessary to permit two contiguous cities to unite upon practically the same terms marks a consistent evolution of our laws, commensurate with the material growth of our state and increase in our population.

Legislation for a class, distinguished from a general subject, is not special but general, and classification is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition. If the distinctions are genuine, the courts cannot declare the classification void, though they may not consider it to be on a sound basis. The test is not wisdom, but good faith in the classification: Seabolt v. Commissioners of Northumberland County, 187 Pa. 318; Stegmaier v. Jones, 203 Pa. 47.

In Sample v. Pittsburg, 212 Pa. 533, the decision turned' upon the question whether the act was local or special legislation in contemplation of the constitutional provision prohibiting such legislation. As stated in that case, the act “ not only affects the people of the two cities, but concerns the two cities in their governmental and corporate capacities. It. enlarges the territory and population of the one, and deprives the other of its charter and government of a city. It is apparent, we think, that the act is ‘ a law regulating the affairs of ’ the cities in question.” All that is conceded to be within the power of the legislature, if the legislation is not within the prohibition —that is a local or special law. The Act of April 20, 1905, P. L. 221, was held to be unconstitutional in that case, and the act now under consideration was evidently passed to meet the objections set by the Supreme Court. It comes to us with the approval of our state legislature and the governor, as representing the last and best thought on this important subject. This statute is free from the objections which were successfully urged against the one of 1905, and in regulating the affairs of cities it is not local nor special, but applies to and permits all “ cities which are now, or may hereafter be, contiguous or in close proximity, with any intervening land other than boroughs, to be united in one municipality,” as stated in its title. The conditions imposed are not in violation of any constitutional provision.

In determining whether this act is contrary to that “ due process of law ” guaranteed by the federal constitution, in providing that the electors of the consolidated territory shall determine the question of annexation of the lesser city instead of permitting the majority of the electors of the lesser city to decide it, we have many adjudicated cases which warrant the action taken by the legislature. The words “ due process of law,” as taken from Magna Cliarta and incorporated in the constitution, “were intended,to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principle of private rights and distributive justice.” In each particular case the words mean “such an exercise of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs : Cooley’s Constitutional Limitations, 434. The people Of the municipalities do not define for themselves their own rights, privileges and powers, nor is there any common law which draws a definite line of distinction between the powers which may be exercised by the state and those which must be left to the local governments : 2 Kent’s Commentaries, 278, 279. The general principle is that when the state is acting in its sovereign capacity, it acts for the whole commonwealth, and private rights and interests must yield to this paramount object. Private rights may be and very frequently are interfered with by either the legislature, executive or judicial departments of the government, and the creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, does not deprive the legislature of the state of- that general control over their citizens which they before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, and overrule their legislative action whenever it is deemed unwise, impolitic or unjust, and even abolish them altogether in the legislative discretion and substitute those which are different: Cooley’s Constitutional Limitations, 228. Restraints on the legislative power of control must be found in the constitution of the state, or they must rest alone in the legislative discretion. If the legislative action operates injuriously to the municipalities or to individuals the remedy is not with the courts. The courts have no power to interfere, and the people must be looked to, to right through the ballot box all these wrongs : Ervine’s Appeal, 16 Pa. 256. Cooley’s Constitutional Limitations, 228, 229, 230. The act in question has been passed with all the forms and ceremonies requisite to make it a valid statute. The legislature was properly convened and kept' well within its powers in regulating the affairs of cities by a general law in accord with the requirements of the constitution.

It follows, under the law of the land, that neither the municipality as such, or any of the persons residing therein, have any vested rights in the municipal powers, as against the state which created the municipality. It is merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of government — essentially a revocable agency — • subject to legislative control “ which may destroy its very existence with the mere breath of arbitrary decision: ” Phila. v. Fox, 64 Pa. 169. Otherwise there would be numberless petty governments instituted within the state, forming a part of it, but independent of the control of the sovereign power. TheseTocal governments are mere auxilliaries to, and in the aggregate they constitute the commonwealth at large which through its legislature may, at will, create, change, reorganize, consolidate or abolish them, and that wholly irrespective of the wishes or consent of those composing the local body politic : 1 Smith’s Mun. Corp. secs. 97, 407, 408; 1 Hare’s Am. Consti. Law, 628; 20 Am. & Eng. Ency. of Law (2d ed.), 1218, 1224; 10 Am. & Eng. Ency. of Law (2d ed.), 290; McGehee's Due Process of Law, 50, 60.

The assignments of errors are overruled and the decree is affirmed.


source: Caselaw Access Project

author: Mobrison, J.,

license: Public Domain

text:
    Commonwealth v. LaBar, Appellant.

      Forest laws — Illegal cutting of timber — Penalty—Misdemeanor—Indictment — Evidence—Act of February 25, 1901, P. L. 11.
    The word “timber” as used in the Act of February 25,1901, P. L. 11, is not confined to trees of such size that planks, boards, shingles and other lumber may be made therefrom. It applies to saplings, and other small growing woods on the lands of the commonwealth.
    The penalty imposed for a violation of the Act of February 25, 1901, P. L. 11, is enforceable by indictment and trial in the court of quarter sessions as in the case of other misdemeanors. In the absence of any provision in the act, a justice of the peace has no jurisdiction to enforce the penalty by summary conviction.
    In a prosecution for violation of the Forestry Act of February 25, 1901, sec. 2, P. L. 11, the commonwealth is not required to aver and prove that the defendant wilfully, maliciously and knowingly cut the timber described in the indictment. If the defendant cut the timber, it is immaterial what his intent may have been.
    Submitted Nov. 12, 1906.
    Appeal, No. 43, Jan. T., 1907, by defendant, from judgment of Q. S. Monroe Co., May T., 1907, No. 43, on verdict of guilty in case of Commonwealth v. Edgar A. LeBar.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady,Head and Beaver, JJ.
    Affirmed.
    Indictment for violation of Act of February 25, 1901, sec 2, P. L. 11.
    The first count of the indictment was as follows:
    The grand inquest of the commonwealth of Pennsylvania, inquiring for the county of Monroe, upon their respective oaths and affirmations, do present, that Edgar LaBar, late of the county aforesaid, yeoman, on February 26, 1906, and at divers other times as well before as since, in the township of Middle Smithfield, at the county aforesaid, and within the jurisdiction of this court, did unlawfully, willfully and maliciously cut about 245 young timber trees, said timber trees standing and growing upon land belonging to the commonwealth of Pennsylvania, and the said Edgar LaBar then and there well knowing said timber to be so standing and growing upon the land, of the commonwealth of Pennsylvania and well knowing that the land on which the same were standing and growing did not belong to him the said Edgar LaBar, contrary to the form of the act of general assembly in such -case made and provided and against the peace and dighity of the commonwealth of Pennsylvania.
    ' The court charged in part as follows :
    [Wlzere the words, maliciously, unlawfully and knowingly are used, the court holds that is mere surplusage. This act of assembly provides that if any person shall cut timber upon any of the state lands, he shall be liable to pay a penalty, and it does' not matter whether the person cutting knew it or not. ■ That is, if he believed he was cutting on his own land or the land of some other person, it would hot excuse him from this penalty. The act provides that if any person shall cut any timber whatever, as the court remembers the act, and if you find from the evidence, and it seems to be uncontradicted, the .defendant himself admitting it, that this defendant went upon the state lands and cut timber, it is immaterial whether at that time he knew whether it was the state lands or that it was the land of his father, if he cut, you, as a jury are warranted in finding him guilty in manner and form as he stands indicted. [3]
    [As the court remembers it, he cut about 240 hoop poles, averaging in thickness from one and one-half inches to two inches, and the court, in the interpretation of this statute, holds that is included in the word timber, -and the evidence being undenied by the defendant, the commonwealth has shown, in the opinion of the court, the fact that he did enter upon the lands, and that he cut timber and is liable to conviction as he stands charged in the first and third counts.] [4]
    [Thez-e ought to be no trouble in your'zninds at arriving at a verdict in this case. The court has instructed you as to the law. There is no dispute as to the facts. The court has stated to you that if you believe the facts, it is your duty to find a verdict of guilty on the first and third counts and find the defendant not guilty under the second count.] [6]

      Rogers L. Burnett, for appellant.
    — Not only have custom and universal understanding and acceptation placed a definite and well-known meaning on the word “ timber,” but the law, also, has greatly assisted in stripping from this word any possible doubt as to its meaning: Shiffer v. Broadhead, 126 Pa. 260.
    December 10, 1906 :
    It has been held in the construction of penal statutes, that where an act contains such an ambiguity as to leave a reasonable doubt as to its meaning, it is the duty of the court not to inflict the penalty: Phila. v. Costello, 17 Pa. Superior Ct. 339; Standard Oil Co. v. Com., 101 Pa. 119; Klein v. Livingston Club, 177 Pa. 224.
    Whether wood cut from public lands is timber within the statute, is a question of fact to be determined by a jury, and cannot be properly determined upon a demurrer to the indictment: U. S. v. Soto, 64 Pac. Repr. 419; overruling Bustamente v. U. S., 42 Pac. Repr. 111; 26 Am. & Eng. Ency. of Law (2d ed.), 453.
    The quarter sessions had no jurisdiction ; unless, therefore, there is some urgent reason, based either on some great public necessity, or upon some consideration touching the public health and welfare, we submit that the question of the intent and knowledge with which an act is done is material, and should have been so held by the court in this case.

      Claude C. Shull, district attorney, and Eilenberger £ Huffman, for appellee.
   Opinion by

Mobrison, J.,

The defendant was indicted, convicted and sentenced under the provisions of the Act of Assembly of February 25, 1901, P. L. 11; section 2 of the act reads: “ Any person or persons who shall kindle fires upon any of the forestry reservations of this commonwealth, except in accordance with such rules and regulations as may be prescribed by the forestry reservation commission, or who shall cut or remove any timber whatever, or who shall do or cause to be done any act that will damage forestry lands or timber belonging to this commonwealh, shall be guilty of a misdemeanor, and upon conviction thereof be subject to a penalty of not less than $100 nor more than $500 for each offense committed, with costs of suit, which penalty and costs of suit shall be collected in the same manner as is now provided by existing laws for like offenses committed on forest lands belonging to individuals; all fines and penalties when collected to be paid to the commissioner of forestry, who is hereby directed to pay the same over to the state treasury; provided, -that if the defendant or defendants neglect or refuse to pay at once the penalty and costs imposed he or they shall be committed to the common jail of the county wherein the offense was committed until such penalty and costs are paid.”

While the record contains seven assignments of error we think all of the questions raised by them can be considered and decided without considering each assignment separately.

1. The learned counsel for the defendant argués that the word “ timber ” used in the act should be held to mean trees of such size that planks, boards, shingles and other lumber may be made therefrom. In support of this contention he cites' several acts of assembly, and several definitions of the word “ timber ” and the words “ timber trees.” In our opinion the acts of assembly and definitions cited do not support counsel’s contention. The case of Shiffer v. Broadhead et al., 126 Pa. 260, is also cited. But an examination of that case shows that it has no application to the present one. That was a contract for the sale of the white pine and hemlock timber upon a certain lot of land, and while the contract does not so state, yet it was held to have been made in view of the custom of lumbermen in 1867, and that it clearly referred to trees of such sizes as were recognized by lumbermen in the region where the contract was to be enforced. That case has no application to the mischief existing in 1901, and the act then passed to remedy it. If we keep in mind the well-known fact that in 1901 there were vast tracts of land in Pennsylvania which had been stripped of all large timber or “ timber trees,” and that these barren stripped lands were nearly worthless, and their condition was materially lessening the water supply of the commonwealth, we can readily understand the legislative intent as expressed in the act in question. Furthermore, it should be remembered that the maximum price allowed to be paid for lands from which the large timber had been stripped, by the forestry commission, was in 1891, $5.00 per acre: Act of February 25, 1901, P. L. 11. To our minds these facts clearly show that the act in question was not aimed solely at persons who cut trees suitable for sawing into lumber or “ timber trees ” standing on the lands of the commonwealth. We think it is entirely within the legislative intent, expressed in the act, to hold that the penalty provided therein applies to the defendant who was found to have cut 249 maple, white oak and hickory sticks or poles standing on the lands of the commonwealth. In point of fact the defendant did not seriously deny that he cut the hoop poles described in the indictment. We have on our statute books several acts of assembly which show a clear legislative intent to encourage the growth and protection of the smallest shrubs or saplings which may in time become “ timber trees.” In our opinion in these acts the word “ timber ” includes small and large growing woods, and of this we are not in doubt. We quite agree with the court below that the hoop poles came within the definition of “ timber,” and within the purview of the statute of February 25, 1901. We have examined the definitions of timber in several of the dictionaries, and cannot agree that this word means, necessarily, large or “ timber trees.”

2. We have no doubt that it was the duty of the court below to instruct the jury that “ if they believed the evidence they must convict the defendant.” It was proper for the court to instruct the jury that the sticks cut were timber, and leave to the jury to find whether or not they had been cut by the defendant, on the lands of the commonwealth. We think the testimony clearly shows that the defendant went upon the lands of the commonwealth, and cut and destroyed young growing timber, and when brought into court for his unlawful conduct, he relies on the barest technicalities as a defense, and we see no merit in such defense.

3. The defendant’s counsel contends that the penalty named in the act of February 25, 1901, must be enforced in a summary action before a justice of the peace, and that the indictment and trial before the court and a jury is illegal.

The act defines the offense as a misdemeanor, and fixes the penalty and provides, “that if the defendant or defendants neglect or refuse to pay at once the penalty and costs imposed, he or they shall be committed to the common jail of the county ■wherein the offense was committed until such penalty and costs are paid.”

The Criminal Procedure Act of March 31, 1860, P. L. 427, sec. 32, provides : “ The courts of quarter sessions of the peace shall have jurisdiction and power within the respective .... counties to try certain enumerated offenses ; ” „and then adds: “ The Courts of Quarter Sessions shall also have jurisdiction in cases of fines, penalties or punishments, imposed by any Act of Assembly, for offenses, misdemeanors and delinquencies, except when it shall be otherwise expressly provided and enacted.”

The offense of cutting timber is made a misdemeanor by the act of 1901, and the penalty provided is to be enforced upon conviction, but the act does not provide that a justice of the peace shall have jurisdiction to try the offender and impose the penalty. We are safe in saying that no such thing is known to our law as trying a defendant for a misdemeanor and enforcing the penalty, before a justice of the peace, in the absence of express authority giving him jurisdiction. We are without doubt that the remedy under the act of 1901 is by indictment in the quarter sessions.

We have many acts of assembly providing for summary convictions before a justice of the peace, but each of them expressly so provides in plain terms; some of these acts are the following: Act of May 29, 1901, P. L. 302, regulating the catching of fish, etc.; Act of April 19, 1905, P. L. 217, regulating the running of automobiles, etc.; Act of June 8, 1881, P. L. 82, relating to malicious mischief to orchards, etc.; Act of April 22, 1905, P. L. 272, relating to classification of fish, etc. On the other hand, wre might refer to many acts of assembly creating misdemeanors and providing punishments without giving authority for summary convictions before a justice of the peace, and in each one of which the remedy is by indictment in the quarter sessions.

4. We are of the opinion that the commonwealth is not required to aver and prove that the defendant in the present case willfully, maliciously and knowingly cut timber described in the indictment. If the defendant went upon the lands of the commonwealth, without authority, and cut and destroyed growing timber he is liable to the punishment provided by the act, and it is immaterial what his intent may have been. This case is one of the class where the commonwealth is not required to prove the guilty intent of the defendant. The statute forbade the act and the defendant was bound to know and obey the law. We consider the offense defined in the act in question, properly ponstrued, came within the class of crimes discussed by the Supreme Court in Commonwealth v. Weiss, 189 Pa. 247, wherein a guilty knowledge or criminal intent is not a necessary ingredient to support a conviction. The language in the indictment charging the defendant with committing the offense willfully, maliciously and knowingly may be regarded as surplusage. The indictment will be- good with these words eliminated.

The assignments of error are all dismissed, and the judgment or sentence is affirmed, and appeal dismissed at the costs of the appellant.


author: Per Curiam,

text:
    Dietrich v. Farmers Union Mutual Fire Insurance Company, Appellant.

      Appeals — Assignments of error — Charge.
    Where no exception has been taken to the charge of the court, or to the refusal of defendant's point, or to an order discharging a rule for judgment non obstante veredicto, nor any question of law reserved at the trial, and the record shows that the evidence was not certified by the judge and filed, assignments of error based upon refusal of defendant's points will not be considered.
    The facts recited in the opinion of the court discharging a rule for judgment non obstante veredicto, cannot take the place of evidence not brought upon the record by proper certificate or exceptions.
    Argued Nov. 13, 1906.
    Appeal, No. 10, Oct. T., 1906, by defendant, from judgment of C. P. Berks Co., June T., 1903, No. 30, on verdict for plaintiff in case of Wallace A.-Dietrich v. The Farmers Union Mutual Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Ordady, Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash appeal.
    The grounds for the motion are stated in the opinion of the Superior Court.

      December 10, 1906 :
    The assignments of error as amended were as follows:
    1'. The court erred in declining defendant’s first point as ■follows : “ It being admitted that the'appraisers made an award of $450, and that in that award they included an item of $250 on negatives, the jury will have to deduct that amount from the amount of the award for the reason that negatives come under the head of “implements, models, patterns, pictures, scientific apparatus, tools or property held on storage,” whicli are specifically excluded from insurance by the terms of the policy, unless specifically included, which was not the case in the policy upon which the suit is brought.
    2. The court erred in declining the defendant’s second point, which was “ the policy insures only the property of the plaintiff. Photographic negatives being paid for by the subjects are the property of the subjects, and held by the photographer on storage for the production of future photographs, and any insurance on negatives cannot be recovered in this action because under the terms of the policy goods held on storage are not included.”
    3. The court erred in discharging the rule to show cause why judgment n. o. v. should not be entered for plaintiff "for $229.62.
    4. The court erred in directing judgment to be entered on the verdict for $526.50 with interest from September 21,1905.

      B. Carroll Schaeffer, with him Samuel J. Kistler, for appellant.

      W. B. Bechtel, of Bechtel Shalters, for appellee.
   Per Curiam,

The record shows that the jury rendered a verdict for plaintiff for $526.50, that on the same day a rule was entered to show cause why a judgment should not be entered for the plaintiff for $229.62, non obstante veredicto, that later the rule was discharged and judgment entered on the verdict. This was the state of the record at the time this appeal was taken, and the paper-books served. No exception was taken to the general charge of the court, or to the refusal of the defendant’s points, or to the order discharging the rule to show cause above referred to; nor was any question of law reserved at the trial. Further, the evidence adduced at the trial was not certified by the judge and filed in the court below; it certainly has not been brought up with the record and printed. It is plain, therefore, that the first two amended assignments of error, which relate to the refusal of the defendant’s points for charge, must be dismissed: Long v. Shull, 7 Pa. Superior Ct. 476. But it is' claimed that the facts recited in the opinion of the court discharging the rule to show cause were brought upon the record by the bill of exceptions, which was sealed months after this appeal was taken, and therefore the court’s refusal to enter judgment non obstante veredicto for $229.62 instead of $526.50, the amount of the verdict, is properly before us for review. This contention could not have been sustained prior to the Act of April 22, 1905, P. L. 286, nor can it be under that act. The recital of facts in the judge’s opinion cannot take the place of the evidence. The words of the statute are so plain that discussion of this point would be superfluous. Passing the objections to the noneompliance with our rules in the preparation of the paper-book — these having been removed by amendment — the substantial reasons why the appellant is not in position to have the case reviewed upon the merits have been sufficiently indicated in the foregoing remarks.

The appellee’s motion is allowed, and the appeal is quashed.


text:
    Kearney v. Kane, Appellant.

      Vendor and vendee — Refusal of deed — Possession—Interest.
    Where a vendee of land in possession refuses to accept a deed, because it does not contain as broad a water right as provided for in the articles of sale, but he does not go out of possession, and subsequently accepts the deed as originally tendered to him, he is liable for the interest on the balance of the purchase money due from the time of the original tender until the final acceptance of the deed.
    Argued Nov. 20, 1906.
    Appeal, No. 149, Oct. T., 1906, by defendant, from judgment of C. P. Chester Co., Aug. T., 1905, No. 38, on verdict for plaintiff in case of Margaretta L. Kearney v. J. A. Bayard Kane.
    December 10, 1906 :
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beater, J J.
    Affirmed.
    Assumpsit for interest on purchase money of real estate. Before Butler, J.
    The opinion of the Superior Court states the case. .
    Verdict and judgment for plaintiff for 1340.16. Defendant appealed.

      Errors assigned were portions of charge quoted in the opinion of the Superior Court.

      J. Frank E. Bause, for appellant,
    cited : Vernam v. Wilson, 31 Pa. Superior Ct. 257.

      A. Wanger, with him Geo. B. Johnson, for appellee,
    cited: Hershey’s Estate, 213 Pa. 601; Gilbert v. Parcels, 8 Del. Co. 475.
   Per Curiam,

This was an action of assumpsit to recover interest upon purchase money under contract for the sale of real estate. The pertinent facts and principles of law applicable thereto are accurately stated in the following portion of the charge of the learned trial judge: “The contract of sale, among other matters, contains this clause: ‘ It is understood that the property had a right to an unlimited supply of water from the reservoir belonging to the borough of West Chester, Pennsylvania.' That was a stipulation in the contract between these parties, and Dr. Kane had a perfect right to insist upon it and to require that a deed should be given him as, broad as that stipulation if Mrs. Kearney possessed such a right. If she tendered to him a deed that did not contain a provision as to water as broad as the provision of the contract of sale, if she possessed such a right, he was not bound to accept that deed, nor indeed was he bound to accept a deed if she could not convey to him the right she had promised. I say it was his privilege to insist on a deed conveying that right in water of the borough, as broad as the language in this contract, therefore if it transpired, as it did transpire in this case, that Mrs. Kearney had no such right as was in the contract, he had a perfect right to refuse to accept this property. He had a right to go out of possession, if he had already taken possession, and refuse to comply with the contract and to take a deed, because Mrs. Kearney was not able to do what, under the terms of the contract, she said she would do. But that course was not pursued. The doctor did go into possession of these premises under this contract about November 1, and on November 14 following, after there had been discussion and controversy between the parties and their counsel respecting this water right, a definite offer of a deed was made by the plaintiff to the defendant, that deed being admittedly satisfactory as far as it went, but it said nothing with respect to the water right recited in this contract of sale. The defendant refused to accept that deed, and further said that he would accept no deed that did not contain a stipulation as broad as that in the contract of sale. The plaintiff responded with the offer of a deed that would contain a grant of all the water right she had, the right to such privileges in the borough water as were defined as belonging to this property in the case of Kearney against the borough of West Chester. As I have said to you, Mrs. Kearney, by her contract, had bound herself to give more than that. She had bound herself to Dr. Kane to give a water right as broad as that described in her article of agreement, but it being apparent at this time, November 14, 1904, that that was impossible, that she did not own any such water right, then as we understand the law it was Dr. Kane’s duty to make an election, either to stay upon the premises and carry out this contract to the extent that Mrs. Kearney could carry it out, to wit: accept a deed and pay for the place with such stipulation as was offered with respect to the water right, on November 14, which as I have said, was all Mrs. Kearney could give, or it was his privilege to say, I stand strictly on this contract of sale; you cannot give me such a water right as you contracted for; I will vacate the premises; you can have them again, and I will hold you in damages for your failure to carry out the contract as you have made it. But Dr. Kane did not do that. I do not suggest at all that he was inspired by anything else than proper honest motives in the matter, but as a fact he did not do that. He elected to remain upon this property, and we say to you that when, on November 14, he was offered in effect a deed with as broad a water right as Mrs. Kearney possessed, and he elected to stay upon these premises and subsequently did take them and pay for-them by receiving a duly executed deed, we sajr to you that for the period of occupancy from November 14, when he was offered all that Mrs. Kearney could give him, and she in good faith had done all she could do, he is responsible for the interest on the purchase money down to the time it was in fact paid, because Mrs. Kearney was not in the wrong. A vendee in possession, where payment of the purchase money is unjustly delayed, is always responsible for interest on deferred payments of purchase money unless the vendor is in fault, causes the delay in the payment by failing to do what she should do and what she is able to do. Such failure does not appear on the part of Mrs. Kearney. She, in law and fact, could not give more than she offered, and therefore when Dr. Kane elected to stay upon these premises and finally did execute this contract, we think under the law, he is responsible as we have stated, for interest on the unpaid purchase money, from November 14, 1904, down to the time of settlement; that has been computed and amounts to $340.16.”

Notwithstanding the earnest and able argument of the appellant’s counsel, it is our opinion that the case is ruled, in principle, by Hershey’s Estate, 213 Pa. 601, and therefore that no error was committed in the instructions above quoted.

Judgment affirmed.


text:
    Kerr v. Sun Company, Appellant.

      Fees — Subpcenas—Witness—Act of July 11, 1901, P. L. 663.
    The fees of constables or private persons for serving subpcenas on witnesses are fixed by the Act of July 11, 1901, P. L. 663, and not by the Act of April 2, 1868, P. L. 3.
    Argued Nov. 21, 1906.
    Appeal, No. 190, Oct. T., 1906, by defendant, from order of C. P. Del. Co., Sept. T., 1903, No. 225, affirming taxation of costs in case of Maggie S. Kerr v. Sun Company.
    December 10, 1906:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Appeal from protlionotary’s taxation of costs. Before Johnson, P. J.
    The prothonotary taxed the costs of serving subpcenas on witnesses in accordance with the act of July 11, 1901. The court sustained the taxation.

      Error assigned was the order of the court.

      W. B. Broomall, with him W. I. Schaffer, for appellant,
    cited: Beach v. Penna. R. R. Co., 22 Lancaster Law Rev. 65; Klugh v. Penna. R. R. Co., 29 Pa. Superior Ct. 583.

      O. B. Diclcinson, with him FI 6r. Bobinson, for appellee.
   Per Curiam,

The only complaint of the defendant presented by this appeal is, that the court erred in taxing the plaintiff’s cost for serving subpcenas upon his witnesses in accordance with the Act of July 11, 1901, P. L. 663, and in not taxing them in accordance with the Act of April 2, 1868, P. L. 3. Neither of these acts contains any express provision as to the fees for serving subpoenas, either of the common pleas or quarter sessions, except that which fixes the fees of the sheriff. But it was well settled by decisions prior to the act of 1901 that if service of such subpoenas was made by a constable or a private person, the fees therefor were to be taxed in accordance with the sheriff’s fee bill: McCallister v. Armstrong County, 9 Pa. Superior Ct. 423. See also McClain v. Lawrence County, 14 Pa. Superior Ct. 273, and cases cited on page 277. It is to be presumed that this was known to the legislature when they passed the act of 1901, and the fact that they made no change in that law, except as to the amount of the fee, raises a very strong presumption that they did not intend to disturb the settled rule. The contention that the act of 1901 does not apply to a subpoena ad testificandum, and therefore that the act of 1868 controls in that matter, cannot be sustained. The words of the act include such subpoena as plainly as did those of the act of 1868, and the manifest purpose of the legislature was to supersede the latter act as to the subjects embraced in the act of 1901: Lenhart v. Cambria County, 29 Pa. Superior Ct. 350; s. c. 216 Pa. 25. Since the passage of the act of 1901 the question here presented has been considered by us in at least two cases, and the rule as established prior to that act adhered to : O’Leary v. Northumberland County, 24 Pa. Superior Ct. 24; Kottcamp v. York County, 28 Pa. Superior Ct. 96. A reconsideration of the question, with the aid of the able argument of the appellant’s counsel, has not led us to a different conclusion. If the fees fixed by the act of 1901 for this service are too high the remedy is with the legislature.

The order is affirmed.


author: Portee,, J.,

text:
    Commonwealth v. Valverdi, Appellant.

      Criminal law — Election law — Conspiracy—Assessors—Evidence.
    On the trial of an indictment of election assessors for the illegal registration of persons not resident in the district and not qualified voters therein, the commonwealth may, after having established by competent evidence the offense charged in the indictment, show that the defendants also procured to be placed upon the fist of voters a large number of persons who were not naturalized and therefore not qualified to vote. For the purpose of throwing light upon the motives and intentions of the defendants, it is competent for the commonwealth to prove all that the latter did at the time of the offense charged in the indictment, in dealing with the same subject-matter, and which contributed to the same specific purpose.

      Criminal law — New trial — Jurors—Reading of newspapers.

    The granting or refusing of a new trial in a criminal case, upon the ground that during the trial jurors have heard improper oral or have read unauthorized printed statements concerning the case, is a matter within the discretion of the court below, and the conclusion of that court will only be reversed where there is a clear abuse of discretion; and this is particularly so where the publication was merely a correct narration of the incidents of the trial, and did not refer to any previous misconduct of the defendants.

      Criminal law — Conspiracy—Parties—Acquittal of one party.

    It is not necessary for the commonwealth on the trial of an indictment for conspiracy to establish that all the persons charged in the indictment had been guilty of an unlawful conspiracy; if the evidence establishes that any two have been guilty of the conspiracy charge, they may be convicted although all the others are acquitted.
    Argued Oct. 15, 1906.
    Appeals, Nos. 165 and 166, Oct. T., 1905, by Philip Valverdi and Edward H. Wood, from judgment of Q. S. Phila. Co., Nov. T., 1904, No. 282, on verdict of guilty in case of Commonwealth v. James McCartney, Philip Valverdi and Edward II. Wood.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Indictment for conspiracy. Before Carr, J.
    The opinion of the Superior Court states the case.
    At the trial the defendants presented the following points:
    2. The jury must not consider under this indictment the evidence that the names of unnaturalized persons appeared' upon the assessor’s list of May and September, 1904. Answer ; Refused. [2]
    3. The only testimony offered by the commonwealth that can be considered by the jury under the counts of this indictment is that respecting the allegation that non-residents were assessed as qualified electors. Answer: Refused. [3]
    Verdict of guilty as to Valverdi and Wood, upon which judgment of sentence was passed.

      Errors assigned among others, were (2, 3) above instructions, quoting them.
    (5.) The learned trial judge erred in refusing to grant a new trial in the said cause, in view of the inflammatory, prejudicial and untruthful publications in the newspapers of Philadelphia, concerning the trial of the said cause, the attacks thus made upon the jurors through the same channels, which publications were proven to have been read by the jurors during the progress of the trial.
    (6.) The learned trial judge erred in overruling the defendant’s motion in arrest of judgment because a verdict of “ not guilty ” as to the duly elected assessor, is a finding that no crime had been committed, or was contemplated by him, and, therefore, the other two defendants could not have conspired with him to commit a crime.

      December 10, 1906 :

      William W. Porter, with him H. A. Mackey and J. Jos. Murphy, for appellant.
    — The evidence that certain residents were assessed who were not naturalized, was not admissible in support of the indictment: Com. v. Garver, 16 Phila. 468; Com. v. Ramsey, 1 Brewster, 422; Updegraff v. Com., 6 S. & R. 5 ; Perdue v. Com., 96 Pa. 311.
    When the assessor himself is acquitted the other defendants cannot be convicted.
    Inflammatory newspaper articles read by the jurors during the trial entitled defendants to a new trial: Holden v. R. R. Co., 169 Pa. 1; Rentzheimer v. Bush, 2 Pa. 88 ; Com. v. Jacques, 1 Pa. Dist. Rep. 287; Hat-Trimmings Case, 49 Fed Repr. 32; Com. v. Landis, 12 Phila. 576 ; Com. v. Johnson, 5 Pa. C. C. Rep. 236.

      John 0. Pell, district attorney, with him Joseph H. Taulane, assistant district attorney.
    — The evidence as to the assessment of unnaturalized persons was proper: Regina v. Francis, L. R. 2 C. C. R. 128 ; Blake v. Assurance Co., L. R. 4 C. P. Div. 94 ; Penn Mut. Life Ins. Co. v. Mechanics’ Savings Bank, etc., Co., 72 Fed. Repr. 413 ; Com. v. White, 145 Mass. 392 (14 N. E. Repr. 611); Friend v. Hamill, 34 Maryland, 298 ; Com. v. Shanor, 29 Pa. Superior Ct. 358; Com. v. Bell, 166 Pa. 405.
    Although the assessor himself was acquitted the appellants might be convicted: Com. v. Hill, 11 Mass. 136; Regina v. Manley, 1 Cox Crim. Cases, 104 ; Regina v. Flatman, 14 Cox Crim. Cases, 396 ; Regina v. Clifford, 2 C. & K. 202; Regina v. Bannen, 1 C. & K. 295; Regina v. Butcher, 8 Cox Crim. Cases, 77 ; Regina v. Dowey, 11 Cox. Crim. Cases, 115 ; Com. v. Seybert, 4 Pa. C. C. Rep. 152.
    The publication of the newspapers during the trial did not entjitle the appellants to a new trial: Alexander v. Com., 105 Pa. 1; Com. v. Haines, 15 Phila. 363 ; Com. v. Landis, 12 Phila. 576; Com. v. Jacques, 1 Pa. Dist. Rep. 287.
   Opinion by

Portee,, J.,

The indictment charged the defendants with conspiracy to unlawfully and fraudently assess and place, and cause and procure to be assessed and placed upon the assessors’ list of voters of the thirtieth election district of the first ward of the city of Philadelphia “the names of a large number of, to wit: fifty and more persons, as voters of said, thirtieth election district of the first ward aforesaid who did not reside in the said thirtieth election district of the said first ward and were not then and there qualified to vote therein.” Upon the trial McCartney was acquitted, and Valverdi and Wood were found guilty and have now taken these appeals.

The first and fourth specifications of error refer to evidence to the admission of which no exception was taken in the court below, and, for that reason, cannot be considered. The defendants took no general exception to the charge of the court, and, upon that ground, the tenth, eleventh and thirteenth specifications of error are dismissed.

The commonwealth, having proved that a large number of persons had been assessed and their names placed upon the list of voters of the election district who in fact did not reside in the district and were not qualified voters therein, and that the appellants were active in causing and procuring the names of such persons to be placed upon said list of voters, introduced evidence which tended to establish that the appellants caused and procured to be jfiaced upon said list of voters the names of a large number of persons who, although they resided in the district, were not qualified to vote therein, because they were foreign born and had never been naturalized, and that the appellants knew that fact. There was no exception taken to the admission of the evidence as to the registration of unnaturalized persons, but the defendants subsequently moved to strike out this evidence and requested the court to charge the jury that they were not to take it into consideration. The court refused to strike out the evidence and declined to charge as requested, which rulings are the foundations of the second, third and seventh specifications of error. These specifications raised but one question: the relevancy of the testimony as to the registration of unnaturalized persons to the issue, being tried. The indictment charged a conspiracy to cause the registration, as voters of the district, of persons who did not reside in said district and were not then-and there qualified to vote therein. The offense as charged referred only to voters of a particular class, and having thus been limited by the indictment, the burden was upon the commonwealth to establish a conspiracy to cause the unlawful registration of persons who came within the class. Had the evidence been insufficient to justify a finding that there had been a conspiracy to cause an unlawful registration which embraced persons falling within the particular class, the conviction could not be sustained. The commonwealth having proved, however, that'the names of a large number of persons who were, not residents of the district, and for that reason not voters, had been placed upon the list of voters and that the appellants had been active in causing this to be done, their motives and intentions in so acting became material to the inquiry as to their guilt or innocence of the offense actually charged. Were they misled by innocent mistakes, or acting in pursuance of a corrupt combination? For the purpose of throwing light upon their motives and intentions it was competent for the commonwealth to prove all that they did .at the time of the offense charged in the indictment, in dealing with the same subject-matter and which contributed to the same specific purpose. The evidence in question directly tended to establish that the placing upon the list of voters of the names of persons who did not reside in the district was not an innocent mistake, but was but a part of a general scheme, to which the appellants were parties, to cause the registration of a large number of persons who were - not voters of the district, and for this reason it was relevant to the issue as to the intentions of the appellants : Commonwealth v. Bell, 166 Pa. 405; Goersen v. Commonwealth, 106 Pa. 477; Commonwealth v. Johnson, 133 Pa. 293; Friend v. Hamill, 34 Maryland, 298; Penn Mutual Life Insurance Company v. Mechanics’ Savings Bank, etc., Co., 72 Fed. Repr. 413; Commonwealth v. White, 145 Mass. 392 (14 N. E. Repr. 611); Regina v. Francis, L. R. 2 C. C. R. 128; Blake v. Assurance Company, L. R. 4 C. P. Div. 94. The second, third and seventh specifications of error are dismissed.

The fifth specification of error refers to the refusal of the court below to grant a new trial, “ in view of the inflammatory, prejudical and untruthful publications in the newspapers of Philadelphia, concerning the trial of the said cause.” The depositions taken in support of the motion for a new trial indicated that a number of the jurors had, during the trial, read newspaper accounts of the proceedings, and the publications in question were offered in evidence in support of the motion. The granting or refusing of a new trial in a criminal case, upon the ground that during the trial jurors have heard improper oral or have read unauthorized printed statements concerning the case, is a matter within the discretion of the court below, and the conclusion of that court will only be reversed where there is a clear abuse of discretion: Alexander v. Commonwealth, 105 Pa. 1; Commonwealth v. Chauncey, 2 Ashmead, 90; Commonwealth v. Haines, 15 Philadelphia, 363; Commonwealth v. Striepeke, ante, p. 82, recently decided by this court. We have carefully considered the publications in question, and are of opinion that, as the articles did not refer to any previous misconduct of the defendants, or discredit any material witness, or misstate the evidence, it is by no means clear that they could have affected the verdict. The learned judge of the court below, in his opinion refusing a new trial, referring to the publications, says “ They narrate incidents of the trial which had already happened in the presence of, or within the heaiing of, the jurors themselves, nor do they make false statements of such incidents.” The matter was one peculiarly within the discretion of the court below, to be conscientiously passed upon in view of all the circumstances surrounding the trial, and we cannot say that the conclusion arrived at involved an abuse of discretion. The fifth specification of error is dismissed, as is also the twelfth for the same reason.

The sixth specification of error refers to the refusal of the court to arrest the judgment, upon the ground that the acquittal of McCartney, the assessor, is a finding that no crime had been committed by him, and, therefore, the other two defendants could not have conspired with him to commit a crime. Nothing is better settled than that it is not necessary for the commonwealth to establish that all the persons charged in the indictment had been guilty of an unlawful conspiracy; if the evidence establishes that any two have been guilty of the conspiracy charged they may be convicted although all the others are acquitted. If these appellants conspired to cause to be placed on the list of voters the names of persons who were not residents of the district they were guilty of the offense charged in this indictment, even if the assessor was not a party to the conspiracy and was the victim of the deception of those whó were carrying out the purpose of the unlawful combination. The offense charged was one which affected all the people of the commonwealth; its purpose and effect, if successful, was to corrupt a public election, and it was indictable at common law, independently of the provisions of the Act of January 30,1874, P. L. 31. The sixth specification is dismissed.

There was evidence which, if believed, warranted the conviction of both the appellants, and the court properly overruled the motion to discharge them, respectively, upon the ground that there was no evidence to connect them with the conspiracy. The eighth and ninth specifications of error are dismissed.

The judgments in the appeals Nos. 165 and 166, October Term, 1905 are affirmed, and it is ordered that the appellants, Phillip Valverdi and Edward H. Wood, appear in the court below, to the end that they, respectively, be- committed to serve such part of their respective sentences as had not been complied with at the time their respective appeals were made a supersedeas.


author: Henderson, J.,

text:
    Kensington National Bank v. Ware, Appellant.

      Partnership — Promissory notes — Indorsement in firm’s name — Affidavit of defense.

    In an action against a partnership consisting of two persons as indorsees of a promissory note, an affidavit of defense by one of the partners, merely to the effect that the indorsement was made by the other partner without any authority to do so, is insufficient to prevent judgment.
    In the absence of an agreement forbidding or limiting his right to contract, one partner has the same right as another to bind the partnership within the scope of its business.
    In an action against a partnership as indorsee of a promissory note, an averment in the affidavit of defense filed by one of the partners that he had no notice of the protest is insufficient, and this is so even if the affidavit avers that if the other partner received notice he had fraudulently suppressed it.
    In an action by the indorsee of a negotiable note against the maker the defendant may change the burden of proof by showing that the note was obtained from him or from some intermediate party by fraud, felony or force, or that it was lost, in which case the plaintiff is called upon to show that he is the holder of the note for value before maturity without notice. Where such defense is relied upon to prevent judgment for want of an affidavit of defense it is incumbent upon the defendant to aver facts sufficient to overcome the plaintiff’s prima facie title, and thus put the plaintiff to proof that he is the holder of the note by purchase for value before maturity without notice.
    December 10, 1906 :
    Argued Oct. 4, 1906.
    Appeal, No. 22, Oct. T., 1906, by-defendant, from order of O. P. Pliila. Co., Sept. T., 1905, No. 3,727, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Kensington National Bank v. John H. Ware and Frank P. Conrey, trading as The Export Fruit Cleaning Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpit on a promissory note.
    The facts appear by the opinion of the Superior Court.

      Error assigned was the order of the court.

      Harris S. Sparhawh, for appellant,
    cited: Hutchinson v. Boggs, 28 Pa. 294; Hoffman v. Foster, 43 Pa. 137; Lerch Hardware Co. v. First Nat. Bank of Columbia, 109 Pa. 240; Real Estate Investment Co. v. Russel, 148 Pa. 496 ; Loeb v. Mellinger, 12 Pa. Superior Ct. 592; Sloan v. Union Banking Co., 67 Pa. 470; Deacon v. Smaltz, 10 Pa. Superior Ct. 151.

      John Lamon, for appellee,
    cited: Winship v. Bank of U. S., 30 U. S. 529, 561; Loudon Savings Fund Society v. Bank, 36 Pa. 498 ; Bank v. Gregg, 79 Pa. 384; McConeghy v. Kirk, 68 Pa. 200; McPherson v. Allegheny Nat. Bank, 96 Pa. 135; Deacon v. Smaltz, 10 Pa. Superior Ct. 151.
   Opinion by

Henderson, J.,

The appellant and John H. Ware were members of a trading partnership. As such each is presumed to have had authority to bind the firm within the apparent scope of the business carried on. This authority is implied in the very existence of the partnership. Each member acts as the agent for all in the transaction of the common business. Any limitation of this power which may have been agreed upon by the partners only binds the parties themselves and does not affect others who acquire rights by the exercise of apparent authority unless they know that such limitation has been made. Strangers have, ordinarily, no means of ascertaining the relative powers of the membels.of a firm, and each partner must necessarily be presumed to have the authority exercised by the other members. In the absence of an agreement forbidding or limiting his right to contract, one partner has the same right as another to bind the partnership : Winship v. Bank of United States, 30 U. S. 529 ; Rice v. Jackson, 171 Pa. 89. The averment in the affidavit of defense that Ware had no authority to make the indorsement of the note for which the plaintiff sued is a denial of the law as it has existed in this commonwealth from its organization. Ware had authority as a partner to make the indorsement unless he had contracted to exercise a less extensive authority, and this is not averred in the affidavit. There is an entire omission to set forth any fact warranting the assertion of lack of power in Ware. The appellant cannot limit Ware’s authority to bind the partnership within the scope of its business on his own motion; that could only be done by agreement between the partners. Moreover, it is not alleged that the plaintiff had notice of any such agreement if it actually existed. It is not charged in the affidavit that Ware received and appropriated to his own use the proceeds of the indorsed note, and the allegation that “to the best of deponent’s knowledge and belief ” the partnership did not receive the same is insufficient. It is not made on the affiant’s actual personal knowledge and does not set forth the source of his information or declare his expectation or ability to prove the facts alleged: Bank v. Gregg, 79 Pa. 384. There is no legal objection to the form of the indorsement nor anything therein to put the plaintiff on inquiry. The indorsement was prima facie a partnership act binding the firm: McConeghy v. Kirk, 68 Pa. 200.

Section 99 of the negotiable instrument act of May 16,1901, P. L. 194, provides that where partners are to be notified, notice to any one partner is notice to the firm even though there has been a dissolution. While, therefore, the denial of notice of protest may be sufficient as to the affiant it is not an answer to the plaintiff’s statement, for a notice may have been given to Ware, the retiring partner, and notice to him is not denied. The appellant, indeed, takes into consideration in his affidavit that notice may have been given to Ware and avers that -if it was so given the latter fraudulently suppressed and kept from deponent knowledge of the fact. It is apparent, however, that if notice to Ware was sufficient, his subsequent conduct in failing to communicate the fact to the appellant cannot affect the rights of the plaintiff.

It is undoubtedly the law that in an action by the indorsee of a negotiable note against the maker the defendant may change the burden of proof by showing that the note was obtained from him or from some intermediate party by fraud, felony or force, or that it was lost, in which case the plaintiff is called upon to show that he is the holder of the note for value before maturity without notice. Where such defense is relied upon to prevent judgment for want of an affidavit of defense it is incumbent upon the defendant to aver facts sufficient to overcome the plaintiff’s prima facie title, and thus put the plaintiff to proof that he is the holder of the note by purchase for value before maturity without notice. The affidavit in this case is deficient in not setting forth such facts. It is evasive, conjectural and hypothetical where it should be positive, affirmative and definite. The allegation that the indorsement was executed fraudulently is the deponent’s conclusion from facts not divulged. The deponent may consider them sufficient to raise an inference of fraud — whether they are so can only be determined when they are disclosed, and' no attempt has been made to do this. In all of the cases cited by the appellant’s counsel the affidavits set forth the facts upon which the defendants relied to put the plaintiff on proof that he was a bona fide holder for value without notice, and in that respect there is a marked, contrast with the affidavit under consideration.

We are satisfied with the conclusion of the court below, and therefore affirm the judgment.


author: Head, J.,

text:
    Doyle v. Reiter, Appellant.
    December 14, 1906:

      Judgment — Opening judgment — Failure of consideration — Commissions for sale of real estate.

    The appellate court will not review the discretion of the court of common pleas in refusing to open a judgment entered upon a judgment note given to secure the payment of commissions on sale of real estate, where the evidence for the defendant that the purchaser for the property was secured through sources entirely apart from the plaintiff, is directly contradicted by the evidence of the plaintiff and another person.
    Argued. Oct. 10, 1906.
    Appeal, No. 148, Oct. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1906, No. 1,101, discharging rule to open judgment in case of J. W. R. Doyle v. Frederick Reiter.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Rule to open judgment.
    The substance of the testimony taken in support of, and against the rule, is set forth in the opinion of the Superior Court.

      JError assigned was order discharging rule to open judgment.

      John M. Ridings, with him William Kelley, for appellant.

      M. J. O’ Callaghan, with him K. B. Painter, for appellee.
   Opinion by

Head, J.,

The court below discharged the rule, previously granted on petition of the defendant, to show cause why the judgment, confessed on warrant of attorney, should not be opened. From that order or decree this appeal is taken. The petition simply alleged a failure of consideration. It did not deny the execution of the note or aver that any fraud had been practiced on the defendant to induce its execution and delivery. The answer of the plaintiff was fully responsive and set forth that the services, to secure payment for which the note was given, had been fully performed. At the hearing the defendant sought to establish by his own testimony and that of his barkeeper that the understanding between the parties when the note was given was that it was not to be paid except in the event that a sale and transfer of the saloon, business and license of the defendant would be effected directly through the efforts of the plaintiff. They further testified that after the property had been for some months in the hands of the plaintiff they gave notice that it was withdrawn and that the purchaser, who finally took over the property, was secured through sources entirely apart from the plaintiff. It was admitted that the note had been read by both defendant and his witness before it was signed. Upon this testimony the learned counsel for appellant bases his conclusion that the consideration for the note had failed and that the rule to open the judgment should have been made absolute. Had this testimony been uncontroverted, even though it attacked the presumption of consideration raised by the law from the fact that the obligation was under seal and tended to directly contradict the clearly expressed terms of the written instrument, such a conclusion might be tenable. But it was met at every point by the evidence of the plaintiff and a witness who had been his agent at the time of this transaction. Their testimony tended to show that the plaintiff was a real estate broker who made a specialty of handling properties like that of defendant. That in taking the note to secure payment for his services he dealt with the plaintiff just as he did with all other patrons. That he extensively advertised the property in many of the city newspapers giving such data as to location, rental value, monthly sales, etc., as would likely attract the favorable notice of prospective purchasers. That he listed it, with other like properties, on lists which were frequently sent to brewers, wholesale dealers and others who would probably be in touch with those seeking such investments. That he actually secured a purchaser, satisfactory to the defendant, and that a contract of sale was made which afterwards fell through solely because of the refusal of the court of quarter sessions to transfer the license. Under these circumstances the plaintiff contended that the services called for in the note had been fully rendered and a sale having been afterwards carried through, the time of payment named in the bond had arrived. Upon this record the court below determined that he was not warranted in opening the judgment and discharged the rule. Can we say as a matter of law that any reversible error was committed in doing so ? A simple statement of the rule so often announced by the Supreme Court and this court, irresistibly impels us to return a negative answer to the question. We quote from the leading case of Jenkintown National Bank’s Appeal, 124 Pa. 337, so often cited and followed in the later cases: “ lb is a mistake to suppose that the court (below) cannot judge of the weight of the evidence, and the credibility of witnesses, but must in every case, where there is a conflict of testimony, send the case to a jury. In equity cases these questions may be determined by the chancellor, and on appeal his decision is reviewed. We are to determine in all such appeals whether the discretion of the court below h‘as been rightly exercised: ’ Earley’s Appeal, 90 Pa. 321. . . . In Kneedler’s Appeal, 92 Pa. 428, it was held that a motion to open a judgment entered on a warrant of attorney is an appeal to the equitable powers of the court, and upon an appeal under the act of April 4, 1877, P. L. 53, the question is whether the court rightly exercised its discretion upon the evidence.”

The case before us undoubtedly discloses the conflict of testimony mentioned in the language above quoted. But the court below is the tribunal recognized by law to determine, even where the evidence is conflicting, what the facts really are. The appellate court fully exercises the powers committed to it in determining, not what the facts are, but that the court below has, or has not abused the discretion committed to it. As there was evidence ample, if believed, to support the conclusion reached, we cannot say there was any abuse of discretion. The assignments of error must therefore be overruled, and the

Judgment is afSrmed.