author: Morrison, J.,

text:
    Commonwealth v. McDermott, Appellant
    (No. 1).

      Constitutional law — Oleomargarine—Criminal law — Act of May 29, 1901, P. L. 327.
    The Act of May 29,1901, P. L. 327, entitled, “An act to prohibit the . manufacture and sale of oleomargarine, butterine and other similar products, when colored in imitation of yellow butter,” etc., does not violate any of the provisions of the constitution of the United States or of the state of Pennsylvania.
    Where a person is found guilty by a jury of violating the oleomargarine Act of May 29, 1901, P. L. 327, but is not sentenced, the verdict of guilty establishes a conviction within the meaning of the seventh section of the act, and if he commits a second offense and is convicted therefor, he may be sentenced to the penalties imposed by the act for a second conviction.
    The conviction spoken of in the act is accomplished by a verdict of guilty, without any judgment or sentence of the court.
    Even if the word “ conviction ” in the act of 1901, is to be construed as including both verdict and sentence, a person may be sentenced to the penalties provided for a second offense, although the indictment for the second offense was returned by the grand jury only on the day immediately following sentence for the first offense.
    A count in an indictment under the oleomargarine act of 1901, will not be quashed because the disjunctive “or” is used between the words “ oleomargarine ” and “ butterine”.
    If there is one count in an indictment which will sustain the sentence, there can be no reversal, although there were other counts which were bad.

      Where carrying on a particular business is absolutely forbidden, and the accused is tried for violation thereof it may be shown that at other times than that charged in the indictment he violated the law. Such evidence of other crimes is relevant to show his system of doing business, and the intent present in the act with which he is charged. This rule applies to a violation of the oleomargarine act of May 29,1901.
    Argued April 21, 1906.
    Appeal, No. 203, April T., 1908, by defendant, from judgment of Q. S. Washington Co., Feb. T., 1908, No. 159, on verdict of guilty in case of Commonwealth v. M. M. McDermott.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for violating the oleomargarine Act of May 29, 1901, P. L. 327.
    The opinion of the Superior Court states the case.
    The defendant moved to quash the indictment on the ground that the act of 1901, was unconstitutional, and on the ground that the disjunctive “or” had been used in one count between the words oleomargarine and butterine. [1-5]
    The court admitted under objection and exception evidence of sales made on January 25, 1908, although the indictment charged sales on December 11, 1907. [6]
    The court admitted under exception the record of a former conviction of a violation of the act. [7]
    The court imposed as a sentence penalties imposed for a second violation of the act. [16]
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-7, 16) various rulings of the court as above.

      Owen C. Underwood, of Underwood & Meloy, with him Edwin Sutherland, for appellant,
    cited as to the meaning of the word “conviction:” Smith v. Com., 14 S. & R. 69; Rauch v. Com., 78 Pa. 490; People v. Butler, 3 Cowen (N. Y.), 347.

      Alex. M. Templeton and Cyrus Gordon, with them C. L. V. Acheson, district attorney, for appellee,
    cited as to the word “conviction:” Wright v. Donaldson, 158 Pa. 88; York County v. Dalhousen, 45 Pa. 372; Macdonald v. Schroeder, 28 Pa. Superior Ct. 128.
    July 15, 1908:
   Opinion by

Morrison, J.,

The defendant was indicted and convicted in the court of quarter, sessions for a second offense in violating the provisions of the Act of May 29, 1901, P. L. 327, entitled: “An act to prohibit the manufacture and sale of oleomargarine, butterine, and other similar products, when colored in imitation of yellow butter; to provide for license fees to be paid by manufacturers, wholesale and retail dealers, and by proprietors of hotels, restaurants, dining rooms and boarding houses; for the manufacture or sale of oleomargarine, butterine, or other similar products, not colored in imitation of yellow butter; and to regulate the manufacture and sale of oleomargarine, butterine, or other similar products, not colored in imitation of yellow butter; and prevent and punish fraud and deception in such manufacture and sale as an imitation butter; and to prescribe penalties and punishment for violations of this act, and the means and the method of procedure for its inforcement, and regulate certain matters of evidence in such procedure.”

The learned counsel for the appellant state the questions involved thus: 1. “Is the Act of May 29, 1901, P. L. 327, unconstitutional by reason of the fact that it conflicts with Article 14, section 1, of the Amendments to the Constitution of the United States, which provides in part, 'nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.’ ”

2. “Is the judgment and sentence of the court a necessary part of a conviction? ”

3. “Can a court of Quarter Sessions make its sentence and judgment refer back and have the same force as if entered on the day and at the time of the verdict of the jury? ”

4. “If one count of an indictment should have been quashed, and was not, by the court below, and testimony was admitted substantiating that particular count, is not the jury unlawfully prejudiced thereby against the defendant?”

We may well dispose of the first proposition by saying that the supreme court of the United States, the Supreme Court of Pennsylvania, and the Superior Court of Pennsylvania have many times held that an act of assembly similar to the one in question does not violate the constitution of the United States nor of the state of Pennsylvania. Moreover, some of the decisions expressly decide that the very act of May 29, 1901, is not unconstitutional. As we understand the argument of the learned counsel they are well aware of these decisions but seem to desire to have us enter into a discussion with them as to the correctness of the decisions of the several courts above referred to. This we do not propose to do. It is sufficient for us, as it ought to be for the counsel, to ascertain from the adjudicated cases, what the law is on this subject. It is very clear, we think, that the act of May 29, 1901, is an act intended, not to prohibit the sale of oleomargarine or butterine, but to regulate the sale of the same and to prevent fraud upon the consumers by prohibiting the coloring of the article so that it will resemble yellow butter produced from pure, unadulterated milk, or cream of the same, with or without coloring matter.

In their argument, the learned counsel criticise the opinion and judgment in the case of Commonwealth v. Mellet, 27 Pa. Superior Ct. 41. We have considered their argument and have re-examined that case, and we are not convinced that the opinion and judgment therein needs any alteration or vindication. We are entirely satisfied to follow it in the present case.

The suitor who undertakes to have a law declared unconstitutional takes upon himself the burden of establishing that it is so beyond all reasonable doubt: Pennsylvania Railroad Co. v. Riblet, 66 Pa. 164; Commonwealth ex rel. Wolfe v. Butler, 99 Pa. 535; Commonwealth v. Moir, 199 Pa. 534. The act of 1901, under consideration, and the earlier acts of 1885 and 1889 which the former act supersedes, have been declared over and over again not to be in conflict, as police regulations, with the state constitution nor with the commerce clause of the national constitution. In Commonwealth v. McCann, 14 Pa. Superior Ct. 221, we held the Act of May 5, 1899, P. L. 241, regulating the sale of oleomargarine, constitutional, referring to Commonwealth v. Vandyke, 13 Pa. Superior Ct. 484. And we further held that such regulation does not conflict with the commerce clause of the national constitution, and it cannot be declared to be an infringement of the rights of the citizen secured by sec. 1, art. 1, of the state constitution, nor by the fourteenth amendment of the national constitution. See also Commonwealth v. Diefenbacher, 14 Pa. Superior Ct. 264. In Commonwealth v. Caulfield, 211 Pa. 644, the Supreme Court, in affirming this court in 27 Pa. Superior Ct. 279, expressly held the Act of May 29, 1901, P. L. 327, constitutional, citing the case of Plumley v. Massachusetts, 155 U. S. 461; see Powell v. Pennsylvania, 127 U. S. 678, affirming the Supreme Court of Pennsylvania; see also Commonwealth v. Paul, 148 Pa. 559; Commonwealth v. Paul, 170 Pa. 284; Commonwealth v. Schollenberger, 156 Pa. 201; and see the same case, 171 U. S. 1. While the latter decision, in part, reverses the Supreme Court of Pennsylvania yet it in no wise denies the power of the state legislature to regulate the sale of an article like oleomargarine by a statute like that of 1901. We close the citation of authorities upon this branch of the case, which might be continued, but it is unnecessary to cite additional authorities, as we are all of the opinion that the act of 1901, is constitutional.

The next question raised is whether it is necessary to have the judgment and sentence of the court pronounced in order to establish a conviction within the meaning of the seventh section of the act of May 29, 1901 (see p. 331), “and upon conviction thereof, shall be punished for the first offense by a fine of not less than $100, nor more than $500, or by imprisonment in the county jail for not more than three months, or both, at the discretion of the court; and upon conviction of any subsequent offense, shall be punished by a fine of not less than $500, nor more than $1,000, and by imprisonment in the county jail for not less than six months nor more than twelve months.” The question here is whether a verdict of guilty, without judgment or sentence, amounts to a conviction within the meaning of the law. It must be conceded that there are cases which seem to hold that to constitute a conviction requires the judgment of the court upon a plea of guilty or a verdict of guilty after trial. But we are inclined to the opinion that under the present statute the conviction spoken of is accomplished by verdict of guilty upon an indictment; that the popular and ordinary significance of the word “ conviction ” is met by a verdict of guilty or a plea of guilty seems to us beyond question. In our opinion where a defendant has been indicted and tried under the provisions of the act of 1901, and found guilty by a jury and he commits a subsequent offense and is tried and found guilty thereof, he may be punished for the subsequent offense as provided in the last clause of section 7 of the act. Bouviers’ Law Dictionary defines conviction to be in practice: “That legal proceeding of record which ascertains the guilt of the party and upon which the sentence or judgment is founded.” “Finding a person guilty by verdict of a jury:” 1 Bishop’s Crim. Law, sec. 223. “Conviction must precede judgment or sentence:” 1 Caines (N. Y.), 72; 34 Me. 594; 16 Ark. 601; “but is not necessarily or always followed by it:” 14 Pick. (Mass.) 86; 17 Pick. (Mass.) 295; 8 Wend. (N. Y.) 203. Where there is a verdict of guilty, a motion for a new trial heard and refused, and a suspension of sentence, this is a discharge of the defendant from his recognizance and an end of the case. The record of his conviction and the action of the court could be pleaded in bar of a second prosecution for the same offense: Wright v. Donaldson, et al., 158 Pa. 88. “ If the jury find the prisoner guilty, he is then said to be convicted of the crime whereof he stands indicted; which conviction may accrue two ways, — either by his confessing the offense and pleading guilty, or by his being found so by the verdict of his country: ” 4 Blackstone’s Comm., ch. 27. “ After trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by some intervening circumstance:” 4 Blackstone’s Comm., ch. 28. We regard York County v. Dalhousen et al., 45 Pa. 372, as an authority that conviction means guilt ascertained by a verdict, confession, or other means than judgment. And Wharton, in his Law Lexicon, defines conviction to be the act of proving guilt of an offense charged against a party by legal tribunal. Commonwealth v. The Commissioners of Philadelphia County, 4 S. & R. 541, is cited, but we understand that case to mean that a person is convicted when he is found guilty; in it there is nothing indicating that a defendant is not convicted until there is a judgment upon the verdict. In Wilmoth v. Hensel, 151 Pa. 200, it was held that a defendant who pleaded guilty to an indictment was convicted. In that case Mr. Chief Justice Paxson said, as to the word “conviction ”: “We must regard it as it was probably intended to be used, in its popular sense. In common parlance, a verdict is called a conviction: Smith v. Commonwealth, 14 S. & R. 69.”

Certainly the former conviction of the defendant, of a similar offense, laid in the indictment, was a warning to him and ought to have admonished him not to repeat the offense. Having violated the law the second time, with the former verdict of guilty standing against him, we do not think he ought to be now heard to say that there was no former conviction because for some reason the court did not pronounce judgment upon the verdict. But suppose we are wrong in this view of the case; it appears from the record that the court did pronounce judgment on the former conviction on February 10, 1908, and the grand jury did not-return the bill against the defendant, under which he was tried in the present case, until February 11, 1908, the day after he was sentenced for the first offense. In our opinion, if the.law does require the judgment of the court to establish a conviction, within the meaning of the statute, then this record discloses that such judgment was regularly entered before the defendant was placed in jeopardy, on the indictment in the present case, and, therefore, we are of the opinion that he was lawfully convicted and sentenced for a subsequent offense. The word conviction is used twice in section 7 and it may well be assumed that in both places it means the same thing. In the first instance it is used as follows: “and upon conviction thereof, shall be punished for the first offense,” etc. Now, it is perfectly clear that the legislature here meant conviction by a verdict or plea of guilty; then further along we find “and upon conviction of any subsequent offense, shall be punished,” etc. We think the word as used in section 7 should be given the common or popular ' meaning, to wit: conviction by plea of guilty or by verdict of a jury.

As to the third question we do not consider it necessary to discuss it.

The fourth question is based upon the third count in the indictment. It is contended that the third count ought to have been quashed because the disjunctive “or” was used as follows: “and generally known as oleomargarine or butterine, which said article, product and compound generally known as oleomargarine or butterine,” etc. Upon this point the learned court below, in its opinion overruling the motion in arrest of judgment, said: “The second motion in arrest of judgment on the third count, in our opinion, is not well taken, for the reason that the word ‘or’ as found in the indictment connects words used to describe the same thing. For instance, ‘oleomargarine or butterine/ is two ways of describing the same article — the same product, and a description taken as a whole.” We are entirely satisfied with this reason. We do not see that the disjunctive “or” is used in the third count in such a way as to mislead the defendant or in any manner embarrass him in his preparation for trial. But in any event, the defendant was not prejudiced or injured by the refusal to quash the third count and by the admission of testimony to support the averments of that count, a stet having been entered and the defendant discharged without day, as to it. It would seem that the stet relieved the defendant from all the consequences of the insertion of that count in the indictment. But the appellant through his counsel claims that he was prejudiced on his trial upon the other counts by reason of its insertion. But we fail to discover how he was so injured. We do not think any testimony was given, solely in support of the third count, which could possibly have influenced the jury to convict the defendant under either or both of the other two counts.

“If there is one count in the indictment which will sustain the sentence, it cannot be reversed:” Commonwealth v. Landis, 13 Pa. Superior Ct. 134; Commonwealth v. Bradley, 16 Pa. Superior Ct. 561; Commonwealth v. Prickett, 132 Pa. 371. In Hutchison v. Commonwealth, 82 Pa. 472, there was an indictment with five counts. There was a motion to quash which was overruled, and the Supreme Court held that the first, third and fourth counts were bad and ought to have been quashed, and that there was no evidence to support the second count. The defendant was convicted of larceny as bailee and the Supreme Court affirmed the judgment because the fifth count was good. We think the appellant has no legal ground of complaint in regard to the third count and the manner in which the court disposed of it.

There is a fifth question raised in the assignments of error and in the argument, but it is not indicated in the statement of the questions involved, and for the latter reason we are not disposed to discuss it at length. The indictment charged the defendant with the unlawful sales on December 11, 1907, and it is argued that evidence was admitted to sustain this charge and also of unlawful sales on January 25, 1908. It cannot be successfully contended, we think, that the commonwealth could not lay the date of the offense as of December 11, 1907, and prove it as of January 25, 1908, because the exact date laid in the indictment as to an offense of the character of the one under consideration is not material. “ Where carrying on a particular business is absolutely forbidden, or a license is required, by statute, and the accused is tried for a violation thereof, it may be shown that at other times than that ¡charged in the indictment he violated the law. Such evidence of other crimes is revelant to show his system of doing business and the intent present in the act with which he is charged:” 12 Cyclopedia of L. & P. p. 411, note 28. “Where the offense charged is a continuing offense, evidence of other acts than that charged is admissible, to explain or corroborate the evidence showing the act charged:” 12 Cyclopedia of L. & P. p. 412.

The practice in trials upon indictments charging the sale of intoxicating liquors is a familiar example of allowing evidence of sales on other days than the one laid in the indictment. In the present case, sentence was imposed on the second count only, was suspended on the first and a stet entered on the third. We are all of the opinion that the defendant was lawfully tried and sentenced and that the record discloses no just ground of complaint.

The assignments of error are all dismissed and the judgment is affirmed, and the record is remitted to the court below, with direction to have the judgment carried into execution.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Claysville Borough School District v. Worrell, Appellant.

      Statute — Construction—Doubtful language — Surrounding circumstances —Constitutional law — School law — Annexation of territory to school district — Act of April 22, 1858.
    The meaning of doubtful language in a statute may be sought for in every legitimate way by the court where the words used may have different meanings, in different connections or under different circumstances and by extrinsic evidence, casting light on the condition and position of those in whose behalf a special statute is enacted and of applying it in a sensible manner to the subject to which it relates.
    The Act of April 22,1858, P. L. 472, entitled, “An Act to annex sub-district No. 1, of Donegal township, in the county of Washington, to the borough of Claysville for school purposes,” is not unconstitutional, as taxing electors in the territory annexed, without representation; nor construed in the light of the circumstances under which it was passed, is it “so vague, indefinite and uncertain in its terms and descriptions, that it cannot be understood, applied or enforced.”

      School law — Taxation—Tax lien — Personal property on premises.

    The fact that there is personal property on the premises assessed for school taxes, is not a defense to a scire facias on a tax lien filed under the Act of June 4, 1901, P. L. 364.
    Argued April 20, 1908.
    Appeal, No. 6, April T., 1908, by defendant, from judgment of O. P. Washington Co., Aug. T., 1906, No. 130, for plaintiff on case tried by the court without a jury in suit of Claysville Borough School District v. John E. Worrell.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur tax lien. Before McIlvaine, P. J.
    The facts are stated in the opinion of the Superior Court..

      Error assigned was in entering judgment for plaintiff.

      R. W. Knox, for appellant.

      Albert S. Sprowls, with him B. B. Barr, for appellee.
    July 15, 1908:
   Opinion by

Henderson, J.,

The borough of Claysville was incorporated by a special act of the legislature in 1832. Prior to that time the territory embraced within the borough lines had formed a part of school district No. 1, in the southeast corner of Donegal township, and so continued until the enactment of the general school law of • May 8, 1854, which act provided that every township, borough and city in the commonwealth should constitute a separate school district, with an exception not material for our present consideration. The operation of this statute detached the borough of Claysville from the remainder of the territory composing the school district and, as a result, the residents of the district not within the borough limits were subjected to inconvenience in the matter of school privileges; whereupon a petition was presented to the legislature, signed by a majority of the resident voters of the isolated territory, of whom the ancestor and predecessor in title of the defendant was one, setting forth the hardships of their situation in the respect referred to and asking for the enactment of a law incorporating the remaining portion of district No. 1 of Donegal township into the borough of Claysville. In response to this petition the legislature passed an act approved April 22, 1858, entitled “An act to annex sub-district number one, of Donegal Township in the County of Washington, to the borough of Claysville, for School Purposes.” The act contains a description of the territory supposed to be in district No. 1, and intended to be made a part of the Claysville district, and provides that it “shall be attached to and form part of the borough of Claysville, in the County of Washington, for school purposes, and shall be for said purposes under the jurisdiction and control of the board of directors of said borough; and all school taxes within said territory shall be levied, collected and disbursed and the schools administered in like manner, and by the same authority, as in said Claysville • school district.” Since the passage of this act the territory described therein, including the farm of the defendant, has been attached to, and been a part of, the Claysville school district. School tax has been regularly assessed and paid by the owners of land in the territory annexed; the children residing in that territory have attended the schools in the Claysville school district as pupils of that district; such qualified electors of the annexed territory as chose so to do, have voted for school directors of the district and some of them have been elected and have acted as school directors. The increase of population in the district rendered necessary the erection of a new and adequate school building a few years ago, and to accomplish that end bonds of the district were issued, $8,700 of which are still unpaid. The plaintiff’s claim is for tax regularly assessed, a part of which was necessary to meet the obligation for these bonds. It is now contended by the defendant, that the act of 1858 is unconstitutional; that the territory described in the statute did not become a part of the Claysville borough school district, and that there is no authority to charge the defendant’s land by lien or otherwise for the payment of school tax in said district. The specific objections made to the act are that the electors in the territory annexed are taxed without representation, inasmuch as they are not allowed a vote in the government of the school district which has the taxing power, and that the act is “so vague, indefinite and uncertain in its terms and descriptions that it cannot be understood, applied or enforced.” We are not left in doubt in regard to the meaning of the language employed in the statute, nor the intention of the legislature in its enactment. The import of any sentence is found, not only in the words used, but by comparison with other portions of the enactment. When we consider the circumstances calling forth the phrases employed and what the object was which was to be accomplished, the interpretation is not difficult. In the light of the circumstances, the occasion for the passage of the act is apparent and aids us in determining its sufficiency: Tonnele v. Hall, 4 N. Y. 140; Big Black Creek, etc., Co. v. Commonwealth, 94 Pa. 450. The meaning of doubtful language in a statute may be sought for in every legitimate way by the court where the words used may have different meanings in different connections or under different circumstances and by extrinsic evidence, casting light on the condition and position of those in whose behalf a special statute is enacted and of applying it in a sensible manner to the subject to which it relates. The purpose of the act under consideration was to improve the school privileges of the residents of district No. 1. To accomplish this object, the legislature deemed it advisable to combine that district with Claysville borough and thereby to constitute the consolidated territory a school district. It was declared that the land within the limits fixed should form a part of the borough of Claysville for school purposes, and be under the jurisdiction and control of the board of directors of that district. The result was to establish a district not in conformity with the general school law of the state under which each borough and each township constituted a separate school district, but to form out of the territory of contiguous municipal districts a school district qf a class called independent districts, many of which had theretofore been created by special acts of the legislature and provision for the creation of which was made in the act of May 8, 1855, which is a supplement to the act of May 8, 1854. The words of the statute are “under the jurisdiction and control of the board of directors of said borough,” but it is obvious that the word “borough” is used in the sense of “district.” There was not and never has been a board of directors of the borough, as a borough. The directors referred to were the officers of the school district. The citizens of the annexed territory are put, by the statute, on an equality with the citizens of the borough in the matter of the administration of the schools: Colwin v. Beaver, 94 Pa. 388. It is fairly implied in the act, if not expressly declared, that the schools are to be conducted and governed in the same way as if the attached territory was a part of the borough for all purposes. We held in Nelson’s Contested Election, 34 Pa. Superior Ct. 591, that a statute somewhat similar in that portion of it creating the Mercer school district, formed an independent district subject to the laws regulating such an organization, and a portion of the discussion by Judge Beaver in that case is pertinent in this. The qualified electors of the annexed territory were, therefore, on an equality with the electors of the borough in the choice of directors and the administration of the schools and had the same status under the constitution with reference thereto. Elections of directors were presumably held at the spring elections as implied in the fourth section of the act of May 8, 1855, and provision was made in the ninth section of the Act of April 11, 1862, P. L. 471, for elections in independent districts then established or thereafter to be established by the legislature without specifying the mode, time or place of electing directors.

We are not impressed by the argument that the act is so uncertain in its description that it cannot be applied to the subject. There is nothing on its face indicating such vagueness or indefiniteness as to render it void, nor is this criticism sustained by the evidence. Whatever uncertainty there may be as to the inclusion of the Dennison farm and the McConahey farm in the school district as enlarged by the act, it is reasonably clear that all the territory between those farms comprised within sub-district No. 1, is included in the description of the territory annexed and became part of the enlarged district. The parties interested at the time had no difficulty in understanding it and acting under it for nearly half a century, and it would require a very clear case to move a court to disturb that which had been acquiesced in by all concerned for so long a time, on this ground. We need not go into a consideration of the question of estoppel which the learned court below considered a sufficient answer to the appellant’s object tion. Nor is it necessary to discuss the validity of the act of March 1, 1895, by which it was attempted to amend the act of 1858. We base our judgment on the efficiency of the latter act to accomplish the legislative purpose.

The appellant contends further, that as there was personal property on the assessed premises at all times out of which the tax could have been made it was the duty of the collector to exhaust the personal property as required by the act of 1834, and that a lien for taxes cannot be sustained. This is not a defense to a scire facias on a tax lien filed under the act of June 4, 1901. That act gives a lien in favor of school districts, and prescribes the time when and the manner in which the claim may be filed and the procedure under which it may be enforced, and furnishes a complete system for the collection of taxes through a recorded lien. The claimant is entitled to its lien and judgment thereon, under the express words of the statute. Whether the land could be sold until the personal property on the premises liable to seizure for the tax is first sold we need not consider, for the case has not reached that stage.

The assignments of error are overruled and the judgment affirmed.


text:
    Claysville Borough School District v. Anderson, Appellant.

      Statute — Construction—School law — Annexation of territory — Act of April 22, 1858, P. L. 472.
    It was the legislative purpose of the special Act of April 22, 1858, P. L. 472, relating to the annexation of certain territory to the Clays-ville borough school district, to include in the attached territory, at least all of the land in subdistrict No. 1, of Donegal township, Washington county, lying between the Dennison farm and the McConahey farm.
    Argued April 20, 1908.
    Appeal, No. 7, April T., 1908, by defendants, from judgment of C. P. Washington Co., Aug. T., 1906, No. 131, for plaintiff on case tried by the court without a jury in suit of Claysville Borough School District v. Estate of Thomas Anderson, deceased, W. H. Anderson, Benjamin Anderson and Catherine B. Anderson. ’
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias suf tax fieri. Before McIlvaine, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff.

      R. W. Knox, for appellants.

      Albert S. Sprowls, with him B. B. Barr, for appellee.
    July 15, 1908:
   Opinion by

Henderson, J.,

The conclusion reached in School District, etc., v. John E. Worrell, in which case an opinion was this day filed, is decisive of this case. The only point now presented which was not involved in that case is the claim of the appellants that they are relieved from the payment of school tax because the dwelling house on the farm owned by them is not within the territory described in the special act of 1858. We are unable to agree with the appellants’ view of this phase of the subject. It is true that the description of the attached territory as set forth in the act is somewhat indefinite, but taking the title and the enacting clause into view, we have no doubt that it was the legislative purpose to include in the attached territory at least all of the land in the sub-district lying between the Dennison farm and the McConahey farm, and the land of the appellants is within these limits. The north and south line established by one of the defendant’s witnesses was an arbitrary line not called for by the language of the act and not consistent with the object of the legislature as indicated by the whole statute. It is more reasonable to hold that the east line of the Dennison farm was to form part of the west line of the annexed territory, if indeed that farm was not included, and in either view the whole of the Anderson farm is embraced in the description. Moreover, the parties in interest so interpreted the act. The appellants are heirs of Thomas Anderson, who owned the farm and who understood that it was included in the territory described. So also did his son, Benjamin Anderson, one of the appellants who resided on the farm and was twice elected a school director in the district and was also its treasurer. The statute was passed at the solicitation of residents of sub-district No. 1. It affected their interests alone and was private in its character. The acts of the owners of the land showing the construction they put on the description of the territory to be incorporated into the new district is very persuasive that it was clear to those familiar with the locality and the conditions then existing, and after so great a lapse of time we are not to be moved to a different view of the case without more convincing evidence and reasons than have been presented.

The judgment is affirmed.


text:
    Provident Securities and Banking Company of Boston v. First National Bank of Gallitzin, Appellant.

      Banks and banking — Checks—Bills of exchange — Negotiable paper — Acceptance — Notary public.

    The 137th section of the Act of May 16, 1901, P. L. 194, imposes a statutory duty on the drawee of a bill of exchange or check, to return the same accepted, or nonaccepted, to the holder within twenty-four hours after the same is delivered to such drawee, unless the holder may allow a greater period, and the failure to so return renders the drawee liable as an acceptor. The act of a bank in delivering checks to a notary public for protest is not a compliance with the act, and does not relieve the drawee from liability.
    Argued May 4, 1908.
    Appeal, No. 206, April T., 1908, by defendant, from judgment of C. P. Cambria Co., June T., 1905, No. 41, on verdict for plaintiff in case of The Provident Securities and Banking Company of Boston v. The First National Bank of Gallitzin.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit for loss occasioned by the failure to return a check. Before O’Connor, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $542.75. Defendant appealed.

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

      John E. Evans, with him George W. Flowers and Chas. S. Evans, for appellant.

      M. D. Kittell, with him J. S. Leisenring, for appellee.
    July 15, 1908:
   Opinion by

Henderson, J.,

The same questions presented in this appeal were considered and determined in Wisner v. First National Bank of Gallitzin, 220 Pa. 21, in which case Mr. Justice Mestrezat, in a clear and comprehensive opinion, discusses the effect of the 137th section of the Act of May 16, 1901, P. L. 194, and shows that it imposes a statutory duty on the drawee of a bill of exchange or check, to return the same accepted or nonaccepted to the holder within twenty-four hours after the same is delivered to such drawee, unless the holder may allow a greater period, and that the failure to so return renders the drawee liable as an acceptor. A restatement of the argument would not aid in the interpretation of the statute. It was expressly decided in that case that the act of the bank in delivering the checks to a notary public for protest was not a compliance with the section of the act referred to and did not relieve the drawee from liability. We do not find any facts distinguishing this case from the one referred to.

The judgment is affirmed.


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

      Criminal law — 'Trial—Charge—Reference to failure of defendant to testify — Evidence.
    On the trial of an indictment for the violation of the oleomargarine Act of May 29,1901, P. L. 327, the trial judge is not guilty of an adverse reference to the failure of the defendant to testify, by charging as follows: “Now, gentlemen, the only question for you to determine is whether or not this testimony is to be relied upon. It is not contradicted in any way. No witnesses were called here to controvert what has been said by these witnesses (referring to witnesses for the commonwealth), and it will be for you to take the testimony and see whether the product that was bought as oleomargarine was the same analyzed by the chemists and contained coal tar dye, and then whether the chemists here, without being contradicted in any way, are tó be relied upon as truthful witnesses.”
    Argued April 21,1908.
    Appeals, Nos. 190 and 191, April T., 1908, by defendant, from judgment of Q. S. Washington Co., Nov. T., 1907, No. 11, on verdict of guilty in case of Commonwealth v. M. M. McDermott.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for violating the oleomargarine Act of May 29, 1901, P. L. 327.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

      Error assigned amongst others was portion of the charge quoted in the opinion of the Superior Court.

      Owen C. Underwood, with him B. H. Meloy, Edioin Sutherland and John M. Haverty, for appellant.

      Alex. M. Templeton and Cyrus Gordon, with them C. L. V. Acheson, district attorney, for appellee.
    July 15, 1908:
   Opinion by

Morrison, J.,

The learned counsel for appellant state the questions involved thus: 1. “Is the Act approved the 29th day of May, a. d.. 1901, P. L. 327, in conflict with the constitution of Pennsylvania, or of the United States?”

2. “ Does the following language used by the court in charging the jury constitute an adverse reference to the failure of the defendant to testify? 'Now, gentlemen, the only question for you to determine is whether or not this testimony is to be relied upon. It is contradicted in no way. No witnesses were called, here to controvert what has been said by these witnesses (referring to witnesses for the commonwealth), and it will be for you to take the testimony and see whether the product that was bought as oleomargarine was the same analyzed by the chemists and contained coal tar dye, and then whether the chemists here, — without being contradicted in any way, — are to be relied upon as truthful witnesses.’ ”

In our opinion this day filed at No. 203 of April Term, 1908, between the same parties, ante, p. 1, we have said all that we consider necessary as to the constitutionality of the act of May 29, 1901.

As to the language of the court above quoted, and also found in the fourth assignment of error, we discover nothing in it calling for criticism or discussion. That language does not intimate that the defendant might have gone on the witness stand for himself. In view of the state of the evidence, the learned judge was fully warranted in so instructing the jury.'

We discover no merit in any of the assignments of error and they are all dismissed, and the judgment is affirmed and the record remitted to the court below, for the purpose of having the judgment carried into execution.


text:
    New Castle v. Genkinger, Appellant.

      Justice of the peace — Summary conviction — Appeals—Act of March 20, 1810, 5 Sm. L. 161.
    A judgment of the common pleas affirming a judgment of a justice of the peace in a summary proceeding for the collection of a penalty prescribed by a city ordinance, is not within the purview of the Act of March 20, 1810, 5 Sm. L. 161, and such judgment of the common pleas is not final and conclusive.

      Justice of the peace — Summary conviction — Violation of city ordinance — Theaters—Restitution.
    Where a city ordinance makes it unlawful for the owner or lessee or the agent of the owner or lessee, of any place of entertainment to knowingly rent the same, or permit it to be used for exhibitions tending to corrupt the morals of the people, a summary conviction cannot be sustained under such ordinance on an information charging that the defendant being the owner or lessee, or the agent of the owner or lessee of an opera house, did unlawfully and knowingly rent the same, or permit it to be used for certain exhibitions tending to corrupt the morals of the people. The information is bad in charging the defendant with a large number of things in the alternative.
    In such a case a judgment of the justice finding the defendant guilty of producing an entertainment tending to corrupt the morals of the people is wholly void where the justice also finds that the defendant owned the building in question, and rented the same to another person to be used for the entertainment in question.
    In reversing such a judgment restitution is within the sound discretion of the appellate court, and it may reverse the judgment without awarding restitution, if the conduct of the defendant is shown to have been improper.
    Argued May 13, 1908.
    Appeal, No. 172, April T., 1908, by defendant, from judgment of C. P. Lawrence Co., June T., 1907, No. 73, affirming judgment of justice of the peace, in case of City of New Castle v. Genkinger.
    Before Rice, P. J., Poe-tee, Hendeeson, Moeeison, Oelady, Head and Beavee, JJ.
    Reversed.
    Appeal from judgment of justice of the peace.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing certiorari.

      B. A. Wintemitz, for appellant.
    The complaint is in the nature of an indictment and should contain a complete statement of the offense: Com. v. Gelbert, 170 Pa. 426; Com. v. Davison, 11 Pa. Superior Ct. 130.
    The complaint does not charge defendant with any specific offense: Duck v. Chief Burgess, 7 Watts, 181; Com. v. Chatham, 33 Pa. C. C. Rep. 492; Carlisle v. Baker, 1 Yeates, 471; Com. v. Ayers, 17 Pa. Superior Ct. 352.
    The record does not set out the provisions of the ordinance alleged to have been violated, nor the penalty provided therein: Flood v. Ashley Boro., 5 Kulp, 462; City v. Duncan, 4 Phila. 145; Com. v. Davenger, 10 Phila. 478; Fraily v. Sparks, 2 Pars. Sel. Eq. Cases, 232, 234; Com. ex rel. v. Hill, 12 Pa. C. C. Rep. 559; City v. Cohen, 13 W. N. C. 468; City v. Junker, 9 Pa. Dist. Rep. 673; Ridley Park v. Railway Co., 24 Pa. C. C. Rep. 3; Wilcox v. Knoxville Boro., 12 Pa. C. C. Rep. 641.
    The conviction is not for the alleged offense or offenses .charged in the complaint: Mayor, etc., v. Wards, 1 Phila. 517.
    As there was no legal conviction the defendant was entitled to recover back the money paid by him to the alderman. It was not a voluntary payment, but a payment under duress: Harvey v. Girard Nat. Bank, 119 Pa. 212; Hospital v. Philadelphia County, 24 Pa. 229; De la Cuesta v. Ins. Co., 136 Pa. 62; Com. v. Gipner, 118 Pa. 379.

      James A. Chambers, of Akens, Wilkinson, Lockhart & Chambers, for appellee.
    The defendant took no appeal, but caused a writ of certiorari to be issued and had the proceedings reviewed in the court of common pleas and the judgment of that court is final therein and no writ of error lies from the same: Sec. 22, Act of March 20, 1810, 5 Sm. L. 161; 2 Purd. Dig. (13th ed.) 1452; Borough of Mahanoy City v. Wadlinger, 142 Pa. 308; Colwyn Boro. v. Tarbotton, 1 Pa. Superior Ct. 179; Com. v. Davison, 11 Pa. Superior Ct. 130; Crumley v. Crescent Coal Co., 13 Pa. Superior Ct. 231; Spicer v. Rees, 5 Rawle, 119; City v. Duncan, 4 Phila. 145; Com. v. Messinger, 13 Pa. Dist. Rep. 621; Com. v. Davenger, 10 Phila. 478.
    The information was sufficient: Com. v. Burkhart, 23 Pa. 521; Com. v. Schoen, 25 Pa. Superior Ct. 211; Johnston v. Com., 22 Pa. 102; Com. v. Ayers, 17 Pa. Superior Ct. 352; McGinnis v. Vernon, 67 Pa. 149; Williams v. Com., 91 Pa. 493; Respublica v. Arnold, 3 Yeates, 417.
    Where the record of the justice shows sufficient evidence to have warranted a court in submitting the question to a jury the record is sufficient: Com. v. Hardy, 1 Ashmead, 410; Com. v. Liller, 12 Lanc. Bar. 188; Byers v. Com., 42 Pa. 89.
    Upon reversal of a justice’s judgment, restitution is a matter of grace not of right: Schlager v. Borough of Nanticoke, 4 Kulp, 522; Leffingwell v. City of Wilkes-Barre, 4 Kulp, 494; Killeen v. Haddock, 4 Kulp, 408; Allentown v. Reinhard, 2 Lehigh County Law Jour. 154.
    July 15, 1908:
   Opinion by

Morrison, J.,

This is an appeal and certiorari from the judgment of the common pleas dismissing a certiorari to a justice of the peace in the following form: “Now January 13, 1908, the certiorari is dismissed by the court. ” The judgment of the justice of the peace was in a summary proceeding for the collection of a penalty prescribed in an ordinance of the city of New Castle, approved March 22, 1904. While the paper-books print the case as “City of New Castle v. Jacob F. Genkinger,” the record of the justice sent to the court of common pleas, in obedience to the certiorari, entitles the case: “Commonwealth of Pennsylvania v. Jacob F. Genkinger,” and the record shows that the defendant was arrested on a criminal warrant, produced before the justice forthwith and judgment was entered against him as follows: “And I do hereby sentence said Jacob F. Genkinger, defendant, under sec. 3 of said act, to pay a fine of $100 and costs of suit, or in default of payment thereof to be committed to the county jail for a period of thirty days.”

Counsel for appellee moves this court to quash the appeal on the ground that the judgment of the common pleas, in effect affirming the judgment of the justice, is final and no appeal lies therefrom. In support of this motion counsel cites sec. 22, Act of March 20, 1810, 5 Sm. L. 161, and several decisions, some of which are the following: Borough of Mahanoy City v. Wadlinger, 142 Pa. 308; Borough of Colwyn v. Tarbotton, 1 Pa. Superior Ct. 179; Crumley v. Crescent Coal Co., 13 Pa. Superior Ct. 231. But these were civil cases and they are not exempt from the provisions of the act of 1810. In our opinion, however, they do not control the present case. We think it is of the character of cases covered by the following decisions: Commonwealth v. Davidson, 11 Pa. Superior Ct. 130, and cases therein cited; Reid v. Wood, 102 Pa. 312; Commonwealth v. Betts, 76 Pa. 465; Commonwealth v. Nesbit, 34 Pa. 398; Commonwealth v. Gelbert, 170 Pa. 426. The motion to quash is refused because the present case is not within the purview of the act of March 20, 1810.

This brings us to the question of the validity of the judgment of the justice of the peace. The judgment of the court below was entered without an opinion and we are left in the dark as to the reasons of the learned court for that action. On petition, the court had originally awarded the certiorari to the justice, and the record was before the court and a motion to quash that certiorari had been refused, therefore we can only infer that the court below considered the judgment of the justice valid, and by dismissing the certiorari intended its affirmance. The question then is, can that judgment be sustained? Commonwealth v. Ayers, 17 Pa. Superior Ct. 352. The information before the justice of the peace for the commencement of the action was as follows: " Before me, the undersigned, William P. Morrison, alderman and ex officio Justice of the Peace in and for the said City and County, personally came Andrew McGill, Francis M. Biddle and J. H. Miller, who upon their oath administered according to law, deposes and says, that at New Castle in the county of Lawrence on the first day of May, A. D. 1907, the said defendant, Jacob F. Genkinger, being then and there the owner or lessee or the agent of the owner or lessee of a certain building, inclosure, hall, opera house, or other place of entertainment in said City where the public are invited, situated on South Mercer street 'in the city of New Castle and known as the Opera House, did then and there unlawfully and knowingly rent the same or permit it to be used for the purpose of exhibiting and producing persons, pictures, figures, signs or objects, plays, productions or performances, that from their nature and character in whole or in part, and from the reputation and character arid previous career of the persons taking part in said exhibition, play, production, and performance, had a tendency to incite to crime and to debauch and corrupt the morals and manners of the people there assembled, contrary to and in violation of the ordinance of City of New Castle, approved on the 22d day of March, A. D. 1904, and recorded in Ordinance Book, Yol. No. 6, page 220 of the record of ordinances for the City of New Castle.” The record of the justice of the peace, in making up his judgment, does not quote the evidence taken before him nor does it contain a summary or the substance of the same. The material portion of the justice’s record is as follows: Commonwealth of Pennsylvania v. Jacob F. Genkinger charge “renting and permitting the use of his building for an immoral exhibition or show.” Then after some unimportant and immaterial matter comes the following: “From the above testimony, as taken in this case, I do find that the defendant did own a certain building on South Mercer street, in New Castle, Pa., and did rent same building known as the Opera House, for the use of a certain play or'performance to which the public was invited, and said play did there produce certain figures, signs and performances, consisting of dances, songs, motions, acts and remarks, that from their nature and character did have a tendency to debauch and corrupt the morals of the people there attending, and I do find Jacob F. Genkinger guilty of violating section one, Act 1, of ordinances of the City of New Castle, approved March 22, 1904, recorded in ordinance book, vol. 6, page 220, etc., and I do hereby sentence said Jacob F. Genkinger, defendant, under section 3 of said Act, to pay a fine of $100 and costs of this suit, or in default of payment thereof to be committed to the county jail for a period of thirty days.” Now turning to the ordinance recited by the justice we find that sec. 1 thereof makes it unlawful to exhibit or produce in any building, inclosure, hall, opera house or other place of entertainment in said city, to which the public are invited, any person, pictures, figures, signs or objects, plays, productions or performance whatsoever, etc. This section of .the ordinance is limited to the persons who exhibit or produce the things therein prohibited. But the judgment of the justice is against the defendant for renting his opera house to other persons, and it plainly appears that the defendant did not exhibit or produce the things prohibited by said section. The justice having found the defendant guilty of renting his building to others, if he was subject to a penalty therefor, it would have been under sec. 2 of said ordinance, which reads as follows: “It shall be unlawful for the owner or lessee or the agent of the owner or lessee of any building, inclosure, hall, opera house or other place of entertainment in said City, where the public are invited, to knowingly rent the same or permit it to be used for any of the purposes prohibited in section 1 of this ordinance and the use thereof for any such purpose is hereby prohibited.” It will be noticed that the latter section prescribes the penalty for knowingly renting or permitting the opera house to be used for any of the prohibited purposes, but the record of the justice entirely fails to find that the defendant knowingly rented the opera house for any improper purpose. This of itself renders the judgment illegal and void. But the justice’s record is fatally defective under the rule of Commonwealth v. Borden, 61 Pa. 272, ’where Agnew, J., fully considers the essentials of a summary conviction, to wit: “Following this rule we cannot say that the record is insufficient, without requiring a strictness which would defeat most summary convictions. It sets forth the witnesses by name, that they were duly sworn, examined and cross-examined, what their testimony in substance was, and that no testimony was offered or produced by the defense. Had the justice merely set forth what he considered was the effect or the result of the evidence, it would have been insufficient according to some of the authorities cited above. But he gives the substance of the testimony itself. ‘Substance,’ says .Webster in his unabridged dictionary, is the essential part, the main or material part.” The magistrate’s record in the present case does not meet the requirements of the law and the judgment could not be sustained independently of the' fatal error in convicting the defendant under sec. 1 of the ordinance, while his offense, if he committed any, was that described in sec. 2, and he could not be convicted under sec. 2, without the justice finding that he knowingly rented his opera house for the purposes prohibited by the ordinance.

It will be noticed that the justice does not find that the facts set forth in the information are true, nor does he set forth the substance of the testimony of the witnesses. But if he had found the information true it would be insufficient because we consider it hopelessly bad in charging the defendant with a large number of the things in the alternative. The information does not sufficiently charge the defendant with unlawfully and knowingly renting the premises for an improper purpose, because the language is “did then and there unlawfully and knowingly rent the same or permit it to be used for the purpose of exhibiting and producing,” etc. He should have been charged with renting the opera house, if that was the fact, and of permitting it to be used for the improper purpose, if that was what was meant. It is not sufficient to say that he did one thing or another thing in respect to the offense charged. Moreover, the information is bad in charging that the defendant was the owner or lessee or the agent of the owner or lessee of a certain building, inclosure, hall, opera house or other place of entertainment where the public are invited, etc. The information ought to have charged that he was the owner, if such was the fact, if he was the lessee it should be so charged, and if he was the agent it should have so stated; it.is not sufficient to charge owner or lessee or the agent of the owner or lessee of the building.

This leaves undisposed the question of restitution. The evidence does not present the conduct of the defendant in a light favorable to him. We would not reverse the judgment on the merits, but feel constrained to reverse on legal and technical grounds alone. Restitution in a case of this character is within the sound discretion of this court, and therefore we refuse to award restitution.

The judgments of the common pleas court and of the justice of the peace are reversed at the costs of the city of New Castle.


author: Head, J.,

text:
    Flanders, Appellant, v. Snare.

      Negotiable instrument — Bill of exchange — Indorsement—Rubber stamp —Act of May 16, 1901, P. L. 194.
    There is nothing in the Act of May 16, 1901, P. L. 194, styled the “Negotiable Instruments Law,” which prevents the use of a rubber stamp in the indorsement of checks, drafts and notes.
    Argued May 13, 1908.
    Appeal, No. 39, April T., 1908, by plaintiff, from order of C. P. Lawrence Co., March T., 1906, No. 3, refusing to take off nonsuit in case of Lewis E. Flanders v. J. W. Snare.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit against the acceptor of a bill of exchange. Before Wm. E. Porter, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      W. H. Falls, for appellant,
    cited: Commercial Nat. Bank v. Armstrong, 39 Fed. Repr. 684; Robb v. Penna. Co., 3 Pa. Superior Ct. 254; Mayers v. McRimmon, 140 N. Car. 640 (53 S. E. Repr. 447).

      J. Norman Martin, with him A. Martin Graham, for appellee.
    Title to the paper passed to Flanders only by indorsement, so that to prove his title he must prove indorsement: McCormick v. Trotter, Indorsee of Lynn, 10 S. & R. 94.
    July 15, 1908:
   Opinion by

Head, J.,

The plaintiff brings this action as the indorsee of a bill of exchange which had been accepted by the defendant, who, on the maturity of the bill and its presentation, refused payment. Upon the trial, the learned court below entered a compulsory nonsuit and subsequently refused to take it off. We must, therefore, for the purposes of this appeal, consider as verity every material fact that could have been found from the testimony adduced by the plaintiff. They may be thus briefly stated. One Elmer L. Rice was the sole owner of a wholesale jewelry establishment in the city of Detroit and conducted his business under the trade name of American Standard Jewelry Company. In June, 1904, the defendant purchased a bill of goods from the jewelry company, and in payment of the price accepted six bills of exchange, each of like amount, payable respectively in 3, 5, 7, 9, 11 and 12 months after date, and delivered them to the company. Four of these acceptances, along with a quantity of other negotiable paper, were purchased from the jewelry company, by Flanders, the plaintiff. He was in no way connected with the company and his purchase was for value, before maturity, in the ordinary course of business and without notice of any defense on the part of the acceptor. Three of the four acceptances purchased by the plaintiff were paid by the defendant as they fell due.

The jewelry company was not only willing to indorse all of the paper sold to the plaintiff, but actually did indorse it at the time it was delivered, as Mr. Rice himself testifies. The indorsement was in the ordinary form, but was placed on the paper by the use of a rubber stamp prepared for that purpose. When, after proof of all of the facts above stated, the plaintiff offered iii evidence the accepted bill, it was rejected by the learned trial court because the indorsement being in “printed letters either by rubber stamp or type it is not such an indorsement as is contemplated by law.” This conclusion seems to have been predicated largely on his construction of sections 30 and 31 of the Act of May 16,1901, P. L. 194, commonly known as the “Negotiable Instruments Act.” The first named section provides that “an instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to order, it is negotiated by the indorsement of the holder, completed by delivery.” Section 31 provides: “The indorsement must be written on the instrument itself, or upon a paper attached thereto. The signature of the indorser, without additional words, is a sufficient indorsement.”

If we are obliged to say that, by the use of the language quoted, the legislature intended to forbid the use of such a simple and practical mechanical aid as a rubber stamp, in the indorsement of the thousands of checks, drafts, notes, etc., by which the ordinary daily business of the country is conducted, the effect of such a declaration on the commercial world would be both startling and disastrous. We can find nothing in the act itself, nor in the conditions that existed before and since its enactment, to justify us in so declaring. In its very first words the act prescribes that to be negotiable an instrument “must be in writing and signed by the maker or drawer.” Of course, the legislature knew that the necessities of trade had long before brought about the fact that almost the entire bodies of the various forms of commercial contracts in ordinary use were printed. But it would hardly be contended that after the maker of a note or the drawer of a bill had, for his own convenience and in accord with almost universal usage, selected such printed form and launched his obligation on the sea of commerce, he could thereafter be heard to deny his responsibility for it on the ground that the instrument was not “in writing” within the meaning of the act of assembly. We think the legislature has expressly declared otherwise. In the final section of the act the various terms used are defined and it is there stated that “in this act, unless the context otherwise requires, ‘written’ includes printed, and ‘writing’ includes print.” In section 17 of the act the rules that are to govern, where the language of the instrument is ambiguous, are laid down, and clause 4 declares that “where there is a conflict between the written and printed provisions of the instrument the written provisions prevail.” It is, therefore, clear that the legislature has expressly recognized the fact that the primary obligation of a-maker or acceptor of a negotiable instrument is “in writing” within the meaning of the act, even though it be chiefly in print. If so, what is there in the nature of the secondary contract of indorsement, many of which may be ingrafted on a single primary one, to lead us to the conclusion that the legislature intended that the words “writing” or “written” should be interpreted in one way when applied to the instrument itself, and in a much more restricted sense when dealing with the subsequent indorsements that may be found thereon? We find nothing in the context of that portion of the act dealing with indorsements, to warrant us in rejecting the definitions laid down by the legislature itself.

In construing an act of the legislature, dealing with a subject like the one now under consideration, it is well to keep in mind what was said by Coulter, J., in Hill v. Scott, 12 Pa. 168, in deciding the evidential value of book entries written by a lead pencil, viz.: “The law must accommodate itself to the business habits, convenience and customs of the country.” If it were necessary to pursue this branch of the case further, it would be easy to show that in the interpretation placed by the legislature upon its own language, it is in harmony not only with “the business habits and customs of the country,” but with the almost uniform construction of the same words adopted by the courts in the various states of the Union. Many of them may be found collated in 30 Am. & Eng. Ency. of Law, 1303. The reasoning of the opinions in Myers v. Vanderbelt, 84 Pa. 510, and Robb v. Penna. Co., 3 Pa. Superior Ct. 254, would, we think, certainly lead to the conclusion that an indorsement of a negotiable instrument made by the use of a rubber stamp, would have been valid and binding on the indorser who made it, before the passage of the act of 1901, and the legislature did not intend to make any change in that respect.

Of course, we are not to be understood as saying that an indorsement made by the use of a rubber stamp, any more than one made in manuscript, proves itself. In either case the maker or acceptor, when called upon to pay by one claiming to be a lawful holder by virtue of such indorsement, may demand proper proof of the genuineness and authenticity of the indorsement. In such a contract, as in every other, the intention of the parties to bind themselves is the very life of the contract.

In this case, both the indorser and indorsee testified that the former sold and the latter bought a piece of commercial paper in the usual course of business; that the former intended to indorse it and did indorse it by the use of the stamp, and the latter accepted it as a duly indorsed and transferred instrument. If their testimony was truthful, no better evidence, perhaps no other evidence, could be produced to prove that the indorser had adopted that method of entering into the contract of indorsement.

The ownership of a chattel is a mixed question of law and fact. The plaintiff should be permitted to prove and in this case was permitted to offer evidence of all of the material facts upon which the conclusion of ownership of the acceptance might be predicated. More than this he could not ask. The first and second assignments are therefore dismissed, but for the reasons indicated the third, fourth and sixth must be sustained. ' \ i

The order refusing |o strike off the compulsory nonsuit is reversed, the nonsuit is set'•aside, and a procedendo awarded. The costs of this appeal to be paid by appellee.


text:
    Christley, Appellant, v. Butler County.

      Constitutional law — Taxation—Exemption—Act of April 20, 1905, P. L. 246 — Timber lands.

    The Act of April 20, 1905, P. L. 246, entitled, “An Act to encourage the planting and maintaining of sprout forest and timber-trees, and providing that those who thus aid shall be exempt from taxation; defining the duties of the township assessor of taxes, and penalties for violation of this act, ” violates secs. 1 and 2 of article 9 of the constitution of Pennsylvania relating to uniformity of taxation.
    Submitted May 12, 1908.
    Appeal, No. 91, April T., 1908, by plaintiff, from judgment of C. P. Butler Co., June T., 1907, No. 51, for defendant on case stated in suit of A. M. Christley v. Butler County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability for tax.
    The case stated was as follows:
    That A. M. Christley, plaintiff above named, was and is the owner of a tract of 170 acres, more or less, of land, situate in Centre township, Butler county, Pa.
    That the said land was duly and regularly assessed by the proper assessor of said Centre township at the triennial assessment for the year 1907, for purposes of taxation, and the said assessment of the said land duly returned to the county commissioners of the county of Butler, Pa.
    That due and legal notice of the assessment of the said land, and the day and date of the hearing of appeals from assessments as made by the assessor of said Centre township, were duly given by the county commissioners of Butler county, to, and received by, the said plaintiff.
    That upon the day and date of the hearing of the appeals of said Centre township from the taxation and valuation as levied by the said assessor, by the said board of county commissioners, as a board of revision, the said plaintiff appeared before the said board of revision and claimed a reduction of eighty per cent on the tax on the valuation of the said land so as aforesaid made by the assessor of the said township to the amount of eighty per cent on 130 acres of the said tract of land, on the south side thereof, under the provisions of the act approved April 20, 1905, entitled: “An Act to encourage the planting and the maintaining of sprout, forest and timber trees, etc., P. L., 1905, 246, 247.”
    That affiant made, executed and filed with the said board of revision his affidavit of the facts in relation to his said land, and showing-his right to the benefit and privileges and the exemption from taxation, as in the said act of assembly is mentioned and provided.. .
    That the said board of county commissioners sitting as a board of revision, declined and refused to allow the said plaintiff the said reduction of eighty per cent on 130 acres of the said land, under the provisions of the said act of assembly, they, the said board of revision, averring and alleging that the said act of assembly aforesaid was not constitutional, and retained and continued the assessment valuation of the said tract of land so belonging to the said plaintiff, in said Centre township, at the rate and price as fixed by the assessor of said township thereon, and without allowing any rebate or reduction whatever under plaintiff’s claim as aforesaid.
    That plaintiff feeling aggrieved at the action of the county commissioners sitting as a board of revision, and the assessor of the said township in refusing to allow him the reduction on his assessment of the said land, as claimed under the said act of assembly, took his appeal from the said action of the board of revision, within the time, and in accordance with the act of assembly in such case made and provided, and duly filed the same in the court of common pleas of the said county of Butler, at the above-stated number and term, and where the same is now pending.
    That on June 25, 1907, the case was regularly called for hearing by the court in its regular order, when it was discovered that the question involved was solely one of law, and depended upon the construction and constitutionality of the said act of assembly of April 20, 1905, as aforesaid, and it was thereupon agreed by the parties, plaintiff and defendant, and their attorneys, that the matter should be placed in the nature of a case stated for the opinion of court, with the facts as above stated agreed upon.
    Wherefore, if the court be of opinion after hearing and argument of this case that the said act of April 20, 1905, is a valid, constitutional act, then judgment to be entered in favor of the plaintiff, and his rebate on his assessment of the said land so as aforesaid returned, allowed under the provisions of the said act; and if the court be of the opinion after argument that the act is not a valid, constitutional act, then judgment to be entered for the defendant; either party reserving the right to appeal from the opinion of the court.

      Error assigned was the judgment of the court in favor of the defendant.

      A. M. Christley and H. H. Goucher, for appellant.
    The taxing power of the state within the limits of the constitution is bounded only by the necessities of the state and will of the people: Washington Avenue, 69 Pa. 352; Fox’s App., 112 Pa. 337; Weber v. Reinhard, 73 Pa. 370; Kittanning Coal Co. v. Commonwealth, 79 Pa. 100; Kitty Roup’s Case, 81* Pa. 211; Williamsport v. Brown, 84 Pa. 438; Germania Life Ins. Co. v. Com., 85 Pa. 513; Banger’s App., 109 Pa. 79; New Castle v. Cutler, 15 Pa. Superior Ct. 612.
    But absolute equality is impossible of attainment in the application of laws affecting taxation: Com. v. National Oil Co., 157 Pa. 516; Fox’s App., 112 Pa. 337; Erie v. Griswold, 184 Pa. 435; Franklin v. Hancock, 204 Pa. 110.
    The constitution is to be liberally construed in the interest of laws enacted by the legislature for the public welfare: Com. v. Hartman, 17 Pa. 118; Weister v. Hade, 52 Pa. 474.
    All the presumptions are in favor of the validity of statutes, and courts are not to be astute in finding objections to them: Sugar Notch Borough, 192 Pa. 349; Powell v. Com., 114 Pa. 265.

      James B. McJunkin, with him Williams & Mitchell, for appellee.
    Classification must be according to kind, and must not rest on a difference in quantity of the same kind: Cope’s Est., 191 Pa. 1.
    July 15, 1908:
   Opinion by

Morrison, J.,

The single question raised by this appeal is the constitutionality of the Act of assembly of April 20, 1905, P. L. 246, exempting certain real estate from taxation. It must be conceded that without that act of assembly the plaintiff’s real estate was made, by the constitution and the general taxation laws of the state, subject to taxation precisely like similar property of other owners, “within the territorial limits of the authority levying the tax.” We think the act of April 20, 1905, is an attempt by the legislature to exempt a class of real estate from taxation in the teeth of the constitutional mandate withholding from the legislature any such power. That we may deem it wise and praiseworthy in the legislature to encourage the cultivation and preservation of timber for the general public good is beside the question. A laudable purpose does not warrant a disregard of the fundamental law of the state. The statute in question is entitled: “An Act to encourage the planting and the maintaining of sprout forest and timber-trees, and providing that those who thus aid shall be exempt from taxation; defining the duties of the township assessor of taxes, and penalties for violation of this act.” Section 1 of the act provides: “That in consideration of the public benefit to be derived from the planting and cultivation of forest or timber-trees, the owner or owners of any land or lands in this commonwealth who shall plant the same with forest or timber-trees, in number not less than three hundred to the acre, shall have a rebate in his or her or its taxes, to the amount of eighty per centum thereof, thereon, for a period of thirty five years: Provided that such rebate shall not amount to more than forty-five cents per acre,” etc.

The second section of the act provides, “The owner or owners of any land or lands in this commonwealth who shall maintain upon said land or lands sprout forest or timber-trees, in number not less than three hundred to the acre, shall be entitled to and receive the rebate of taxes as provided in section 1,” etc. The proviso in the sixth section of the act is as follows: “Provided, however, that the provisions of this act shall not be construed so as to. exempt from taxation more than five hundred acres, owned by any one person or body corporate, or limited co-partnership or association.”

Sections 1 and 2, of article IX. of the constitution which it is contended are offended against by the act of April 20, 1905, are as follows:

Section 1. “All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws; but the General Assembly may,.by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.”

Section 2. “All laws exempting property from taxation, other than the property above enumerated, shall be void.”

The act of 1905, cannot be upheld as a classification act, because it is not based on any sustainable ground on that theory. This is ruled and settled, we think, in Cope’s Estate, 191 Pa. 1 (see p. 22) where Mr. Chief Justice Sterrett says: “A pretended classification that is based solely on a difference in quantity of precisely the same kind of property is necessarily unjust, arbitrary and illegal. For example, a division of personal property into three classes with the view of imposing a different tax rate on each, — class 1, consisting of personal property exceeding in value the sum of one hundred thousand dollars ($100,000), class 2, consisting of personal property exceeding in value twenty thousand dollars ($20,000) and not exceeding one hundred thousand dollars ($100,000), and class 3, consisting of personal property not exceeding in value twenty thousand dollars ($20,000) — would be so manifestly arbitrary and illegal that no one would attempt to justify it’

“The next clause of section 1, expressly authorizes the legislature to exempt from taxation four specified classes or kinds of property. This specific delegation of authority to exempt impliedly prohibits express exemption from taxation of any other property, but to place this matter beyond the reach of doubt, it is expressly ordained in section 2, that 'all laws exempting property from taxation other than the property above enumerated shall be void.’ ”

We think it quite clear that the legislature has not power to say that farms of fifty acres each shall be exempt from taxation, nor that they shall only be taxed one-half as much per acre as 500 acre farms.

The interesting and able argument of counsel for appellant has not convinced us that the act of 1905 is not in violation of the constitution. We find nothing in the authorities cited in the argument in conflict with our conclusion that the court below did not err in holding said act unconstitutional and void. All of the cases cited rest on different grounds than the act of 1905. Among the cases relied on by counsel are Erie v. Griswold, 184 Pa. 435, affirming 5 Pa. Superior Ct. 132, and Franklin v. Hancock, 204 Pa. 110, affirming 18 Pa. Superior Ct. 398, but, in our opinion, these cases do not meet the difficulty encountered by the plaintiff. They all rest on reasons readily distinguishable from the question raised by attempting to enforce the act of April 20, 1905; that act attempts to exempt landed property from taxation while the constitution says in plain terms that the general assembly is without power to so legislate, except as therein enumerated.

We have already seen that the constitution, sec. 1, art. IX, in part reads: But the general assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.” This is clear language and it embraces all of the property, otherwise subject to taxation, which the legislature has power to exempt from the general burden of taxation. The plaintiff's land being clearly subject to taxation, and not coming within the above-mentioned subjects, which may be exempted by the legislature, it seems to us that his case falls because the act of assembly under which he claims exemption is in conflict with the constitution and, therefore, void. The constitution enumerates the kind of property that may be exempted by the general assembly and this, by implication, necessarily excludes all other taxable property.

Under the act of 1905, the owner of real estate may devote it to the purposes mentioned in the act and thus escape his share of the burden of taxation until he shall have raised a valuable lot of timber, which he may then proceed to sell and put the money received therefor in his pocket. We do not think the legislature has the power to thus aid an owner of real estate to raise timber for his personal profit.

But why should we pursue this subject further? The learned court below adequately considered the single question raised in the record, and gave sufficient reasons for holding the Act of assembly of April 20, 1905, P. L. 246, unconstitutional. We do not think it profitable to say more in view of the clear opinion of the learned judge below.

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

Head, J., dissents.


author: Per Curiam,

text:
    Woods, Appellant, v. Marietta Chair Company.

      Landlord and tenant — Repairs—Covenant—Burden of proof — Evidence.

    In an action by a landlord against a tenant bound for repairs, to recover the costs of certain repairs made by the landlord to protect the building, if the tenant denies in his affidavit of defense that the repairs were necessary, and the amount expended was reasonable, the burden is on the landlord at the trial to show what work was done, and that the price paid for the repairs was a reasonable one.
    Argued May 6, 1908.
    Appeal, No. 232, April T., 1908, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1905, No. 238, on verdict for defendant in case of Stephen Woods, James C. Biggert and John A. Sutton, executors and trustees under the will of Sarah L. Woods, deceased, v. Marietta Chair Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit by a landlord against a tenant to recover cost of repairs. Before Shafer, J.
    At the trial the jury returned a verdict for defendant;
    On a rule for a new trial Shaper, J., filed the following opinion:
    The principal claim of the plaintiff was for the cost of shoring up a wall of a building which defendant had rented from the plaintiff, to prevent its falling down by reason of an excavation made by the adjoining owner for the purpose of building. The lease provided that the defendant should make repairs for the preservation of the building, and also that the defendant should return the building at the end of the term in as good order and repair as when received. Without discussing the claim of the defendant that the shoring up of the wall under the circumstances was not within either of these covenants, it is to be observed that the only evidence offered by the plaintiff to show the amount of the damage sustained by the breach of these covenants, if any, was the statement of the affidavit of claim that the plaintiff asked for bids from several contractors for doing the work necessary for the preservation of the building, and she let the contract to a certain firm for $495, that being the lowest bid, and that this firm did the work necessary to support and preserve the wall according to their contract, and that the plaintiff paid them the $495. This was admitted in evidence as not denied by the affidavit of defense under the rules of this court. The affidavit of defense, however, denied “that the work alleged to have been done by Kerr & Fox was a repair necessary for the preservation of the building, or that the sum of $495 was a reasonable and proper expenditure for the work alleged to have been performed.” We were of the opinion upon the trial and are still of that opinion that under this state of the pleadings the plaintiff was bound to show what work she did, and that what she paid for it was a reasonable price. The defendant’s failure to- deny that she paid $495 was, under the rule, an admission that she paid it as stated, and if there had been no denial that it was reasonable, it might have been presumed to be so, although there was no allegation to that effect, but the denial of the reasonableness of the amount put the plaintiff upon proof which was not furnished. As to the defendant’s set-off for the value of the elevator left by them in the building after the expiration of their lease, we are of opinion that the agree-' ment in the lease that it might be taken away at the expiration of the term did not make it a mere chattel which might be removed at any time, but- was intended to give it or assure to it the character of a trade fixture, especially as it was agreed that all the other additions and improvements to the building should remain. The defendant having allowed the elevator to remain in the building for more than a year before any demand or attempt to remove it, cannot now do so under the agreement authorizing them to remove it “at the expiration of the term.”
    The motion for a new trial and the several motions for judgment non obstante veredicto are overruled and it is ordered that judgment be entered on the verdict on payment of the verdict fee.

      Error assigned was in refusing motion for judgment for plaintiff non obstante veredicto.

      Robert Woods Sutton, for appellant.
    W. A. Way, of Way, Walker & Morris, with him Fleming Nevin, for appellee.
    July 15, 1908:
   Per Curiam,

The assignments of error are overruled and the judgment is affirmed upon the opinion of the learned president judge of the court below.


text:
    Gay v. Chambers, Appellant.

      Equity — Findings of fact — Injunction—Staying sheriff’s sale — Cloud on title.

    On a bill in equity to restrain a sheriff’s sale of real estate on the ground that such sale will cast a cloud upon the complainant’s title, a finding of fact supported by sufficient testimony that the defendant in the execution had no interest whatever in the land, will not be set aside in the absence of manifest error.
    Argued May 4, 1908.
    Appeal, No. 157, April T., 1908, by defendant, from decree of C. P. Indiana Co., June T., 1907, No. 4, awarding an injunction in case of Myrtle D. Gay v. L. E. Chambers.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Telford, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree awarding injunction.

      A. J. Truitt, for appellant.

      D. H. Tomb, with him J. N. Banks, for appellee.
    July 15, 1908:
   Opinion by

Morrison, J.,

This is an appeal by defendant from a final decree restraining him from selling at sheriff’s sale a farm as the property of Charles C. Chambers. The record or paper title to the farm in question stood in the name of the plaintiff, and there was no record or paper title to the same in Charles C. Chambers, at any time, so far as the evidence discloses in this case. The learned court below saw the witnesses and heard them testify, and he considered the written and oral testimony and found as a fact that Charles C. Chambers, defendant in L. E. Chambers’ judgment and execution, had no interest in the land in question that could be sold on said execution, that if all the evidence were before him in a jury trial he would not submit the case to a jury, but would direct a verdict for the plaintiff in the present case.

We find in the record a large number of exceptions and seventeen assignments of error, but do not deem it necessary or profitable to discuss the exceptions and assignments separately. The controlling question is, did the plaintiff present such a clear case that Charles C. Chambers had no interest in the land in question, that to permit it to be sold on the defendant’s execution would harass and annoy plaintiff or cast a cloud upon her title? Was it made clear that the defendant in the judgment and execution had no shadow of title or interest which could be sold on the execution? If so equity will restrain such a sale: Kreamer v. Fleming, 200 Pa. 414; Coal Company v. Ryon, 188 Pa. 138; Taylor’s Appeal, 93 Pa. 21; Barrell v. Adams, 26 Pa. Superior Ct. 635.

The paper title being clearly in the plaintiff and the question of any other interest in the land being in Chambers depended on the oral testimony, and of its credibility and weight the'court below was in the best situation to judge. The learned judge below having found the facts necessary to justify restraining the sale of the plaintiff’s land, our question is not what we might have found on the same evidence, in the first instance, but does the appellant’s exceptions, argument, assignments of error and the evidence convince us of such plain error, on the part of the court below, that the decree should be reversed? We cannot say that the learned court’s findings of fact are not supported, by competent evidence, nor that they are not sufficient to bring the case within the rule where equity will restrain. The findings of fact by a judge in an equity proceeding will not be set aside except for manifest error: Byers v. Byers, 208 Pa. 23; Com. ex rel v. Stevens, 178 Pa. 543; Steinmeyer v. Siebert, 190 Pa. 471; Davis v. Pipe Lines, 34 Pa. Superior Ct. 438.

The learned court below evidently reached the conclusion that the proposed sheriff’s sale of the land, as the property of Charles C. Chambers, would pass no title to any interest therein and that such sale would only harass and annoy the plaintiff and probably cloud her title. In brief, that the sale would be against right and justice and to the injury of the plaintiff. Giving due consideration to the able argument of appellant’s counsel we cannot say, under all the evidence and authority, that there is manifest error in the conclusions of the court or in the decree.

The assignments of error are all dismissed and the decree is affirmed at the costs of appellant.