text:
    Lower Merion Township v. Becker, Appellant.

      Sewers — Townships of the first class — Ordinance penalty — Abts of April 28, 1899, P. L. 104, May 24, 1901, P. L. 294 and April 19, 1905, P. L. 221.
    An ordinance of a township of the first class imposing a penalty of $50.00 upon a landowner for failure to connect his house with a towm. ship sewer, after notice, is a reasonable ordinance, and the penalty may be recovered by the township if there is no evidence that the township commissioners have abused their discretion in requiring the connection with the sewer to be made.
    Argued Dec. 10, 1909.
    Appeal, No. 147, Oct. T., 1909, by defendant, from judgment of C. P. Montgomery Co., March T., 1908, No. 33, on verdict for plaintiff in case of Lower Merion Township v. Henry Becker.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    Swartz, P. J., filed the following opinion:
    After hearing the evidence we instructed the jury to render a verdict in favor of the plaintiff township.
    Lower Merion is a township of the first class. The act providing for the classification of townships, passed April 28, 1899, P. L. 104, gave the township commissioners the power to establish a system of sewers and to require connection to be made with such sewers when necessary to the public health. The Act of May 24, 1901, P. L. 294, amended this provision by declaring, “From time to time to establish and construct a system of sewers and drainage as far as practicable along and within the lines of such of the public roads of the township as may to the commissioners seem advisable, and to permit, and when necessary for public health, to require adjoining and adjacent property owners to connect with and use the same.”
    The Act of April 19, 1905, P. L. 221, empowered the commissioners to prescribe fines and penalties, not exceeding $50.00 in any instance, for the violation of township ordinances, to be collected by suit in the name of the township, as debts in like amount may be sued for under existing laws.
    In the years 1903 and 1904, the township constructed a system of sewers to carry off the domestic drainage. An ordinance of the township was duly passed, in 1903, making it the duty of every owner of land abutting on the street in which a sewer is laid, to connect with said sewer all buildings on his land requiring drainage, if situated within 200 feet of the sewer.-
    The defendant is the owner of two properties in said township, one fronting on Montgomery avenue, in the village of Bryn Mawr; the other on Lancaster avenue in the village of Ardmore. There is a dwelling house on each tract or lot, less than 100 feet from the sewer in the abutting highway. Each house has domestic drainage from the water-closets, bathtubs and kitchen sinks.
    The commissioners enacted an ordinance prescribing a penalty of $50.00 on any property owner who should fail to connect his property with sewer, after sixty days’ notice. On December 12, 1906, the commissioners caused notices to be served on the defendant requiring him to connect his house drainage with the sewers along his properties. A copy of the ordinance of August 1, 1906, accompanied the notice. This ordinance apprised the defendant that the penalty of $50.00 would follow if no connection was made.
    The defendant, with others, was notified that a meeting would be held at the commissioners’ office, of all persons who were requested to connect with the sewer. This meeting was held in June, 1907, to enable the persons in default to show cause, if any they had, why the connections should not be made. The defendant declined to appear.
    On September 4, 1907, the commissioners met and by resolution determined that in their judgment, it was necessary for the public health that the defendant’s buildings should be connected with the sewers. The township solicitor was instructed to proceed against the defendant for the collection of the penalty prescribed by the ordinance of August 1, 1906. This order applied to each case where the notice was given. Suit was not brought until November 21, 1907. Again the defendant did not appear to make any defense. No complaint • is made as to the regularity of the proceedings. The defendant applied to the court for an appeal and in his application for the allowance of the appeal sets forth reasons that should have been presented to the justice at the hearing. If the facts alleged constituted a defense, the justice should have passed upon them. The appeal was improvidently allowed, so far as any issue of fact arises.
    At the trial of the case before the court and jury, the plaintiff township showed that the defendant’s properties abutted on the principal highways of the township, that the properties were situated, the one, in the village of Bryn Mawr, the other in the village of Ardmore. Lower Merion township is thickly populated, especially so in and about Bryn Mawr and Ardmore. The properties are urban and the residents seek these neighborhoods for homes with healthful surroundings. Practically all the residents along these principal thoroughfares connected their house drainage with the sewers provided by the township. The defendant runs his house drainage into cesspools and at times pumps the contents therefrom to water his garden or lawns. The houses along these highways are numerous, although some of the owners have grounds of considerable extent and these suburban homes are the admiration of visitors from our county and other distant parts. One of the defendant’s properties contains about seven acres, but this is not agricultural ground. The land is far too expensive to be used for that purpose. The sewage from his house is just as objectionable to the health of his neighbors as the sewage of any house along the street, if allowed to percolate from the cesspools. If there is no hecessity for the defendant’s connection then all the property owners along the highways have no use for the sewers, for they can all discharge their drainage into cesspools. The legislature recognized the necessity when it provided for sewer systems in townships of the first class. The people in Lower Merion recognized the necessity when they incurred the .big expense of constructing these sewers and connecting with them. Blouse sewage is a dangerous element in all thickly settled communities. It is the duty of eveiy municipality to make police regulations to protect the public health, and private property rights are held subject to such reasonable regulations. The authorities are not compelled to wait until a nuisance, per se, is established upon the property of an urban resident. It is their duty to formulate regulations that will prevent such an occurrence. The resident who would have the benefits of the surroundings in Bryn Mawr must conform to the necessary regulations that make the neighborhood so desirable. If it be said that we are going beyond the evidence submitted, we answer that there is enough testimony before us to draw the conclusions we have indicated. The conditions are not special to Bryn Mawr and Ardmore but they apply to every community in a first-class township where there are large villages and closely built-up sections used for suburban homes.
    The sole question before us, is, whether the court or jury can say, that under the conditions established and uncontradicted, the commissioners were in error when they determined under their judgment and discretion, that it was necessary for the public health that the defendant should connect his buildings with the sewer provided by the township.
    We must bear in mind that we are not dealing with an arbitrary action of the township commissioners. They have legislative authority for all that they required the defendant to do. The legislature determined that sewers were necessary in townships of the first class, otherwise it would not have provided for their construction. It also declared that in certain instances, it might be necessary to compel owners of houses to make connections. It vested in the commissioners the right to determine when such necessity arose, and provided the penalty by which the ordinance of the commissioners should be enforced. Even if the ordinance requiring all owners, within 200 feet of the sewer to make connections is too drastic, the defendant cannot complain, for it was not enforced against him until he was afforded a hearing and until the commissioners considered his property specifically and determined that the connection was necessary for the public health.
    The ordinance, as interpreted by the commissioners, is certainly reasonable. It was not only the right of the commissioners, but their duty to enforce the connection if the public health, in their judgment, demanded it.
    We allowed the defendant to show that the discretion vested in the commissioners was abused when they required him to connect with the sewers. lie failed to show any abuse of discretion. On the contrary, all that he submitted, in our opinion, strengthened the judgment of the commissioners.
    In Fisher v. Harrisburg, 2 Grant, 291, the court said, “Where the municipal legislature has authority to act, it must be governed, not by our, but by its own discretion; and we shall not be hasty in convicting them of being unreasonable in the exercise of it.” Again, in Phila. v. Brabender, 201 Pa. 574, the court say, “The limitations of the powers conferred upon municipal corporations are, that they must be exercised in a reasonable, lawful, and constitutional manner. If their limitations are not transgressed courts cannot interfere with the ordinances of the municipality, for to the mayor and council must be left a reasonable discretion, and for the proper and wholesome exercise thereof, they are accountable not to the courts, but to the people:” O’Maley v. Freeport, 96 Pa. 24; Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355.
    Courts will give a liberal construction to health and sanitary regulations of a municipality. “ One of the chief purposes for the institution of municipal government is the conservation of the public health and safety. No more important obligation is confided to municipal corporations. The nature of the ordinances they shall adopt for this purpose is largely a matter within the discretion of the local authorities. Unless they are clearly unreasonable and arbitrary, or demonstrably violative of some constitutional provision intended to protect the liberty of the individual or property rights, they will be sustained:” McQuillin on Municipal Ordinances, p. 681. If it be said that the action of the commissioners interferes with the property rights of the defendant, we answer every'man holds his property subject to the police power — -a power in the exercise of which a man’s property may even be taken away from him. The police power is founded upon the maxim, “so use your own property as not to injure the rights of another.” Private interests must be subservient to the general interest of the community.
    The Act of our legislature approved May 21, 1901, P. L. 265, empowered the authorities of any borough to compel the owners of properties abutting on a public sewer to make connection with such sewer. There is no proviso in the act that the municipal authorities must first determine whether the public health demands such connection. An act similar to this was held valid in Commonwealth v. Roberts, 155 Mass. 281. The act of 1901 shows the trend of public opinion. It is a declaration by the legislature that house sewage is a menace to the public health and should be discharged into a public sewer, whether the abutting owner approves or disapproves of such action. If the vesting of an unrestricted power in the municipality to compel all abutting owners to connect with a sewer is not violative of the rights of property, then a power which cannot be exercised without a hearing of the owner and without a deliberative judgment of the commissioners that the public health demands such connection, cannot be disturbed unless there is evidence that the exercise of the power was attended with fraud, misconduct, or abuse of discretion.
    It is said the jury should have determined whether the property of the defendant was in such condition as to require connection for the protection of the public health. There were no facts in dispute. If the jury must review the judgment of the commissioners in every case, then the jury may find that in one case the connection is necessary, and the next jury, in an exactly similar case, may say there is no necessity for a connection. There would be no uniformity in the operations of the sewer system, and the commissioners would be at a loss in determining whether there should or should not be a connection in a given case. The standard of necessity would naturally shift with each successive jury. What is a reasonable exercise of the police power is a matter for the court: Kneedler v. Norristown, 100 Pa. 368. "Under our constitutional system the judiciary determines what are the subjects and objects upon which the police power is to be exercised and the reasonableness of that exercised: Mc-Quillin on Municipal Ordinances, p. 668. Even the court is confined to the inquiry whether the local government has kept within the limits that binds its jurisdiction as they are defined by the constitution and the laws of the state but, subject to these restrictions, the local government may determine what is best calculated to promote the security, the comfort and convenience of the inhabitants: Livingston y. Wolf, 136 Pa. 519.
    We repeat that the plaintiff township does not attempt to enforce the ordinance literally or in its severest terms. It did not arbitrarily compel all abutters to connect with the sewers. It determined, after hearing and deliberation, that it was necessary for the public health that the defendant should make the connections. This was a direction in strict compliance with the Act of assembly of May 24, 1901, P. L. 294, which says, “the commissioners shall permit connections and where necessary for public health, require adjoining and adjacent property owners to connect with and use the sewers.”
    Who was to determine whether the connection' was necessary for the public health? Not the legislature, but the commissioners to whom the question was referred. How can the court say that the maintenance of three cesspools on the defendant’s lot is not a menace to public health? Especially so, where the defendant admits that at times the contents of the three pools are pumped upon the surface of his lot.
    We think no good cause was shown for the allowance of the appeal, and when the appeal reached the common pleas; no cause was shown to set aside the judgment of the commissioners, or the judgment of the justice who imposed the penalty.

      And now, June 7, 1909, the motion for judgment non obstante veredicto is overruled, and it is ordered that judgment be entered upon the verdict of the jury.

      Error assigned was in directing a verdict of f 100 for the plaintiff.

      W. Horace Hepburn, Jr., with him Franklin L. Wright, for appellant.
    — The ordinance is invalid: Lower Merion Twp. v. Postal Telegraph Cable Co., 25 Pa. Superior Ct. 306; Philadelphia v. Scott, 81 Pa. 80; Philadelphia v. Provident Life & Trust Co., 132 Pa. 224; Com. v. Yost, 11 Pa. Superior Ct. 323; Blucher v. Com., 103 Pa. 528; Com. v. Ketner, 92 Pa. 372; Com. v. Standard Oil Co., 101 Pa. 119; see also Philadelphia v. Costello, 17 Pa. Superior Ct. 339.
    Two cases in Pennsylvania have gone so far as to say that the municipal authorities ipso facto cannot declare a thing to be a nuisance unless it was actually a nuisance itself: Pittsburg v. Keech, 21 Pa. Superior Ct. 548; Bryan v. Chester, 212 Pa. 259.

      Rowland Evans, township solicitor, for appellee,
    cited: Livingston v. Wolf, 136 Pa. 519; Fisher v. Harrisburg, 2 Grant, 291; Com. v. Roberts, 155 Mass. 281 (29 N. E. Repr. 522); Nicherson v. Boston, 131 Mass. 306; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Com. v. Jackson, 34 Pa. Superior Ct. 174.
    March 3, 1910:
   Opinion by

Beaver, J.,

The opinion of the court below, overruling the motion for judgment non obstante veredicto, is its own vindication. It deals so fully and so convincingly with the real questions involved in the case that it is not necessary for us to enter into details) anticipating its publication in full in the report of the case.

The Act of April 28, 1899, P. L. 104, entitled, “An act to provide for the classification of the townships of the commonwealth, with respect to their population, into two classes, and to prescribe the form of government for townships of each class,” provides in its seventh section that: “All corporate power, authority and franchise of the township (of the first class) shall be vested in and exercised by the Board of Township Commissioners; and the said board shall have particularly the following powers: .... 3rd. To establish a system of sewers and drainage, and to require connection to be made with such sewers when necessary for the public health, and to provide for the cost of the construction, maintenance and repair of such sewers, in whole or in part, by an equitable assessment on the properties benefited thereby, in such manner as may be prescribed by ordinance, for which assessments municipal liens may be filed in the court of common pleas of the proper, county, on which proceedings shall be had as provided by existing laws. And the board shall also have power to enter into contracts with any adjoining municipality, and also with any person or corporation, for the carrying off of the sewage from the limits of the township. 4th. To make regulations respecting pig pens, slaughter houses, manure pits, drains, cesspools and manufactories that are offensive, to abate nuisances prejudicial to public health and public safety, and to collect the cost of such abatement from any person who may be responsible for having created the nuisance. Also to prohibit or regulate the running at large of animals.”

This act was amended by the Act of May 24, 1901, P. .L. 294, in the third paragraph of sec. 7, so as to read: “3rd. From time to time to establish and construct a system of sewers and drainage, locating the same as far as practicable along and within the lines of such of the public roads of the township as may to the commissioners seem advisable, and to permit and, where necessary for the public health, to require adjoining and adjacent property owners to connect with and use the same; all persons, so connecting, paying in addition to the cost of making such connection, such monthly or annual rate as shall be prescribed by ordinance, and which shall constitute until paid a lien against the property so connecting with such system, and the amount thereof may be recovered by due process of law. Where it shall be reasonably impracticable, in the judgment of the commissioners, in any part of such system to carry such sewers or drains along the lines of public roads, it shall be lawful for the commissioners to locate and construct so much of the same as may be necessary through private lands.”

The Act of April 19, 1905, P. L. 221, amended the ninth clause of the seventh section of the Act of April 8, 1899, P. L. 104, as follows: “Ninth. To prescribe fines and penalties, not exceeding fifty dollars in any instance, for the violation of township ordinances, which fines and penalties may be collected by suit, to be brought in the name of the township, before any justice of the peace or magistrate, in like manner as debts of like amount may be sued for by existing laws.”

No attack, as we understand it, is made upon the constitutionality of the act of 1899 classifying townships. Indeed the principle of Wheeler v. Phila., 77 Pa. 338, has become so thoroughly imbedded in the statutes and decisions of the commonwealth that it would be useless to raise the question regarding the constitutionality of reasonable classification at this day.

The appellant seems to misconceive the real significance of the question involved. In his argument he says: “It can readily be seen, from the statement of the question involved, that the proposition on which the appeal is based, and the question raised in this case, is, whether dr not the Township of Lower Merion had a right to impose upon a property owner a fine of fifty dollars, regardless of the question as to whether mr not his house was a nuisance.” The appellant’s view is entirely too narrow. The question removed by appeal to the court of common pleas was not whether or not the defendant had committed a nuisance, but whether or not he had connected with the sewer established by the township authorities and which they had distinct authority to establish under the third paragraph of the seventh section of the Act of April 28, 1899, P. L. 104. The appellant quotes the fourth paragraph of this section as if the power and authority of the commissioners of the township had been exercised under its provisions instead of those of the third, amended by the act of 1901. The rights and duties conferred and imposed upon the commissioners under both of these paragraphs come clearly within the general police power of the state, the exercise of which is properly vested in municipal authorities. There is no attack upon the ordinances passed by the commissioners providing for sewers on the ground of their unreasonableness.

“The principle that matters of merely local concern should be left to the control of the people to be affected, is recognized and acted upon in our system of government. To this end cities and boroughs have their legislative as well as their administrative officers, and the municipal legislature may make laws in regard to all subjects of a municipal character, and enforce them by appropriate penalties. The local government must keep within the limits that bound its jurisdiction as they are defined by the constitution and laws of the state; but, subject to these restrictions, it may determine what is best calculated to promote the security, the comfort and the convenience of the inhabitants:” Livingston v. Wolf, 136 Pa. 519.

The court, in its opinion discharging the rule for judgment, well says: “The ordinance, as interpreted by the commissioners, is certainly reasonable. It was not only the right of the commissioners, but their duty to enforce the connection if the public health, in their judgment, demanded it. We allowed the defendant to show that the discretion vested in the commissioners was abused when they required him to connect with the sewers. He failed to show any abuse of discretion. On the contrary, all that he submitted, in our opinion, strengthened the judgment of the commissioners.”

The question as to whether or not the defendant’s property, in the condition in which it was maintained, was itself a nuisance, as we understand it, did not arise. It was a question as to whether or not the defendant complied with the ordinance in regard to the connection of his premises with the public sewer, and as to his failure ,to do this there was no denial.

As already intimated, the opinion of the court below fully covers everything essential to the proper disposition of the case and, in our judgment, requires no further comment

Judgment affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Boggs v. Walton.

      Execution — Distribution—Priority—Fraud—Agreement between sheriff and plaintiff.

    1. Where the plaintiff in a junior execution seeks to postpone a senior writ in the distribution of the proceeds of a sheriff’s sale of personal property, he must show that the prior writ was not used in good faith to enforce the payment of the judgment, but was controlled in fraud of the rights of creditors whose writs were subsequently issued.
    2. Where the plaintiff and defendant agree that property levied .upon, and as to which execution has been stayed pending an appeal, shall be sold by the sheriff and the proceeds held by him until the appeal is determined, and the owner of a junior writ assents to the arrangement with a reservation of a right to raise the question whether the agreement was not an abandonment of the levy, the court will not on distribution find that the agreement was in any way a fraud on the rights of the junior execution creditor, or that it gave such creditor any priority over the senior writ.
    Argued Oct. 28, 1909.
    Appeal, No. 2, Oct. T., 1909, by Isenberg Milling Company, from decree of C. P. Huntingdon Co., Feb. T., 1907, No. 8, overruling exceptions to auditor’s report in case of W. H. Boggs v. Annie L. Walton and T. R. Walton.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to report of Howard L. Henderson, Esq., auditor appointed to distribute proceeds of sheriff’s sale.
    From the record it appeared that W. H. Boggs entered a judgment against Annie L. Walton and Thomas R. Walton on June 5, 1903. On December 7, 1906, he issued a fi. fa. and levied upon the horses, wagons and other articles in a livery stable in which Annie L. Walton claimed to have an interest. Subsequently the court opened the judgment and pending an appeal the execution was stayed. After the stay of the execution the plaintiff and the defendants on February 7, 1907, entered into an agreement in writing by which the sheriff was authorized to sell the property and hold the proceeds until the appeal was determined. Prior to this time on January 26, 1907, the Isenberg Milling Company had obtained judgment against Annie L. Walton and Thomas R. Walton. On this judgment they issued execution on Februaiy 14, 1907. On February 23, 1907, the Isenberg Milling Company and W. H. Boggs entered into an agreement by which the sale was to be conducted by the sheriff under the original agreement of February 7, but the Milling Company reserved the right to raise the question whether the agreement of February 7 was a postponement or abandonment of the lien of the senior writ. The sale was held on February 23,1907, and Howard L. Henderson, Esq., was appointed auditor to make distribution. He reported that no fraud had been committed upon the rights- of the junior execution creditor and accordingly awarded the fund to the senior writ.
    Exceptions to the auditor’s report were dismissed by the court.

      Error assigned was in dismissing exceptions to auditor’s report.

      James S. Woods, with him W. H. Woods, for appellant.—
    The senior writ was postponed: Reamer’s App., 18 Pa. 510; Parys & Co.’s App., 41 Pa. 273; Dunham v. Rundle, 4 Pa. Superior Ct. 174; Bingham v. Young, 10 Pa. 397; Gibbs v. Neely, 7 Watts, 305; Keyser’s App., 13 Pa. 409; McMichael v. McDermott, 17 Pa. 353.

      H. H. Waite, for appellee.
    — Under the law as laid down by recent decisions of this and the Supreme Court of Pennsylvania, there must be fraud in fact shown before the lien of a senior execution will be postponed to that of a junior: Broad-head & Sons v. Cornman, 171 Pa. 322; Dunham v. Rundle, 4 Pa. Superior Ct. 174; Platt-Barber Co. v. Groves, 193 Pa. 475.
    March 3, 1910:
   Opinion by

Henderson, J.,

The appellant seeks to postpone the execution of the appellee to a junior writ in a proceeding to distribute the proceeds of a sheriff’s sale of personal property. To accomplish this result it is necessary that he make it appear that the prior writ was hot used in good faith to enforce the payment of the judgment but was controlled in fraud of the rights of creditors whose writs were subsequently issued. Where the purpose of the execution creditor is to obtain security for his debt instead of satisfaction thereof and the execution is used to that end the object of the process is perverted and a fraud is thereby perpetrated on other creditors. Upon like principle where the execution plaintiff directs or consents that the sheriff allow the defendant to remain in possession of the goods or to sell at private sale the prior writ may be postponed. Continued possession and control of the property levied on offer a temptation to concealment and to a disposal of the property to the prejudice of creditors, and the law, therefore, forbids such use of legal process. The principle on which the cases all rest is that there must be a bona fide intention to collect the debt and that the intention of the creditor is a question of fact to be determined from the evidence in the particular case: Platt-Barber Co. v. Groves, 193 Pa. 475; Wadas v. Sharp, 27 Pa. Superior Ct. 233. It is not claimed that any indulgence was given to the defendants by the plaintiff in the senior writ or that they were permitted by the plaintiff to remain in the possession and control of the property after the levy. On the contrary, the plaintiff’s hands were tied by the defendants by the proceeding contesting the plaintiff’s right to execution, and the determination of that question was delayed by an appeal to the Superior Court. While the case was there pending the plaintiff and defendants entered into the agreement, exhibit “A.” This paper authorized the sheriff to sell the property levied on for cash or on time with approved security, the proceeds of the sale to be treated by the parties and by the court as cash in the hands of the sheriff to be disposed of after the determination of the appeal in the Superior Court. The property levied on was principally the half interest of one of the defendants in a stock of horses, harness, vehicles, etc., contained in a livery stable. The stock was depreciating in value because of the expense of its maintenance, and the agreement was therefore advantageous to the creditors as well as the defendants. A second execution was issued against one of the defendants in the first writ and a third execution against both of the defendants in the first writ. The plaintiffs in the subsequent writs gave their written assent to the sale by the sheriff in accordance with the terms of the agreement referred to, and the sheriff made return that he sold the property of the defendants by virtue of fi. fa. No. 8, February Term, and No. 3 of May Term, 1907. The writ first named was that of the appellee and the other that of the appellant. The assent of the latter to the sale contained a proviso that such assent should not amount to a waiver of the right of the assenting creditor to allege on distribution that the making of the agreement, exhibit “A,” was an abandonment of the levy and writ by the plaintiff. The auditor found that the Boggs writ was used in good faith for its legal purpose, that there was no fraud involved in the agreement between the plaintiff and defendants and that it was for the best interest of the defendants and the creditors that the property be sold and concluded that the first writ was not postponed in favor of the appellant’s writ and made distribution accordingly. We do not find anything in the evidence to justify a suspicion that the action of the execution creditor was not in good faith for the purpose of collecting his debt, and the return of the sheriff shows that the sale was made on executions then in his hands of which the appellant’s was one. Having assented to the sale, the appellant is in the same situation as the appellee. He could not give encouragement and approbation to the sale and permit his own writ to be used in connection therewith and then impute bad conduct to the plaintiff in the first execution with whom he had co-operated in producing the sale. We do not discover anything in the facts established before the auditor which would postpone the first creditor because of his participation in the agreement, exhibit “A,” but if this paper had the effect of postponing him as to a nonconcurring creditor the appellant is not one of that class and cannot take advantage of the prior creditor’s participation in the agreement for the sale.

The decree is affirmed at the cost of the appellant.


text:
    Pierce, Appellant, v. Boalick.

      Execution — Debtors exemption — Dispute as to title — Fraud.
    1. Where the defendant in an execution seeks to have the inquisition set aside on the ground that she had a life estate only in the land levied upon, and the court decides that she has a fee, and it appears that the deed construed by the court was made before the debt for which the judgment was recovered was contracted, the plaintiff in the execution cannot resist a claim by the defendant for the debtor’s exemption, on the ground that the defendant in the former proceedings had attempted to conceal her property and defraud the plaintiff.
    2. Where the defendant in an execution claims the benefit of the debtor’s exemption, the burden is always on the plaintiff to show that the exemption ought not to be allowed.
    Argued Oct. 29, 1909.
    Appeal, No. 104, Oct. T., 1909, by plaintiff, from order of C. P. Centre Co., Aug. T., 1903, making absolute rule for debtor’s exemption in case of Rosa L. Pierce v. Theodora Boalick.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule for debtor’s exemption out of real estate.
    From the record it appeared that on April 23, 1896, the widow and the heirs at law of William Simler, father of the defendant, Theodora Boalick, joined in a conveyance of the land under levy to J. Thomas Boalick, husband of the defendant in trust for the sole and separate use of Theodora Boalick for life, and after her death in trust for the heirs of her body. The defendant became indebted to the plaintiff in 1903, and judgment was entered against the defendant in that year. The property was levied upon and the defendant took a rule to set aside the inquisition on the ground that she had only a life estate in the property. The court, however, found that she had an undivided one-third interest in it as the heir at law of her father, apart from the interest which she had under the deed. The court accordingly discharged the rule to set aside the inquisition. Subsequently the defendant took a rule to show cause why 1300 of the proceeds of the sale of the real estate should not be paid to. her by the sheriff. The plaintiff in the execution filed an answer denying the defendant’s right to the exemption on the ground that she had attempted to conceal her property and defraud the plaintiff in her right.
    The court made absolute the rule for the debtor’s exemption.

      Error assigned was the order of the court making absolute the rule for the debtor’s exemption.

      C. S. McCormick, for appellant.
    — The action of the defendant was an attempted fraud on plaintiff’s rights: Moore v. Baker, 2 Pa. Dist. Rep. 142; Strouse v. Becker, 38 Pa. 190; Emerson v. Smith, 51 Pa. 90; Huey’s App., 29 Pa. 219; Markley v. Spires, 2 Pa. C. C. Rep. 424; Dieffenderfer v. Fisher, 3 Grant, 30; Larkin v. McAnnally, 5 Phila. 17; Gilleland v. Rhoads, 34 Pa. 187.

      N. B. Spangler,, for appellee,
    cited: Sener v. Scherff, 10 Pa. C. C. Rep. 529; Harris v. Shuster, 3 Pa. Superior Ct. 331.
    March 3, 1910:
   Opinion by

Henderson, J.,

The defendant’s claim for exemption was recognized by the sheriff and competent persons were summoned to make the appraisement required by the Act of April 9, 1849, P. L. 533. The property levied on was real estate, and the appraisers determined against a division of it. Thereupon after the sale the defendant obtained a rule on the sheriff to pay to her the amount of the exemption allowed by the statute. The plaintiff filed an answer contesting her right to exemption on the ground that she had denied that she had any right, title or interest in the property levied on and that she had endeavored to cheat her creditors. The answer also set forth the title of the defendant to the property sold by the sheriff. No testimony was taken, and the case was disposed of by the court on the petition for the rule and answer. The regularity of the appraisement is not questioned, and the only matter for consideration. is whether the defendant has lost her right of exemption. It was the duty of the sheriff after notice from the debtor to cause the real estate to be appraised as provided by the third and fourth sections of the exemption act unless an express waiver or some other act of the defendant Was brought to his notice which clearly deprived the defendant of the right of exemption. The plaintiff might have moved to set aside the appraisement for the alleged reason that she had attempted to conceal her property and obstruct the collection of the debt which is an appropriate practice in such cases: Williamson v. Krumbhaar, 132 Pa. 455; but she chose rather to meet the question on the defendant’s rule. In either proceeding the burden was on the plaintiff to show that exemption ought not to be allowed. If testimony were needed in support of any allegation made in denial of the defendant’s right it was the duty of the plaintiff to produce it. There was nothing before the court which would have justified a decree against the defendant’s claim. If we consider the plaintiff’s case as supported by evidence, however, the act alleged was not fraudulent. The defendant’s deed was a matter of record when the plaintiff’s debt was created, and the latter had constructive notice at least of the character of the title. The contention of the defendant that the property was not subject to a levy because she was a cestui que trust merely was a question of law on which the judgment of the court was asked and given. But this was in no sense a concealment of her property, nor a fraud on the plaintiff. The benevolent provision of the exemption act is not to be withheld except for clear and substantial reasons shown to exist by him who would deny to a debtor its benefits, and such reasons have not been presented in this case.

The decree is, therefore, affirmed.


text:
    Ziegler, Appellant, v. Lancaster County.

      Public officers — Sheriff—Compensation—Act of March 31, 1876, P. L. 13.
    1. Under the Act of March 31, 1876, P. L. 13, regulating the salaries of county officers and the payment thereof in counties exceeding 150,000 inhabitants, an officer is entitled to be paid his salary for each year out of the fees earned during his term of office, and the act permits the application of the excess of fees in a subsequent year to a deficit in a preceding year.
    . 2. Where-there is a deficiency in the payment of the sheriff’s salary for a particular year, the county controller may show such deficiency in his report, but he has no power to report that the county owed the ■ sheriff such deficiency, for as a matter of fact the county at the time owes the sheriff nothing. If deficiencies occur in two successive years, but there is an excess in the third year, such excess may be applied to make up the deficiencies of the two previous years; and the sheriff cannot be deprived of the right to such an application of the excess on the theory that the reports of the county controller for the two previous years were conclusive, inasmuch as he had taken no appeal from them. The county controller had no authority to report that the county owed the sheriff anything, and his omission to do so was no ground for an appeal by the sheriff.
    Submitted Nov. 11, 1909.
    Appeal, No. 193, Oct. T., 1909, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1909, No. 60, for plaintiff on case stated in suit of M. T. Ziegler v. Lancaster County.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver find Porter, JJ.
    Judgment modified.

      Case stated to determine liability for sheriff’s salary. Before Hassler, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff for $500, and in not entering judgment for him for $1,030.20.

      W. T. Brown and W. U. Hensel, for appellant.
    — The county controller has no power nor authority, by allowance or dis-allowance, to fix the legal salary of the sheriff.

      N. Franklin Hall, county solicitor, for appellee.
    — It is very clear that the appellant cannot recover in this case for the years of 1906 and 1907, because his accounts having been passed upon by the controller of the county of Lancaster, his reports, being unappealed from, are conclusive: Martin v. Luzerne County, 13 Pa. Dist. Rep. 800; Northampton County v. Herman, 119 Pa. 373.
    March 3, 1910:
   Opinion by

Henderson, J.,

This case originated in an appeal from the report of the county controller for the year 1908. A case stated was agreed upon in lieu of the issue provided for by the statute, and this appeal is taken from the judgment of the court on the case stated. Several issues were involved, the principal one of which related to the payment of the salary of the appellant who was sheriff of the county for the years 1906, 1907 and 1908. Lancaster county has a population exceeding 150,000 and less than 250,000.' It is, therefore, subject to the Act of March 31, 1876, P. L. 13, regulating the salaries of county officers and the payment thereof in counties exceeding 150,000 inhabitants, and the Act of June 27, 1895, P. L. 403, creating the office of county controller. The former provides that all salaries fixed thereby shall be paid from the amounts paid into the proper county treasury from the respective offices, after ascertaining and deducting the amount due the deputies and.clerks in each office and if there has not been a sufficient sum from fees received and paid in or earned and due by the county for services rendered to pay the full amount of the salary of any officer holding any of said offices, after deducting the amount due the deputies and clerks, such officer will receive only such proportion of his salary as shall be equal to the aggregate of the net fees received and earned by him as aforesaid during his term of office during such month. The same section further provides, however, that if the fees in any subsequent month or months shall exceed the amount of the expense and salary for such month the deficit of such salary for such preceding month shall be made up from such excess. The sixth section of the latter act makes it the duty of the county controller to make a report to the court of common pleas of the county setting forth all receipts and expenditures of the county for the preceding year in detail, together with a full statement of the financial condition of the county, and the fifteenth section invests the controller with all the duties devolved on county auditors by the act of April 15,1834, so far as regards county accounts. Pursuant to the authority thus conferred the county controller audited the accounts of the sheriff for the years 1906, 1907 and 1908, and from the report for the last year the appeal was taken. It is agreed in the case stated that for the year 1906, the sheriff received the sum of $5,246.92 as salary, that being the amount of fees collected and paid in by him after deducting the amount due the deputies and clerks in his office. For the year 1907, the amount of fees collected and paid in by him in excess of the amount due the deputies and clerks was $6,191.58, of which amount the controller applied $191.58 on the deficit of his salary for 1906. In 1908 he collected $6,964.20 in excess of payments to deputies and clerks, of which amount the controller expressly awarded him $6,000 as salary and $561.50 to apply on the deficit of his salary for 1906, and the balance of fees, to wit, $402.70, was awarded to the county. No appeal was taken by the sheriff from the report of the controller for the years 1906 and 1907, and the question now is whether he is concluded thereby from demanding that the excess of fees paid in for the year 1908, be applied to the deficit of salary for the years 1906 and 1907. We think it quite clear that under the act of 1876 an officer is entitled to be paid his salary for each year out of the fees earned during his term of office. The language of the act so declares; and that it is only susceptible to such interpretation is shown in the convincing opinion in Wiegand v. Luzerne County, 7 Kulp, 183, delivered by the president of this court when presiding in Luzerne county. The learned judge of the court below gave the same interpretation to the act, but was led to the conclusion at which he arrived by what we consider to be a misapprehension of the duty of the controller as applied to the subject of officers’ salaries under the act of 1876. He held that it was the duty of the county controller to ascertain what amount was due the sheriff for unpaid salary for the years 1906 and 1907, and to report the same to the court, and that as there was no appeal from his report for these years there was in effect an adjudication against the sheriff that no balance of fees was due. The provision of the forty-eighth section of the act of 1834 requiring county auditors to report the balance due from or to the county officers named, including the sheriff, has evident relation to amounts for which the county and the officers named were liable and as to which the reports of the auditors have the effect of a judgment, but we have to do here with a salary fixed by statute, credits upon which are determined by the amount of fees paid in to the county treasurer and that, too, with reference to a salary which may become larger because of an increase of business in a subsequent year of the term. While the statute fixed a maximum amount which the officer could receive as compensation it, at the same time, said he could only receive an amount equal to that which he earned as fees and paid into the treasury. When, therefore, the controller’s report for 1906 showed that the sheriff received $5,246.92 it did'not follow that the sheriff was then entitled to the difference between that amount and $6,500. That sum was not then due from the county to him. It was in no sense a debt for which the county was liable. If the succeeding years of the term produced a result in fees which would make up the deficit for the preceding year in whole or in part the sheriff would be entitled to such application of the money not because it was due to him at the time the first controller’s report was filed, but because the act of 1876 authorized the appropriation of a surplus in a succeeding year to a deficit in a preceding year. It was not the duty of the controller in presenting his report for 1906 to report that the county owed the sheriff any unpaid salary or that any unpaid salary was due to that officer, for as the fact then stood nothing was due. All the sheriff was entitled to for the period that report covered was what he had earned during the year. If the controller had reported that there was a balance of unpaid salary due the sheriff it will hardly be contended that such report would have charged the county with the payment of the difference between the maximum salary and the amount of fees paid by the sheriff. The statute, not the controller, fixes the amount to which the sheriff is entitled, and the controller having certified that amount and there being no dispute with reference thereto that ended the right of the sheriff to demand additional salary at that time. The controller’s report shows not that the sheriff was paid in full, but the amount which he had earned for the year and which was, therefore, applicable as salary. The sheriff could get nothing which he did not pay in, and the amount paid was not sufficient to cover the salary in full. lie got, however, all he was entitled to at that time. Clearly, therefore, the controller could not report that anything more was due him. The remedy of any party aggrieved by the report of the controller is an appeal to the court of common pleas upon which appeal an issue is formed and a trial by jury authorized. What ground of appeal did the sheriff have when the report for the year 1906 was filed? What issue would be formed in the common pleas and what judgment entered on the trial? Certainly not that the sheriff was entitled to more than his fees amounted to or that the county was liable to pay him more than he received. Inasmuch as the law permits the application of the excess of fees in a subsequent year to a deficit in a preceding year and inasmuch as there was a deficit in the first and second' years of the appellant’s term the amount payable to the sheriff could only be ascertained at the end of his term. Giving to the report of the controller the full effect of an auditor’s report under the act of 1834 we do not find in it any adjudication that there was a settlement in full with the sheriff. The authorities relied on by the appellant are not applicable to the case under consideration. In each of them the adjudication was final, was entered into by the parties and the accounts were the appropriate subjects of a judgment. Here there was a salary fixed by law the amount of which might not be determinable until the end of the official term and which could not, in fact, be ascertained at the times when the preceding reports of the controller were filed. It was the duty of the controller to ascertain the amount of money applicable to the sheriff’s compensation and to make report thereof, but we are constrained to hold that such a report has not the effect of a judgment precluding the sheriff from applying the excess of fees collected in the last year of his term to a deficit in the preceding years.

The other questions at issue were well determined by the trial judge, and his discussion of the subjects does not call for restatement or elaboration.

In accordance with the stipulations of the case stated and the foregoing conclusions the appellant is entitled to have the excess of collections over the amount of his salary in 1908 applied to the deficit of his salary in 1906 and 1907, and is also entitled to the amount allowed him by the court for advertising, $66.00.

The judgment is, therefore, modified and judgment is now entered in favor of the plaintiff for $1,030.20, with costs.


author: Porter, J.,

text:
    Hexamer, Appellant, v. Hexamer.

      Divorce — Cruel and barbarous treatment — Act of June 25, 1895,. P. L. 308.
    1. A libel for divorce brought by a husband against his wife for cruel and barbarous treatment will be dismissed where the only grounds alleged were that the wife was not a good cook although she had alleged herself so to be; that she had been guilty of five acts of trivial violence to the libelant the last of which occurred about six years

      before the libelant left her; and that she had refused during the period they cohabited, to have unrestrained sexual intercourse with him.
    2. The cruel and barbarous treatment and the indignities to the person, rendering the condition of the husband intolerable or life burdensome, which are by the act of June 25, 1895, made a cause for divorce relate to the personal treatment of the husband by the wife. The pangs of jealousy caused by the conduct of the wife with other men may render the condition of the husband intolerable and his life burdensome, but for such a result produced by such a cause, the act does not confer upon the courts jurisdiction to decree a divorce.
    Argued Oct. 19, 1909.
    Appeal, No. 146, Oct. T., 1909, by plaintiff, from decree of C. P. No. 5, Phila. Co., March T., 1909, No. 40, refusing divorce in case of Charles J. Hexamer v. Annie J. Hexamer.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Affirmed.
    Libel for divorce.
    Martin, P. J., filed the following opinion:
    The libel in this case alleges that respondent, by cruel and barbarous treatment and indignities to his person, has rendered the condition of libelant intolerable and his life burdensome. There was a further allegation that respondent had given herself up to adulterous practices and been guilty of adultery with divers persons, but the libel was amended, and these charges withdrawn.
    It appears by the testimony taken before the master that libelant and respondent were married on January 7,1891, and have a daughter nine years of age.
    They resided together until November 11, 1908, when libelant refused to continue to live with respondent.
    The libel was filed December 15, 1908. Respondent answered denying the charges.
    The alleged acts of cruelty and the indignities described by libelant, were that on the wedding night and for two months thereafter, he was denied intercourse, respondent having a morbid fear of childbirth. For that reason he “used a preventitive” which was “disagreeable and nerve-racking” to him. Respondent informed him before marriage that she was an excellent cook. He subsequently ascertained that she knew nothing about housekeeping or cooking. A month after the marriage she prepared some fried calves’ liver for supper that had the consistency of sole leather. When libelant declined to eat, and said he could not digest it, she slapped his face and screeched “digest that.”
    Several weeks subsequently when libelant said to her, “If your mother is like you, I don’t wonder your father goes out so much and gets boozed,” she screamed, “ You nasty beast, I will leave you,” went to her room, where he followed, and as she was putting on her hat called him a “Dutch beast,” endeavored to thrust the hat pixr in him, and said, “That should be the end of you.” He got her by the wxist and she simmered down.
    The first summer they were married, on a Sunday morning during a visit to his parents at Atlantic City, she refused to come to breakfast. He asked her, “Are you in a better humor now?” Without replying she flew at him and struck him twice in the face with her clenched fist.
    In 1895 she complained that he was too fat, that she was ashamed to go out with him. He took treatment, but in effecting a reduction of forty-five pounds impaired his digestion and contracted chronic diarrhea. His physician advised a trip abroad “alone.” When he informed respondent she said, “Do you think I am going to let you go off alone and have fun, and stay here in slow Philadelphia?” They went through Syria. During the journey respondent fell violently in love with a dragoman, and was with him from morning until night, ridixxg well in front of the party. When ascending Mount Tabor libelant was detained by a monk pointing out historical places on the plain below. Respondent and the dragoman had gone ahead, but on arrival at the meeting place, they were not there. Libelant waited an hour, and fearful that they had been attacked by hyenas sent servants to search for them. They were unsuccessful. Later respondent appeared, with the dragoman leading the horses, “radiant, her hair in disorder.” Libelaxxt said “This is outrageous; you know how sick I am, and how every little excitement makes me worse.” She sneered and said before the whole party, “Oh, tommy rot.” Libelant having been advised by a member of the party that it would be wise to take his wife back to her mother, and to keep an eye on .her. She said when he told her, “Don’t listen to that meddlesome old fool.”
    Distress caused libelant to have acute diarrhea. He was compelled to frequently leave his tent in the night at the risk of being attacked by wild beasts, or shot by guards. This afforded amusement to respondent, who remarked in the presence of others, “That will take the conceit out of you.” When the dragoman left, she wept. Libelant said to her, “Poor foolish child.” She thinking it sarcasm struck him in the face. She was in a frightful humor the next few days and treated libelant “like a dog,” and applied opprobrious epithets to him, calling him “confounded Dutchman,” “foolish jackass” and “blithering idiot.”
    In 1899 she became pregnant. Libelant endeavored to convince her it was the result of an accident. She said he was a “brute” to cause her to have a child. Three weeks before the birth she remarked that she did not want the “darn kid” and when it came she was going to put it in the third story because she was not going to be bothered with it. When the child was born she insisted that libelant-should move to the third floor; for over a year allowed no sexual intercourse, and insisted upon retiring to her room at half past seven in the evening. When the child was three years old, she being in a frightful humor one evening at the table, libelant said in order to exist and support her and the child he required one meal a day, and as he could not get it at home, he would go to a restaurant. He put on his coat and hat; when he got to the door of the vestibule she rushed after him and knocked his hat off his head, started to pound him in the face and tried to tear luis coat off.
    Libelant .became acquainted with a leading German actor whom he introduced to respondent. She fell violently in love with him, and insisted on seeing him whenever he played a new part. One night while suffering from a sprained ankle she insisted upon libelant taking her to the theater, and after the play to the café of the Schiller Hotel. There she met her “friends,” among whom was the actor. At his last appearance she insisted upon attending the performance, and after the theater going to the Schiller café. Libelant was unable to get her away until two o’clock in the morning. She was wild because the actor was not re-engaged, and blamed libelant. A friend asked him if he was aware that his wife met the' actor at the Schiller café almost every Saturday afternoon. When he spoke to her she admitted it, and insisted that she always had a friend or two with her when there.
    In the autumn of 1907, libelant engaged a tutor to deliver a course of lectures to the German Society on the German dramatists. He introduced him to respondent and invited him to his house. Respondent fell violently in love with him and he with her. If libelant and his wife went to the theater the tutor would have the seat alongside of her and talk and whisper to her continuously. If they went to an entertainment, he would be there at her side. He waited outside the ladies’ toilet for her. In the theater she would leave her child, sending it to libelant’s mother, and sit with the tutor. The talk and scandal became so decided that libelant rebuked her repeatedly, and she would answer, “Don’t be a jealous old fool.”
    In the early part of 1908, she told libelant that she had never loved him, but married to please her parents, that she would have nothing more to do with him, and that he should keep a mistress or go to a bad house. She frequently taunted him by asking if he had been somewhere for the purpose of prostitution, and when he said “No,” would say it was because he was too much of a coward, and afraid of catching some bad disease' — would sneer at him, and say she supposed he wanted to be as pure as an angel.
    In March of 1908 libelant was invited to be guest of honor at the Robert Emmett celebration and requested to bring respondent. She would not go because she had promised the tutor to hear him lecture. When libelant stated, “It seems that I have not even a wife to represent me before the people as such,” she replied, “Go to grass,” and attended the tutor’s lecture alone.
    On March 27, 1908, Professor Kruger lectured before the German Society. Libelant said to her, “As a special favor, won't you please, if you do not care to sit with me, at least sit with someone else than the tutor when we have the supper which will be given in honor of Professor Kruger after the lecture? ” She sat between a friend of libelant and the German consul. The tutor, who sat at the table opposite, became frightfully jealous as she started cutting up with these two gentlemen, pushed his plate away, got up and left the room. She rushed after him. As she passed libelant’s chair he caught her by the arm and whispered, “Go back to your place, don’t disgrace us both before all the people,” and held her until she came to her senses, when she returned to her place.
    On April 12, 1908, libelant engaged Professor Goebel of Harvard University to deliver a lecture on Faust. Respondent and the tutor were furious that the latter had not been engaged to make the address. After the lecture libelant gave a luncheon in honor of the lecturer. Respondent refused to sit with libelant at the place of honor, between the lecturer and libelant, but sat at the side of the table with the tutor. She requested the libelant to allow the tutor to speak. When libelant called on the tutor he said, libelant, who was the presiding officer, was but a fly of a day, that the trapdoor would soon close over him, and that a man more capable than he would take his place. Respondent wildly applauded, clapping her hands, cheered and cried, “Go on; that is right, give it to him,” in the presence of the people at the dinner.
    Libelant wrote to the tutor, “I forbid any further intercourse with you.” The tutor replied inclosing a letter written by respondent to him. Libelant then wrote to the tutor that his explanation was satisfactory.
    The intimacy between the respondent and the tutor was the subject of general scandal among friends and acquaintances.
    On May 9, 1908, libelant desired to have a birthday party at his home, but respondent said she had promised the tutor to hear him lecture at the German Club, libelant abandoned the birthday celebration and accompanied her.
    On May 14, 1908, libelant moved his family to Oak Lane. During the evening, in the course of conversation with respondent, he told -her for God’s sake to break off with this man, that now was her chance, they had moved to the country for the summer. She wept and said she could not. He said, “I wish to say this to you, and mind it well; if I catch that man in my house, I will leave you. I will no longer be held up to the public and my friends in ridicule. My friends are already beginning to cut me.”
    On May 27, 1908, libelant and respondent attended a gathering of the ladies of the German Society at Schutzen Park. Libelant was obliged to leave to go to town and directed respondent to go home with her daughter, which she promised to do, but instead, stayed quite late with her daughter at the park, and the tutor took them home, and sat on the porch for a long while. Libelant learned of this from the child, and when respondent was charged with it, she admitted it. Libelant then told herthat he was going to leave her, and he went to the Lorraine Hotel. Some days afterward respondent came to his office and said if he would come back she would promise to behave herself, but if he did not, he would never see his little daughter again. He returned and learned from the daughter that the tutor had been at the house on the Sunday that he was at the Lorraine. Two days after returning home libelant and respondent visited a German man-of-war lying in the river, as the guests of the captain. The tutor was on board. She. withdrew from libelant to talk with the tutor. The following Sunday when they visited the Young Mannerchor the tutor was there, and respondent again joined him.
    On June 8, 1908, libelant and respondent went to a celebration of the German-American Alliance at Washington Park. In the afternoon libelant attended a banquet on the man-of-war, and requested respondent to take the child home, which she promised to do shortly. After libelant left the tutor arrived and rode with respondent on the front seat of an automobile, and' tickled her “all the way home.” After other guests had left the tutor remained.
    Libelant intending to take respondent to the theater asked her after she retired on the previous night whether she intended to meet the tutor at the theater. She said, “Yes, she supposed so.” Libelant said, “That man will have to stop, I shall write him to-morrow never to come to my house again.” Respondent got up in bed and hissed, “You are the meanest white man on earth.” Libelant lost control of himself and shook her. Libelant wrote to the tutor and told him it would give rise to talk among the neighbors, and requested him not to call on his wife in his absence.
    On June 13, libelant visited Providence for a few days. On his return he learned that the tutor had been at the house.
    On June 21 he visited Schenectady, and stayed over Sunday. On returning he ascertained that the tutor had visited the house.
    On September 8, libelant and respondent went to the German Theater. The tutor secured a seat alongside of her, and whispered to her during the evening.
    On Tuesday, November 10, libelant being required to visit Chester, informed respondent that he would be home very late, in all probability stay at the hotel, and' go to his office directly in the morning. He arrived in Philadelphia about ten o’clock in the evening, and returned home. As he entered the house respondent came out of the sitting room; and when he kissed her, repulsed him and said that the tutor was in there; that she had asked him to come, and that it was time there should be an explanation between him and libelant. The tutor asked libelant what he had against him, and why he did not wish him to come to his house, to which libelant replied, because he had stolen the affections of his wife and made her so crazy that he could not live with her; that he had left her and had only returned for the child’s sake. The tutor stated that he had received a letter from respondent in which she placed herself under his protection, stating that libelant had laid hands on her. When libelant asked her if she had done this, she said, “Yes, why not?” Libelant burst into tears and said, “This means divorce; now both of you get out, get out at once; take her with you.” The tutor said, “For God’s sake be reasonable; think of your child; give me your hand.” The libelant said, “No, begone, get out, get out, or I will kill you,” and said to respondent, “You let him in, show him out.” At the door the tutor said, “Let me have your hand,” and libelant said, “No, never, from what you have done to me,” and he said, “At least say good-by to me,” and the libelant said, “Good-by,” and closed the door. In the room were eatables on the table, two empty champagne glasses, and an empty quart bottle of champagne, and the cushions of the broad sleeping couch were in a disorder.
    Libelant did not say a word to respondent, but the next morning left the house, and has lived with his parents ever since, but supports respondent.
    Other witnesses testified to conduct of similar character, exhibitions of ungovernable temper, wearing “low cut dresses when he told her he disliked them,” smoking cigarettes at family dinners, remarks that she would not live an hour of her married life over, and preferred small men to large ones (her husband being large and the tutor small), sitting with her back to libelant; and saying to a casual acquaintance who asked if his daughter was his only child that she “will remain so.”
    It was testified that at some of the festivities of the German Society, when the tutor came with an orchid in his buttonhole, in a few minutes she had the flower and wore it.
    The testimony is thus elaborately reviewed because it is the duty of the court to make a careful examination' of the evidence in order to ascertain whether it does in very truth establish the statutory grounds for a divorce: Shoemaker v. Shoemaker, 25 Pa. Superior Ct. 183, 185.
    By the terms of the Act of June 25, 1895,- P. L. 308, it is made a cause for divorce “where a wife shall have, by cruel and barbarous treatment or indignities to his person, rendered the condition of her husband intolerable or life burdensome.”
    In determining whether there was cruel and barbarous treatment within the meaning of the statute the whole conduct of the wife toward her husband during the period of the alleged ill treatment should be considered: Barnsdall v. Barnsdall, 171 Pa. 625, 632; and if by other means she makes her husband’s life burdensome or intolerable, as by obstinate silence, laziness, or willful neglect of household duties, they do not fall within the meaning of the act: Harris’s App., 2 W. N. C. 331.
    The case is presented of a woman possessed of a frivolous disposition with a penchant for flirting, who fails to realize the dignity and becoming decorum demanded of a matron occupying the social position in which her husband had placed her; and who, by her levity, has occasioned him chagrin, mortification and sorrow. Whether or not a reference of the parties to the domestic forum for the adjustment of their differences, recommending to the aggressor the improvement of her manners, and to the aggrieved the remedy of decent resistance or prudent conciliation, Butler v. Butler, 1 Parsons, 329-345, is adequate in this case, it is plain by reference to the authorities, no matter how much the court may sympathize with libelant in, his unhappy domestic relationship, that the acts complained of while proof of conduct unbecoming a wife do not support the charge of cruel and barbarous treatment or indignities to the person.
    The acts of alleged cruelty were isolated occurrences happening years before the filing, of the libel. They did not place libelant in bodily fear, or prevent cohabitation.
    The acts assigned by libelant for withdrawing from respondent’s society was the predilection shown by her for the tutor, permitting him to visit her and accepting his attentions in disregard of libelant’s prohibition; thereby arousinglibelant’s jealousy and creating in his mind the belief that her conduct rendered him an object of ridicule and scorn among their acquaintances.

      In McMahen v. McMalien, 186 Pa. 485, the Supreme Court adopted the definition in 1 Bishop on Marriage and Divorce taken from the leading case of Evans v. Evans, 1 Hagg. Con.-35: “ Cruelty, therefore, is such conduct in one of the married parties as renders further cohabitation dangerous to the physical safety of the other, or creates in the other such reasonable apprehension of bodily harm as materially to interfere with the discharge of marital duties; ” and the acts or conduct of the wife toward her husband that will entitle the latter to a divorce, must be not only such as to render his condition intolerable and life burdensome, but such as amount to cruel and barbarous treatment. Both of these statutory elements must concur': Schulze v. Schulze, 33 Pa. Superior Ct. 325.
    It was said in Olsen v. Olsen, 27 Pa. Superior Ct. 128, 132, “Courts ought never to sever the marriage contract, but where the application is made in sincerity and truth for the causes set forth and no other, and fully sustained by the testimony: Angier v. Angier, 63 Pa. 450. The marriage relation should never be dissolved without clear proof of imperious reasons: Richards v. Richards, 37 Pa. 225. Divorce ought never to be decreed without clear and satisfactory evidence of the wrong which the law treats as justifying cause for divorce.”
    It may be said of this case, as in Hahn v. Bealor, 132 Pa. 242, 256, “It exhibits a state of domestic infelicity, but it does not present a case of cruel and barbarous treatment by the wife of the husband, which rendered his condition intolerable and life burdensome.”
    That it was bad, shamelessly bad, must be conceded. That it was such as to call for the abhorrence of every right-minded man, appears plainly from the evidence. But it is not all bad conduct of a wife which entitles a husband to a divorce. Causes sufficient for that are such only as are defined in the acts of assembly. Strong, J., in Gordon v. Gordon, 48 Pa. 226, 234-235.
    It was said in Richards v. Richards, 37 Pa. 225, and reiterated in Middleton v. Middleton, 187 Pa. 612, “Never ought divorces to be easily obtained, for marriage is the most sacred of human relations, and should never be dissolved without clear proof of imperious reasons:” Rochelle v. Rochelle, 28 Pa. C. C. Rep. 458, 460.
    The libel is dismissed.

      Error assigned was the decree of the court refusing the divorce.

      F. F. Brightly and John G. Johnson, for appellant.
    — It is respectfully submitted that to establish cruelty under the statute, it is no longer necessary under the authorities to prove actual physical violence: Barnsdall v. Barnsdall, 171 Pa. 625; Schulze v. Schulze, 33 Pa. Superior Ct. 325; Russell v. Russell, 37 Pa. Superior Ct. 348; Trowbridge v. Carlin, 12 La. Ann. 882; Menzer v. Menzer, 83 Mich. 319 (47 N. W. Repr. 219).
    No printed brief for appellee.
    March 3, 1910:
   Opinion by

Porter, J.,

The plaintiff filed in the court below a libel praying for a divorce from the respondent, alleging that she, “by cruel and barbarous treatment and indignities to his person, hath rendered the condition of this libelant intolerable and his life burdensome.” The libel as originally filed alleged, as a further ground for divorce, that the respondent had given herself up to adulterous practices and been guilty of adultery with divers persons in this commonwealth and elsewhere, but the libelant saw fit, by an amendment, to entirely eliminate this charge from the issue. The only question which the court below was called to pass upon, or to be considered upon this appeal, is, did the evidence produced establish that the respondent had by cruel and barbarous treatment and indignities to the person of her husband, the libelant, rendered his condition intolerable, and his life burdensome within the meaning of the Act of June 25, 1895, P. L. 308? The court below deemed the evidence insufficient and dismissed the libel; from which decree the libelant appeals;

The opinion of the court below, by Judge Martin, which will appear in the report of this case, so fully reviews the testimony and vindicates the conclusion at which he arrived as to render unnecessary an extended discussion of the questions presented. In determining whether there was cruel and barbarous treatment and indignities to the person of the libelant, within the meaning of the statute, which rendered the condition of the latter intolerable and his life burdensome, the whole conduct of the wife towards her husband during the period of the alleged treatment should be considered: Barnsdall v. Barnsdall, 171 Pa. 625; Fay v. Fay, 27 Pa. Superior Ct. 328. The parties were married on January 7, 1891, and dwelt together as man and wife until November 11, 1908, almost eighteen years. One child was born of this union, a daughter, on October 24, 1900. The husband testified to the conduct of the wife during the entire period of their cohabitation, and as to some of the matters covered by his testimony he was corroborated by the testimony of other witnesses. It has been argued here that the testimony established that the conduct of the wife during that entire period had constituted such cruel and barbarous treatment and indignities to the person of her husband as to entitle him to a divorce under the statute. The discontent of this libelant seems, from the testimony, to have had its origin in the discovery of the fact that his wife was not a good cook; that this cannot be considered in passing upon his right to a divorce, under the statute, is too clear for serious discussion. The statute was intended to afford a remedy to the husband for the intentional acts of the wife which could be reasonably held to involve cruel and barbarous treatment, or indignities to his person, resulting in rendering his condition intolerable. There is nothing in the statute which would warrant the courts in granting a divorce because the wife did not do what she was not able to do. The testimony disclosed five alleged acts of trivial violence offered bj^ the wife to the husband, the last of which occurred about six years before the husband left his wife.

That physical violence offered by the respondent to the plaintiff was not the cause for his leaving her six years later, in 1908, is clearly established by the testimony. During the intervening six years there was not, so far as the evidence discloses, either violence or anything that could be construed to be a threat of violence. Even had the libelant separated from his wife in 1902, immediately following the last act of physical violence, the evidence produced, as to five widely separated and trivial violent acts, during a period of eleven years, would not have warranted a court in granting a decree of divorce, under the provisions of the act of 1895. The testimony of the libelant to the effect that the respondent had refused, during the period they cohabited, to have unrestrained sexual intercourse with him, does not establish a case of barbarous and cruel treatment, which would justify the granting of a divorce: Magill v. Magill, 13 Pittsburg Legal Journal, 626; Eshbach v. Eshbach, 23 Pa. 343; Platt v. Platt, 38 Pa. Superior Ct. 551.

The testimony with regard to the incidents hereinbefore referred to includes all of that produced which referred directly to the treatment of this libelant by his wife; the remainder of the testimony referred not directly to the treatment of the libelant by the respondent, but had reference to the manner in which she treated other men. It has been suggested in the argument for the appellant that the latter withdrew from the libel the allegation of adultery on the part of his wife because of his regard for the future of his child, but, that if necessary, the circumstances disclosed by the evidence were sufficient to establish the graver charge. We cannot thus change the issue. The libelant cannot have a decree of divorce upon any ground other than that alleged in his libel. Courts ought never to sever the marriage contract, but where the application is made in sincerity and truth, for the cause in the libel set forth, and no other, and fully sustained by the testimony: Middleton v. Middleton, 187 Pa. 612; Olson v. Olson, 27 Pa. Superior Ct. 128. The cruel and barbarous treatment and indignities to the person, rendering the condition of the husband intolerable or life burdensome, which are by the act of June 25, 1895, made a cause for divorce, relate to the treatment of the husband by his wife, and her conduct toward him personally. President Judge Rice, in his opinion in Fay v. Fay, 27 Pa. Superior Ct. 328, said: “Nevertheless, the acts or conduct of the wife towards her husband, that will entitle the latter to a divorce under the clause of the statute now being considered, must be not only such as render his condition intolerable or life burdensome, but such as amount to cruel and barbarous treatment. Both of these statutory elements must concur. If by other means, which do not constitute legal cruelty, his condition is rendered intolerable, this clause of the statute does not apply;” and to the same effect Schulze v. Schulze, 33 Pa. Superior Ct. 325. Causes sufficient for the granting of a decree of divorce are such only as are defined by the acts of assembly: Gordon v. Gordon, 48 Pa. 226; Angier v. Angier, 63 Pa. 450; Richards v. Richards, 37 Pa. 225. The burden was upon the libelant in this case to establish by evidence the facts which would entitle him to a divorce for the cause alleged in his libel. He was required to prove that his wife had been cruel to him, had offered indignities to his person, and this burden he could not discharge by proving that his wife had been too kind to other men. The testimony exhibits a state of domestic infelicity, but it does not present a case of cruel and barbarous treatment by the wife of the husband, or indignities to his person, which rendered his condition intolerable and life burdensome, within the meaning of the statute: Hahn v. Bealor, 132 Pa. 242. The testimony, it may be conceded, established that the conduct of the respondent with men other than her husband had been indiscreet and such as to arouse the suspicions, or even the jealousy, of the libelant. The pangs of jealousy may have rendered the condition of the husband intolerable and his life burdensome, but for such a result, produced by such a cause, the statutes do not confer upon the courts jurisdiction to decree a divorce.

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


author: Head, J.,

text:
    Phœnixville Borough, Appellant, v. Eyrich.

      Boroughs — Hawkers and peddlers — License—Ordinance—Classification.

    1. A borough ordinance prohibiting any person without a license “to sell or offer for sale at retail upon the streets of the borough, or from house to house, any goods, wares or merchandise of any kind, or of any meat, fish, groceries, provisions, or foods of any kind, except milk,” is a valid exercise of the municipal power.
    2. The exception of milk in such an ordinance is not an improper classification.
    3. Where a butcher not only sells from his shop, but also sells from house to house, the payment of the mercantile tax for the business conducted at the shop, will not protect him from the penalty provided by a borough ordinance prohibiting any person from selling from house to house without a license.
    4. If the evidence is conflicting as to whether he merely makes deliveries with his wagon and takes orders, or whether he in fact sells from house to house, the case is for the jury.
    Argued Nov. 16, 1909.
    Appeal, No. 11, Oct. T., 1909, by plaintiff, from judgment of C. P. Chester Co., April T., 1907, No. 20, on verdict for defendant in case of Phoenixville Borough v. Calvin R. Eyrich.
    Before Rige, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Reversed.
    Appeal from judgment of burgess. Before Hemphill, P. J.
    The facts appear by the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Gibbons Gray Cornwell, with him Samuel A. Whitaker, for appellant.
    — A borough has authority to require persons canvassing from house to house for the purpose of selling goods, to take out a license. Under the police power delegated by the general borough law of April 3, 1851, P. L. 320, it may impose a penalty for violation of such ordinance: Mechanicsburg v. Koons, 18 Pa. Superior Ct. 131; Mt. Carmel Boro. v. Fisher, 21 Pa. Superior Ct. 643; Warden’s License, 24 Pa. Superior Ct. 75; Com. v. Rearick, 26 Pa. Superior Ct. 384; Harrisburg v. Stahl, 11 Dauph. 18; Com. v. Deinno, 20 Pa. C. C. Rep. 371; Com. v. Cotton (No. 2), 1 Ches. 77; Sayre Boro. v. Phillips, 148 Pa. 482; Shamokin Boro. v. Flannigan, 156 Pa. 43; Sharon Boro. v. Hawthorne, 123 Pa. 106; Boro. of Danville v. Weaver et al., 4 Pa. Dist. Rep. 768; Wormser v. Allentown, 8 Pa. Dist. Rep. 649; Lancaster v. Reese, 22 Lanc. 37.

      H. H. Gilkyson and T. Walter Gilkyson, for appellee.
    — A resident dealer who has a regular shop or stand is not within the terms of the ordinance: Mt. Carmel Boro. v. Fisher, 21 Pa. Superior Ct. 643.
    The council cannot do what the legislature is forbidden to do: Norristown v. Norristown Pass. Ry. Co., 148 Pa. 87; New Castle v. Cutler, 15 Pa. Superior Ct. 612; Sayre Boro. v. Phillips, 148 Pa. 482; Com. v. Mintz, 19 Pa. Superior Ct. 283; Warden’s License, 24 Pa. Superior Ct. 75.
    March 3, 1910:
   Opinion by

Head, J.,

The plaintiff borough duly enacted an ordinance, the first section of which is as follows: “It shall be unlawful for any person to sell or offer for sale at retail upon the streets of the borough, or from house to house, any goods, wares or merchandise of any kind, or of any meat, fish, groceries, provisions, or foods of any kind except milk, without first obtaining a license or permit for such purposes from the burgess.”

The learned counsel for the appellee contends that this was an invalid exercise of the power of the borough to legislate upon such matters. The existence of the power to regulate the business that might be lawfully conducted upon the borough streets is not, as we understand it, denied. Even the most casual examination of this ordinance shows that it is aimed at the regulation and control of a business, and is not an attempt to prevent some persons doing that, the right to do which is by the ordinance given to others. As a consequence it is not obnoxious to the same objection that was successfully urged against the ordinance in Sayre Borough v. Phillips, 148 Pa. 482. In that case the nature and character of the defect in the ordinance are fully disclosed, we think, in the following brief excerpt from the opinion: “So long, however, as it bears upon all persons impartially, it may fairly claim to be a police regulation intended to destroy a business that was regarded as injurious; but at the end of the prohibiting section of the ordinance a proviso may be found which exempts all residents of the borough of Sayre from its operation. The proviso converts the police regulation into a trade regulation. The ordinance, taken as a whole, does not prohibit an injurious business, but injurious competition.” In the present case the ordinance prohibits sales upon the streets of certain classes of articles, and it bears alike upon all persons engaged in the sale of them or any of them. There is no exemption which would permit one man or class of men to sell meat, fish, groceries, etc., whilst the general ordinance forbids all other persons to do those same things.

The contention more precisely stated is that the ordinance classifies the kinds of business which can be done upon the borough streets and exempts from its operation one class, to wit, milk, whilst at the same time it prohibits sales of all other classes of merchandise or food, except under the conditions imposed by the ordinance.

The mere fact, however, that a statute of the legislature, or a municipal ordinance enacted under a delegation of authority from the legislature, creates classifications is not, of itself, a sound objection to the validity of the statute or ordinance. It has long been held that where such classification is not arbitrary, but rests upon natural and substantial grounds, the recognition of which is reasonably necessary for the well-being of the community, it is permissible and will be upheld by the courts. The rule on the subject, relied on by the. learned counsel for the appellee in his printed brief, as laid down by the supreme court of the United States in Barbier v. Connolly, 113 U. S. 27, is as follows: “In police regulations, classification must always best on some real difference which bears a reasonable and just relation to the act in respect of which the classification is proposed. In other words, none should be exempted from the operation of the law for reasons purely arbitrary, fantastical, sentimental, or based on favor.” The decisions of the courts of our own state are in thorough harmony with this.

Even if in construing the above statute or ordinance, we may regard milk as food at all, Com. v. Kebort, 212 Pa. 289, its universal use, its peculiar characteristics, the necessity of bundling it in a particular manner, naturally tend to put it in a class by itself among the general articles commonly used for the sustenance of human life. Indeed, modern knowledge has taught us that, if we are to avoid many serious dangers, the production and sale of milk must of necessity be surrounded with more rigid inspection and more complete safeguards than would be reasonably necessary in most other classes of articles for human consumption. It is an animal product. It constitutes the universal and almost the sole sustenance of infants and small children. It is chiefly produced in the country, whilst its consumption is largely in the centers of population. It remains fit for use but for a very short period of time except under conditions not within the reach of the vast majority of consumers.

In Mechanicsburg Borough v. Koons, 18 Pa. Superior Ct. 131, Porter, J., in speaking of the business of peddling fish, said: “The business is one in which the failure to exercise proper care, in the preservation of the commodity from decay, might quickly result in the change of a nutritious article of food into a noxious poison.” All of this, and more, could well be said in relation to the sale of milk, constituting as it does the chief source of nourishment to the infant and the invalid, the two classes of human beings least able to resist or throw off the deleterious effects that would follow its use after it had, for any reason, become unwholesome.

These considerations lead us to the conclusion that in setting apart in a class by itself the business of peddling milk, and leaving it subject or to be hereafter subjected to such special regulations as the preservation of the public health may require, the borough was making no arbitrary classification, but rather exercising a commendable vigilance in safeguarding the lives and health of its inhabitants. We think, therefore, the enactment of this ordinance was a valid exercise of municipal power.

On the trial the defendant presented the following point: “The defendant, being a resident dealer in the borough of Phcenixville, with a regular place of business in said borough for which he pays a mercantile tax, is not amenable to the ordinance of August 2, 1905, entitled, etc., and the verdict of the jury should be for the defendant.” This point was affirmed and a verdict directed accordingly. It is agreed on all sides that the ordinance was not aimed at the business of the defendant, conducted by him in the. shop or store, for which he paid a mercantile tax. Nor was the evidence directed to any such business. The borough alleged that in addition to the sales made at his shop, the defendant sold meats from a wagon by a house to house canvass through a certain section known as the Hungarian section.

Upon a motion for a new trial the learned court below was convinced that it had fallen into error in the affirmance of this point, and we are forced to reach the same conclusion. The trial judge, however, refused to award a new trial because he was of opinion that the evidence did not show any violation of the ordinance by the defendant. If this were true, the judgment entered would have been right, even if the instructions originally given were wrong. An examination of the evidence, however, impresses us that if the business, which the defendant conducted in his wagon on the streets, amounted to sales of his meat, the ordinance had been violated. They were not occasional and sporadic instances, if the evidence is to be believed. On the contrary, this business was conducted so continuously that, if the transactions amounted to sales, the defendant could not well deny that he was a huckster or vender of meats on the streets of the borough. We do not think the court could properly declare, as a pure question of law, whether the transactions amounted to sales on the streets or whether they were but, as the defendant contended, deliveries on the street from house to house of meat previously ordered from the shop. We believe that question was a mixed one of law and fact which could only be determined by the jury after proper instructions by the court; Had the defendant been a licensed liquor dealer, conducting his business in the manner described in some of the testimony, and indicted for selling liquor without license in various parts of the city, we cannot see how the trial court, under the decisions in this state, could have undertaken to declare, as a matter of law, that no sales had been made.

We conclude, therefore, that the ordinance was a valid one; that the mercantile tax paid by the defendant, for the business conducted at his shop, would not protect him for any violation of its provisions, and that whether he did violate the ordinance or did not became a mixed question of law and fact to be submitted to the jury.

No question is raised either in the record or the argument of counsel as to the right of the defendant, after conviction before the burgess and the imposition of a fine, to take an appeal to the court of common pleas. We have not therefore considered this question and express no opinion concerning it. We only notice it so that hereafter, when such a question may be properly before us, this case may not be considered as a precedent on that subject.

Judgment reversed and a venire facias de novo awarded.