text:
    Simpson’s Estate.

      Decedents’ estates — Orphans’ court sales — Conversion—Act of June 12, 1893, P. L. 461.
    An orphans’ court sale does not divest the title of the heirs until after confirmation thereof and conveyance delivered under the order of the court. The sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then no conversion takes place, and if the heir of the decedent dies, even subsequently to the confirmation of the report of sale, but before the deed, his interest descends as land, and not as money.
    Argued May 6, 1909.
    Appeal, No. 6, April T., 1909, by Sadie V. Simpson, from decree of O. C. Somerset Co., dismissing exceptions to auditor’s report in Estate of Isaac Simpson, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to auditor’s report.
    The facts are as follows :
    Isaac Simpson, a resident of Somerset borough, died December 1,1901, intestate, leaving to survive him a widow, Catharine M. Simpson, one son, Edward L. Simpson, and two grandsons, Frank W. Simpson and Harry S. Simpson, issue of Charles Simpson, deceased. The mother of Frank W. Simpson, first wife of Charles, was also dead. The second wife of Charles, Sadie V., mother of Harry S., is living. •
    Letters of administration on the estate of Isaac Simpson were granted to Edward L. and Frank W. Simpson, who filed their account on August 10, 1906, showing a balance for distribution of $778.74 arising from the sale of personal property, and a balance of $9,540 from the sale of real estate.
    On February 26,1906, the widow, Catharine, the son'Edward L., and grandson Frank W., and James L. Pugh, guardian of the minor son, Harry S., being all the heirs, presented their petition to the orphans’ court asking for the sale of the real estate under the act of June 12, 1893. An order of sale was accordingly granted as prayed for.
    On April 21,1906, the administrators sold the real estate and received ten per cent of the purchase money. On May 21, 1906, report of sale was made to court and the sale “confirmed nisi, to become absolute unless exceptions are filed within three' days.” No exceptions were filed and the sale became absolute.
    On May 27, 1906, the minor grandson, Harry S. Simpson, died, leaving to survive him his mother,fJ3adie V. Simpson, and half-brother, Frank W. Simpson.
    August 10, 1906, the administrators delivered to the purchaser deeds for the properties and received the balance of the purchase money in full except the sum set apart in. lieu of dower of Catharine M. Simpson, the widow of decedent.
    May 21, 1909:
    John S. Miller, Esq., having been appointed auditor to make distribution of the funds in the hands of the administrators, counsel for appellant contended before him that the money realized from the sale of the real estate should be distributed as personalty, but the auditor and court below held that because the deeds were not delivered until after the death of Harry S. Simpson, therefore the fund should be distributed as realty.

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

      W. H. Rappel and J. L. Pugh, with them Chas. F. Uhl, Jr., for appellant.
    No printed brief for appellee.
   Per Curiam,

We are all of opinion that this case is ruled by Schmid’s Est., Dunlap’s Appeal, 182 Pa. 267.

The decree is affirmed at the cost of the appellant.


source: Caselaw Access Project

author: Pee Cueiam,

license: Public Domain

text:
    Schafer’s Estate.

      Attorney at law — Attorney and client — Dismissal of attorney — Employment of other counsel — Distribution—Jurisdiction.
    1. Where a client dismisses an attorney at law, it is not necessary that formal notice of dismissal should be given. Any act which shows an intention to sever the relation is sufficient. Thus the employment of other counsel shows an unmistakable purpose to sever relations.
    2. Where an administrator files an account, and a guardian who had employed the same attorneys as the administrators, objects to the fees of the attorneys as excessive, and employs other counsel to file exceptions and secure their reduction, the employment of other counsel is an implied discharge of the former attorneys; and if the administrator permits the attorneys to retain from the fund ordered to be distributed to the guardian any fees as attorneys for the guardian after the employment of other counsel, the administrator will be compelled to make good to the guardian the amount retained.
    3. Where the orphans’ court has jurisdiction to make a decree, it has the implied power to enforce it.
    Argued May 7, 1909.
    Appeal, No. 37, April T., 1909, by J. F. and E. R. Edmundson, from decree of O. C. Allegheny Co., Feb. T., 1907, No. 98, enforcing distribution in Estate of Frank Schafer, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Petition for order to enforce distribution.
    Hawkins, P. J., filed the following opinion:
    The purpose of this proceeding is to enforce the execution of a decree of distribution made by this court. In order to understand the situation it is necessary to go back to the beginning of the administration. Messrs. Edmundson & Cahan, attorneys for the estate of Mr. Schafer, made arrangements with the Colonial Trust Company to act as administrator of the estate, and the Fidelity Title & Trust Company as guardian of the minor children, and to employ them as counsel. In due course the administrator filed an account in which it charged itself with assets amounting to $51,983.64 and took credit among other items for counsel fees $2,519.18 paid Messrs. Edmundson & Cahan. The guardian employed other counsel to file exceptions to this credit as being excessive and after full hearing reduced the credit by $1,399.18. The administrator afterward without consulting the guardian voluntarily paid the whole balance found to be in its hands to Messrs. Edmundson & Cahan, who after deducting $750 for alleged services to the guardian tendered the balance. The guardian denied their right to his fee, and after refusal of the administrator to pay the full amount of decree filed this petition to which the administrator answered payment to Messrs. Edmundson & Cahan, as attorneys for the guardian, and asked that those attorneys be brought on the record as parties, which was done, and an answer filed by them in which they averred their original employment, that they had not been discharged and asserted their right to the fees deducted. The guardian relied on the filing of the exceptions and the contest over fees as an implied discharge, and averred payment in full for all services rendered for which they were employed. At the hearing it appeared that prior to the filing of the exceptions the only services rendered by these attorneys were in the appointment of the guardian, the filing of the inventory, and exemption, the collection of about 1100 and a request to the administrator to advance funds for the maintenance of the wards, for which they were paid. Between the date of the filing of the exceptions and the tender of the amount collected from the administrator there was no communication between these attorneys and the guardian.
    On these facts, the questions presented are whether or not the filings of exceptions was an implied discharge of the attorneys; and if not, the fee deducted was reasonable compensation for the services required and rendered.
    It certainly would have been the part of prudence in the circumstances of this case for the Colonial Trust Company to have inquired in the first instance of the Fidelity as to whom the balance in its hands should be paid; and what was enough to put it on inquiry, was notice. In the litigation just ended the guardian had assumed a relation of hostility to the Messrs. Edmundson & Cahan and so far as the Colonial knew that was still its relation. The fact that the fee paid by the Colonial to these attorneys had given rise to the recent litigation ought to have suggested that the way to prevent danger involving it in further litigation was to deal directly with the Fidelity. There was no apparent occasion for payment to counsel; but if there had been, the record showed that other counsel than these had been employed by the Fidelity to represent it. The course of the Colonial was therefore purely gratuitous and mistaken.
    The Messrs. Edmundson & Cahan stand in no better position. The guardian had an undoubted right to discharge them at any time without giving reasons: Powers v. Rich, 184 Pa. 325; Clark & Skiels on Agency, sec. 742. The relation of attorney and client should be one of confidence; and when confidence ceases the relation should cease. It is not necessary that formal notice of dismissal should be given. Thus death or insanity, or bankruptcy, or disbarment, or removal from the state will imply it: Mechem on Agency, sec. 888. So the employment of other counsel in litigation as in this case, which is inconsistent with continuance of the former relation, shows an unmistakable purpose to sever relations.
    May 21, 1909:
    The Messrs. Edmundson & Cahan were of counsel entitled to compensation for the services actually rendered. The court made full allowance for the services rendered the administrator and they have no equity to toll the fund a second time.
    It will thus be seen that the administrator and its counsel have failed to execute the decree of distribution made by this court; and decree will be made accordingly. The jurisdiction to make the decree implied power to enforce it.

      Error assigned was decree enforcing distribution.

      L. G. Barton, with him J. F. Edmundson and E. R. Edmund-son, for appellant. —
    We respectfully submit that a case on all fours with this, and conclusive thereof is: In re Kennedy, 120 Pa. 497.

      J. Rodgers McCreery, with him W. B. Rodgers, for appellee.—
    The court had jurisdiction: Balsbaugh v. Frazer, 19 Pa. 95; Watt’s Est., 158 Pa. 1; Kunkle’s Est., 21 Pa. Superior Ct. 200.
    Appellants were not attorneys for the distribution: Anderson v. Bosworth, 15 R. I. 443 (8 Atl. Repr. 339).
   Pee Cueiam,

The decree is affirmed at the costs of the appellants upon the findings and opinion of the court below.


author: Orlady, J.,

text:
    Supper, Appellant, v. Stauss.

      Election law — Primary election — Qualification of voter — Party ballot— Act of February 17, 1906, P. L. 36.
    1. Where a citizen at a general election votes the straight ticket of a particular party, he will not be entitled, if challenged, at the next succeeding primary election to receive a ballot of another party, although on the ballot which he voted at the general election were the names of the majority of the candidates of the party for whose ballot he asks at the primary election.
    2. A candidate may be voted for by more than one party but he does not thereby lose his relation to a party from the mere fact that his name appears in a column of another party.
    3. The act intends that each candidate is to be credited with each vote cast in his favor, no matter on what ticket, to the end that it may be ascertained whether or not he has received a plurality of votes; but it is equally important that a political party or organized body of electors that has made a nomination is entitled to have an accurate computation made of the number of votes cast in its name, so that its rights with respect to the making of nominations in the future may be ascertained.
    4. A political party is defined as a company or number of persons ranged on one side, or united in opinion or design in opposition to others in the community; those who favor orare united to promote certain views or opinions.
    5. To entitle one to membership in a party he must not only have voted for a majority of the persons who were candidates of that party in the preceding election, but he must have voted for such persons as the candidates of the party to which he claims affiliation; that is, if he voted in a party column, he must have voted for them in the column designated for that party and not in some other party column.
    Argued Oct. 15, 1908.
    Appeal, No. 52, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 4,272, for defendant on case stated in suit of Charles H. Supper v. John Stauss.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, and Beaver, JJ.
    Affirmed.
    Case stated in trespass to determine the right of the plaintiff to receive and vote the republican ballot at a primary election.
    The case stated concluded as follows:
    It is agreed that if the court shall be of the opinion on the facts stated that the affidavit which the plaintiff offered to make complied with the requirement of the uniform primaries act and entitled the plaintiff to the ballot of the republican party at the primary election aforesaid, and that the defendant wrongfully refused to permit the said affidavit to be made, judgment shall be entered by the court for the plaintiff and against the defendant for damages in the sum of $1.00; otherwise judgment to be entered for the defendant.
    The facts are stated in the opinion of the Superior Court.
    The court in an opinion by Audenried, J., entered judgment for defendant.

      Error assigned was in entering judgment for defendant.

      Walter L. Sheppard and W. W. Porter, of Porter, Foulhrod & McCullagh, for appellant.- —
    Sec. 10 of the act, in so far as it prescribes the qualifications of party membership, is unconstitutional: Oughton v. Black, 212 Pa. 1.
    The act must receive a strict construction: Miller v. Com., 5 W. & S. 488.
    The strict construction contended for by the plaintiff, appellant, is in harmony with the purpose and intent of the act.
    The construction contended for by the defendant, appellee, would create an inequality in the operation of the act: Weiss v. County Commissioners, 17 Pa. Dist. Rep. 262.

      J. Lee Patton, with him Jesse S. Shepard and Ziba T. Moore, for appellee. —
    Under the uniform primary act any voter may vote for the nomination of any one he may choose to name for any office, within the primary of the party with which he affiliated in the next preceding general election at which he voted. He is free and equal with any other voter, but he cannot join with others to raid the primary election of a party with which he is not affiliated: Independence Party Nomination, 208 Pa. 108.
    The protection of the liberty and equality of the voter, the preservation of the purity of his party, depends upon upholding the constitutionality of sec. 10 of the uniform primaries act, not in overthrowing it: Com. v. Blankenburg, 218 Pa. 339; Weiss v. County Commissioners, 17 Pa. Dist. Rep. 262.
    May 10, 1909:
   Opinion by

Orlady, J.,

A case stated was agreed upon in an action of trespass in the court below, to determine the right of the plaintiff to vote at a primary election, held in the forty-seventh election district in the twenty-second ward of the city of Philadelphia. The plaintiff was a duly qualified elector, duly registered as a resident, under the provisions of the constitution and the laws of the commonwealth, and he presented himself at the regular polling place and asked for a ballot of the Republican party, when he was challenged by a qualified elector on the ground that he was a City party voter, and not entitled to receive the Republican ballot, whereupon he declared and offered to make an affidavit to the effect “that at the next preceding general election at which he voted, to wit: November 5,1907, he voted for a majority of the candidates of the Republican party for which ballot he now asks, by voting for them in the City party square.” The defendant who was the judge of the election of that district refused to permit the plaintiff to make the affidavit, and also refused to give him the ballot of the Republican party, on the ground that the plaintiff was not entitled to vote at the Republican party primaries, within the meaning and intent of the act of 1906, and that the affidavit which he tendered did not qualify him so to vote. The court below entered judgment for the defendant upon the case stated.

The Act in question was approved February 17,1906, P. L. 36, and is entitled: “ An act providing a uniform method of electing certain party officers and delegates to the state and national conventions, and of making nominations for certain public offices; providing for the payment of the expenses of the same; making certain violations thereof misdemeanors, and prescribing penalties for the violations of its provisions,” and is described by Chief Justice Mitchell in Com. v. Blankenburg, 218 Pa. 339, as: “An enactment to systematize, regulate and put under control of positive law, party nominations for public office. It is the latest of a series of statutes extending the direct and immediate control of law over methods and details of the exercise of the elective franchise which previously had been left in the unrestricted discretion and control of individuals or party managers. Under the earlier system ballots were prepared by individuals or party officers in any form they desired; nominations were made by party machinery, usually conventions, under party rules and at irregular dates. Justly or unjustly these steps which practically controlled nominations and elections, were exposed to the suspicion of manipulation, not for the convenience of party voters alone, but for undue advantage to individuals and party cliques. The act of 1906, was passed to put an end to this system. ... No candidates for the public offices therein specified shall be nominated in any other manner than as set forth in the act; the principal object of the act was to break up 'snap conventions’ and other devices for unfair ends, under the old system, and one of its principal means of so doing was to enforce uniformity of time as well as methods.”

The right of the plaintiff is to be determined by the interpretation of sec. 10 of the act of 1906, which provides: “The qualifications of electors entitled to vote at a primary, shall be the same as the qualifications of electors entitled to vote at elections, within the election district where the primary is held. Each elector shall prove his qualifications and his identity in the same manner in which electors in the election district in which he offers to vote are, or were as may be, required by law to prove their qualifications or identity on election day; each elector shall have the right to receive the ballot of the party for which he asks; provided, that if he is challenged, he shall be required to make oath or affirmation that at the next preceding general election at which he voted, he voted for a majority of the candidates of the party for whose ballot he asks. Upon executing such affidavit, the voter shall be entitled to receive the ballot for which he has called, and to cast his vote according to law.” At the general election referred to, the electors of Philadelphia voted for candidates to fill eleven offices, of which seven were places on the bench of the several courts of the county. The Republican party, the Democratic party and the City party had each nominated the same candidates for these judicial offices, each of the seven candidates being nominated by each of the three parties for the same office for which he had been nominated by the other two, so that a vote cast for the whole ticket of any one of these parties, by the marking of a cross in the party square of either, necessarily involved voting for seven men who were also on the tickets of the other two parties. The defendant, in this case, as judge of the election, was admittedly wrong in refusing to receive the affidavit as tendered; by the Act of June 13, 1840, P. L. 683, he was invested with “power to administer an oath or affirmation to any or all persons requiring or offering to be sworn or affirmed in relation to the right of any person to vote at any election authorized to be held by any law of the commonwealth.

By Act of July 2,1839, P. L. 519, it is provided: “Thatthe judges of elections within the limits of their respective wards, districts or townships, shall have power and are hereby required to decide on the qualifications of any person claiming to vote at any election, whenever the inspectors thereof shall disagree upon the right of such person to vote, but not otherwise, ” so that primarily the affidavit in such a case is for the consideration of the inspectors in the first instance, and in the event of disagreement between them, the judges authorized to decide on the qualifications of the person claiming to vote, but not otherwise. However, it is conceded that under the facts in this case, that phase of it is immaterial, it being stipulated, “That if the court shall be of opinion on the facts stated, that the affidavit which the plaintiff offered to make, complied with the request of the the Uniform Primaries Act and entitled the plaintiff to the ballot of the Republican party at the primary election aforesaid, and that the defendant wrongly refused to permit the said affidavit to be made, judgment shall be entered, ” etc. The act of 1906 is a remedial statute, and in its construction “the old law, the mischief and the remedy are to be kept in mind, so that a liberal construction should be made for the suppression of the mischief complained of and the advancement of the desired remedy. There have been a number of recent changes made.in our system of nominating candidates for office and each seemed to be unsatisfactory to the public at large, so that the agitation of the subject resulted in the passage of the act in question, under which it is necessary to determine not only how many votes each candidate has received, but on what 'party ticket the votes have been cast. It is to be observed that a candidate may be voted for by more than one party, but he does not thereby lose his relation to a party, from the mere fact that his name appears in a column of another party. A political party is defined as a company or number of persons ranged on one side, or united in opinion or design in opposition to others in the community; those who favor or are united to promote certain views or opinions. It is intended that each candidate is to be credited with each vote cast in his favor, no matter on what ticket, to the end that it may be ascertained whether or not he has received a plurality of votes; but it is equally important that a political party or organized body of electors that has made a nomination, is entitled to have an accurate computation made of the number of votes cast in its name, so that its rights with respect to the making of nominations in the future may be ascertained.

In all elections we are concerned not only with the question as to which candidates are voted for, but also and of equal importance, with the question as to which party the candidates belong for whom votes were ca§t. The party affiliation of a candidate is quite as important as his personality. The act in question provides for uniformity, and to insure the equal right to cast a ballot in favor of a party, as well as a candidate. The official primary ballots are to be prepared “for each party” so as to be uniform in size, style of printing and general appearance; the form given in the act for the ballot is for “each party,” and the official ballot of the designated party is provided for with particular description.

When an elector asks for the ballot of a party, and gives it the party name, as a designation, the majority of the candidates of that party for which he voted at the next preceding general election is rightly determined by an inspection of the candidates of that party at that election, independent of the fact that these names may have been voted for under other party designations; the political party named by him should control in order to carry out the purpose of the statute, otherwise the members of one party might still meddle in the management of another party, and produce a condition of affairs equally objectionable, whether the members seek the control of a rival party in the interest of their own, or merely lend themselves to promoting the interests of a clique or faction without the other party. An important provision is made in the body of the act, for any party or body of electors, one of whose candidates at the election preceding polled two per centum of the largest entire vote cast, so as to become a party or political organization within the meaning of the act, and the word “ candidate ” is used in the sense of being a representative of a party, and not in the sense of being an individual. It follows that to entitle one to membership in a party he must not only have voted for a majority of the persons who were candidates of that party in the preceding election, but he must have voted for such persons as the candidates of the party to which he claims affiliation; that is, if he voted in a party column, he must have voted for them in the column designated for that party and not in some other party column. An apt illustration is given in Weiss v. County Commissioners et al., 17 Pa. Dist. Rep. 262, “If the other view were taken, then, under circumstances like the present, where, at the last preceding election, the same persons happened to be named by all parties for a majority of offices, the dominant party could, by dividing its forces at the primaries, easily control both of the minority parties, and thereby practically and indefinitely perpetuate its rule by forcing its candidates upon all party tickets.”

When the plaintiff declared that he voted for a majority of the candidates of the Republican party, by voting for them in the City party square, he defined his right to receive the character of ballot he was entitled by law to vote in that election, namely, a City party ballot, and no other. He was as much entitled under his own statement of facts to receive a ballot of the Democratic party, and such a condition would practically eliminate all definite political organization.

“The constitution confers the right of suffrage on every citizen possessing the qualifications named in that instrument. It is an individual right, and each elector is entitled to express his own individual will in his own way. His right cannot be denied, qualified or restricted, and is only subject to such regulation as to the manner of exercise, as is necessary for the peaceable and- orderly execution of the same right in other electors. The rights of electors acting together as a party are equally beyond question; the electors themselves are the only tribunal to decide whether the principles, platform, aim or method of reaching the desired object, are broad enough, permanent enough or important enough to be the basis of united action as a party, and if they so decide, courts must recognize and treat them accordingly:” Independence Party Nomination, 208 Pa. 108.

The citizen’s only right to vote depends upon his qualifications under the constitution and the laws, and this right is subject to limitations of age, residence, sex, and other matters which have been always recognized as controlling, and in preserving the personal rights of the voters, political organizations are a necessary means to an end, in formulating and enforcing the policy of the majority of the voters. The test of the constitutional freedom of elections is the freedom of the elector to deposit his vote as the expression of his own unfettered will, guided only by his own conscience, as he may have had it properly enlightened: Oughton v. Black, 212 Pa. 1. When a voter adopts the candidates of a political party by voting for them, by a cross in the appropriate square, he selects and adopts the name of the party as well, and he commits himself as a member of that party at that election.

Association with a party is one of the usual means of putting into execution of the individual views on the public affairs, and while the individual has the right under the uniform primaries act to vote for any candidate he may prefer whose name is not in any of the party columns, when he does elect to be identified with a party as such, by voting for its candidates in the square set apart for the special purpose of indicating his preference for a political party as such, it is but reasonable to call him a member of the party of his own selection.

The assignment of error is overruled, and the judgment is affirmed.


text:
    Stewart v. General Accident Insurance Company of Philadelphia, Appellant.

      Insurance — Accident insurance — Warranty—Waiver—Acceptance of assessment — Principal and agent — Notice.

      1. Where an accident insurance company has full knowledge through • its agents of an alleged false warranty made by an insured in his application, and after an accident continues to collect assessments from the insured for several months, it cannot in a suit on the policy set up the alleged false warranty as a defense. In such a case the jury may find that the company had waived the condition or limitation in the policy as to which the warranty was made.
    2. Notice to an agent when it is the duty of the agent to act upon such notice, or to communicate it to his principal, in the proper discharge of his duty as agent is notice to the principal, and applies to agents of corporations, as well as to others.
    Argued Oct. 29, 1908.
    Appeal, No. 159, Oct. T., 1908, by defendant, from judgment of C. P. Bedford Co., Nov. T., 1905, No. 136, on verdict for plaintiff in case of John B. Stewart v. General Accident Insurance Company of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on an accident policy. See previous report of the casfe in 35 Pa. Superior Ct. 120.
    Woods, P. J., charged in part as follows:
    The plaintiff takes the stand and he testifies to you that when the policy was issued he notified this witness, Mr. Phillips, who was agent of the company, that he had a policy in the True Blue for health benefits but that it was no accident insurance policy, and that the insurance agent then told him that that made no difference, it would be all right. He further told you that after the accident occurred Mr. Phillips came to see him two or three times, and he testifies to you that he told him at that time that he had this True Blue policy; that Mr. Phillips asked him whether he still had it, and he told him that he had, and had received the $37.50 for sick benefits, and the agent said that was all right. And he testifies also that one C. H. Boyer, who was the general manager of the insurance company, came to see bim and that Mr. Boyer said to him that it would be all right, and he told Mr. Boyer that he was carrying this policy in the True Blue. He also testifies to you that after this knowledge having been communicated to the representatives of the company, that the company sent to him a notice notifying him that the premium would be due at such a time and for him to pay it, and he went and paid it to the representative of the company, Mr. Jordan, in Bedford, and that subsequently to that the company, the next month, notified him that his premium would be due at a certain time, and for him to go and pay it, but this he refused to pay, because they refused to pay him for the accident.
    [The only question for you to decide is: Did the company by its acts, or the acts of its agent, waive the false statements made by the plaintiff? And in determining this question, you will consider the testimony of the plaintiff himself, his wife and daughter, when they testify that the agent of the company, Warren Phillips, called to see the plaintiff, and he then informed him that he had a policy in the company called the True Blue, and that he at one time received $37.50 as sick benefits; and it is in evidence that the plaintiff told Phillips at the time the policy was issued that he held this policy, and the agent told him that was all right.
    It is also in evidence that the company notified the plaintiff to pay this premium after they had this knowledge, and they received the premium. You will also take into consideration the testimony of the agent, Warren Phillips, who testifies to you that the plaintiff did not tell him of the True Blue policy, or that he had received the $37.50. Plaintiff also testifies that one C. H. Boyer, the general manager, knew of the existence of the policy in the True Blue, and that with that knowledge he sent notices to the plaintiff to pay the premium, and that in pursuance of said notice he did pay one premium, and the company received and still has it. This testimony is to be taken into consideration by you, gentlemen of the jury, in determining your verdict.] [4] You must not allow the fact that one is an insurance company, and the other a poor man, to enter into it at all. This is not to be considered by you. [Did the company know of the existence of this policy in the True Blue, and with that knowledge did they notify the plaintiff to pay subsequent premiums, and did they receive said premium, knowing of the existence of the True Blue policy, and if they did, then they would waive any defense they may have because of the false warranties made by the plaintiff and the plaintiff could recover.] [5]
    If, on the other hand, you find from the testimony of Warren Phillips, that no such statement was made to him by the plaintiff, and that the testimony of the plaintiff to C. H. Boyer was not true, and that the company had no knowledge of the True Blue policy, then the plaintiff cannot recover.
    Verdict and judgment for plaintiff for $254.55. Defendant appealed.

      Errors assigned were (4, 5) above instructions, quoting them.

      E. W. Lank, of Smithers & Lank, with them E. M. Pennell, for appellee. —
    When an insurance company is, under the provisions of the policy, discharged from liability, responsibility for the loss will not reattach by waiver without proof of authority in the party whose act of waiver is relied upon: Mentz v. Lancaster Fire Ins. Co., 79 Pa. 475; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; Gould v. Ins. Co., 134 Pa. 570; McFarland v. Ins. Co., 134 Pa. 590; Smith v. West Branch Mut. Fire Ins. Co., 31 Pa. Superior Ct. 29.
    The soliciting agent had no authority to waive .any of the provisions of the policy: Pottsville Mut. Fire Ins. Co. v. Fromm, 100 Pa. 347; Sitler v. Fire Ins. Co., 18 Pa. Superior Ct. 148; Smith v. West Branch Mut. Fire Ins. Co., 31 Pa. Superior Ct. 29; Beddall v. Citizens’ Ins. Co., 28 Pa. Superior Ct. 600.
    May 10, 1909:
    If the defendant company had no knowledge of the false warranty contained in the application for the policy it follows that accepting premiums does not amount to a waiver of the false warranty or act as an estoppel to set up the false warranty as a defense: Bard v. Penn Mut. Fire Ins. Co., 153 Pa. 257; Hook v. Mut. Ins. Co. of Berks County, 160 Pa. 229.

      John H. Jordan, for appellee. —
    There was sufficient evidence of waiver: Brumbaugh v. Ins. Co., 20 Pa. Superior Ct. 144; State Ins. Co. v. Todd, 83 Pa. 272; McFarland v. Kittanning Ins. Co., 134 Pa. 590; Mix v. Royal Ins. Co., 169 Pa. 639; Wilson v. Ins. Co., 174 Pa. 554; Bowman v. Ins. Co., 203 Pa. 150; see also Highlands v. Ins. Co., 177 Pa. 566; Kalmutz v. Northern Mut. Ins. Co., 186 Pa. 571; Hower v. Fire Ins. Co., 9 Pa. Superior Ct. 153.
   Opinion by

Orlady, J.,

When this case was before the court in 35 Pa. Superior Ct. 120, we held that certain evidence which had been excluded was competent, relevant, and material and should have been received, and when received, at least as to the credibility of the witnesses, would necessarily have been raised; and if the offers of evidence presented by the defendant had been received, and if the testimony had risen to the level of the offers, it would have become a question of fact for the jury. On the retrial of the case, the plaintiff recovered a verdict after the excluded evidence suggested in the earlier trial had been received, and the question was fairly submitted to the jury. On this appeal all the assignments of error present but one controlling question, namely, was there sufficient evidence to submit to the jury the question whether the defendant had waived the effect of an alleged false warranty which had been made by the plaintiff in his application for the accident policy in suit. It is admitted that the plaintiff accepted a general accident policy issued January 27, 1905, upon which is indorsed a schedule of warranties signed by him, as set out in the former report of this case, and in order to sustain his right to recover, the testimony of the plaintiff, his wife and daughter, was introduced to show that the company had full knowledge of the plaintiff’s being a member of an association called the “True Blue ” at the time the policy in suit was issued and that a full explanation had been made by him of the character of the “True Blue ” company, and of his relation to it, and further that he was then assured that it would not interfere with his contract with the defendant company in any way, it being only a sick or health policy and not an accident policy.

The accident on which this action is founded occurred on March 2, 1905; and this suit was brought on October 18, 1905. Subsequent to the happening of this accident, it was alleged by the plaintiff, that the company, after having a full knowledge of all the facts in the case, continued to treat the plaintiff as a member of the company, and gave him notices of the amount of the monthly premiums due on his policy, which were to be paid on May 1, June 1, July 1, and August 1, succeeding; that he paid the premiums to July and then withheld further payment on account of the company refusing to pay him the amount claimed on account of his accident. The relation of Boyer and Phillips, the agents of the company, was explained in detail in the testimony, so that it became purely a question of fact under proper instructions for the jury to determine whether the defendant had waived the defects in the plaintiff’s claim by continuing to receive the premium due on his policy, and that the assurances given to him by the agents of the defendant that his relation to the “True Blue ” company did not conflict with his alleged warranty to the defendant.

The company might have stood on the literal construction of its own rules, and made a successful defense when it first had knowledge of the accident to the plaintiff, but instead of doing this, it is urged that a number of visits were made to him by persons acting for the company, and representations were made to him which would determine his right to recover. The extent of their authority and the representations they made, depended upon the testimony of witnesses, and this controversy was resolved by the jury in favor of the plaintiff's contention. If, with the knowledge in its possession of every fact upon which to' avoid the policy, they misled the plaintiff for three or more months, and induced him to pay the premiums that would be due to them only upon a live policy, and never informed him that they would hot pay because the policy was voided, they have no ground to complain if they are held to be estopped from setting up such defense: Niagara Fire Ins. Co. v. Miller, 120 Pa. 504. If the company acted and promised after the action was legally barred, as if it did not intend to insist upon the limitation, and put the party to trouble, expense and anxiety in regard to his claim, they need not complain of a jury finding that they did waive it: McFarland v. Insurance Company, 134 Pa. 590. The testimony in this case was all in parole. It consisted of declarations of the agent, coupled with letters written by the company which were either denied or were open to contradictory inferences; but taking it as a whole, it was not vague, indefinite nor unsatisfactory in character, and was sufficiently convincing to warrant the jury in determining that it measured to the degree of being clear, precise and indubitable under the instructions of the court: Grier Bros. v. Assurance Company, 183 Pa. 334; Bowman v. Mutual Fire Ins. Co., 203 Pa. 150. The knowledge of an agent which will affect his principal with constructive notice must be gained by the agent while acting for the principal in the matter to which it relates; and it was reasonably urged in this case that Boyer and Phillips were not only acting in the line of their authority as agents, but were especially delegated to act for the company in this particular case.

As is said in McSparran v. Southern Mutual Ins. Co., 193 Pa. 184: Notice is knowledge or information legally equivalent to knowledge brought home to the party notified, in immediate connection with the subject to which the notice relates: Sitler v. Fire Ins. Co., 18 Pa. Superior Ct. 139. Notice to an agent when it is the duty of the agent to act upon such notice, or to communicate it to his principal, in the proper discharge of his duty as agent is notice to the principal, and applies to agents of corporations, as well as to others: Sitler v. Fire Ins. Co., No. 2, 18 Pa. Superior Ct. 148; Lightcap v. Nicola, 34 Pa. Superior Ct. 189. Where the company has knowledge of a violation of a condition in the policy and yet continues to treat the policy as in force, it cannot be permitted to set up such breaches to defeat the contract. - Such a course tends to lull the party to sleep, by the assurance that the condition of the policy has been complied with. In such a case it is an estoppel which is the true ground upon which a doctrine of waiver rests. If the policy was in force for the purpose of collecting assessments on it, and was so treated by the defendant company, it was certainly in force for the purpose of paying the loss for which the company agreed to be liable under its very terms. The condition or limitation in the policy was for the benefit of the defendant and the defendant could waive it. Whether it did in fact waive it, was a question for the jury: Bonnert v. Ins. Co., 129 Pa. 558; McFarland v. Ins. Co., 134 Pa. 590; Brumbaugh v. Home Mutual Fire Ins. Co., 20 Pa. Superior Ct. 144; Mix v. Royal Insurance Co., 169 Pa. 639.

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


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    Commonwealth v. Stanley, Appellant.

      Election law — Criminal law — Indictment—Unlawful voting — Wrongful use of tax receipt — Evidence.
    1. Where a person is indicted, and the indictment contains three counts, the first founded on the Act of July 14,1897, P. L. 261, for voting when not qualified, the second on sec. 125 of the Act of July 2,1839, P. L. 519, for fraudulently using a false tax receipt, and a third on the Act of July 15, 1897, P. L. 276, for voting on a tax receipt obtained within less than thirty days prior to the election, and there is evidence to sustain the charges contained in the first two counts, a sentence upon a verdict of guilty will be upheld by the appellate court. It is sufficient if there is one count in the indictment which will sustain the sentence.

      Appeals — Errors—Evidence.
    2. An appellant must not only establish the existence of an error in the proceedings below, but that the error of which he complains has tended to his injury, and as a general rule it is not sufficient to show that an important question either in form or substance has been put to the witness, but it must appear that an answer was received which tended to injure the case of the appellant.
    April 00, 1909:
    Argued Nov. 9, 1908.
    Appeal, No. 210, Oct. T., 1908, by defendant, from judgment of Q. S. Montgomery Co., June T., 1908, No. 36, on verdict of guilty in case of Commonwealth v. Eugene Stanley.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for violation of election laws.
    The facts appear by the opinion of the Superior Court.
    At the trial the jury returned a verdict of guilty, upon which the defendant was sentenced to pay a fine of $10.00 and undergo an imprisonment of nine months.

      Error assigned was in not directing a verdict of not guilty.

      J. P. Knipe, of Wagner & Knife, with him N. H. Larzelere, and Henry I. Fox, for appellant.

      Theo. Lane Bean, with him J. B. Larzelere, Jr., district attorney, and Charles D. McAvoy, assistant district attorney, for appellee.
   Opinion by

Orlady, J.,

The defendant was found guilty under an indictment containing three counts, the first of which was founded on the Act of July 14, 1897, P. L. 261, in which he was charged with “fraudulently, unlawfully, knowingly and willfully” voting at an election for public municipal officers in the election district of the first ward of the borough of Bridgeport, Montgomery county, he not then and there being a person qualified by law to vote. The second count was founded on the 125th section of the Act of July 2, 1839, P. L. 519, in which he was charged with “fraudulently, unlawfully, willfully and knowingly publishing, uttering and making use of a forged or false tax receipt with intent to impose the same upon and deceive the inspectors and judge of elections at the same election, ” etc. The third count was founded on the Act of July 15, 1897, P. L. 276, in which he was charged with “fraudulently, unlawfully, willfully and knowingly” voting at the same election upon a tax receipt obtained within less than thirty days prior to the date of holding the said election. The several offenses were set out in the indictment in the words of the respective statutes.

While there are a number of assignments of error, the principal contention of the defendant on this appeal is, that there was not sufficient legal proof of guilt to warrant the verdict, and that the court erred in not directing a verdict of “ Not guilty.” After a careful examination of the whole record we are confident of the righteousness of the verdict, and that the disputed facts were fully and fairly submitted to the jury by the court, and they fully warranted the verdict of guilty as returned by the jury. In the light of this finding, the case stands • as a deliberate violation of the election laws of the commonwealth, meriting prompt and severe punishment.

While the third count in the indictment was presented jointly with the first and second, the evidence in relation to the use of the tax receipt was of such a doubtful and unsatisfactory character in showing that it had been obtained within less than thirty days prior to the date of holding said election, that it might weE have been withdrawn from the consideration of the jury; and in disposing of this case, it is not necessary to sustain that count in order to affirm the judgment, and had ' it been, withdrawn from the consideration of the jury, the result would doubtless have been the same, as the proof in relation to the first and second counts was so overwhelmingly against the defendant, that any other verdict than that of guilty on these two counts would have been against the fair weight of the evidence, and it is well settled that it is sufficient if there is one count in the indictment which will sustain the sentence: Commonwealth v. Prickett, 132 Pa. 371; Commonwealth v. Landis, 13 Pa. Superior Ct. 134; Commonwealth v. Bradley, 16 Pa. Superior Ct. 561.

The appellant must not only establish the existence of. an error in the proceedings below, but that the error of which he complains has tended to his injury, and as a general rule it is not sufficient to show that an important question either in. form or substance has been put to the witness, but it must appear that an answer was received which tended to injure the case of the appellant. The offer to show that a meeting between a man by the name of Hunsicker and Mulley resulted in a visit to the tax collector, February 6, 1908, by which said tax receipts were received, and that one of the receipts was altered so that the word “eight ” was changed to “seven”,; arid that the name was erased, and Eugene Stanley's name inserted, it being one of these tax receipts that the defendant used, whether supported by the proof subsequently introduced is not- material, for the reason it was'understood at the time the offer was made, if it was not made good by subsequent proof it was not to be considered by the jury, and even if this testimony was incompetent, the defendant is in no position to take- advantage of it at this time, as there was no motion to strike it out, nor was the court asked to instruct the jury to disregard it, as might have been done on the ground that it did not come up to the offer,' and it was treated by the defendant as being properly before the jury. As said in Commonwealth v. Craig, 19 Pa. Superior Ct. 81, the failure of the commonwealth to make gqod its offer would more probably operate in the defendant's favor with the jury. See Commonwealth v. Bell, 166 Pa. 405. The evidence in the case shows that the defendant knew that his vote would be challenged and he took his chances in voting at the election of February 18, 1908, after he had been fairly challenged for the nonpayment of his taxes. The receipt offered by him, dated February 6,1907, and signed J. H. Carver, the delinquent tax collector, was clearly shown to be a false and fraudulent one; the collector not only testified that no such receipt had been given, nor any tax had been paid which it represented, but further that the name of the defendant was not bn his books in any way, and in this he was corroborated by the stubs of his receipt book, as well as by the testimony of Collector Markley, and the records of the county commisiohers ’ office, which showed that no tax was assessed against the defendant. The only contradiction of these important facts is found in the testimony of the defendant and his wife, and their credibility was properly submitted to the jury. The receipt had been returned to Stanley after he had voted, and it was not in evidence on the trial, so that the whole question resolved itself into one of fact and the credibility of witnesses, and these were properly disposed of by the jury.

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


text:
    Badger, Appellant, v. Aeolian Council No. 17.

      Beneficial associations — Members—Expulsion of members — Trial.
    Where a member of a subordinate council of a beneficial association is charged with violating the constitution and by-laws of the association, and disloyalty to it, and is summoned for trial before the tribunal established by the laws of the association, and he appears and makes defense and is adjudged guilty, and the subordinate council is directed to expel him, and this order is ultimately obeyed without the member having taken any appeal, or asking for a retrial, such member has no standing to maintain a mandamus suit in a civil court to secure his reinstatement. In such a case it is immaterial that the subordinate council at first refused to obey the order directed to it, and separated itself, from the general association, if it appears that the subordinate council subsequently secured its reinstatement with the name of the expelled member dropped from its roll of membership.
    Argued Nov. 13, 1908.
    Appeal, No. 110, Oct. T., 1908, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1905, No. 3,688, refusing writ of mandamus in case of Evan G. Badger v. Aeolian Council No. 17 Junior Order of United American Mechanics et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for mandamus.
    By agreement the case was tried by the court without a jury under a provision of the Act of May 22, 1874, P. L. 109.
    The facts are stated in the opinion of the Superior Court.

      May 10, 1909:
    The trial judge, McMichael P. J., refused mandamus, entering the following order:
    The court having carefully considered the proofs submitted on behalf of the plaintiff and defendants, and the pleadings and the findings of fact, is of opinion that the petitioner, Evan G. Badger, failed to establish his right to a mandamus against Aeolian Council No. 17, Junior Order of United American Mechanics, and the other defendants, and the mandamus is therefore refused.
    On exceptions to the order the court entered final judgment as follows:
    And now, after hearing, the judges who heard this case being divided in opinion, the exceptions are dismissed and the mandamus is refused, Ferguson, J., dissenting; Von Moschzisker, J., being a member of the J. O. U. A. M., not sitting at the argument nor participating in the judgment.

      Error assigned amongst others was the final judgment of the court.

      Frank M. Cody, for appellant.

      W. U. Hensel, with him A. M. DeHaven, for appellee.
   Opinion by

Orlady, J.,

The plaintiff filed a petition for a writ of alternative mandamus to effect his restoration to membership in the defendant body, and after having been heard by the court without a jury, the writ was refused. When the plaintiff was received as a member of the defendant association in May, 1886, it was an unincorporated fraternal and beneficial branch, located in the city of Philadelphia, of the National Council of the Junior Order of the United American Mechanics. This association was divided into a national council, state councils and subordinate bodies, united into a general association by rules, regulations and a code of laws, with defined authority, governing the duties and liabilities of members, and the authority of the several branches into which it is divided. The supreme power of government was lodged in three departments, the legislative, executive and judicial, which exercised their respective functions so as not to encroach upon, or interfere with those of either of the others, except as expressly permitted or directed by the constitution.

The national judiciary was the recognized authority and court of last resort within the order, and before that tribunal, regularly convened, specific charges were preferred against the plaintiff and others, and after due notice and full examination and hearing, at which the plaintiff was present and made defense, he was, in December, 1900, adjudged guilty of neglecting and refusing to obey the laws of the order, and of endeavoring to disrupt it by incendiary addresses and remarks in meetings of the subordinate councils at different places, and publications in newspapers, periodicals and circulars, tending to bring the national council into disrepute. Under the authority specially delegated to the national judiciary, it was decreed that he should be expelled from the order. Subsequent to this decree the plaintiff never requested a new trial or a rehearing, nor did he appeal from the decree of the national judiciary, so that it continued in full force and effect against him from its date. It appears that the national council did not claim the authority to expel directly a member from his subordinate council; but to put into effect the decree, it ordered and directed Aeolian Council, of which he was a member, to adopt the resolution, formally expelling him from membership. For some reason, the subordinate council refused to act in accordance with the decree of the national judiciary's decree, and it became in a state of insubordination to the national council, and severed its relation therefrom. After the subordinate council had been adjudged guilty of certain violations of definite rules of the order it was suspended from all rights and privileges following to it by reason of its relation to the superior body. Subsequently the Aeolian Council was reinstated in the organization, and is now in fraternal affiliation with .the parent body. In the restoration of the subordinate council to the national council the plaintiff was not a party to, nor did he assent to any of the proceedings, under which the subordinate council applied for readmission to the Junior Order of American Mechanics, and the plaintiff contends that his expulsion from membership in the Aeolian Council was without trial or warrant of law, and therefore illegal and void, and that by reason of certain property interests which he alleges he has in the subordinate council he should be reinstated.

It is not necessary to trace the proceedings through all their details, the important facts have been found against the plaintiff's contention, and the record shows that instead of yielding allegiance to the national organization, he was not only insubordinate to its decree, but he assumed and continued in an attitude of defiant opposition to the association, with the decree of the national council standing unappealed from. His relation to the national and subordinate councils was dissolved in accordance with the law as laid down by the body for its own government, which determined the relation of a member to the subordinate and superior bodies. He persisted in his insubordination continuously, and he had no property right in the subordinate council or its funds that was not fully and properly determined by the national council. The fact that the defendant council was for a time suspended from the national or state councils, on account of its insubordination, and that its members acquired new rights and privileges by continuing an independent existence is fully answered by the attitude of the defendant council in again becoming identified with the national organization in accordance with the rules governing the major and all the minor branches of the organization, so as to effect a uniform relation of the members. What occurred during the time the defendant council was non-affiliated with the parent body is not material, and when the charter was restored to those enumerated, the name of the plaintiff was excluded on account of the decree of the national judiciary which expelled him, and the defendant council was restored only after his name was dropped from its roll of membership. As was said by the trial judge of the court below: “This plaintiff cannot with justice complain, I think, of his failure to be tried by his own council (while it was in a state of insubordination) because his case had already been adjudicated by the highest courts of adjudicature of the general order, and the very life of the subordinate council depended on its obedience to the decree of the national judiciary.” It was penalized by not being in affiliation with the general order for several years, and after having dropped the name of the plaintiff from its rolls, recognized its allegiance to the general order by being restored to good standing. The prayer of the petitioner was to restore him to membership in the Aeolian Council No. 17, Junior Order of American Mechanics, and to the enjoyment of the rights, benefits, privileges and immunities belonging and appertaining to such membership. Aside from the question of the policy of the courts, it would be futile for the civil courts to decree that a member should be restored to membership in an association, which had already decreed to expel him for cause. The national judiciary of the order had jurisdiction over the person and the subject-matter; the proceedings were regular, and he cannot now force himself upon an organization under the facts as he presents them. The right of the defendant, and the reason for refusing the relief prayed, is fully set out in the case of Derry Council v. State Council, 197 Pa. 413, and Crow v. Capital City Council, 26 Pa. Superior Ct. 411.

When this appellant became a member of the order, he was bound in duty as well as in honor, to give allegiance to its constitution and by-laws. His trial and conviction was by a tribunal of his own choice, and having been lawfully conducted, concludes him. Organizations of this character cannot serve the purpose of their creation unless there is a strict disciplinary authority in the department having ultimate power to hear and decide all controversies between members of grand or subordinate bodies. Thé decision of such a court of last resort must be accepted and obeyed as representing what is best for the organization in interpreting the rules and regulations prescribed by their laws, and the civil courts will always incline to sustain them; and mere informality in the proceedings for removal will not justify interference by mandamus when it is evident that there are just grounds for expulsion, or that the accused has been acting in hostility to the organization. To encourage such insubordination by compelling the members and subordinate bodies to continue to receive among their active membership those who plot and scheme to disrupt the whole system as this plaintiff has been convicted of doing, would not only destroy its usefulness, but would be destructive of the whole system, and when such an organization forms its own rules and regulations which are accepted as of binding authority between members, we will not interfere with the administration of its affairs, when they have as literally followed their own rules as has been done in this case.

The judgment is affirmed.


text:
    Commonwealth, Appellant, v. McComb.

      Constitutional law — Police power — Game laws — Act of May 31, 1907, P. L. 329.
    The Act of May 31, 1907, P. L. 329, entitled, “An Act prohibiting the use of automatic guns for the killing of game or wild birds within this Commonwealth, and prescribing a penalty for violation of its provisions,” is constitutional. It is not an unreasonable exercise of the police power by the legislature, nor does it arbitrarily interfere with private property, nor unjustly discriminate against the maker of a particular kind of gun.
    Argued Nov. 18, 1908.
    Appeal, No. 148, Oct. T., 1908, by plaintiff, from order of Q. S. Delaware Co., Miscellaneous Quarter Sessions Docket 316, setting aside summary conviction in case of Commonwealth v. Thomas W. McComb.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from summary conviction.
    The opinion of the Superior Court state the case.

      Error assigned was in discharging the prisoner.

      S. B. Sadler, with him Josiah Smith, for appellant. —
    That the state has a wide control over its game and fish has been •often authoritatively recognized: Geer v. Connecticut, 161 U. S. 519 (16 Sup. Ct. Repr. 600); Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499); Gentile v. State, 29 Ind. 409; Smith v. Maryland, 59 U. S. 71; Com. v. Wilkinson, 139 Pa. 298.
    May 10, 1909:
    That a man has invested money in property, in order to use it in a certain way, is no guarantee that he may continue to use it in that way when the state becomes convinced that the use of it in that way is injurious to it: Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499); Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355; Austin v. Tennessee, 179 U. S. 343 (21 Sup. Ct. Repr. 132); Com. v. Paul, 148 Pa. 559; In re Rahrer, 140 U. S. 545 (11 Sup. Ct. Repr. 865).

      William I. Schaffer, with him William Findlay Brown, for appellee. —
    The act is unconstitutional, because it is an unreasonable exercise of the police power by the legislature, arbitrarily interferes with private property and unjustly discriminates against the owner of a certain kind of gun: Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. Repr. 357); Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. Repr. 273); Wright v. Hart, 182 N. Y. 330 (75 N. E. Repr. 404); People v. Gillson, 109 N. Y. 389 (17 N. E. Repr. 343); People ex rel. v. Van De Carr, 91 App. Div. 20; People ex rel. v. Zimmerman, 102 App. Div. 103; In re Marshall, 102 Fed. Repr. 323; Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499).
    The legislature cannot under the guise of police regulations, arbitrarily invade personal rights or private property and cannot at will impose upon property burdens so excessive as to work a confiscation thereof: Iler v. Ross, 57 L. R. A. 895; Chicago, etc., R. R. Co. v. State, 53 Am. St. Rep. 557; 41 L. R. A. 481; Smiley v. MacDonald, 47 Am. St. Rep. 684 ; 27 L. R. A. 540; Ex parte Whitewall, 35 Am. St. Rep. 152; Matter of Jacobs, 98 N. Y. 98; Pumpelly v. Green Bay Co., 80 U. S. 166; Wynehamer v. People, 13 N. Y. 378; People v. Otis, 90 N. Y. 48; Forster v. Scott, 136 N. Y. 577 (32 N. E. Repr. 976).
   Opinion by

Orlady, J.,

The defendant was arrested, taken before an alderman of the city of Chester, and convicted of violating the provisions of the following act of assembly: “An Act prohibiting the usé of automatic guns for the killing of game or wild birds within this commonwealth,” and prescribing a penalty for the violation of its provisions.

Section 1, “Be it enacted, etc., that from and after the passage of this act, it shall be unlawful for any person to use what is commonly known as an automatic gun for the killing of game within this commonwealth. Each and every person violating any provision of this section shall be liable to a penalty of $50.00 for each offense, or shall suffer an imprisonment in the common jail of the county for a period of one day for each dollar of penalty imposed:” Act of May 31, 1907, P. L. 329.

An appeal was allowed by the court below, and after a full hearing, the defendant was discharged for the reason that the act was unconstitutional in that the prohibition of the killing of game with automatic guns was a discrimination against the makers of such guns, and deprived them of the equal protection of the laws guaranteed by the constitution of the United States, and the constitution of Pennsylvania. This act is one of a very large number beginning in the early colonial days and continuing through almost every session of the legislative body, providing for the manner of taking game; the methods employed; limiting the amount of the bag or catch of every kind of fish, fowl or beast known in Pennsylvania.

It is earnestly contended that the act is unconstitutional, because it is an unreasonable exercise of police power by the legislature, arbitrarily interfering with private property and unjustly discriminating against the owner of a certain kind of gun. So to hold, we would be obliged to declare that a number of similar statutes are void by parity of reason. The extent and limitation of what is known as police power, has been a fruitful subject of discussion in the appellate courts of nearly every state in the union. It is universally conceded to include everything essential to the public safety, health and morals and to justify the destruction or abatement by summary proceedings of whatever may be regarded as a public nuisance, and wherever the public interests demand it a large discretion is necessarily vested in the legislature to determine not only what the interests and the public require, but what measures are necessary for the protection of such interests: Barbier v. Connolly, 113 U. S. 27.

The preservation of game and fish has always been treated as within the proper domain of the police power, and laws, limiting the season when birds and wild animals may be killed, and had for sale, and prescribing the manner in which they may be taken, have been repeatedly upheld by the courts. The duty of preserving the fish and game of a state from extinction, by prohibiting exhaustive methods of taking it, or the use of destructive instruments as are likely to result in the extermination of the young as well as the mature, is as clear as its power to secure to its citizens, as far as possible, a supply of any other wholesome food: Lawton v. Steele, 152 U. S. 133. It is but a decent respect due to the wisdom, integrity and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt: Ogden v. Saunders, 25 U. S. 213. A reasonable doubt must be solved in favor of the legislative action and the act be sustained: Cooley’s Constitutional Limitations, 253. When the legislature has considered the question and passed upon it, this makes a prima facie case in the law: Com. v. Vrooman, 164 Pa. 306. It must be manifest that the legislative department has overstepped the boundaries marked by the constitution before the courts are justified in nullifying the statute. The legislature comes direct from the people, and by its enactment gives expression to the popular will. This will so expressed, is the law of the land, except where the constitution unquestionably forbids it: Com. v. Darmska, 35 Pa. Superior Ct. 580; Likins’s Petition No. 1, 37 Pa. Superior Ct. 625. The test as to whether the police power is validly exercised, is whether the enactment has relation to the public welfare, and it has been deemed of sufficient importance to justify the legislatures of practically all of our states, to enact laws for the protection and preservation of game, and we have seen no case which challenges this as a legislative right, clearly within the exercise of the police power.

Prohibiting taking fish by any device other than hook and line, or rod held in the hand, the use of nets, the size and number of a catch; the prohibition against the use of destructive agencies like torpedoes, quicklime or explosives; the season in which the fish may be caught have all been legislated about, and the enactments have been sustained by our appellate courts.

By the Act of May 17, 1883, P. L. 34, it is made unlawful to chase, hunt, shoot, kill or destroy any web-footed wild fowl from or with any craft or boat propelled by steam' or sails. By the Act of June 4, 1897, P. L. 123, it is provided, that no person shall kill, wound, trap, net, snare or catch with birdlime or any similar substance, poison, or drug, any wild bird, or make use of dog or dogs in hunting any elk, deer or fawn within this state, or hunt or cause or permit the hunting of hares or rabbits with ferrets, or set, lay or prepare any trap, snare, net, birdlime, swivel gun, pitfall, turkey blind, or pen, or any other contrivance with intent to catch, take or kill any of the birds and mammals mentioned in that act, or any use of any artificial light, battery, or any other deception or contrivance whatever, with intent to attract, or deceive any of the birds or mammals mentioned, except the use of decoys, in hunting ducks, wild geese and brant.

The swivel gun referred to in the act of 1897, is described as a small cannon, revolving on a swivel, so that it may maim or kill a number of game at a single discharge, but it is always under the direction and control of the operator. The automatic gun mentioned in this act is described as “one that is fired from the shoulder, and the recoil developed by the exploded cartridge, ejects the shell, cocks the hammer, and feeds in a fresh cartridge from a magazine into the chamber of the gun,” so that all that is required to discharge it is to pull the trigger. It is not necessary to justify the wisdom of the legislative enactment; the whole question has so frequently been the subject of discussion in the legislature and courts, that we must accept it as a result of their deliberations, that an automatic gun is not a proper weapon for the killing of game, within this commonwealth. Nor are the courts concerned about a technical though trifling interference with the pleasure of a hunter, or the property interest of a gun maker in deciding a question of public interest and welfare. Indeed, the source of police power, as to game, flows from the duty of the state to preserve for its people a valuable food supply: Phelps v. Racey, Ex parte, Maier, 103 Cal. 476; Magner v. The People, 97 Ill. 320, and the cases there cited. The exercise by the state of such power, therefore, comes directly within the principle of Plumley v. Mass., 155 U. S. 461; Silz v. Hesterberg, 211 U. S. 31.

When the act against taking fish with a certain kind of seine went into effect, there were doubtless many seines of the prohibited class manufactured, and in existence. The same may be said of swivel guns, when the act making it unlawful to kill certain wild fowl with such guns became a law, and the rule would apply with equal force to any new agency or device that is particularly prohibited. When the interests of the private manufacturer and the public weal come in conflict, from the legislative standpoint, the people at large are to have the preference. The act is general in its prohibition, affecting all alike, and protects from the automatic gun every kind of game in this commonwealth: Halter v. State, 7 L. R. A. (N. S.) 1079; Com. v. Kenney, 32 Pa. Superior Ct. 544; Com. v. Bercaw, 30 Pa. Superior Ct. 335; N. Y., etc., R. R. Co. v. New York, 165 U. S. 628.

The Act of June 10,1881, P. L. Ill, forbids the sale to any person under sixteen years of age of a pistol, revolver, etc. The Act of March 31,1860, P. L. 382, provides for the confiscation of gambling apparatus. Even the length of time a female laborer shall be subjected to the exhaustion of physical labor is within legislative control: Com. v. Beatty, 15 Pa. Superior Ct. 5. The object of the act is not to favor the makers of one sort of gun, at the expense of those of other kinds, but its sole object is to protect game, and the methods adopted for its destruction, whether guns, traps or devices, are proper subjects for legislative consideration, just as the manufacture and use of explosives, the regulation of the practice of medicine, the dealings of hawking and peddling, the use of automobiles, the employment of minors, the taking of game, the use of public highways are general, and affect all alike; so that, a specially designed gun, which is made particularly effective and proportionately dangerous to game, comes within the class of dangerous agencies either to be regulated or prohibited, as the legislature may decide.

The judgment of the court below is reversed, and the record is remitted to the end that the sentence imposed may be fully carried into effect.


text:
    Geddes, Appellant, v. Lehigh Coal & Navigation Company.
    May 10, 1909:

      Beneficial associations — Rules of government — Benefits—Death benefits.

    A widow cannot recover from the beneficial fund of a mining corporation which was her husband’s employer, where she fails to comply with the rules governing the administration of the fund by producing a statement of a proper foreman of the company that the injury was received in the service of the company, and a certificate from the physician to the fund that the death resulted from an accident, and not from some disease.
    Argued Dec. 16, 1908.
    Appeal, No. 219, Oct. T., 1908, by plaintiff, from order of C. P. Carbon Co., Jan. T., 1906, No. 9, refusing to take off nonsuit in case of Bessie Geddes v. Lehigh Coal & Navigation Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for death benefits. Before Heydt, P. J.
    The opinion of the Superior Court- states the case.

      Error assigned was refusal to take off nonsuit.

      J. 0. TJlrich, with him L. C. Scott, for appellant.

      Frederick Bertolette and George M. Roads, for appellee.
   Opinion by

Orlady, J.,

The plaintiff’s right to recover in this case must depend upon the relation by contract, expressed or implied, of her husband with the defendant company, and assuming everything favorable to her contention, so far as his right to membership in the beneficial fund of the Lehigh Coal and Navigation Company, the important fact remains that she has failed to establish any compliance with the rules governing the administration of the fund, so as to entitle her as his widow to any right therein.

Rule No. 5 provides that benefits will be paid only on the statement of the proper foreman that the injury was received in the service of the company; and on a certificate from the physician to the fund in case of accident; that the accident was a disabling one; and in the case of death that the death resulted from the accident and not from some disease, is controlling in the case. These rules were formulated'by the officers of the fund, and accepted by each of the persons participating in the payments into the fund, and regulated all claims under the fund, either from disability or for funeral expenses, or in case of injuries the rights of the heirs of the deceased. The plaintiff’s proof failed entirely to establish a certificate from a physician to the fund, that the death resulted from accident and not from disease. The certificates received in evidence irregular as they were, were contradictory, and not effective. The one dated February 1,1904, recited that “Sylvester Geddes, was injured November 12, 1903, died of blood poison November 25, 1903, and will be able to resume work.” The one May 3, 1904, states that the remote cause of death was due to some constitutional disease, and the physician declined to say that the alleged injury had anything to do with it. The nonsuit was properly entered.

The judgment is affirmed.


author: Henderson, J.,

text:
    Weaver’s Estate.

      Will — Legacy—Charge on land — Vested and contingent interests.

    1. In the case of a legacy charged on land the payment of which is postponed with reference to the circumstances of the legatee, the charge fails if the legatee dies before the time of payment; a distinction is drawn between the postponement of payment which has reference to the convenience or condition of the estate, and that which is made owing to the situation of the legatee.
    2. Testator gave a legacy to a boy ten years old at the time the will was made and then of feeble mind. He directed that the legacy should be paid to the legatee when he arrived at the age of twenty-five, provided he should, in the judgment of the executor, then be responsible and competent, otherwise the interest was to be paid to the legatee and the principal after his death to his children. No provision was made for paying interest to the legatee during the intervening period, the father of the legatee being able to support him. Testator directed that this legacy with others and debts should be charged on certain real estate described, and gave the residue of his estate to his brother. The legatee remained feeble minded during his life, and died under twenty-five years of age without children. Held, that upon the death of the legatee, the legacy lapsed, and the brother took the real estate free of the charge.
    Argued Nov. 10, 1908;
    Appeal, No. 127, Oct. T., 1908, by the Pennsylvania Trust Company, Administrator of Franklin H. Weaver, deceased, from decree of O. C. Berks Co., dismissing exceptions to adjudication in Estate of Franklin Weaver, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication. Before Bland, P. J.
    Testator directed as follows:
    ■ “ 7. I give, devise and bequeath to my nephew Franklin H. Weaver the sum of $1,000 to be paid to him on his arriving at the age of (25) twenty-five years, provided he in the judgment of my executor, then is responsible and competent to be entrusted with the same otherwise this bequest shall remain in the hands of my executor in trust and the interest thereof to be paid to him annually during his lifetime and after his death the principal shall be paid to his children share and share alike.

      “12. And I hereby further charge and subject my two properties Nos. 947 and 949 Franklin Street Reading Penna. with and the payment of the balance of whatever may remain unpaid of all the cash bequests by me hereinbefore made together with my funeral expenses and expenses of setting up my estate and all my just debts and I direct and order my executor hereinafter named to so pay the same, and the residue of the properties Nos. 947 and 949 Franklin Street Reading Penna. I give devise and bequeath to my brother Ebenezer P. Weaver and to his heirs and assigns forever.”
    The nephew died at the age of fourteen. The court awarded the fund represented by the legacy to Ebenezer P. Weaver.
    On exceptions, Bland, P. J., filed the following opinion:
    In the matter of the exceptions of the Pennsylvania Trust Company, administrator of Franklin H. Weaver, deceased, to an adjudication filed September 19, 1907, distributing a fund of $1,300, charged on certain real estate by the will of said Franklin Weaver, and paid into court for distribution to the person or persons entitled thereto.
    The learned counsel for the exceptant contends, that in the opinion heretofore filed, the court did not consider the effect of the gift to the children of Franklin H. Weaver, in the contingency mentioned in the seventh paragraph of the will: ‘' provided he in the judgment of my executor, then is responsible and competent to be entrusted with the same otherwise this bequest shall remain in the hands of my executor in trust and the interest thereof to be paid to him annually during his lifetime and after his death the principal shall be paid to his children share and share alike.” His having children, is as much a fact personal to the legatee, as his attainment of the age of twenty-five years; and is, therefore, as clearly within the rule of Poulet v. Poulet, 1 Vernon, 204, as death under the prescribed age. As Franklin H. Weaver died childless, at fourteen years of age, both personal conditions failed; and as there is no gift over, there is an intestacy, if the legacy did not sink in the land devised. But the law will not hold a man who has made a will, to have died intestate, without an unavoidable necessity so to do; and if there is any rule of law upon which his will may be held to operate upon his whole estate, it will be held to do so. We have such a rule, old and firmly established; and we are bound to follow it. The rule of Poulet v. Poulet, 1 Vernon, 204, evidently exists in the state of New York; as appears by the case of Traver v. Schell, 20 N. Y. 89, where Johnson, Ch. J., said: “And in regard to legacies charged on real estate, the rule is the same, where it appears that the postponement is based upon the condition of the estate and the convenience of the party who is to pay, and not upon the situation and circumstances of the legatee.”
    July 14, 1909:
    [It is my opinion, that as Franklin H. Weaver died under the age of twenty-five years and without ever having had a child, the legacy of SI,000 never vested, indefeasibly, in anyone; and at his decease, sunk into the land on which it was charged.
    ■ The exceptions are, accordingly, dismissed, and the distribution excepted to, is confirmed absolutely.]

      Error assigned was the decree of the court.

      J. H. Zweizig, for appellant. —
    The legacy of Franklin H. Weaver was vested: Bowman’s App., 34 Pa. 19; Culin’s App., 20 Pa. 243; Millard’s App., 87 Pa. 457; Stone v. Massey, 2 Yeates, 363; Williams v. Neff, 52 Pa. 326.

      Henry Maltzberger, for appellee.
   Opinion by

Henderson, J.,

The form of the bequest to Franklin H. Weaver and the evidence taken in this proceeding leave no room for doubt that the testator had in view the legatee’s mental condition when giving direction in regard to the payment of the legacy. The legatee was feeble-minded during his whole life. The will was made when he was ten years of age and the testator apparently hoped that he might improve in this respect; hence, the provision of the bequest that payment should be made when he would arrive at the age of twenty-five years, provided he should in the judgment of the executor then be responsible and competent to be entrusted with the amount bequeathed to him. The legacy, therefore, became payable on a condition personal to the legatee. The circumstances of the latter and not any convenience or advantage to the estate induced the testator to postpone its payment. The facts bring the case within the operation of the rule in Poulet v. Poulet, 1 Vernon, 204; Smith on Executory Interests, sec. 321; 2 Jarman on Wills, ch. 25; Hawkins on Wills (2d Am. ed.), ch. 18, and other authorities, to the effect that in the case of a legacy charged on land the payment of which is postponed with reference to the circumstances of the legatee, the charge fails if the legatee die before the time of payment. A distinction is drawn between the postponement of payment which has reference to the convenience or condition of the estate and that which is made owing to the situation of the legatee. In the former case the legacy vests; in the latter it falls into the land. This rule was recognized in Stone v. Massey, 2 Yeates, 363, where some exceptions to, and modifications of it, were commented on, and the law as stated in Hargrave’s Note to Coke on Litt., 237a, as follows: “In general where a legacy payable at a future time, is charged on personal estate only, if the legatee dies before the day of payment, his personal representative will be entitled to it. But where it is charged on real estate, it sinks into the land for the benefit of the owner of the inheritance. Yet wherever there are any circumstances or expressions in a will from which the implication that it was the testator’s intention to make it immediately a vested legacy, is stronger than the implication to the contrary which arises on its being charged on a real or mixed fund and payable at a future day it is to be considered vested,” was held to be accurately laid down. In Donner’s Appeal; 2 W. & S. 372, the same subject is referred to and the distinction made between a postponement on account of the minority of th^ legatee and one for the benefit of the estate of the devisee of the land. In the latter case it was decided that the postponement was for the “ease and advantage” of the devisee of the land and not on account of the circumstances of the legatee, which brought the case within a well established exception to the general rule. Moran’s App., 13 Pa. Superior Ct. 251, recognizes the same doctrine. Unless, therefore, there is to be found in the will or the circumstances an intention of the testator to give a vested legacy and thereby overcome the contrary implication which arises because it is charged on realty and payable at a future day, the conclusion of the orphan’s court should be sustained. After a careful examination of the will and a consideration of its circumstances we are unable to find any evidence which persuades us that the testator intended that the legacy should vest immediately. The postponement must have been made on account of the infirmity of the legatee and there is not any sufficient reason for concluding that the testator intended to confer a benefit on the collateral heirs of the legatee in the event of his death before the time appointed for payment. On the contrary, the helplessness of the legatee and the apparently remote probability that he would become capable of managing his estate point directly to the conclusion that it was only to vest in the event that he survived. The father of the legatee was living and responsible for his support and no provision was made in the will for the payment of interest on the legacy for the period intervening before the time fixed for payment. It is reasonable, therefore, to suppose that the provision made by the testator was intended to be for his use and benefit when he reached an age at which the testator thought he might be able to take care of himself. The direction that the competency of the legatee should be ascertained before the money should become payable gives strong color to the impression that the legacy was to be contingent on his capability to manage his estate. It is contended, however, that the provision for payment to the children of the legatee in the event that the latter should not be responsible and competent when he should arrive at the age of twenty-five years shows a contrary intent. It is well observed by the learned judge of the orphan’s court that the contingency of having children is as much a fact personal to the legatee as his attainment of the age of twenty-five years. Moreover, the prospect'that the legatee might have children must have been associated in the testator’s mind with the expectation that he would have reached the age of twenty-five years with developed mental ability and capacity to take care of himself. It is not to be assumed that the testator had in contemplation the procreation of children by one not compos mentis. Culin’s App., 20 Pa. 243, and Millard’s App., 87 Pa. 457, to which the learned counsel for the appellant invites our attention were cases of absolute legacies where the condition was annexed to the payment; not to the gift. In the first case the bequest was in trust for a married daughter of the testator with a provision that if her husband should continue to refrain from drinking to excess for one year after the decease of the testator’s widow, then the legacy to be paid to the legatee. Her husband died during the lifetime of the widow of the testator and it was decided that the legacy was payable to her. In the latter case the bequest was to the executor in trust to pay over the interest and dividend of stocks and bonds to a nephew of the testator, with authority to the executor to pay the whole or portions of the principal to the legatee in the discretion of the executor if the legatee should be sober and industrious in his habits. These were cases of a postponement of the time of payment without any condition annexed to the gift. The condition on which payment was to be made became impossible by the act of God. The reason for further postponement ceased to exist and the legacies became payable at once. In each instance the object of the testator was to provide for the legatee and the trust provision was merely to prevent the waste of the estate. The reason for such trust having ceased, the fund became payable to those entitled thereto.

It seems very clear from the language of the will that the testator intended that his brother, Ebenezer, should have all of his property which was not effectively bequeathed or devised to other persons. He did not know whether the other portion of his estate would be sufficient to pay his debts, funeral expenses and the legacies provided for and he, therefore, directed that any part of these not satisfied by his other property should become a charge on lots Nos. 947 and 949 on Franklin street in the city of Reading and the residue of these properties he devised to Ebenezer. This property constituted his whole estate not otherwise disposed of and the devise to Ebenezer made the latter his residuary devisee. It was uncertain what amount might become a charge on the lots. If the other portion of the testator’s estate had been sufficient to pay these charges Ebenezer would have taken the lots free from liability and it is a fair interpretation of the testator’s intention to hold that the lots were given to Ebenezer as a whole, subject to the legacy as a charge, and in that case a lapsed or void legacy would fall into the particular residue: Hawkins on Wills, *43; DeTrafford v. Tempest, 21 Beav. 564. We conclude, therefore, that the case was well decided by the orphan’s court.

Decree affirmed.