author: Orlady, J.,

text:
    McGuire, Appellant, v. Wilkes-Barre.

      Road law — Obstruction of highway — Fence—Adverse use — Plan of lots — Dedication.
    References to a plan contained in a deed have the effect of making that plan a part of the deed, and this constitutes a dedication of the streets and alleys laid down upon the plan to the use of the purchaser as a public way.
    No title can be acquired against the public by an adverse use of a portion of a street for more than twenty-one years. Anything which closes or obstructs a road or a street that had once" been opened is a nuisance, and may be abated either by the proper officer, or by any private citizen.
    Where a street has been dedicated to the public use by the recording of a plan of lots, and the street has been accepted by the city, no one can acquire title to a portion of the street by any length of adverse use.
    Argued March 5, 1908.
    Appeal, No. 58, March T., 1908, by plaintiff, from judgment of C. P. Luzerne Co.., Oct. T., 1905, No. 1,067, on verdict for defendant in case of Teresa McGuire v. The City of Wilkes-Barre.
    Before Rige, P. J., Porter, Henderson, Orlady,. Head and Beaver, JJ.
    Affirmed.
    Trespass for an alleged wrongful invasion of plaintiff’s property. Before Halsey, J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendant. Plaintiff appealed.

      July 15, 1908:

      Error assigned was in giving binding instructions for defendant.

      M. J. Mulhall, with him T. F. McLaughlin, for appellant.1—
    Mere dedication alone by an individual, unlike dedication by the commonwealth, will not make a street a public highway unless it is actually opened upon the ground and accepted by the public: Washington Female Seminary v. Washington Borough, 18 Pa. Superior Ct. 555; Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194; Commonwealth v. Royce, 152 Pa. 88; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425.

      Charles F. McHugh, city solicitor, and Richard B. Sheridan, for appellee. —
    The fence was an obstruction and nuisance in the public way, which no length of time could legalize: Commonwealth v. McDonald, 16 S. & R. 389; Commonwealth v. Rush, 14 Pa. 186; County of Susquehanna v. Deans, 33 Pa. 131.
    The question involved in the case at bar is clearly ruled in favor of the city in Higgins v. Sharon Boro., 5 Pa. Superior Ct. 92.
   Opinion by

Orlady, J.,

Prior to 1876, a large tract of land in the northerly portion of the city of Wilkes-Barre was laid out by its owner in building lots, and a plan thereof, showing the lots and streets, was placed on record. One of these streets was designated as Maxwell street, and the plaintiff’s husband became the owner of one of the lots abutting on it. The deed is dated April 8, 1899, and the description is &s follows: “A lot of land beginning at a point on the Southerly side of Maxwell Street, City of Wilkes-Barre, a common corner of lots numbered 119 and 121, on a plot of lots herein referred to. . . . Being lot No. 121 on the plot of lots, and belonging to the estate of Luther Kidder, deceased, which plot is recorded in the office for the recording of deeds in and for said county,” etc. The city of Wilkes-Barre in 1878, by an ordinance duly enacted, adopted Maxwell street as one of the public highways of the city.

When the grantee of the Kidder heirs took possession of the real estate under the conveyance, which was subsequent to the date of the recording of said plan, he located his fence two feet six inches outside of the plotted line of Maxwell street as marked on the plan, and continued to maintain such fence until a short time prior to the institution of this suit, when the defendant city, through its municipal officers, removed the encroaching fence; the plaintiff then brought this action of trespass to recover damages, she contending that by reason of the fact that she and her predecessor in title have been in undisputed possession of the land inside of the fence, for more than twenty-one years, that she had acquired an absolute title thereto. At the conclusion of the testimony the court directed a verdict for the defendant, and the plaintiff brings this appeal. The recording of the plan of lots in March, 1876, and the selling of the lots, pursuant to a technical description in reference to that plan and calling for the streets named therein in such conveyance, was a dedication so far as the Kidder heirs were concerned. The acceptance by the city made. Maxwell street one of the public highways of the city within the boundary lines as declared in the plan and established by the remarking of the lines, in regard to which there is no dispute.

An owner who makes a plot on which spaces are left indicating the dedication of roads or streets not previously projected by the public authorities, and sells lots with reference to these plots, cannot recall his dedication, for he leaves the street to be opened by the proper local authorities at such time as the public interest may require, and of this they are the judges: Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92. References to a plan contained in a deed have the effect of making that plan a part of the deed, and this constitutes a dedication of the street and alleys laid down upon the plan to the use of the purchaser as a public way. The plaintiff’s husband accepted his deed, with both actual and constructive notice and knowledge of the location of the street designed for the use of the different owners of portions of the tract of land, of which his lot was a part: Ermentrout v. Stitzel, 170 Pa. 540; Witman v. Smeltzer, 16 Pa. Superior Ct. 285; Richardson v. City of McKeesport, 18 Pa. Superior Ct. 199. From the moment the plaintiff’s husband, who purchased from the Kidder estate, decided to ignore the plan of lots that had been placed on record, and to fix his boundary line so as to include a part of the street, he was a trespasser, and the fact that he and his widow after him have occupied it adversely, as they claim, for more than twenty-one yéars’ will not aid his original tortious taking.

No title can be acquired against the public by user alone, nor loss to the public by nonuser. Public roads are not destroyed by long continued encroachments or permissive trespass. The public is not deprived of its right, by such encroachment. The fence located on the highway, under the undisputed facts of this case, acquired no right on account of time or expenditure. A street can no more be obstructed partially than closed altogether, and as said in Commonwealth v. Moore-head, 118 Pa. 344, authorities in support of the above propositions might be multiplied indefinitely, were it necessary. Anything which closes or obstructs a road that has once been opened is a nuisance, and may be abated either by the proper officers or by any private citizen: McMurtrie v. Stewart, 21 Pa. 322. The dedication of a street by the owner, and the acceptance by the public stamp it as a public highway: Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194; Wickham v. Twaddell, 25 Pa. Superior Ct. 188; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425.

The Act of May 9, 1889, P. L. 173, does not in way apply to such a case as is disclosed by the uncontradicted testimony in this record, for the reason that Maxwell street was not only a public highway by .reason of the dedication, but added to this was an acceptance and continuous public user under the direction and maintenance of the municipal authorities.

The only assignment of error was in giving binding instructions to the jury to find a verdict for the defendant, which is overruled and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Gates v. Little, Appellant.

      Libel — Pleading—Statement of claim — Demurrer—Practice, C. P.

    In an action- of trespass for libel objection to the sufficiency of the declaration or statement of claim must be made by demurrer.
    In an action for libel where the plaintiff’s name is not mentioned in the libellous article but facts and circumstances narrated in the article tend to show that the plaintiff was the person intended, the question of identity is for the jury.
    ■ On the trial of an action for libel the plaintiff may show that persons of her acquaintance after reading the publication ceased to call upon her, and ceased to employ her for sewing.
    Argued March 5, 1908.
    Appeal, No. 7, Jan. T., 1908, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1905, No. 511, on verdict for plaintiff in case of Annie Gates v. Richard Little.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass for libel.
    At the trial it appeared that the article for which suit was brought charged a woman, not named, as being a prostitute.
    ■ The court admitted under objection and exception evidence of facts-and circumstances- which tended to identify the plaintiff with the person mentioned in the article. [,2] - .
    The court also admitted under objection and exception, evidence that acquaintances of plaintiff after reading the article had ceased to call upon her, and no longer employed her for sewing. [3, 4]' ;
    Verdict and judgment for plaintiff for $372. Defendant appealed.

      Errors assigned were (1) refusing to arrest judgment; (2-4) rulings on evidence, quoting the bill of exceptions.

      John F. Scragg, with him Chas. P. O’Malley, for appellant.—
    Before evidence of circumstances connecting the plaintiff with this article can be offered they must be properly pleaded and alleged that those circumstances apply particularly to the plaintiff: 2 Greenleaf on Evidence, V. 2, sec. 417; Commonwealth v. Harris, 5 Pa. Dist. Rep. 671; Hughes v. Snee, 9 Pa. Dist. Rep. 526; Gosling v. Morgan, 32 Pa. 273; Stitzell v. Reynolds, 59 Pa. 488.
    July 15, 1908:

      H. W. Mumford, with him J. J. O’Malley, for appellee,
    cited: Thompson v. Barkley, 27 Pa. 263; Haldeman v. Martin, 10 Pa. 369; Clark v. North American Co., 203 Pa. 346; O’Toole v. Post Printing & Pub. Co., 179 Pa. 271.
   Opinion by

Orlady, J.,

The plaintiff alleges in her statement in this action of trespass, that the defamatory and malicious libel which appeared in the “ Scrantonian ” in its regular issue of September 17,1905, was written “of and concerning her as the person referred to in said article as a cruel and heartless daughter, etc., and that it was so understood by all of the people living in the neighborhood who read the said publication.”

The defendant entered the general plea of not guilty and went to trial on the merits of his case. He did not object to the sufficiency of the declaration, by filing a demurrer, and it is now too late to complain of that phase of the case. On the trial of such an issue the question is not whether the declaration be good, but whether it is supported by the evidence. If the defendant wishes to raise objections to the declaration before the verdict, he must do so by demurrer. If he neglects that course he must move in arrest of judgment. In that stage of the case, many defects are cured by the verdict. If the declaration contains the substance of á good cause of action, it is sufficient after the verdict has been rendered, though it might have been the reverse, had objection been made to it at the proper time: Haldeman v. Martin, 10 Pa. 369; Thompson v. Barkley, 27 Pa. 263.

The defense which is most earnestly urged is that the libelous article did not mention the plaintiff by name, nor refer to her in descriptive terms. From his graphic and elaborate report of an alleged outrage, it would be a reflection on the writer to intimate that he did not intend to refer to a particular person, and whether this plaintiff was or was not that person, was the real point of contention before the jury. This phase of the case was thoroughly and accurately presented by the learned court, under the authority of Clark v. North American Co., 203 Pa. 346, — that whether or not the description in the- article pointed to the plaintiff, was for the jury. In the light of the evidence, notwithstanding the fact that no name' was mentioned, the description of the plaintiff by association with the events narrated, would fix her identity as accurately as by giving the name by which she was known in the community, and whether or not the publication was made after due care and diligence in ascertaining the true facts, there would be the natural and reasonable inference that the plaintiff was the person referred to. The article was libelous per se, and being false as to the plaintiff, malice was shown, and the burden of defense was upon the defendant: Burkhart v. North American Co., 214 Pa. 39.

On the subject of identification, the court said, “The question, therefore, follows, does it refer to her? That is a question that is for you solely. It is not for me to say, but for you to determine whether this article refers to the plaintiff in the case.” The same thought is expressed several times in a careful and elaborate charge.

The testimony complained of in the third and fourth assignments of error was properly received for the purpose of showing the injurious effect of the publication upon the reputation of the plaintiff among her friends and acquaintances, and as to whether it tended to prevent her from prosecuting her business successfully: O’Toole v. Post Printing, etc., Co., 179 Pa. 271.

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


author: Per Curiam,

text:
    Walsh, to Use, Appellant, v. Luzerne County.

      Public officers — Pees—State constabulary — Service of criminal warrant — Collection of fee for commonwealth.

    A public officer who is prevented by statute, or by judicially established principles of public policy, from demanding and collecting for his own use a fee for serving a criminal warrant, cannot demand and collect it for the use of the commonwealth.
    A member of the state constabulary cannot collect from a county for the use of the commonwealth, a fee for serving a criminal warrant.
    Argued March 4, 1908.
    Appeal, No. 53, March T., 1908, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1907, No. 1,159, on verdict for defendant in case of John F. Walsh to use of Commonwealth v. Luzerne County.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability for a fee for serving a criminal warrant.
    Ferris, J., filed the following opinion:
    The facts as agreed upon are as follows:
    1. John F. Walsh, the person above named as the legal plaintiff, is a member of the state police as constituted by the Act of assembly of May 2, 1905, P. L. 361, and as such is entitled to and receives a compensation paid him by the state of Pennsylvania.
    2. The said Walsh duly executed a warrant regularly and properly issued November 20, 1906, by alderman Pollock, a committing magistrate of Luzerne county, against Andrew Gulick charged with assault and battery in said county, the legal fees for which service when performed by a constable, being the sum of $1.24.
    3. The case of the Commonwealth v. Andrew Gulick was so proceeded with in the court of quarter sessions of Luzerne county that the jury rendered a verdict of not guilty as to the defendant therein and directed that the county of Luzerne pay the costs.

      4. That the above amount of $1.24 for the service of said Walsh in executing the said warrant was duly taxed as part of the costs in said case.
    5. That the said sum of $1.24 does not belong to said John F. Walsh personally, but is claimed in this case as the property of the commonwealth of Pennsylvania to whose use the suit is brought.
    The sole legal point submitted is stated as follows:
    The question for the decision of the court is whether the said Walsh, as member of the state constabulary and agent and employee of the state of Pennsylvania, is entitled to recover the said costs for the use of the commonwealth. If he is; judgment for said amount of $1.24 to be rendered for plaintiff, John .F. Walsh, for the use of the commonwealth of Pennsylvania. If not, for the defendant the county of Luzerne.
    In Musser et al. v. Good, 11 S. & R. 247, Mr. Justice Gibson drew this distinction between costs and fees: “Costs are an allowance to a party for expenses incurred in conducting his suit; fees are a compensation to an officer for services rendered in the progress of the cause. ... As between a party and the officer, charges for service rendered are fees; as between the parties to the cause, being in contemplation of law charges actually- paid by successful party, or at least, such as have created a responsibility to the officer, they are costs.” Fees, therefore, are not costs unless there exist a right in the officer to receive them and a “responsibility,” meaning, of course, a legal liability by the party for whom the services were rendered, to pay them “as compensation” for such services. Unless Walsh, as a member of the state police force, had a right to receive the fees here in question they are not costs at all, and were improperly so taxed as such. It is conceded, and we think properly so, that as a salaried police officer of the state he is not legally entitled to demand these fees for his own use. It is against the policy of the law' in this state to permit public officials to exact double compensation for services rendered, and it would seem to be in pursuance of that policy that the Act of July 14, 1897, P. L. 266, was passed: Weaver v. Schuylkill County, 17 Pa. Superior Ct. 327. It is entitled “An Act to regulate the remuneration of policemen and constables employed as policemen throughout the Commonwealth of Pennsylvania, and prohibiting them from charging or accepting any fee or other compensation, in addition to their salary, except as public rewards and mileage for traveling expenses.” It will be noticed that this title refers to policemen and constables employed as policemen in general without regard to how or by whom they were chosen or employed.
    Section 1 provides that “all municipalities and corporations employing policemen” shall pay them a fixed salary and prohibits such policemen from charging or accepting any fee or other compensation for services rendered except public rewards and mileage. It would seem sufficiently clear that this section was intended to include “Railroad Police,” the “Coal and Iron Police,” the (fisheries) corporation police provided for by the Acts of February 27,1865, P. L. 225; April 11, 1866, P. L. 99, and June 10, 1881, P. L. 101, respectively, and, in general, all police similarly appointed at the request of, and required to be paid by, nonmunicipal corporations or associations.
    Section 2 of the act of 1897, makes it unlawful for any high, ward, township or other constable who is at the same time employed as a policeman in any city, borough or other part of this commonwealth to charge, or accept any fee or other compensation in addition to the salary paid him as policeman for service rendered. . •
    The Act of May 2,1905, P. L. 361, relating to the state police, authorizes. .their appointment and payment by salary and, in section 5, provides as follows: “The various members of the Police Force are hereby authorized and empowered to make arrests, 'without warrant, for all violations of the law which they may witness, and to serve and execute warrants issued by the proper -authorities. They are also authorized and empowered to act as forest, fire, game and fish wardens; and in general to have the powers and preogatives conferred by law upon members of the police force of cities of the first class, or upon constables of the Commonwealth; and are intended, as far. as possible, to take the place of the police now appointed at the request of the various corporations.”
    If they are “as far as possible to take the place” of the corporation police in the sense of occupying a like position under the law, then it may with some show of reason be argued that the legislature “intended” that they should be subject to the prohibition of the acceptance of fees which by the terms of section 1 of the act of 1897, expressly applied to policemen employed by corporations. Or, again, if the state police are to have the “prerogatives” of policemen of first-class cities and of constables of the commonwealth, and if the word “prerogatives” as here used means right, emoluments, immunities and privileges, including the right to compensation for services, then they must be confined to their salaries, as policemen employed by municipalities or constables at the same time employed as policemen are, under sections 1 and 2, respectively, of the act of 1897. We quite agree with the statement contained in the opinion of the former attorney general of the commonwealth (Mr. Carson), published in 16 Pa. Dist. Rep. 453, “that it was the intention of the legislature when it placed the members of the state Police Force upon a regular salary — a salary which is adequate — that this compensation should be in lieu of all fees and emoluments to which a local constable performing the same service would be entitled.”
    We also think that, on the subject of compensation to policemen, the act of 1897 and 1905 are in pari materia and, as construed together, evince a legislative intent that the members of the state police force should be taken to be within the prohibition of the former act. If it be conceded as doubtful whether they are covered by its strict letter, it can hardly be questioned that they are within its reason and spirit, nor that double compensation to a policeman employed by the state is quite as much within the mischief sought to be remedied, as such compensation to one employed by a municipal or nonmunicipal corporation.
    It is argued, however, that though Walsh may not be entitled for his own use to the amount claimed, the use plaintiff, the commonwealth, may recover under the equitable doctrine of subrogation or substitution, as partial reimbursement for the salary it has by law been compelled to pay in lieu of fees, which would otherwise be recoverable against the county as costs. We cannot assent to the proposition that the principle thus invoked could be applied in this case; but, granting that it could, the rights and remedies of the substituted party could rise no higher than those of the original claimant. “ Subrogation is the substitution of one person in place of another, whether as a creditor or as the possessor of any other rightful claim so that he who is substituted succeeds to the rights of the other in relation to the debt or claim and its rights, remedies or securities:” 27 Am. & Eng. Ency of Law (2d ed.), 202. Any person substituted under this doctrine would merely stand in the place of Walsh. If he have no legal claim, then there is nothing for anyone to be subrogated to.
    The argument, however, is advanced by the present attorney general of the commonwealth, in an opinion published in 16 Pa. Dist. Rep. 914, that, conceding that Walsh is not entitled in his own right to the fees of a local constable for serving a warrant, nevertheless, being the agent and employee of the state he would be entitled to collect them for the use of his employer. With all due regard for the eminent source from which the opinion comes, we are unable to adopt this view. True, it eliminates the objection of double compensation to the officer for a single service, but at the expense of raising another which is not easily surmounted. Passing the question whether in an action by “ A ” to the use of “ B ” the latter could recover what the former could not, we find it difficult to see how the commonwealth can rightfully claim for the services of its agent what it has forbidden that an agent to “charge or accepts ” for the use of himself or anyone else. But apart-from the prohibition of the act of 1897, and assuming, for the purpose of this discussion, that it does not apply to the members of the state police force for the reason that the commonwealth is not a municipality or a corporation, and assuming, further, that the employment of a policeman under statutory authority raises between him and the employer the relation of master and servant or principal and agent (which may well be doubted in view of decisions of both of our appellate courts to the contrary, — see Borough of Norristown v. Fitzpatrick, 94 Pa. 121; Miller v. Hastings Borough, 25 Pa. Superior Ct. 569), still, the question remains as to the scope of the agent’s ' authority. The position taken by the learned attorney general assumes the right of a state policeman to collect revenue for the commonwealth. By whom, when and how was that right conferred? We search in vain in the act of 1905 or elsewhere for the grant of any such authority. That act was not passed as a revenue measure, but was very clearly an exercise of the police power of the state. The statute creates a department of state police and undoubtedly does make the appointees of the head of that department the agents of the state in the sense that all officers through whom the functions of government are exercised are such agents. But it also very distinctly enumerates their powers. Raising revenue is not one of them. We can but think that the maxim, “inclusio unius est ex-clusio alteráis” is quite as applicable here as it is anywhere, and that the failure to include' the power to collect money for the state among those expressly conferred is equivalent to a denial of such authority. If a state policeman may collect fees for the commonwealth, so may a municipal policeman for the city dr borough. That is conceded. But so also, on the same theory, could a coal and iron policeman require the payment of fees for the use of the corporation that employed him. If we have here a correct legal principle, it should be applicable in all cases, and so all salaried state officers appointed under the statutory authority to perform specified duties must by virtue of such appointment act as fiscal agents and collect for the benefit of their employer, the commonwealth, such fees, or other adequate compensation (for why limit it to fees, since the duty to collect revenue arises from the relation of employer and employee) as would, be commensurate with the services rendered. That certain salaried officials may collect fees and pay them into the public treasury is, of course, true; but in every instance where this is done it is because the express mandate- of the law requires it, and not because of any inherent right or duty 'growing out of the fact that the officer is elected by the people, or appointed by the governor or some other official through whom the sovereignty of the people is exercised, and is paid a salary out of the public purse.
    Moreover, it is to be remembered that, in the case before us, the claim is, to have public money paid out of the public treasury of the county; and, on principle, it is immaterial whether the money be drawn by a state policeman to replenish the treasury of his employer, the state, or by á coal and iron .policeman to fill the coffers of his employer, the coal and iron corporation. “By the common law no costs are paid out of the public treasury:” Wayne County v. Waller, 90 Pa. 99. “ So entirely dependent on statutory regulations in Pennsylvania, that it is indispensible for every claimant to be able to point to the statute which enables him to receive what he claims:” Franklin County v. Conrad, 36 Pa. 317, 318. No such statute is pointed .out in this case. No statute gives to a state policeman the right to receive fees for his own use or the use of the commonwealth. No statute requires or authorizes their payment by anyone. The act of 1897, in our opinion, forbids it. No “responsibility” for such a payment rests upon anyone; and, as already observed, without such responsibility they are not costs, and, therefore, the criminal procedure act of 1860, in permitting a petit jury to impose costs of prosecution upon the county, does not authorize the payment by the county of these “fees” to anyone.
    Whether it be desirable that the state policemen should be empowered to collect for the use of the commonwealth'the fees allowed by the law to constables not employed as policemen for similar services, is, obviously, a legislative and not a judicial question.
    Being, therefore, of opinion that the plaintiff, John F. Walsh, is not entitled to recover the money in question either for his own use or that of the commonwealth, judgment is entered for the defendant in accordance with the ’ agreement of the parties for a case stated.

      Error assigned was the judgment of the court.

      July 15, 1908:

      George H. Troutman, with him M. Hampton Todd, attorney general, for appellant.

      Wm. C. Price, for appellee.
   Per Curiam,

While the jury in the criminal case directed by their verdict that the costs should be paid by the county, it seems to us clear that this did not impose upon the county liability for fees which were not legally taxable. Possibly, if an extremely technical view be taken of the case stated, it could be argued that the validity of the taxation of the fee in question as part of the costs of the case could not be questioned in this action. But counsel expressly waived this objection and argued, and requested us to dispose of, the case as if the question of liability of the county for the fee were duly raised in a direct proceeding. Another point to be noticed is that the appellant’s counsel concede that the officer serving the warrant cannot claim the fee for his own use, although it is the legal fee prescribed for the same service when performed by a constable. This concession, say counsel, is not based on the Act of July 14, 1897, P. L. 266 — which they ciaim does not apply — but, to quote from their brief, “ on the broad ground, which has been repeatedly recognized in the courts of Pennsylvania, that no officer of the law should be allowed to collect two fees for the same public service; in this case one from the state in the shape of salary and the other from the county by virtue of the finding of a petit jury.” In view of this concession it seems unnecessary to discuss or decide the question of the applicability of the act of 1897, to a member of the state police force. While differing in their reasons both parties give assent to the proposition that the officer cannot recover the fee in his own right. Therefore the question upon which the case turns is, whether an officer who is prevented by statute or by judicially established principles of public policy from demanding and collecting for his own use a fee for serving a criminal warrant may demand and collect it for the use of the commonwealth, The grounds upon which the contention that he may is based are: first, that because the officer is an agent and employee of the state and paid by the state all fees and costs otherwise going to him in that capacity belong to the state; second, that the doctrine of substitution and a principle analogous to that of subrogation in equity are applicable. The earnest and able argument of appellant’s counsel in support of these propositions seems to us to be fully considered and satisfactorily answered in the opinion filed by the learned judge below. We adopt his conclusion, and his reasoning in support of it, so far as it is based upon a consideration of the case apart from the act of 1897.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Commonwealth, ex rel. v. Foster, Appellant.

      Fish law — Navigable streams — Posting land by owner — Act of March 26, 1814, 6 Sm. L. 187, May 29,1901, P. L. 302 and April 14,1905, P. L. 169.
    The Lackawaxen creek which was declared by the Act of March 26, 1814, 6 Sm. L. 187, a public highway “for the passage of rafts, boats and vessels,” but which is not in fact navigable for rafts, boats and vessels, is not a stream in which public fishing is permitted, as provided by the the Act of May 29, 1901, P. L. 302; and if the owner of the bed.of the creek duly posts it in compliance with the Act of April 14, 1905, .P. L. 169, a person fishing therein, is liable to the penalty provided by the latter act.
    Argued March 2, 1908.
    Appeal, No. 6, Jan. T., 1908, by defendant, from judgment of Q. S. Wayne County, April T., 1906, No. ^31, sustaining summary conviction-in case of Commonwealth ex rel. David Hopkins v. H. J. Foster.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from summary conviction.
    Purdy, P. J., filed the following opinion:
    These cases are appeals by H. J, Foster, who is named in the transcripts as plaintiff, but who is in reality the defendant in the above stated cases. ■
    The justice’s transcripts state:
    “Warrant in trespass on posted private property. Plaintiff brings suit against defendant for trespass on Act of Assembly, an act making it unlawful to trespass on posted private property.” And this is all that appears in the justice’s record to sustain the proceedings. But the counsel who represent the appellant waive all questions of informality in the record and proceedings and request us to consider the cases upon their merits, as disclosed by the testimony.
    The cases are substantially similar and our rulings upon the questions involved in the first case will apply to all.
    The complainant, David Hopkins, was the owner of the land upon which the alleged trespass was committed and, at that time, had proper notices posted thereon, in compliance with the Act of April 14, 1905, P. L. 169, under which the action was brought. The Lackawaxen-creek runs through said land, and the defendant, on May 17 last, entered the creek at the crossing of the highway and, keeping within the banks of the stream, followed its bed (fishing) through complainant’s premises.
    By Act of assembly of March 26, 1814, 6 Sm. L. 187, the Lackawaxen creek, at the point in question, with several other creeks, is declared a public highway “for the passage-of rafts, boats and vessels.”
    Section 23 of the Act of May 29, 1901, P. L. 302, provides: “That from and after the passage of this act public fishing shall exist in the following waters of this commonwealth: All waters within land owned by the commonwealth; all waters and parts of waters that have been or may be declared, navigable by Acts of Assembly, or public by common law, and such other waters made public by its owners by grant or usage.”
    It is contended on the part of the appellant :
    1. That the act of 1814, above cited, gave him the right to follow the bed of this stream for fishing purposes.
    2. If, under that act, he was not so entitled, then by section 23 of the act of 1901, above quoted, this stream falls within the class of waters therein designated as open to public fishing — as one “declared navigable by Acts of Assembly”— and the right was thus given.
    These propositions are denied by the complainant and the issue is thus presented.
    This stream, ordinarily, affords but little water and is not susceptible of — and has never been used for — the passage of rafts, boats or vessels. It has, however, been used sometimes during freshets for floating loose saw logs, which method of use, according to the decision in Dedrick v. Wood, 15 Pa. 9, is within the purposes prescribed by this act.
    The great rivers of the state, which are navigable by nature, are public highways at common law. The commonwealth, having dominion over these streams, has an .unquestionable right to declare them public highways, but this is not necessary to make them such, and the only effect of such a statute is to bring the stream within the milldam act of March 23, 1803. If a stream is not in fact navigable it cannot be made so by the mere passage of an act of assembly. - “ If the stream is not actually navigable, so that there is no.public right of way therein, a declaration by the legislature that it shall be regarded as navigable is a taking of property for public use, and unless compensation is made the statute will be in conflict with the constitutional provision requiring compensation in such cases:” The Barclay Railroad & Coal Co. v. Ingham, 36 Pa. 194; Farnham on Waters, 103, 119.
    With respect to the smaller streams and creeks the state grants to the riparian owner the soil over-which they flow, without any reservation respecting them. But the property so granted is, nevertheless, subject to the public easement of the use of such stream for the purposes of navigation, so far as they are capable of it: The Barclay Railroad & Coal Co. v. Ingham, 36 Pa. 194. In such streams the public have no right of fishing: 1 Wood on Nuisance (3d ed.), sec. 450; nor the right to shoot fowl: Winous Point Shooting Club v. Bode, 20 Ohio C. C. 637. And the same rule is held, in State v. Shannon, 38 Am. Rep. 599, and in Sterling v. Jackson, 13 Am. Rep. 405. And see the very elaborate opinion- of the .supreme court of Washington in Griffith v. Holman, 54 L. R. A. 178, in the same line. In short, the navigation right is a right of passage only, and for all other purposes -the exclusive right rests in the riparian owner: 2 Farnham on Waters, 1375, etc.
    It appears — and it is claimed as an -important fact in the case — that under the Act of June-3,-1895, P. L. 130, the state has recently constructed several -bridges across the stream in question. i ...
    ' This act requires the state to rebuild county bridges destroyed by casualty “ over and across the navigable rivers and such other streams as have been- declared public highways by Act of Assembly.” '- - -
    But-we cannot see how the fact-that :the state authorities have considered the rebuilding of these' bridges' a state duty, under this act of assembly, affects the question at issue, one way or the-other. - - ■ \
    From what precedes we conclude: .
    1, That the stream in question: is not ¡navigable within, the accepted and proper meaning of ¡the-term; ■ - • .-■
    ■ 2. That -the act of -assembly-declaring-it- a ¡highway for the purposes therein specified gave ;the -public"no rights, in.the premises not previously possessed-,byit.-.•" ..' •
    ■ 3. That the public did not possess -the right of fishing in this stream before the passagé- of- the act of 1814, and acquired no such right-thereby. -
    4. That the stream in question does not come:-within-.the class mentioned in section 23 of the act of 1901,- -as open to public fishing; and, if it did, the' act, in our opinion, would be inoperative to impose a .servitude upon the complainant's premises as contravening the constitutional provision; that private property shall not be taken for public .-use without just compensation being first made or secured.
    If these premises are correct' it follows -that, .in entering upon the complainant’s land, the appellant was a trespasser, and as such was liable to the penalties imposed by the act under which the proceedings were' instituted. And so we hold, and find and enter the following judgment and conviction: .-
    Now, January 14,1907, H. J. Foster,-of the county of Wayne, and- state of Pennsylvania, yeoman, is convicted before the court of quarter sessions of the peace of Wayne county of willfully entering upon land owned by David Hopkins on May 17, 1906. Said land being situated in Clinton township, in the county of Wayne aforesaid, printed notices having previously been prominently posted upon said land by said owrier, stating that the said land is private property and warning All persons from trespassing thereon under the penalties provided in the act of assembly No. 124, approved April 14, 1905, which’ notices remained so posted at the time of such entry:by the said H. J. Foster.
    And it is adjudged that for the said act of trespass the said H. J. Foster forfeit and pay a fine of $5.00, with costs of suit, to be distributed according-to law. And in default of payment of said fine and costs that the said H. J. Foster be .committed to the county jail of said county for the period of five days,- being one day for each dollar of said.fine.

      Error assigned was the order of the court.
    '■ Frank P. Kimble, for appellant. —
    The Laekawaxen river clearly comes within the provisions of the Act of May 29, 1901, P. L. 302, which grants the right of public fishing in all waters or parts of waters that have been declared navigable by act of assembly. The legislature was clearly within its constitutional rights when, in the-exercise of its police powers and for the benefit of the community and the proper protection of fishing rights it declared all these definitely designated navigable streams open to the public for the purpose of fishing: Barclay R. R. & Coal Co. v. Ingham, 36 Pa. 194; Coovert v. O’Conner, 8 Watts, 470; Powell v. Com., 114 Pa. 265; Philadelphia v. Scott, 81 Pa. 80; McDevitt v. Gas Co., 160 Pa. 367; State of Vermont v. Theriault, 43 L. R. A. 290; Sentell v. Railroad Co., 166 U. S., 698 (17 Sup. Ct. Repr. 693); Sharpless v. Mayor, of Philadelphia, 21 Pa. 147.
    , L. M. Atkinson, with him A. T. Searle, for appellee,
    cited: Barclay R. R. & Coal Co. v. Ingham, 36 Pa. 194; Allbright v. Lake & Park Commission, 68 N. J. L. 523 (53 Atl. Repr. 612); Woodruff v. Neal, 28 Conn. 165; Stackpole v. Healy, 16 Mass. 33; Tonawanda R. R. Co. v. Munger, 5 Denio, 255.
    July 15, 1908:
   Opinion by

Rice, P. J.,

■ This case came into the court below by appeal by the defendant from a summary conviction by a justice of the peace for a violation of the provisions of the Act of April 14,. 1905, P,' L. 169, entitled, “An act making it unlawful to trespass upon land posted as private property, and providing a penalty therefor,” As an appeal from the judgment of the quarter sessions in such a case- does not bring up the evidence, the case is not before us for review upon any question of fact. We must presume, therefore, that all of the essentials to a conviction, as set forth in the judgment, were established by competent and sufficient evidence, and, amongst these, the facts that the defendant willfully entered upon the land of David Hopkins, the relator, without his consent, that printed notices that it was private land and warning all persons against trespassing thereon had been previously posted by the owner in the manner prescribed by the act, and that the notices remained so posted at-the time of the alleged trespass. Nowhere in the record proper is it expressly stated that the land upon which the defendant entered was the bed of Lack-awaxen creek. It is conceded, however, on all hands that such is the fact. But neither that fact nor any other fact upon which the court based its judgment qualifies in any degree the relator's ownership of the land. But although his ownership is undisputed, it is contended that he cannot claim the protection of the act of 1905 (and if so he could not maintain the common-law action of trespass) as against one going upon that part of his land for the purpose of fishing, because by the prior act of 1901 the legislature declared that “public fishing shall exist” in certain waters, and amongst them “all waters or parts of waters that have been or may be declared navigable by acts of assembly,” in which class of waters, it is claimed, the part of Lackawaxen creek where this alleged trespass was committed was placed by the act of 1814. It is not seriously claimed, at least, it cannot be successfully claimed, that this asserted right of the public to go upon the land in question for the purpose of fishing is a common-law right, nor that it was reserved by the commonwealth in its. grant of the land to the relator’s predecessors in title, nor that it was conferred by the act of 1814. Therefore, to sustain appellant’s contention that he, as well as every other member of the general public, has this right, these propositions must be established: first, that the legislature intended by the act of 1901 (a) to include in the designation "all waters and parts of waters that have been or may be declared navigable by acts of assembly” every stream, large or • small, navigable or unnavigable, that had been declared a “ public highway for the passage of rafts, bo.ats and vessels,” (b) to give to every member of the public the right to go upon the land over which any such stream flows for the purpose of fishing, and to that extent to deprive the owner of his dominion over the same; second, that this right still continues notwithstanding the generality of the words of the act of 1905; and, third, that it was within the power of the legislature to give the public such right, and to thus restrict the dominion over land which appertains to private ownership,, without providing for just compensation being made or secured to the owner, and that, too, although the stream be not in fact navigable by nature, and has never been in fact, or been declared by the legislature, a public highway except for a limited purpose. Before adopting a construction of the twenty-third section of the act of 1901, which would be so far reaching in its effect upon the right of the owner of land to control its use, so long as such use does not injuriously affect others, it ought to be clear that the very words of the act require such construction. To say the least, there is room for argument that the words of the twenty-third section, particularly when read in connection with the preceding section, do not require the construction which the appellant’s counsel claim for them. But be that as it may, and assuming that the legislature intended all that is claimed, we cannot agree with the appellant’s counsel that the legislation can be sustained as a legitimate exercise of the police power, upon the ground — and we must so construe their printed argument— that the public health and comfort will be subserved thereby. No case cited by the learned counsel goes to the extent, or anywhere near the point, of holding that it is within the power of the legislature to provide for the public the means of healthful recreation upon private land, and for that purpose to deprive the owner of this right to control the use of it, without compensating him for such partial or total destruction of his dominion’ over it. If the legislature may do it in the manner and‘for the purpose here claimed, it would be difficult to draw the- line beyond which it may not go for that purpose. In the case of Vermont v. Theriault, 43 L. R. A. 290, which .goes as far as any- in asserting the jurisdiction of the state over such streams as this, it was carefully noted in the opinion of the majority of the court that by providing that such waters should be waters over which the state has jurisdiction the legislature did not take away the riparian owner’s right to maintain' trespass against everyone who should enter without his license upon his premises and catch fish from the nonboatable stream thereon. But we need not prolong the discussion. Our purpose in what we have said has been to state the question for decision and our conclusion thereon. The nature of this creek, and the uses to which it is adapted, and has'been -put, as well as the legislation pertaining to it and similar streams,- have been fully set forth in the opinion of the learned judge below. He has also discussed the legal questions as fully as is profitable, and has sustained his conclusion by reasoning and citation of authority which make -it unnecessary for us to add anything further to what he has so well said.

The judgment is affirmed.


author: Porter, J.,

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    Goodhart v. Columbia & Montour Electric Railway Company, Appellant.
    July 15, 1908:

      Negligence — Street railways — Passenger—Sudden start of car.

    In an action by a passenger against a street railway company to recover damages for personal injuries, it is not error to permit the jury to draw an inference of negligence upon the part of those operating the car, when it is shown that before the passenger acting promptly had time to reach a seat, the car was started with an unusual jerk, so violent that the ■ passenger ■ would have been thrown to the floor if she had not caught and held fast to a seat, and in doing so injured her knee.
    Argued March 2, 1908.
    Appeal, No. 46, March T., 1908, by defendant, from judgment of C. P. Columbia Co., Dec. T., 1906, No. 26, on verdict for plaintiff in case of Emma F. Goodhart v. The Columbia & Montour Electric Railway Company.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, P. J.
    The facts are'stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $950. Defendant appealed.

      Error assigned was in giving binding instructions for defendant.

      W. H. Sponsler, with him A. W. Duy, for appellant,
    cited: White v. Railway Co., 215 Pa. 462.

      Fred Heeler, with him Christian A. Small, for appellee,
    cited: White v. Railway Co., 215 Pa. 462; Holmes v. Traction Co., 153 Pa. 152; Walters v. Traction Co., 161 Pa. 36; Austrian v. United Traction Co., 19 Pa. Superior Ct. 329; Powelson v. United Traction Co., 204 Pa. 474.
   Opinion by

Porter, J.,

The plaintiff seeks to recover for injuries alleged to have been sustained through the negligence of the defendant company while a passenger on one of its cars, and the defendant appeals. The only assignments of error relate to the refusal of the court below to give binding instructions in favor of the defendant, and the subsequent discharge of a rule to show cause why judgment should not be entered in favor of the defendant non obstante veredicto. The only question presented is as to whether there was any evidence to justify a finding that the defendant company was guilty of negligence.

The car had stopped to receive passengers and the plaintiff, in company with her mother, ascended to the platform and entered the body of the car. The seats in the car were arranged as in an ordinary coach, an aisle running through the center, with seats facing the front at each side. The plaintiff and her mother testified that upon boarding the car they moved promptly through the door and along the aisle to the first empty seat, the third one from the door. The plaintiff was in advance.and was in the act of turning from the aisle into this seat when the car was suddenly started with an unreasonable, sudden and violent jerk or jar, which made it necessary for her to catch and hold fast to the seat in order to keep from falling to the floor, and her knee was struck against the seat, the ligaments of the limb, at the knee joint, being severely sprained and torn. The plaintiff testified that the injury was caused by the sudden starting of the car, before she had time to reach a seat. As to the manner in which the car was started she testified that “It was a sudden, violent jerk;” that she had frequently ridden on trolley cars and that the car on this occasion “was greatly jarred more than it was before whenever I was on the car, very much greater.” She testified, as to the effect of the violent starting of the car: “I would have fallen to the floor if I had not caught myself to the seat.” Her testimony was corroborated by that of her mother; who said that she, herself, would have been thrown to the floor, by the sudden and violent starting of the car with a jerk, if she had not caught hold of and held on to the back of a seat. Another witness, seemingly disinterested, testified that he had observed the plaintiff catch hold of the seat to keep from falling. We must, for the purposes of this case, assume this evidence to be true. The question, therefore, is, is it proper to permit a jury to draw an inference of negligence upon the part of those operating the car when it is shown that before a passenger acting promptly has time to reach a seat the car is started with an unusual jerk, so violent that a passenger will be thrown to the floor if he is not fortunate enough to catch hold of something to prevent his falling? That such a case is for the jury has been so flatly ruled that further discussion is unnecessary: Powelson v. United Traction Company, 204 Pa. 474; Boulfrois v. Traction Company, 210 Pa. 263; White v. Columbia & Montour Electric Railway Company, 215 Pa. 462. The assignments of error are overruled.

The judgment is affirmed.


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    New Castle v. Cummings, Appellant.

      Sunday law — Summary conviction — Municipalities—Act of May 23, 1889, Art. V., Sec. 3, Cl. 28, P. L. 277 — Ordinance—Title of ordinance.

    Under the Act of May 23, 1889, Art. V., Sec. 3, Cl. 28, a city of the third class has authority to enact an ordinance forbidding the sale of fruits, candies and goods, wares and merchandise, on Sunday, and to provide a penalty of twenty-five dollars or imprisonment for thirty days for its violation.
    An ordinance entitled “An ordinance prohibiting under penalty the desecration of the Sabbath, or the Lord’s day, commonly called Sunday,” sufficiently indicates in its title a prohibition in the ordinance of the sale of fruits, candies, goods, wares or merchandise on Sunday.
    An information charging the defendant with selling ice cream, soda water, goods, wares and merchandise “on the fourteenth day of July, a. d. 1907, being the Sabbath or the Lord’s day commonly called Sunday,” sufficiently sets forth a violation of an ordinance prohibiting the sale of fruits, candies, goods, wares and merchandise on the Lord’s day or Sabbath, commonly called Sunday. Sales of soda water and ice cream on Sunday are' within the meaning of the ordinance, although the soda water and ice cream were served in glasses and plates, and were consumed on the defendant’s premises.
    Where a judgment is entered against the defendant for such sales “ on July 14, 1907)¡being the seventh or Lord’s day, commonly called “Sunday,” the word “seventh” is an obvious error, and may be considered as surplusage.
    Argued Feb. 25, 1908.
    Appeal, No. 143, April T., 1908, by defendant, from order of Q. S. Lawrence Co., June T., 1907, No. 101, sustaining summary conviction in case of City of New Castle v. John Cummings.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Appeal from summary conviction. Before Wm. E. Porter, P. J. ■ '
    The opinion of the. Superior Court states the facts.

      Error assigned was the order of the court.

      C. H. Akens, with him H. A. Wilkinson, John P. Lockhart and Jas. A. Chambers, for-appellant. —
    The serving of ice cream, ice cream soda and soda water as food and drink is not a sale of “articles and things” within the meaning of the ordinance: Com. v. Hufnal, 185 Pa. 376; Philadelphia v. Costello, 17 Pa. Superior Ct. 339; Com. v. Wells, 110 Pa. 463, 467, 468; Bucher v. Com., 103 Pa. 528; Com. v. Carey, 151 Pa. 368.
    The act of 188.9 supersedes all prior legislation as to the power of- the city in respect to desecration of the Sabbath day: Com. v. Macferron, 152 Pa. 244; Harrisburg v. Gas Co., 31 Pa. Superior Ct. 530, 536; Com. v. Lloyd, 2 Pa. Superior Ct. 6, 15; Kolb v. Ref. Episcopal Church, 18 Pa. Superior Ct. 477-481.
    •The ordinance is in excess of the power delegated to the city and is void: Specht v. Com., 8 Pa. 312; Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401; Com. v. Naylor, 34 Pa. 86; Com. v. Nesbit, 34 Pa. 398; Philadelphia v. Fox, 64 Pa. 169; Baxter’s Petition, 12 R. I. 13; Bohmy v. State, 21 Texas App. 597 (2 S. W. Repr. 886); State v. Babcock, 112 Iowa, 250 (83 N. W. Repr, 908).
    The title of the brdinance does not fairly give notice of a purposé to prohibit the serving of food and drink on the Sabbath-day.. ■

      July 15, 1908:
    It is not alleged in the complaint nor found in the judgmént that the acts of the defendant were not within the statutory exception, nor that they were not within the exception in the ordinance: United States v. Cook, 84 U. S. 168; Com. V. Diffenbaugh, 19 Lanc. Law Review, 19; Com. v. Nagle, 19 Lanc. Law Review, 172; Miller v. Com., 24 Pa. C. C. Rep. 513; Sackville v. Com., 24 Pa. C. C. Rep. 565; Paizer v. Com., 4 Kulp, 286.
    The judgment is too uncertain and indefinite to stand as the ground for a conviction and sentence: Com. v. Ayers, 17 Pa. Superior Ct. 352; Albrecht v. Lane, 9 W. N. C. 377; Willems v. Com., 12 W. N. C. 471; Stewart v. Com., 10 Watts, 306; Com. v. Borden, 61 Pa. 272; Com. v. Gelbert, 170 Pa. 426; Com. v. Matthews, 152 Pa. 166.

      James A. Gardner, for appellee.
   Opinion by

Porter, J.,

The defendant appeal's from his summary conviction under an ordinance of the city of New Castle, the title and material provisions of which are as follows: "An ordinance prohibiting under penalty the desecration of the' Sabbath or Lord’s Day, commonly called Sunday. Section 1. Be it ordained &c. . . . That it shall be unlawful for any person or persons to keep open any store, room or place, or maintain any stand for the purpose of selling therein or thereat any fruits, candies, goods, wares, merchandise, or other articles and things whatsoever, or tó sell any of the aforesaid in any such-store, room, or'place, or at any such stand, or at or in' any other place within said city on the Lord’s Day or Sabbath, commonly called Sunday; but this provision shall not apply vto keeping open any room or place for the purpose of selling or to the sale of any necessary medical or surgical supplies, milk and such necessaries of life, and other articles and things 'as are or may be necessary in works or matters of necessity, mercy and charity. Section 2. Any person violating the foregoing section, shall upon conviction, pay a fine of not less'than ten dollars and not more than twenty-five dollars for each and every violation of said section; and one conviction and one sentence shall not be a bar to other convictions for. other violations done and committed on the same day. In default of the payment of the fine and costs, the person convicted may be sentenced to the county prison not exceeding thirty days or to work on the streets, in the discretion of the convicting magistrate.”

The information before the mayor of the city charged that: “On the 14th day of July, a. d. 1907, being the Sabbath or the Lord’s Day, commonly called Sunday, at and in the said City of New Castle, county aforesaid, that John Cummings did unlawfully in violation of the hereinafter mentioned ordinance of the said city, keep open his room and place of business on Washington street (New Castle Sugar Bowl), in said city for the purpose of selling therein and thereat goods, wares, merchandise and other articles and things whatsoever, to wit: ice cream, soda water, goods, wares, and merchandise and other articles and things, and he, the said John Cummings did then and there unlawfully, in violation of the said ordinance, in the said room or place, sell certain goods, wares, merchandise, and other articles and things, viz.: certain ice cream, soda water, goods, wares, and merchandise and other articles and things, did then and there sell, he, the said John Cummings receiving money in payment for the ice cream, soda water, goods, wares, and merchandise so sold as aforesaid, and he the said John Cummings at the time and place aforesaid, was following the business of selling ice cream, soda water, goods, wares and merchandise, and that on the day and date aforesaid at the place aforesaid in violation of said ordinance did sell divers ice cream, soda water, goods, wares, and merchandise to divers persons for gain, all in violation of that certain .ordinance of said city, entitled, 'An ordinance prohibiting under penalty the desecration of the Sabbath or Lord’s Day commonly called Sunday,’ etc.

Having been convicted before the mayor of the city, an appeal was allowed by the court of quarter sessions. The learned judge of the court below, after a hearing, entered the following judgment: Now, November 11, 1907, the defendant, John Cummings, is found guilty of keeping open in the city of New Castle, a store, room or place for the purpose of selling therein or thereat, goods, wares, and merchandise, viz: soft drinks,such as soda water with fruit juices and flavors and ice cream therein, and ice cream on July 14, 1907, being the seventh or Lord’s Day, commonly called Sunday, and did, in the city of New Castle, on said July 14, 1907, being the seventh or Lord’s Day, commonly called Sunday, sell in said store, room or place, goods, wares, and merchandise, viz.: soft drinks, being soda water with fruit juices and flavors and ice cream therein, and ice cream, in violation of that certain ordinance of the city of New Castle entitled, “An ordinance prohibiting under penalty the desecration of the Sabbath or Lord’s Day, commonly called Sunday, &c. . . .” And the said defendant, John Cummings, is sentenced to pay a penalty in the sum of $25.00 and costs: and in case said penalty and costs are not paid within five days from this date the said John Cummings is to be committed to the county jail or prison for. and during the term of twenty days, to be computed from the first day of his imprisonment.

The appellant attacks the validity of the - ordinance on two grounds: First, that the city was without authority to enact it, and, second, that the title is insufficient. The act of May 23, 1889, art. V, sec. 3, clause 28, P. L. 277 authorizes cities of the third class, to enact ordinances, among others: “To restrain, prohibit and suppress .... desecration of the Sabbath Day commonly called Sunday.” The same statute, in clause 20 of the same section, authorizes such cities to enact ordinances “to impose fines, forfeitures and penalties for the violation of any ordinance, and provide for the recovery and collection of the same; and in default of payment to provide for confinement in the city or county prison, or at hard labor upon the streets or elsewhere, for the benefit of the city.” This was a grant of police power to the municipalities to enable them to maintain order within their limits, and the grant of the power to restrain and prohibit desecration of Sunday was, in order to make it effective, accompanied by the grant of the power, by the twentieth clause of the section, to impose fines and penalties for violation of the prohibition, and the forty-sixth clause of the same section of the statute fixed the limit of such fines at “not exceeding $100 for any one offense,” with'the alternative of imprisonment “not exceeding 30 days” in case of failure to pay. The statute, therefore,- authorizes cities of the third class to prohibit desecrations of Sunday and to impose a fine, for violation of said prohibition, not exceeding $100 for any one offense, with the alternative of imprisonment not exceeding thirty days. It is not necessary, in this -case; to determine whether the cities have power to declare any act to be a desecration of Sunday which was not by the law of the commonwealth recognized to be such at the time this statute was enacted. The ordinance of the 'city of New Castle does not prohibit the performance of any act on Sunday which had not already been forbidden to be done on that day by the Act of April 22, 1794,3 Smith's Laws, 177.- This ordinance refers only to the business of merchandising, excepts works of necessity and charity, and does not apply to the dressing of victuals in private families, inns and other houses of entertainment for the use of sojourners, travelers or strangers, nor to any of the occupations falling within the proviso of the act of 1794; it makes no attempt to declare that unlawful which might' lawfully be done on Sunday prior to its passage. The provision of the second section that, “One conviction and sentence shall not be a bar to other convictions for other.' violations done and committed on the same day, ” is distinct and separable from the other provisions of the ordinance, and even if that provision should be held to be invalid the other portions of the ordinance may still stand without it. This defendant has not been convicted of two offenses committed on the same day, and it will be time enough to pass upon that question when such a case is presented. The city of New Castle was authorized to pass an ordinance forbidding the carrying on of business on Sunday in the manner prohibited by this ordinance, and imposing a fine for the violation of the prohibition in the amount fixed by this ordinance.

The ordinance related to but one subject, the regulation of the conduct of persons within the municipality on Sunday. The title contained full and express notice to all persons .that the ordinance dealt with the conduct of persons within the municipality on Sunday and that it imposed a penalty for variation of its provisions. The subject was not a new one to the legislation of the commonwealth, and no person who read that title could have failed to understand that the ordinance regulated the manner in which business could be carried on and occupations be exercised within the municipality on Sunday. The nature of the subject of the legislation, as expressed in the title, was such as to indicate that all business and occupations to be carried on within the municipality on Sunday were affected by the ordinance, all the provisions of the ordinance are germane to the single subject with which it dealt and the title was, therefore, sufficient: Sugar Notch Borough, 192 Pa. 349, and see opinion of President Judge Rice in Weiss v. Swift, ante, p. 376, recently decided by this court. The objections of the appellant to the ordinance and the title thereof are not well founded.

The information against, the appellant set forth in detail sufficient facts to show that the offense charged came within the provisions of the ordinance and that it was not within the exception or proviso of either the ordinance or the act of 1794. It averred all the substantial and jurisdictional facts necessary to constitute the offense, and that was all that was required: Commonwealth v. Borden, 61 Pa. 272; Commonwealth v. Gelbert, 170 Pa. 426. The defendant having appealed from the judgment of the mayor of the city and gone to trial in the court of quarter sessions, must be deemed to have waived any defects in the information which were not substantial and jurisdictional: Paizer v. Commonwealth, 4 Kulp, 286. The evidence established beyond question that the defendant kept a store, which he called the “Sugar Bowl,” at which he sold fruits, candies, tobacco, cigars, ice cream, soda water and other articles. On the Sunday in question this store was open, the evidence clearly established and the defendant admitted that he sold soda water and ice cream, thirty or forty gallons of the latter. He testified that he did not feed people at his place, nor furnish them with sandwiches or anything like that; He contends that the sales of soda water and ice cream were not sales within the meaning of the ordinance, for the reason that he furnished the soda water in glasses and that it was drunk at the counter in his store and that he furnished the ice cream on plates and that it was eaten by his customers at the counter or at tables which he provided for that purpose. This is a refinément which the law cannot recognize; the goods were the property of this defendant, the business which he carried on resulted in the transfer of the title and the possession, for a valuable consideration, to other parties; this was a sale, no matter whether the purchasers consumed the ice cream and soda water on the premises of the defendant, threw it into the street or carried it elsewhere. This was a violation of the ordinance as well as of the act of 1794: Splane v. Commonwealth, 12 Atl. Repr. 431; 11 Centr. Repr. 168; Burry’s Appeal, 1 Monaghan, 89; New Castle City v. Treadwell, 35 Pa. Superior Ct. 30; Omit v. Commonwealth, 21 Pa. 426.

The judgment entered by the court below found the defendant guilty of keeping open a store for the purpose of selling therein goods, wares and merchandise, viz.: soft drinks, such as soda water with fruit juices and ice cream therein, and ice cream, “on July 14th, 1907, being the seventh or Lord’s Day, commonly called Sunday, and did, in the City of New Castle, on said July 14th, 1907, being the seventh or Lord’s Day, commonly called Sunday, sell in said store, room or place, goods, wares and merchandise, viz.: soft drinks, being soda water with fruit- juices and flavors and ice cream therein, and also ice cream, in violation of that certain ordinance,” etc. The judgment entered, includes all the substantial and jurisdictional facts necessary to constitute the offense, and shows upon its face that the acts of the defendant did not come within the exception of the ordinance. The finding that the offense was committed “on July 14th, 1907, being the seventh or Lord’s Day, commonly called Sunday,” indicates great carelessness upon the part of the learned judge in signing his decree, for the word seventh should have no place in the finding. It will be observed that the finding does not state what this word referred to, whether it was the seventh day of the week, the month or the year. It is simply a word out of place. If the court had simply found that the offense was committed on July 14, 1907, that finding would not have been sufficient, but the court did find that the offense was .'committed “ on July 14, being the .... Lord’s Day, commonly called Sunday.” The court having thus specifically found that the offense was committed on Sunday, July 14, 1907, we may have recourse to the calendar, and that shows that July 14,-1907, was a Sunday. The word “seventh ” in the finding, is,therefore, clearly surplusage, and may be disregarded.

The judgment is affirmed and the record remitted for execution.


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    Commonwealth v. Weimer, Appellant
    (No. 1).

      Appeals — Summary conviction — Transcript of magistrate’s record.

    The Superior Court will not reverse the action of the court below in refusing a defendant’s petition for the allowance of an appeal from a summary conviction before a magistrate, where the transcript of the magistrate’s record is not produced for the consideration of the appellate court.
    Argued Feb. 25, 1908.
    Appeal, No. 236, Oct. T., 1907, by defendant, ■ from order of Q. S. Lebanon Co., Dec. T., 1907, No. 30, refusing allowance of appeal from summary conviction in case of Commonwealth v. Edgar A. Weimer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Petition for allowance of appeal from summary conviction for violating the fish laws.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      J. G. Adams, with him Walter C. Grceff, for appellant.

      Warren G. Light, for appellee.

      July 15, 1908:
   Opinion by

Rice, P. J.,

We are asked in this case to reverse the action of the court below in refusing the defendant’s petition for the allowance of an appeal from a summary conviction before a magistrate, without having before us the transcript of the magistrate’s record. All that we have are the defendant’s petition, and the order of the court refusing the appeal. The constitutional provision upon the subject, which was carried into effect by the Act of April 17,1876, P. L..29 is as follows: "In all cases of summary conviction in this commonwealth, or of judgment in suit for a penalty before a magistrate, or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court or judge thereof upon cause shown.” As was said in Thompson v. Preston, 5 Pa. Superior Ct. 154, and again in Commonwealth v. Hendley, 7 Pa. Superior Ct. 356, neither that provision of the constitution nor the act of 1876 contemplates that an appeal shall be allowed merely because the party desiring it is dissatisfied with the result of the trial before the magistrate; the whole matter rests in the sound discretion of the court below. And again as was said in the latter case, “ without going outside of the record proper, we cannot know just what was considered by the court below. It had the right to look at the evidence offered before the magistrate, in behalf of both the commonwealth and defendant, and other matters which may not be examined into here, as the appeal to this court must be regarded as a substitute for a certiorari.” Undoubtedly for an abuse of discretion the party aggrieved by the refusal of the appeal would have a remedy in this court, but the abuse of discretion must appear somewhere in the proceedings sent up to us for review. Apparently the decision of the case before the magistrate depended upon the determination of questions of fact arising upon the evidence submitted to him, and in determining whether an appeal should be allowed from his decision the court was not confined to a mere examination of his petition nor compelled to take its allegations for verity. Many things might occur upon the hearing of such an application which it would be proper for the court to consider, but which we cannot consider because there is no way to bring them upon the record. It is suggested in the appellant’s argument that the case raises a difficult question of law, and we may say that if this appeared in the transcript of the magistrate and the transcript were before us this might be ground for holding that the court ought to have granted the appeal. But as we have suggested the transcript is not sent up and it is impossible to see how we can convict the court below of an abuse of discretion, unless it be held that upon an appeal from the action of the court the facts averred in the petition must be accepted for verity. We are not prepared to go to that extent. We see no substantial ground upon which we can base a decision substituting our discretion for that of the court in which it is reposed by the statute.

The appeal is dismissed.


text:
    Commonwealth v. Weimer, Appellant
    July 15, 1908:
    (No. 2).
    Argued Feb. 25, 1908.
    Appeal, No. 238, Oct. T., 1907, by defendant, from order of Q. S. Lebanon Co., Dec. T., 1907, No. 31, refusing allowance of appeal from summary conviction in case of Commonwealth v. Edgar A. Weimer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

For the reasons given in Commonwealth v. Weimer, ante, p. 451, in which we herewith file an opinion, the appeal is dismissed.


text:
    Commonwealth v. Brandt, Appellant
    (No. 1).
    Argued Feb. 25, 1908.
    Appeal, No. 237, Oct. T., 1907, by defendant, from order of Q. S. Lebanon Co., Dec. T., 1907, No. 30, refusing allowance of appeal from summary conviction in case of Commonwealth v. Lorenzo D. Brandt.
    July 15, 1908:
    Before Rice, P. J;, Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.-
   Opinion by

Rice, P. J.,

For the reasons given in Commonwealth v. Weimer, ante, p. 451, in which we herewith file an opinion, the appeal is dismissed.


text:
    Commonwealth v. Brant, Appellant
    July 15, 1908:
    (No. 2).
    Argued Feb. 25, 1908.
    Appeal, No. 239, Oct. T., 1907, by defendant, from judgment of Q. S. Lebanon Co., Dec. T., 1907, No. 33, refusing allowance of appeal from summary conviction in case of Commonwealth v. Lorenzo D. Brandt.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

For the reasons given in Commonwealth v. Weimer, ante, p. 451, in which we herewith file an opinion, the appeal is dismissed.


text:
    Buchholtz v. Barrie, Appellant.

      Principal and agent — Evidence as to agency — Question for fury.

    Where an agency is denied, but the alleged agent swears that he is in fact an agent, and his testimony is corroborated by a course of 'dealing with the alleged principal, indicating an agency, and there is evidence of ratification by the alleged principal of the acts of the alleged agent, the question of agency is for the jury.
    Argued Dec. 12, 1907.
    Appeal, No. 141, Oct. T., 1907, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1906, No. 1,741, on verdict for plaintiff in case of Heinrich Ewald Buchholtz v. George Barrie, George Barrie, Jr., Robert Barrie and Alexander Barrie, trading as George Barrie & Sons.
    July 15, 1908:
    Before Rice, P. J., Porteé, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for services rendered in writing two books. Before Brégy, P. J.
    The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $663.05. Defendants appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      Samuel W. Cooper, for appellants. —
    It is submitted that tlie authority to bind a principal cannot be proved by the declarations of the alleged agent, nor by his acts done without the authority or knowledge of the principal: Hays & Wick v. Lynn, 7 Watts, 524; Whiting v. Lake, 91 Pa. 349; Moore v. Patterson, 28 Pa. 505; Telephone Co. v. Thompson, 112 Pa, 118; Beal & Simons v. Express Company, 13 Pa. Superior Ct. 143.

      Thomas Learning, for appellee,
    cited: Himes v. Herr, 3 Pa. Superior Ct. 124; The Odorilla v. Baizley, 128 Pa. 283.
   Opinion by

Orlady, J.,

This is an action of assumpsit brought by the plaintiff to recover the sum of $600, with interest, for historical, literary and journalistic work, done in the preparation of two books.

The services were rendered by Buchholtz under an oral contract made with Prof. Guy Carleton Lee, of Johns Hopkins and Columbia Universities, whose testimony was as follows: “The plaintiff was engaged by me, as editor in chief, for George Barrie and Sons, to do the said writing for George Barrie and Sons, and the said George Barrie and Sons were to pay him for the writing aforesaid. The plaintiff was engaged to write a volume entitled 'Civil War from a Northern Standpoint’ and 'Reconstruction.’ And he did write them and performed his ■part of the contract, so far as the delivery of the manuscripts was concerned. The completed manuscript of the ‘Civil War, Northern Standpoint,’- was delivered to me as editor in chief, on or about April 10, 1905, and was prepared by me for ■publication, and delivered to the publishers, who set it up, wholly or in part, in type, and later plated it wholly or in part. The completed manuscript of ‘Reconstruction’ was delivered by Buchholtz to me as editor in chief for Barries on November 16, 1905, and is now held by me, subject to the order of the publishers.”

The plaintiff testified to the same state of facts, while the defendant denied any contractual relation whatever with the plaintiff. It is admitted that Dr. Lee was engaged by written contract to do certain work for the' defendants, in connection with their issuing a work entitled “History of North America.” A laudatory prospectus was issued by these defendants announcing the fact “That Dr. Lee accepted the responsibility of directing the work, upon the condition that he should have untrammeled choice in the selection of the persons he desired as advisers, editors and authors, and the illustrative material with which the text of the volume might be provided; and absolute freedom in literary and historical matters. These conditions were willingly agreed to by the publishers, and the editor in chief called to his assistance specialists in the various periods into which the history was to be divided.”

The plaintiff was a secretary of Dr. Lee and testified, that, in that capacity, he knew of the authority of Dr. Lee to employ writers and superintend the work, in connection with the issuing of these two books. The appellants allege in the history of the case, that “ the defendants had a written agreement with Guy Carroltown Lee which provided that he was to furnish them with the volumes necessary for a work on the ‘ History of North America.’ Lee was in this line of business, running a syndicate, and selling works of literature written by other people, to anyone who would buy them.”

It is not contended by the plaintiff that he ever came in direct communication with the defendants, and his right to recover must stand or fall on the authority of Dr. Lee to engage him to do the work. The plaintiff contends, through the testimony of Dr. Lee, and the defendants admit the fact, that the contract as originally made was modified in a number of particulars, that there were frequent interviews between the parties; and one of the defendants testified after looking over the correspondence, that there were 1,000 letters exchanged between the parties, relating to this work.

The case was zealously contested by the defendants claiming that no authority was shown in Lee to make any contract with the plaintiff, and that Lee was not competent to prove his authority by his own declarations as to his authority. On the trial the testimony assumed a much more direct form than an attempt to show the authority of an agent by his own declarations, and his evidence under oath as to the modifications in the contract and the enlargement of his powers, followed by the subsequent ratification by the defendants of some of his acts, outside of the written contract, — established a course of dealing which was clearly indicated as being the intention of defendants in the prospectus, which they issued to the world at large, and with which this plaintiff was familiar, and in which Dr. Lee was held out as their agent, “ Upon the condition that he should have untrammeled choice in the selection of the persons he desired as advisers, editors and authors,” etc. This testimony made the case purely one of fact to be submitted to the jury.

It was further shown that the finished manuscript of the first book was received by the defendants, and to a certain extent approved by them, and the court was clearly within bounds in saying “So it comes to the question as to whether Dr. Lee was- acting with the consent of the Barries in such a way as to induce Mr. Buchholtz to believe that he had the right to employ him to do the work.” Dr. Lee’s declarations, as such, were not evidence of his agency, but the knowledge derived by the plaintiff while his secretary, and his continued acts in and about their business, coupled with their recognition of his acts, in light of the prospectus issued by them, and the work in which the parties were engaged, when supported by the testimony under oath of Dr. Lee made it purely a question of fact for the jury, to determine whether Dr. Lee was authorized to employ the plaintiff to do the work, and this question was fairly submitted in an elaborate charge by the judge, and of which the defendants have no just reason to complain.

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


author: Henderson, J.,

text:
    Gill v. Ladies Catholic Benevolent Association, Appellant.

      Beneficial associations — Expulsion of member — Trial—'■Appeal—Dues —Tender of dues — Refusal of tender.

    Where the constitution of a beneficial association contemplates charges, notice, trial, judgment and an appeal to a supreme council, in case of the expulsion of a member, the mere act of two trustees of the association in directing that a member be expelled, without notice or trial, is ineffectual, and the member may disregard such action, and take no appeal from it.
    Where the rights of a member of a beneficial association have been unlawfully declared forfeited, and it is clearly shown that a tender of dues will not be accepted, a subsequent failure to tender dues as they fell due, will not prevent a recovery on the certificate.
    Argued March 4, 1908.
    Appeal, No. 26, March T., 1908, by defendant, from judgment of C. P. Luzerne.Co., May T., 1906, No. 430, on verdict for plaintiff in case of Mary Gill v. The Ladies Catholic Benevolent Association.
    Before Rice, P.' J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a benefit certificate. Before Halsey, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $548.50. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      T. P. Hóban, with him P. A. O’Boyle and John J. Hynes, for appellant. —
    A member of a beneficial society must resort, for the collection of an alleged wrong, to the tribunals of his order, and the judgment of such tribunals, when resulting fairly from the application of the rules of the society, is final and conclusive: Myers v. Fritchman, 6 Pa. Superior Ct. 580; Bauer’s Appeal, 5 W. N. C. 485; Com. ex rel. Bryan v. The Pike Beneficial Society, 8 W. & S. 247; Sperry’s Appeal, 116 Pa. 391; Com. v. Union League, 135 Pa. 301; Toram v. Howard Beneficial Association, 4 Pa. 519; Haag v. Knights of Friendship, 7 Pa. Superior Ct. 425; Crow v. Capital City Council, 26 Pa. Superior Ct. 411; Beeman v. Supreme Lodge, 20 Pa. Superior Ct. 387; s. c., 215 Pa. 627; Connelly v. Masonic Mutual Benefit Association, 58 Conn. 552 (20 Atl. Repr. 671); Lafond et al. v. Deems et al., 81 N. Y. 507; Chamberlain v. Lincoln, 129 Mass. 70; Poultney v. Bachman, 31 Hun, 49; Levy v. Magnolia Lodge I. O. O. F., 110 Cal. 297 (42 Pac. Repr. 887).

      Richard B. Sheridan, with him John T. Lenahan and James C. Murray, for appellee. —
    While the law requires a member of a beneficial order, first to exhaust his remedies in the courts provided by the rules of the order, yet when a member is denied a hearing, contrary to the fundamental law of the organization, such member is rectus in curia in applying to the courts of his state: Haag v. Knights of Friendship, 7 Pa. Superior Ct. 425; Com. v. Penna. Beneficial Institution, 2 S. & R. 141; Com. v. German Society, 15 Pa. 251; Washington Beneficial Society v. Bacher, 20 Pa. 425; Diligent Fire Co. v. Com., 75 Pa. 291; Vivar v. Knights of Pythias, 52 N. J. L. 455 (20 Atl. Repr. 36); Knights of Pythias v. Eskholme, 59 N. J. L. 255 (35 Atl. Repr. 1055); Langnecker v. Grand Lodge A. O. U. W., 55 L. R. A. 185; Sleeper v. Franklin Lyceum, 7 R. I. 523; Reynolds v. Pawtucket, 23 R. I. 370 (50 Atl. Repr. 645).
    If a company has expressly declared a forfeiture of the policy, and it is clearly apparent from acts or declarations that a tender would not be accepted, or if it has declared a forfeiture and refused the premium, the fact that there has been a failure subsequently to pay or tender the premiums as they fell due will not prevent a recovery on the policy: National Mut. Ins. Co. v. Home Benefit Society of N. Y., 181 Pa. 443; Langnecker v. Grand Lodge A. O. U. W., 55 L. R. A. 185; Guetzkow v. Ins. Co., 105 Wis. 448 (81 N, W. Repr. 652).
    July 15, 1908:
   Opinion by

Henderson, J.,

Mary Gill, the mother of the appellee, was regularly admitted to the defendant association and thereby became entitled to the provisions of the association relating to benefits. Three objections against the plaintiff’s claim were made at the trial: .(1) that action was taken by officers of the association resulting in the expulsion of the member; (2) that the plaintiff’s remedy was first by appeal from that- action in accordance with the laws of the association; and (3) that even if the expulsion was irregular and, therefore, invalid, the right of recovery was lost because of the failure of the member to pay the monthly assessments and dues required by the laws of the order. Of the first objection it may be said that the record does not disclose anything proved or offered to be proved, showing or tending to show that Mrs. Gill was expelled from the association. The appellant proposed to prove that two of the members of the board of supreme trustees acting as a committee of that board notified the branch of the association to which Mrs. Gill belonged'that all members over the,age of forty years should produce certificates of their birth or baptism or some other reasonable proof of their age, complaint having been made to the supreme trustees that a number of the members of the branch were over the age provided for in the constitution at -the time they were initiated, and it was alleged that the failure of Mrs. Gill to comply with this request was the cause of the alleged expulsion. But it was not proposed to show that there had been a formal charge or complaint against Mrs. Gill or that she had received notice thereof or that there had been any trial or judgment against her by the tribunal created by the constitution. The seventieth section of the constitution contains a carefully prepared mode of procedure in the case of charges or complaints against a member. The charges must be in writing specifying the nature of the complaint with full particulars as to time, place and circumstance; they must be made in duplicate, one copy of which shall be delivered personally to the accused, or left at her last address, at least ten days before the trial; proof of the delivery or mailing of such copy shall be furnished before the trial; the supreme recorder shall notify the complainant and accused of the time and place of the meeting of the trial body and cite the parties to be present with their witnesses. If after a fair and impartial trial the charges are proved the accused may be fined, reprimanded, suspended or expelled as a majority of the board of trustees may determine. The latter body hears and disposes of complaints except when the supreme council is in session in which latter case the council constitutes the court. Section 71 provides for an appeal to the supreme council by any member who feels dissatisfied with the decision rendered on any charge or complaint. These provisions contemplate charges, notice, trial and judgment on any matter involving the right of a member to continue in that relation. It is not claimed that any action was taken with reference to Mrs. Gill in accordance therewith. What was done was this: two of the supreme trustees came to Scranton and having learned that Mrs. Gill had not complied with the request that proof of age be furnished by all the members of the branch over forty years of age directed the secretary of the subordinate branch to write the word “expelled” opposite her name on the roll of members. The secretary thereupon entered the word “resigned” instead of “expelled,” with the permission of the supreme trustees referred to, “because it looked a little more charitable in the book.” It is unnecessary to cite authorities to show that this action was ineffectual against Mrs. Gill. If there had not been a mode provided in the constitution for an orderly determination of the question whether she had violated the rules of the society or disqualified herself for further membership therein the law would prevent her' dismissal without a hearing. It is essential to a valid expulsion from such a society that the member had an opportunity to defend himself and that a fair trial was accorded him. No charge in writing was made against Mrs. Gill; there was no pretense of hearing or trial and the alleged expulsion was absolutely void. The constitutional provision for appeal to the supreme council has reference to decisions rendered in accordanee with the laws of the society. In the present instance there had not been a trial and, therefore, no decision was rendered; as a consequence, there was nothing from which to appeal.

The objection that the plaintiff cannot recover because of the failure of Mrs. Gill to pay her dues and assessments cannot be sutsained. The evidence shows that tender of the amount due on the benefit certificate was regularly made monthly for three months after the attempted expulsion and that the tenders were successively refused for the reason that Mrs. Gill was no longer a member of the society. It would be most inequitable to permit a body to enforce a forfeiture because of the omission of a member to make payment of dues when that omission was brought about by the action of the society. Where the rights of the insured have been unlawfully declared forfeited and it is clearly shown that a tender would not be accepted, a subsequent failure to tender premiums as they fell due will not prevent a recovery on the certificate. The law does not require that a party would continue in the repetition of a futile act: National Mut. Ins. Co. v. Home Benefit Society, 181 Pa. 443; Guetzkow v. Michigan Mutual Life Ins. Co., 105 Wis. 448; 2 Joyce on Ins., sec. 1123. The court submitted to the jury the question whether Mrs. Gill misrepresented her age at the time she became a member of the society and the verdict on that point was in her favor. The submission of this question was certainly as much under the evidence as the defendant was. entitled to.

The judgment is affirmed.


text:
    Gill v. Ladies Catholic Benevolent Association, Appellant.
    Argued March 4, 1908.
    Appeal, No. 27, March T., 1908, by defendants, from judgment of C. P. Luzerne Co., May T., 1906, No. 430, on verdict for plaintiff in case of Mary Gill v. The Ladies Catholic Benevolent Association.
    Before Rice, P. J., Porter, Henderson and Head, JJ.
    Affirmed.

      July 15, 1908:
   Opinion by

Henderson, J.,

This case was argued with that of Mary Gill against the same defendant and arises out of the same contract. In an opinion this day filed, ante, p. 458, we affirmed the judgment of Mary Gill against the appellant and for the reasons stated in that opinion this judgment is also affirmed.


text:
    El Dorado Jewelry Company, Appellant, v. Hartung.

      Contract — Sale—Order—Parol evidence — Fraud.
    In an action to recover for goods alleged to have been sold and delivered on an order, a verdict and judgment for defendant will be sustained, where the defendant and his wife testify that the agent of the plaintiff represented and declared as an inducement to the defendant to sign the order, that it was to be a memorandum to show where the goods were placed; that the transaction was not to be a sale, but that the defendant was to sell the goods on commission; and that the title was to remain in the plaintiff in accordance with a method of doing business adopted by it.
    Argued Feb. 25, 1908.
    Appeal, No. 5, March T,, 1908, by plaintiff, from judgment of C. P. Sullivan Co., Feb. T., 1905, No. 46, on verdict for defendant in case of El Dorado Jewelry Company, formerly Elgin Jewelry Co. v. August Hartung.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit to recover for goods alleged to have been sold and delivered on an order. Before Terry, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were various rulings on evidence and instructions.

      E. J. Mullen, for appellant.
    J. G. Scouton, for appellee.

      July 15, 1908:
   Opinion by

Henderson, J.,

The verdict of the jury establishes the fact that the defendant was induced to sign the paper upon which the action is brought by false representations made by the plaintiff’s agent and that the use now sought to be made of the paper is in violation of an agreement made with the defendant on the faith of which the signature of the latter was obtained. This conclusion of the jury is supported by evidence well calculated to'lead to such a result. According to this evidence the agent represented and declared as an inducement to the defendant to sign the order that it was to be a memorandum to show where the goods were placed; that the transaction was not to be a sale, but that the defendant was to sell the goods on commission and that the title was to remain in the plaintiff in accordance with a method of doing business adopted by it. The plaintiff’s narration of the transaction is corroborated by the testimony of his wife and the court was justified in submitting this evidence to the jury. We need not review the authorities on this subject. They were well considered by the learned judge of the court below in disposing of the rule for a new trial. The subject was discussed by our Brother Head, in a clear opinion in El Dorado Jewelry Co. v. Hopkins, 34 Pa. Superior Ct. 446. That was an appeal from a judgment of the court of common pleas discharging a rule for judgment for want of a sufficient affidavit of defense in which the present appellant was the plaintiff and the same agent acted for it. The cases are so nearly identical in the character of the facts that the case referred to must be considered conclusive of that now before us.

The judgment is affirmed.