author: Portee, J.,

text:
    Commonwealth, Appellant, v. Shafer.

      Constitutional law — Plumbers—Boards of héalth — Delegation of legislative power — Act of June 24, 1895, P. L. 232.
    The Act of June 24, 1895, P. L. 232, which authorizes boards of health to provide for the registration of journeymen and master plumbers, is not unconstitutional as involving an unlawful delegation of legislative power to municipal authorities. The fact that the act fixed a penalty for a violation of the municipal regulation does not affect the validity of the statute.

      Constitutional law — Local and special legislation — Plumbers—Boards of health — Sewers—Classification.
    The Act of June 24, 1895, P. L. 232, authorizing the registration of journeymen and master plumbers by boards of health in cities and boroughs, is not unconstitutional as local and special legislation because of the fact that the act applies only to boroughs which have a system of sewerage.

      Boroughs — Boards of health- — Plumbers.
    Under the Act of June 24, 1895, P. L. 232, relating to the registration of journeymen and master plumbers in boroughs and cities, a board of health has no authority to adopt a regulation that a person applying for registration should produce satisfactory proof that he was a bona fide master plumber, and that all persons failing to furnish such satisfactory proof should be obliged to pass an examination before the examining committee of the board of health.
    A regulation under the act which provides for the registration of master plumbers only, and fails to provide for the registry of journeymen, is invalid as lacking in uniformity.
    Argued Oct. 25, 1906.
    Appeal, No. 182, Oct. T., 1906, by plaintiff, from order of Q. S. Clearfield Co., May T., 1906, No. 57, discharging defendant in case of Commonwealth v. A. A. Shafer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      February 25, 1907:
    Indictment for plumbing without a license. Before Smith, P. J.
    The case turned upon the constitutionality of the Act of June 24,1495, P. L. 232, and the validity of the regulation of the board of health of the borough of DuBois passed in pursuance of the act. When the case came on for trial a motion was made to discharge the defendant, which motion the court subsequently granted, and the defendant was discharged.

      Hrror assigned was the order of the court discharging the defendant.

      W. 0. Pentz, with him William I. Swoope, district attorney, for appellant.
    — The act of 1895 is constitutional: Beltz v. Pittsburg, 26 Pa. Superior Ct. 66.

      Singleton Bell, with him Howard B. Hartswiclc,_ for appellee,
    cited on the constitutionality of the act: O’Neil v. Fire Ins. Co., 166 Pa. 72; Com. v. Finn, 11 Pa. Superior Ct. 620; Com. v. Standard Oil Co., 101 Pa. 119.
   Opinion by

Portee, J.,

This prosecution was instituted under the provisions of the Act of June 24, 1895, P. L. 232. By the first section of the statute boards of health in cities and boroughs of this commonwealth are “ authorized and directed to adopt and promulgate suitable rules and regulations for the construction of house drainage and cesspools, and to provide for the registration of journeymen and master plumbers, and persons engaged in the plumbing business in cities and boroughs; Provided, that the provisions of this act shall not apply to boroughs having no system of water supply or system of sewerage.” The second section enacts that, “ Any person who shall refuse or neglect to comply with the requirements of said rules and regulations when promulgated, shall be guilty of a misdemeanor, and on conviction be sentenced to pay a fine of not more than $100, or undergo an imprisonment not exceeding one year, or both, in the discretion of the court.” The information charged that the defendant, on April 6, 1906, “ within the borough of DuBois, said county, started as a master plumber and did plumb in a building of one J. Riley, at 525 First street, in said borough of DuBois, without taking out a plumber’s license or having the right to do plumbing, contrary to the act of assembly in such case made and provided and the rules of the board of health of the borough of DuBois promulgated, which rules are as follows: ” “Every person engaged in the plumbing business in the borough of DuBois as a master plumber and every person coming from other places for the purpose of doing plumbing work in the borough of DuBois as a master plumber, shall appear in person at the office of the board of health and register his name and business address upon blanks prescribed by the board of health, and receive a certificate of registry upon presenting satisfactory proof that he is a bona fide master plumber, and no person other than a registered plumber shall be allowed to carry on, or engage in the plumbing business or make any connection with any sewer drain, soil or waste pipe connected therewith, and all persons failing to furnish the board of health with satisfactory proof as called for above, shall be obliged to pass an examination before the examining committee of the board of health of DuBois.” The defendant, having after hearing been held for court, moved for his discharge from further prosecution, upon the ground that the board of health of the borough was without authority to make and promulgate the rules set forth in the information, and that the act of assembly upon which the rule was supposed to be founded was unconstitutional. The learned judge of the court below held that the statute was unconstitutional, in that it involved an unauthorized delegation of legislative power to the municipal authorities, and upon that ground discharged the defendant. The commonwealth appeals.

The learned judge of the court below based his decision, that the act involved an unauthorized delegation of legislative power, upon the authority of O’Neil v. Insurance Company, 166 Pa. 72. Mr. Justice Williams, who spoke for the Supreme Court in O’Neil v. Insurance Company, in a later case, Jermyn v. City of Scranton, 186 Pa. 595, which involved the question of the legislative power to clothe the officers of a municipality with authority to make municipal regulations, referring to O’Neil v. Insurance Company, said: “ An examination of that case shows that- the question there raised and decided has no analogy to the question we are now considering. It ■ was an attempt to delegate to a single individual person the power to prescribe a compulsory form of contract between private parties. The whole subject was committed to the official without any kind of limitation or restraint, and without responsibility to any supervising agency.” Cities and boroughs are state agents, instituted for the purposes of local government, and it is competent for the legislature to delegate to the municipal authorities the power to make such rules and regulations as may be necessary to secure, within the municipal limits, the purposes of their organization. “ The taxing power in this commonwealth is vested absolutely in the legislature, and when not prohibited by the constitution, it is limited in the exercise of that power by its discretion only. It may tax every species of property permanently within the limits of this state not exempt by the constitution thereof, or by the constitution and laws of the United States. Whatever power it possesses it may delegate to a municipal government, to be legitimately exercised within its corporate limits : ” Pennsylvania Railroad Company v. Pittsburg, 104 Pa. 522; Butler’s Appeal, 73 Pa. 448; Jermyn v. City of Scranton, 186 Pa. 595. That the legislature may, in the exercise of the police power, empower the authorities of a municipality to make such rules and regulations as they shall deem necessary for the good order of the municipality, to regulate its roads, streets and common sewers, to protect its' citizens in their persons and property and to promote the public health, and to ordain penalties for the violation of such regulations and collect the same, provided such regulations do not contravene the laws and constitution of the commonwealth or of the United States, is well settled. The only question for the court to determine is whether a particular ordinance is a reasonable exercise of the power conferred: Commissioners v. Gas Company, 12 Pa. 318; Frankford & Philadelphia Passenger Railway Company v. Philadelphia, 58 Pa. 119; Johnson v. Philadelphia, 60 Pa. 445; Warren Borough v. Geer, 117 Pa. 207; City of Allentown v. Western Union Telegraph Company, 148 Pa. 117; Sayre Borough v. Phillips, 148 Pa. 482; Water Company v. Darby, 199 Pa. 400; Ridley Park v. Light & Power Company, 9 Pa. Superior Ct. 615; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156; Appeal of the City of Pittsburg, 115 Pa. 4. That the statute fixes the penalty for a violation of the municipal regulation is no objection to its validity. The legislature might in its discretion have authorized the municipal authorities to enact regulations and fix penalties for the violation thereof, not exceeding a certain maximum, but this statute withheld that discretion from the municipal authorities. The legislature unquestionably had the power to fix the penalty and determine the constitutional mode of trial for violation of the regulations, which the statute authorized the municipal authorities to promulgate. The act insures all parties who violate the regulations a trial in the court of quarter sessions, at which the reasonableness of the regulation and the power of the borough to make it, under the act by which the authority is conferred, can be determined bjr a court of competent jurisdiction. This statute did not involve an unlawful delegation of legislative power.

Counsel for the defendant contend that the statute is local and special, for the reason that it applies only to boroughs which have a system of sewerage. The statute relates to the public •health, as affected by the matters of plumbing and drainage and of general sanitation resulting therefrom. “ In its nature it is a definition and regulation of the police power on a subject which is one of municipal concern. All the cases agree that such subjects are the principal basis of the legitimate classification of cities. That the control and regulation of cesspools and drainage in general are more important and require different conditions in closely built up neighborhoods from those sufficient for the open country does not need discussion. And for the same reason the regulations may require to be different in cities of different volume and density of population. . . . The subject being one which is germane to the proper basis of classification its regulation and application to one or more classes are within the legislative' discretion: ” Beltz v. Pittsburg, 211 Pa. 561; 26 Pa. Superior Ct. 66. “ Legislation for a class, distinguished from a general subject, is not special but general, and classification is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and -not on artificial or irrelevant ones, used for the purpose of evading the constitutional prohibition. If the distinctions are genuine the courts cannot declare the classification void, though they may not consider it to be on a sound basis. The. test is, not wisdom, but good faith in the classification: ” Seabolt v. Commissioners, 187 Pa. 318; Commonwealth v. Gilligan, 195 Pa. 504 ; Clark’s Estate, 195 Pa. 520; Stegmaier v. Jones, 203 Pa. 47. The subject-matter of this legislation is house drainage and plumbing. The condition upon which the exercise of the power by the board of health of any borough is made to depend, is the fact that the borough has a system of sewerage. This condition is founded on a natural and manifest distinction, directly relevant to the subject-matter of the legislation. The necessity for the regulation of house drainage is manifestly greater in a borough which has a system of public sewerage than in a borough which is without such a system. When a borough has provided a public system of sewerage, the natural and probable consequences of the introduction of such a system is that the houses of citizens will be connected with and drained through such system, and the necessity for proper regulation of such house drainage, in the interests of the public health, is manifest. When the territory within the borough is but sparsely populated and there is no system of sewerage, the opportunity for house drainage, in the sense in which that term is used with regard to the built up portions of a town, is lacking, and the necessity for a regulation thereof by the public is certainly less apparent. This basis of classification, therefore, is not only competent, but obviously proper. We are of opinion that this statute is not subject to the prohibition of section 7 of article III. of the constitution.

We now come to consider the regulation on which this case depends. Was it authorized by the statute ? The defendant is not charged with having violated any regulation relating to the manner of construction or materials used in the work which he performed. The only charge is that he, “ started as a master .plumber and did plumb in a building .... without first having taken out a plumber’s license or having the right to do plumbing,” etc. The information, in brief, means that the defendant started to do plumbing in a building in the borough without having registered in accordance with the regulation of the borough which is set forth at length in the information. The statute did not invest the board of health with the power to examine and pass upon the competency of plumbers ; it merely authorized and directed them “ to provide for the registration of journeymen and master plumbers and persons engaged in plumbing business.” This conferred upon the board of health no authority to determine the qualifications of plumbers, it directed the boards to provide for the registration of all plumbers, but gave them no power to reject any person who applied for registration. The regulation adopted by the board of health of DuBois borough attempted to go entirely beyond the power thus conferred. It required as a preliminary to registration that the person applying should produce satisfactory proof that he was a bona fide master plumber, and that all persons failing to furnish such satisfactory proof.should be obliged to pass an examination before the examining committee of the board of health. Even had the statute conferred authority upon the board of health to examine applicants, this regulation was invalid because it was not uniform. It did not require all applicants to be examined. The regulation provided that “ no person other than a registered plumber shall be allowed to carry on, or engage in the plumbing business or make any connections with any sewer drain, soil or waste pipe connection therewith.” The regulation provided only for the registration of master plumbers, and then prohibited all persons not registered from doing any work connected with the plumbing. The effect of this would be that, in the borough of DuBois, no man who had always woi’ked as a journeyman plumber could be registered or work at his trade. We are of opinion that this regulation was not authorized by the statute and is invalid, for the reasons that it provided for the registration of master plumbers only and failed to provide for the registry of journeymen, and that by the regulation the board of health assumed authority to pass upon the question of the qualifications of applicants for registration, which power was not conferred by the statute; and that, even if it were conceded that the board of health had power to examine applicants, this regulation was not uniform.

The order of the court below is affirmed.


source: Caselaw Access Project

author: Beavek, J.,

license: Public Domain

text:
    Mylin’s Estate.

      Trusts and trustees — Commissions on principal — Costs—Counsel fee.

    In the case of a continuous trust, the trustee, except in extraordinary circumstances or when the instrument by which the trust is created so indicates, cannot diminish the fund which is to create the income during the life of the trust. For services rendered by way of collecting and paying over the income, the compensation is a fit charge upon the increase and is properly deducted from it; but the labor, care and responsibility pertaining to the conservation of the capital itself are properly charged on it, and are to be deducted from it when the trust expires, or the particular trustee’s relation to it ends.
    A trustee has no right to deduct his commissions on the corpus of the trust estate as soon as it comes into his hands.
    Where a trust estate amounts to over $12,000, and the trust has continued for nearly three years before the trustee’s discharge, a charge for counsel fees of $30.00 and $9.85 fees of the clerk of the orphans’ court, should be allowed.
    Argued Nov. 12, 1906.
    Appeal, No. 216, Oct. T., 1905, by J. H. Rathfon, Receiver of the City Saving Fund and Trust Company, Trustee and Accountant, from decree of O. C. Lancaster Co., April T., 1902, No. 21, dismissing exceptions to adjudication in estate of Francis Mylin, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, PIead and Beaver, JJ.
    Decree modified and affirmed.
    Exceptions to adjudication.
    The exceptions were as follows :
    1. The court erred in surcharging the accountant with $614.52, commissions on the principal.
    2. The court erred in refusing to allow the accountant any commissions on the corpus of the estate.
    3. The court erred in surcharging the accountant with $30.00, counsel fees paid.
    4. The court erred in surcharging the accountant $9.85 for. register’s and orphans’ court costs paid on the account.
    The court dismissed the exceptions in an opinion by Smith, P. J.

      Errors assigned were in dismissing the exceptions.

      February 25, 1907:

      William H. Keller, with, him John K. Malone and John A. Coyle, for appellant.
    — All courts have recognized that the duties of a continuing trust are more onerous and burdensome than those of the mere administration of a decedent’s estate, and as compensation is measured by labor and responsibility, if any distinction should be made it would be in favor of the trustee rather than otherwise: McElhenny’s Appeal, 46 Pa. 347; Stevenson’s Estate, 4 Wharton, 98; Lowrie’s App., 1 Grant, 373; Shunk’s App., 2 Pa. 304 ; Duval’s App., 38 Pa. 112; Whelen’s App., 70 Pa. 410; Wistar’s App., 54 Pa. 60; Sunderland’s Est., 203 Pa. 155; Young’s Est., 204 Pa. 32; Gilpin’s Est., 138 Pa. 143; Oliver’s Est., 4 Pa. C. C. Rep. 209; Penn-Gaskell’s Est., 208 Pa. 342; Mintzer’s Est., 43 Legal Int. 292.
    Costs should have been allowed: Lowrie’s App., 1 Grant, 373; Musser v. Good, 11 S. & R. 247.

      John M. Groff, for appellee,
    cited: Bosler’s Est., 161 Pa. 457; Perkins’s App., 108 Pa. 314; Tidball’s Est., 29 Pa. Superior Ct. 363; McGregor’s Est., 131 Pa. 359; Shearman v. Morrison, 149 Pa. 386.
   Opinioít by

Beavek, J.,

The City Savings Fund & Trust Company, trustee of the estate of Francis Mylin, at the beginning of the administration of its- trust “ took out of the head of the heap ” the sum of $514.52, 5% of the gross amount, as its commissions on the corpus of the estate. Within three years thereafter the trustee, because of its insolvency, surrendered the management of the estate and filed its account. That account showed the corpus of the estate diminished by the sum of 1678.32, somewhat more than the amount appropriated by the trustee at the beginning of the administration of the trust as its commissions.

This deduction was a double wrong. It not only appropriated money for services before they were rendered and fixed the amount at what would ordinarily be regarded as a maximum charge, even in the distribution of an estate, but it thereby reduced the earning capacity of the estate by the amount deducted and appropriated the income of the said amount to its own use.

The appellant does not seek to justify either the deduction of commissions in advance, nor the amount deducted, but, ignoring the wrong which was done by such deduction, he attempts to show that, inasmuch as the estate was carefully and judiciously managed in all other respects, the trustee should be paid a reasonable compensation out of the corpus of the estate as well as the commission of 5% deducted from the annual income.

Assuming, for present purposes, that the insolvency of the trustee was not induced by the careless or criminal conduct of its business, and that it was its misfortune rather than its fault which required the appointment of a new trustee, it by no means follows that the trust estate should be visited with the results of such misfortune. It requires no prophet’s ken to foresee that a series of such misfortunes would hopelessly reduce the corpus of the estate, so that-its income Avould utterly fail of the purpose originally intended. This consideration is sufficient ground for the wholesome rule laid down in Bosler’s Estate, 161 Pa. 457, which, as stated in the syllabus, is that: “ In the case of a continuous trust, the trustee, except in extraordinary circumstances or when the instrument by which the trust is created so indicates, cannot diminish the fund, which is to create the income during the life of the trust. For services rendered by Avay of collecting and paying over the income, the compensation is a fit charge upon the increase and is properly deducted from it; but the labor, care and responsibility pertaining to the conservation of the capital itself are properly charged on it, and are to be deducted from it, when the trust expires or the particular trustee’s relation to it ends.”

It is in this case true that the particular trustee’s relation to this estate ended before the filing of its account, but the trust had not expired, nor should the relation of the trustee have ceased, except for causes for which the cestui que trust was in no way responsible, and for which the trustee, whether through fault, folly or misfortune, was responsible. As the court below well said, in the opinion dismissing the exceptions to its adjudication, “ It is not the case of a terminated trust or the ordinary change of trustees, Ijut of a forfeited trusteeship.”

So far, therefore, as the assignments of error relate to the surcharge of the amount deducted from the corpus of the estate at the beginning of the trust and the interest thereon, they are not sustained.

The opinion of the adjudicating judge is exhaustive and convincing, and it is not necessary for us to cite the authorities which are so carefully collated therein and in Bosler’s Estate, 161 Pa. supra.

As to the assignments of error relating to the surcharges of $30.00 for counsel fees and $9.85 for register’s and orphans’ court costs, paid op the account, we do not agree with the court below. The trust had continued for more than two years, and the trustee had actually received the trust estate nearly three years before its discharge. The only charge for services of an attorney is that of $30.00 to "William R. Brinton. It is not stated that this is for filing the account. It is a most reasonable charge in any event. As to the fees of the clerk of the orphans’ court, they were, so far as appears either in the account or in the opinion of the adjudicating judge, the ordinary fees for such service. Trustees should ordinarily be encouraged to, rather than discouraged from, filing accounts. The filing of the account was a necessity, both as a matter of information for the cestui que trust as well as a basis for charging the new trustee. The charge was reasonable. It was not excepted to, as we understand it, by any of the parties interested. The sum of $39.85, being the attorney fee and the amount paid the clerk of the orphans’ court, fees for filing the trustee’s account, should be deducted from the amount of the surcharge ; and, when so deducted and the amount of the surcharge diminished to that extent, the decree of the orphans’ court is affirmed.

The costs in this court to be paid by the appellee.


author: Rice, P. J.,

text:
    Hill’s Estate.
    February 25, 1907 :

      Executors and administrators — Administrator d. b. n. — Fraud—Distribution.

    Where the assets of an estate of a decedent were misappropriated by an insolvent deceased administrator, and a suit begun at the instance of an administrator d. b. n., is pending against the sureties on the bond of the insolvent deceased administrator, the orphans’ court cannot direct that the balance for which the deceased administrator and his surety are liable shall be awarded to the guardian of the heir of the decedent, rather than to the administrator d. b. n., particularly where the guardian and the administrator is the same person and demands that the award be to him as administrator. The award should be made to the latter in order to enable him to continue the pending litigation; otherwise the collection of the'money might be imperiled, if not defeated.
    Argued Nov. 13, 1906.
    Appeal, No. 225, Oct. T., 1905, by William C. Whiteside, Administrator d. b. n. of Mary Hill and Winfield S. Hill, from decree of O. C. Lancaster Co., Feb. T., 1902, No. 72, dismissing exceptions to adjudication in Estate of Mary C. Hill and Winfield S. Hill, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Decree modified.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      B. E. Davis, for appellant.
    — The award was erroneous : Cake’s Estate, 157 Pa. 457; Little v. Walton, 23 Pa. 164; King v. Devoe, 6 Phila. 551; Com. v. Strohecker, 9 Watts, 479; Carter v. Trueman, 7 Pa. 315.

      H. Frank Eshleman, for appellee,
    cited: Garman’s Est., 211 Pa. 264.
   Opinion by

Rice, P. J.,

Mary C. Hill and Winfield S. Hill, from the distribution of whose estates this appeal was taken, died in January, 1892. John T. Hill inherited the estates of both. E. A. Brown, who was appointed administrator of both estates, had them inventoried and administered upon them as one, and on November 3, 1901, filed his first and final account. Exceptions were filed, and in due course the orphans’ court disposed of them by its decree of May 8, 1902, in which the balance due from the administrator was finally determined to be “ $3,219.53 together with interest which has since accrued.” A very large part of this balance consisted of loans which E. A. Brown as administrator had made of the assets of the estates.

E. A. Brown died shortly after the account was filed and on March 8,1902, W. C. Whiteside was granted letters of administration d. b. n. upon the estates of Mary C. Hill and Winfield S. Hill, and on January 19, 1902 was also appointed guardian of John T. Hill, under the Act of June 25, 1895, P. L. 300, passed for the protection of persons unable to care for their own property.

To August term, 1903, W. C. Whiteside as administrator d. b. n. brought two suits in the common pleas against the administrators c. t. a. of Samuel Fite, deceased, who was surety on the two administration bonds given by E. A. Brown, to recover the unpaid balance of the sum ascertained to be due by the decree of May, .1902, it being alleged in the statement of claim, and admitted on the trial, that E. A. Brown died insolvent and nothing could be collected from his estate. The trial of these cases resulted in a verdict on January 30, 1905, assessing the plaintiff’s damages in each case at $531.38— $1,062.76 in the aggregate, this being the sum unpaid after crediting certain payments that had been made in the meantime to W. C. Whiteside, either as administrator or as guardian. Upon the application of the defendant’s counsel, who were also counsel for Davis Brown, administrator of the estate of E. A. Brown, a rule was granted to show cause why a new trial should not be had, which subsequently was discharged; but later a rule was granted to show cause why a reargument of the rule for new trial should not be had. It is stated by counsel on both sides that the disposition of this rule has been suspended until the determination of the proceedings in the orphans’ court, and of this appeal.

On May 11, 1905 Davis Brown petitioned the orphans’ court to make distribution of the sum ascertained to be due from E. A. Brown by the decree of May, 1902. Pursuant to this petition the audit came on before the orphans’ court from which this appeal arises. At that hearing the counsel of Davis Brown, administrator of E. A. Brown, deceased, and of the administrators of Samuel Fite, deceased- — -who it will be remembered was the surety on the administration bonds of E. A. Brown— asked that the balance, after awarding the collateral inheritance tax thereon to the register, should be awarded to John T. Hill, or his committee for him. Counsel for W. C. Whiteside objected that the purpose of the proceeding was really to relieve the estate of the surety on the administration bond, and that if the decree was made as above suggested it would have that effect, at least so far as his real estate is concerned. The court awarded the balance directly to Wm. C. Whiteside, guardian of John T. Hill, instead of to Wm. C. Whiteside, administrator d. b. n. of the estates of the decedents. The exceptions of Wm. C. Whiteside, administrator d. b. n., alleged error, inter alia, in awarding the balance to him as guardian and not awarding it to him as administrator d. b. n. The court overruled the exceptions, and from the decree confirming the adjudication this appeal comes.

It is provided in the 31st section of the Act of February 24, 1834, P. L. 70, as follows: “ Administrators de bonis non, with or without a will annexed, shall have power to demand and recover from their predecessors in the administration, or their legal representatives, all moneys, goods and assets remaining in their hands due and belonging to the estate of the decedent, and to commence and prosecute actions upon promises made to such predecessors in their representative character, and to sue forth and defend writs of error, writs of scire facias and writs of execution upon judgments, obtained by or in the name of the executors or administrators into whose place they may have come, and also to proceed with and perfect all unexecuted executions, which may have been issued thereon at the instance of such predecessors.” Many early decisions under this section maintained that no action for assets could be brought, except by the administrator d. b. n. with or without the will annexed, as the case might be. See Gilliland v. Bredin, 63 Pa. 393 and cases there cited. It was distinctly ruled in Carter v. Trueman, 7 Pa. 315, where this section of the act of 1834 was directly under consideration, as follows: “ In this there is neither exception to nor restriction of the power of the substituted administrator, nor anything to point to a distinction, in this particular, between assets unincumbered and those which may be applicable in payment of debts. In the cases ruled upon the statute, the second administrator is, accordingly, treated as standing, indifferently, in the place of creditors and distributees. It follows that the representative of the deceased administrator cannot set up the nonexistence of debts to defeat the statutory right of the successor to demand and recover from the former all moneys, goods, and assets, due and belonging to the estate of the decedent.” And in Commonwealth v. Strohecker, 9 Watts, 479, the right of the administrator d. b. n. to sue the sureties of his predecessor for the balance due on the administration account seems to he recognized. But it is claimed that this case is ruled by Garman’s Estate, 211 Pa. 264, wherein the point decided is thus stated in the syllabus : In proceedings on the account of the administrator of a deceased executrix where it appears that the indebtedness of the testator has been paid and there are no debtors to or claimants against the estate, distribution may be made directly to the legatees instead of to an administrator cle bonis non cum testamento annexo. In that case, it will be noticed, the money was ready to be paid over to the parties beneficially interested and nothing further remained to be done. They insisted that it was unnecessary to subject the fund thus ready to be paid into their hands to the expense and delay which would be incident to payment of it to the administrator d. b. n. and to distribution to be made by him. It was a plain case for conforming to their wishes unless the words of the act forbade. Justice Elkin shows quite clearly that such construction of the act as the administrator d. b. n. there contended for would accomplish a result which it was inconceivable that the legislature intended, and therefore the decree of the orphans’ court passing him by and distributing the money directly to the legatees was affirmed. The parallel between that case and this consists simply in the fact that there are no debts of the decedents, Mary C. Hill and Winfield S. Hill, to be paid. There the parallel ends. The money represented by the verdict in the common pleas is not actually in the hands of the administrator of E. A. Brown, the deceased administrator of their estates. E. A. Brown died insolvent and without property and the only recourse is upon his administration bonds. We see no reason to doubt the authority of Wm. C. Whiteside, administrator d. b. n., to bring suit against the estate of the deceased surety therein. He was thus proceeding to collect the assets found to have been in the hands of his predecessor, and had carried the suit so far that it was ripe for judgment when the petition for the adjudication was presented by Davis A. Brown, administrator of E. A. Brown, deceased. It is argued with great force that the insolvency of E. A. Brown’s estate, the fact, that there are no assets actually in the hands of his administrator with which to satisfy the unpaid balance represented by the verdict in the common pleas, the fact that one surety on his bond died years ago and his estate has been settled and distributed, the danger that a new suit, if now brought by Wm. C. Whiteside, guardian against the estate of Samuel Fite, his cosurety, would be ineffectual by reason of the fact that he died in 1902, are special reasons why no action should betaken to hinder, delay and possibly defeat the effort, thus far successful, which has been made for the collection of the money. The effect of the decree now under review is simply to determine how the fund is to be paid when it is collected. It is to the manifest interest and advantage of the person to whom the fund will eventually go when collected that the decree should be in accordance with the demand of the administrator d. b. n. If the guardian of John T. Hill were another person and joined with the administrator d. b. n. in this demand, we fail to see upon what ground the administrator of E. A. Brown, or the administrators of the deceased surety on the administration bond of E. A. Brown, could be heard to oppose such demand or to insist that the decree should be made in such a way as to imperil, if not defeat, the collection of the money. The fact that the same person is both administrator d. b. n. of the estates of the decedents, and guardian of the heir, can make no difference to those opposing his demand. The case being within the letter of the statute, and special reasons being shown why the letter of the statute should be followed, and it not appearing that any person will be wronged, we think the learned judge was in error in holding that he was bound to award the balance differently from what the only person immediately interested in the distribution demanded by his exceptions; and we cannot see that he was precluded from filing the exceptions by anything that occurred a.t the audit. There is a substantial reason for not going by the administrator d. b. n. and awarding the balance to the guardian of the heir, for there is a duty of the administrator to perform, namely, collect the money, which was not the ease in Garman’s estate.

The decree is modified and amended by substituting as distributee Wm. 0. Whiteside, administrator d. b. n. of the estates of Mary C. Hill and Winfield S. Hill, deceased, for Wm. C. Whiteside, guardian of John T. Hill, and as thus modified and amended, is affirmed, the costs of this appeal to be paid by Davis A. Brown," administrator of the estate of E. A. Brown, deceased.


author: Oelady, J.,

text:
    Coatesville Borough v. Coatesville Electric Light, Heat & Power Company, Appellant.

      Municipalities — Boroughs—Police power — Contract.
    A municipality cannot bargain away its right to exercise at all times its police power; nor enter into any contract by which the free exercise of the police power which is delegated to it by the state, can be abridged, limited or destroyed.
    A borough cannot, in granting to an electric light company the right to erect poles and wires in the streets, deprive itself of the right thereafter to impose a license tax upon the company for such poles and wires, under its police powers.
    Argued Nov. 19, 1906.
    Appeal, No. 247, Oct. T., 1905, by defendant, from judgment of C. P. Chester Co., Aug. T., 1905, No. 87, on verdict for plaintiff- in case of Coatesville Borough' v. Coatesville Electric Light, Heat & Power Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover a license fee on poles and wires. Before Hemphill, P. J.

      February 25, 1907:
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for 1766.80. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      J. Frank E. Pause, for appellant.
    — When by ordinance a municipal corporation has authorized a company to erect its poles and string its wires upon the conditions expressed in the ordinance, it is beyond the power of the municipality to compel the payment of a pole-license : Com. v. Pottsville Water Co., 94 Pa. 516.
    In view of the contract between the borough and the company, the pole-license or pole-tax cannot be recovered: Com. v. Phila., etc., R. R. Company, 164 Pa. 252; City of Erie v. Griswold, 5 Pa. Superior Ct. 132.
    . Alfred P. Reid, for appellee.
    — The ordinance of the borough of Coatesville imposing the license fee in suit was a legitimate exercise of the police power of the borough: Sayre Borough v. Phillips, 148 Pa. 482; New Hope Boro. v. Western Union Telegraph Co., 16 Pa. Superior Ct. 306.
    The borough could not make any contract by which this exercise of its police power over its streets and highways would be abridged, limited or destroyed: City of McKeesport v. Passenger Railway Co., 2 Pa. Superior Ct. 242; Kittanning Electric Light, etc., Co., v. Kittanning Boro., 11 Pa. Superior Ct. 31; Erie City v. Erie Electric Motor Co., 24 Pa. Superior Ct. 77; Mott v. Penna. Railroad Co., 30 Pa. 9; Boyd v. Alabama, 94 U. S. 645; Stone v. Mississippi, 101 U. S. 814.
   Opinion by

Oelady, J.,

On April 13, 1892, the borough of Coatesville enacted an ordinance granting to the defendant the power and authority to use and occupy the streets of the borough for the erection of poles and wires to supply light, heat and power by electricity to such persons as might desire the same, and providing by sec. 6 of the ordinance as follows :

“ That the poles, wires and all otTier appliances erected in, upon and over the streets, lanes and alleys of the borough are hereby reserved for the use of the borough in the event that said company shall cease to exercise the powers conferred upon it by law, and the same shall not be removed without the consent of the town council. And said poles are further reserved for the use of said borough during their use by said company, except for electric light, heat and power purposes, and use of the same by the borough shall be in such manner as not to interfere with the prosecution of the business of said company, and shall at all times be without charge to said borough.”

And by sec. 8 as follows :

“ That power at any and all times to change and alter the provisions of this ordinance or any of them is hereby reserved to the corporate authorities of the borough.”

By a separate ordinance approved the same day it was enacted:

Sec. 1. That no special taxes or payments in the nature thereof to or for or on account of said borough shall be levied, assessed or exacted from said company in any one year by the corporate authorities of the borough, unless said company shall have earned sufficient profits from which to pay a dividend of • 6% on its present capital stock for such year. Provided, however, that said company shall at all times be at liberty to appropriate any or all of said profits to the increase, improvement and repair of its plant, in which event the power to impose special taxes or payments in the nature thereof shall not be exercised if such appropriation reduces said profits below 6% of its present capital stock.” '

Sec. 2. “ When such taxes shall be imposed they shall not exceed in any one year 4-10% upon the present capital stock of the company.”

It is admitted that the defendant company erected its poles and strung its wires in accordance with the provisions of the two above quoted ordinances, and further, that for the years ending May 4, 1904, and May 4, 1905, it owned, maintained and used 860 poles, with wires suspended thereon, upon the highways and streets of the borough.

On May 4, 1903, the borough enacted an ordinance providing as follows:

Sec. 1. “ That from and after this ordinance all the telegraph, telephone, electric light, e.lectric power, heating or other companies, street car companies, and all persons, companies and corporations owning, erecting, maintaining or using any pole or poles and wires suspended thereon shall pay to the. said borough an annual license tax of one dollar for each pole so owned, erected, maintained or used upon said highways.”

Sec. 2. “ Said tax shall be due and payable to the borough treasurer on the first day of April of each year. If not paid within thirty days thereafter the borough treasurer is authorized to collect the same by law.”

The plaintiff did not aver or prove that any profits had been earned, and the defendant contends that the ordinances under which the poles were erected, and its business conducted, were valid under authority of the municipality, and that after acceptance by the company they became an irrevocable contract, controlled only by the terms imposed therein.

In Commonwealth v. Pottsville Water Co., 94 Pa. 516; Commonwealth v. Railroad Co., 164 Pa. 252; and Erie v. Griswold, 5 Pa. Superior Ct. 132, affirmed in 184 Pa. 435, the question presented was whether the commonwealth or a municipality could annul, by a repealing statute or ordinance, an exemption from taxation acquired through a charter grant ora contract which had been accepted and executed in good faith by the expenditure of large sums of money, and where the state or municipality had received proportionate^ advantages, and it was held that the contract was binding on the state and municipality.

The case here presented is entirely different, there is no analogy between ordinances and contracts in derogation of the police power of a municipality, and ordinances relating to its business affairs: Seitzinger v. Electric Co., 187 Pa. 539. A municipality cannot bargain away its right to exercise at all times its police power; nor enter into any contract by which the free exercise of the police power which is delegated to it by the state can be abridged, limited or destroyed: McKeesport v. Railway Co., 2 Pa. Superior Ct. 242; New Hope Borough v. Western Union Tel. Co., 16 Pa. Superior Ct. 306, affirmed in 202 Pa. 532 ; North Braddock Borough v. Traction. Co., 8 Pa. Superior Ct. 233 ; Kittanning, Electric Light, etc., Company v. Kittanning Borough, 11 Pa. Superior Ct. 31; Erie City v. Motor Company, 24 Pa. Superior Ct. 77; Taylor Borough v. Postal Tel. Cable Co., 202 Pa. 583; Lower Merion Township v. Postal Tel. Cable Co., 25 Pa. Superior Ct. 306; Norwood Borough v. Western Union Tel. Co., 25 Pa. Superior Ct. 406; Braddock Borough v. Telephone Co., 25 Pa. Superior Ct. 544.

Independent of this lirite of decisions it is to be noticed that by section 8 of the ordinance of April 13, 1892, the borough expressly reserved the right at any and all times to change and alter its provisions, so that all subsequent action of the defendant was in the light of this reserved power.

The judgment is affirmed.


author: Porter, J.,

text:
    March, Appellant, v. Fairmount Creamery Association.

      Corporations — Forfeiture of stock — Legislative authority — By-laws.
    When a money corporation makes and attempts to enforce a by-law which involves a forfeiture of vested property rights, it must show express legislative authority, or a power lawfully conferred by its charter to declare such a forfeiture.
    A corporation owning and operating a creamery cannot enforce a by-law providing for the forfeiture of the stock of a stockholder if he does not furnish milk to the company’s creamery, against a stockholder who owned stock before the by-law was passed, and who never consented to its passage.
    Argued Nov. 19, 1906.
    Appeal, No. 223, Oct. T., 1906, by plaintiff, from order of C. P. Chester Co., Aug. T., 1905, No. 46, refusing to take off nonsuit in case of J. Frank March v. Fairmount Creamery Association.
    Before Rice, P. J., Porter, Henderson, Morrison, Oready, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover dividends on stock. Before Hemp-hill, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      February 25, 1907:

      J. Frank F. JIause, for appellant.
    — When the appellant became a member of the corporation, he was eligible to membership, paid for his stock, received a certificate and furnished milk, in accordance with the by-laws.
    He thus became vested with an interest in the corporate property, and this interest could not be divested by any act of the corporation: Sweeney v. Beneficial Society, 14 W. N. C. 466.
    The right to alter the by-laws of a corporation is conceded, so long as such alteration does not result in depriving a stockholder of his vested rights: Marshall v. Pilots’ Assn., 18 Pa. Superior Ct. 644.

      G. G. Oornwell, of Cornwell Cornwell, for appellant.
    — The by-laws of a corporation are read into and become a part of its charter, and constitute the contract of the members with the corporation and with each other: Millward-Cliff Cracker Co.’s Est., 161 Pa. 157; Wayne Title & Trust Co. v. Ry. Co., 191 Pa. 90; Worthington v. Ry. Co., 195 Pa. 211; Marshall v. Pilots’ Assn., 206 Pa. 182.
    The principle involved in this case has been decided by this court in Rush Center Creamery Co. v. Hillis, 3 Pa. Superior Ct. 527.
   Opinion by

Porter, J.,

The plaintiff had become a stockholder in the defendant corporation in 1887 and, if the evidence produced at the trial was true, had owned the twenty shares of stock, upon which he seeks in this action to recover the dividends, from the year 1892 down to the time the action was tried in the court below. The dividends upon the stock of this corporation are, by section 13 of the by-laws, designated as interest and it is provided that they shall be accounted for as a part of the current expenses, but it is manifest that the amount so paid to stockholders is a dividend on their stock, and that the corporation would not be bound to pay it if it had not earned it. That question does not arise in this case, however, for it appeared that the dividends had been earned and had been paid to all persons whom the corporation recognized as stockholders. Section 13 of the by-laws is, so far as this case is concerned, a limitation of the amount of the dividend which shall be paid upon stock in each year. There is no question as to the validity, of the issue of the stock, by the corporation, which this plaintiff holds. He had paid full value for the stock, and the corporation paid to him the dividends thereon from the year 1892 to October 20, 1903. The corporation refused to pay to the plaintiff the dividends accruing upon his stock subsequently to the date last mentioned, for the alleged reason that the plaintiff, being a stockholder and owning cows which produced milk, “ discontinued to furnish milk to defendant’s creamery; . . . . failed to comply with the requirements, of the by-laws by disposing of it in other ways without giving any reason therefor; and thus forfeited his stock to said association.” The supposed authority of the corporation to forfeit the stock of the plaintiff upon the grounds stated is found in the by-laws of the corporation: “ Section 9. All persons owning stock in said association, producing milk and failing to comply with the requirements of the by-laws by disposing of it in other ways, shall forfeit their stock to the association, unless a reason which shall be satisfactory to the board of managers be given.” The learned judge of the court below was of opinion that this bylaw was valid, and sustained the motion for a compulsory non-suit, which he subsequently refused to take off. The validity of the by-law is the only question presented for consideration.

The defendant association was a moneyed corporation; it had a capital stock, the shares in which had a fixed par value, it owned property, it paid dividends upon its stock, and the evidence in the case indicates that the stock sold above par. The plaintiff had owned twenty shares of this stock, for which he had paid value, at least as early as 1892, when there was no such by-law as that now in question in existence. The corporation, on May 11, 1896, four years after the plaintiff had acquired his stock, adopted the by-law above quoted. Had it the power to do so ?

The question of the effect of this by-law upon the rights of one who, with notice of its existence subsequently purchased stock from the corporation, does not arise in this case. This plaintiff had at the time of the adoption of this by-law a vested right of property in his stock, and that was the right with which this corporation dealt when it adopted this by-law and when, seven years later, it attempted to forfeit the plaintiff’s stock, because he had sold the milk of his dairy to another purchaser. ' When a corporation of the character of that with which we are now dealing, makes and attempts to enforce a by-law which involves a forfeiture of vested property rights, it must show express legislative authority or a power lawfully conferred by its charter to declare such a forfeiture: Phillips v. Allen, 41 Pa. 481; Evans v. Philadelphia Club, 50 Pa. 107; Germantown Passenger Railway Company v. Fitler, 60 Pa. 124; Becker v. Beneficial Society, 144 Pa. 232; Marshall v. Pilots’ Association, 206 Pa. 182; Riddell v. Harmony Fire Insurance Company, 8 Philadelphia, 310. The assent of a stockholder whose rights had vested prior to the adoption of the bylaw will not be presumed: Great Falls Mut. Fire Insurance Company v. Harvey, 45 New Hampshire, 292. The authorities above cited are not in conflict with Commonwealth v. Pike Beneficial Society, 8 W. & S. 247; Society, etc. v. Commonwealth, 52 Pa. 125, and Commonwealth v. Union League, 135 Pa. 301, for none of the corporations involved were of the same character with this defendant, and in the charter of each of them there was an express and lawful grant of authority to expel members. There was no evidence of a solemn agreement entered into by all the stockholders that they would hold their stock subject to the provisions of this by-law,, and the decision in Fitzsimmons v. Lindsay, 205 Pa. 79, has no application. The defendant corporation has not been shown to have authority, conferred by statute or its charter, to disfranchise one of its members and strike down his vested right of property in the stock of the corporation. This by-law was invalid, as against those who owned stock prior to its adoption and did not assent thereto.

The judgment is reversed and a venire facias de novo awarded.


author: Henderson, J.,

text:
    Green v. Sun Company, Appellant.

      Nuisance — Fumes from oil refinery — Special injury to plaintiff — Evidence — Damages—Landlord and tenant.

    A corporation which is not invested with the right of eminent do•main is liable to another who sustains a special injury in person or property from the operation of its works.
    In an action of trespass to recover damages for injuries to buildings resulting from fumes from an oil refinery where a nuisance is charged and proved, it is not necessary to show negligence, although the statement of claim charges negligence.
    In such a case a verdict and judgment for plaintiff will be sustained where evidence is admitted which tends to show that the defendant’s refinery was the only one in the vicinity engaged in refining Texas oil; that immediately after the works were put in operation sulphurous fumes were thrown out; that a corrosive precipitate was deposited from these fumes; that paint upon plaintiff’s houses was destroyed, paper on their walls blackened, and their metal roofs corroded; that other property in the same neighborhood was affected in the same way as that of the plaintiff; and that witnesses were affected in their persons by the fumes.
    In such a case it is no defense that the defendant was at a disadvantage because of the number of persons residing in the same neighborhood who had similar causes of complaint, and had a common interest in the result of the litigation; nor that the defendant had erected extensive works at large cost, and was engaged in the prosecution of a business useful to the public, and that the plaintiff’s rights were subordinate to the larger interests of the defendant and the public.
    A landlord may recover for injuries to his freehold caused by a nuisance, although such property may at the time be in the actual possession of a tenant.
    In an action to recover damages for injuries to real estate resulting from a nuisance a verdict and judgment for plaintiff will not be reversed, because the trial judge in his charge stated the amount of plaintiff’s claim, where it appears that there was no intimation from the court that that was the amount to which the plaintiff was entitled, and it appears that the jury was particularly directed to take into consideration all the evidence bearing upon the question as to what would compensate plaintiff for his loss.

      Practice, C. P. —Verdict—Judgment—Interest.

    A judgment will not be set aside because the amount thereof is a lumped statement of the amount of the verdict and interest thereon to the date of the entry of the judgment. The appellate court will, however, .modify the judgment so that it shall be entered in favor of the plaintiff for the amount of the verdict, stating it, with interest from the date of the verdict.
    Argued Nov. 21, 1906.
    Appeal, No. 189, Oct. T„ 1906, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1902, No. 238, on verdict for plaintiff in case of Job L. Green v. The Sun Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad?, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to real estate resulting from fumes from an oil refinery. Before Johnson, P. J.
    At the trial the plaintiff under objection and exception testified that the fumes given off by defendant’s works smelled like rotten eggs, that they caused deposits like stove blackening, destroying paint and wall paper, and also the metal on the roofs of his houses. He also testified under objection and exception that these effects were observed immediately after the defendant’s works were put in operation. [1-4] The plaintiff’s wife under objection and exception testified to the same effect. [5]
    Another witness testified to the existence of such fumes, the effects upon her property, and upon his person. [6]
    When Ell wood B. Worrilow, a witness for defendant, was on the stand he was asked this question:
    “ Q. Speaking about the employment by the Sun Company— what is their pay-roll; the number of hands ? ”
    Mr. Robinson: I object to that unless we are permitted to go fully into it. I do not want to crowd anything out, but I do not want half to go in, and I do not see how that has any bearing in the case.
    The Court: Of what importance is it?
    Mr. Broomall: My thought is just the line of thought I have several times indicated, that the actionability of any industrial establishment in a community, the line of actionability and non-actionability is not a hard and fast fixed line. Every man in the community, and as it necessarily follows, the community as a whole balances the advantages and the disadvantages in determining whether or not any annoyances that arise from the establishment are such as men ordinarily are willing, quite willing to bear for concomitant advantages. Now, inasmuch as this line is a wavering line, and it might be said that if an industrial establishment came into Marcus Hook from which no advantage at all was derived, employed pobody in Marcus Hook, no advantages direct or indirect, every man in fixing the line of disadvantages that he would endure would fix the line hard and fast against such an establishment; but if, on the other hand, an extreme case — if there was an establishment upon which the very life and being of the town depended so that we might say nobody would live there at all if it was not for the establishment, it employs so many hands and permeates the entire community with advantages that run through every rivulet — that affects everybody — as against an institution of that kind, the sense of the community which the law would recognize, would place that line of annoyances which the community would bear very much more liberally in favor of the establishment. It is for the purpose of showing the number of hands that this establishment employs with a view of permitting the jury to see to what extent a town of 1,400 inhabitants must depend upon,, and very extensively depend upon the life and being of this establishment employing as many hands as it does. It is with that line of thought that we advance the offer.
    The Court: Objection sustained. [7]
    “ Q. Now all this process of operation that Mr. Dickinson has called your attention to, requires the labor of how many men ? ”
    Mr. Robinson: That is open to our objection.
    Objection sustained. [8]
    Robert Cash, being sworn for defendant:
    “ Q. Have you or your family ever had any bad effects from the oil odors in Marcus Hook ? ”
    Mr. Robinson: I object to this question whether he or his family have ever had any bad effects from this odor as irrelevant and immaterial.
    The Court: If that question does not include—
    Mr. Broomall: I mean physically. You may qualify the question. This is what I intended. Any physical effect.
    The Court: The objection is sustained. [9]
    Mr. Broomall: Now we offer to prove by a large number of other witnesses — make the same offer.

      Mr. Robinson: Objected to.
    Objection sustained. [10]
    The court charged in part as follows:
    [Because we say to you that if this company did carry on its works in such a way that the gases or fumes emanated from them and injured the paints and papers on the houses, these tenement houses occupied by tenants of the defendant; in a substantial manner, then he is entitled to recover whatever it cost — whatever it has cost him in the past — whatever it will cost him in the future to restore them to the condition in which they were before they were injured, if you shall find that they shall be injured by these smokes or fumes or gases or whatever they may be.] [11]
    [The court does not intend to refer to the testimony upon that question except to say that the plumbers and painters were called. The plaintiff claims that he has shown to you that it has cost him, or will cost him, reasonably cost him, $1,723.81, and he says that is what he claims you should award him, and that it will require that to put him where he was before these people subjected his property to the influences of these gases.
    The defendants called some witnesses, called two, the plumber and painter, probably more, if you will remember, and you will remember the testimony — the court does not recall what they said about it, but you must take into consideration all of it in passing upon the question as to what will compensate this plaintiff.] [12]
    Defendant presented these points :
    2. There is no evidence in this case that the business of tire defendant is such as necessarily produces substantial injury to the plaintiff. Answer : This is refused. We can’t say — that point has two meanings to it. We do not say that the evidence shows that the business of the defendant is such' as necessarily produces substantial injury to the plaintiff, but we leave it to you to say whether or not these gases or fumes did produce the mischief, substantial injury, of which the plaintiff complains. [13]
    3. If the jury were to decide that the business of the defendant necessarily produces substantial injury to the plaintiff, the result would be that the defendants would have to abandon their works. Ansiver : That is refused. [14]
    5. In the absence in this case of any evidence that the defendant’s business necessarily produces substantial injury to the plaintiff, and in the absence in this case of any evidence of negligent operation, the plaintiff is not entitled to recover, and the Amrdiet should be for the defendant. Answer : That is refused. [15]
    9. If the jury believe that the injuries of which the plaintiff complains are only such as men ordinarily undergo in order to obtain the advantages to themselves and their propr erty which accompany the increase of population and industry, the verdict should be for the defendant, and in coming to a conclusion the jury should take into consideration the established oil industries of Marcus Hook, their magnitude, extent, and the manner in which the atmospheric conditions are always affected wherever such industries exist and are operated. Answer : There are some propositions in this point which, if stated separately, might be affirmed, but as a whole it is refused. [16]
    10. Under the evidence in this case, none of which is applicable to the pleading, except that which refers to injuries to real estate in the possession of tenants, the verdict should be in favor of the defendant. Answer: That is refused. [17]
    18. The court erred in the answer to defendant’s eleventh point. The point and answer are as follows :
    Under all the evidence in this case the verdict should be in favor of the defendant. Ansiver : Refused. [18]
    Yerdict and judgment for plaintiff for $1,308.75. Defendant appealed.

      Errors assigned were (1-10) rulings on evidence, quoting the bill of exceptions ; (11-18) above instructions ; and (19) in entering judgment for $1,308.75, and in not entering judgment for the amount of. the verdict, $1,250.

      W. B. Broomall, with him W. I. Schaffer, for appellant.—
    The evidence of alleged injurious effects upon the properties of other persons, which they alleged to be attributable to the defendant, is not relevant to the issue. Much less is evidence admissible tending to show injurious physical effects upon the plaintiff and other persons living in the neighborhood.

      An injury to the possession of a tenant cannot be redressed by the landlord : Greber v. Kleckner, 2 Pa. 289.
    If the evidence of witnesses as to physical effects to themselves and injuries to their property had any relevancy to the issue, such evidence should have been available as well to the defendant as to the plaintiff.
    The court in charging the jury submitted a statement of the amount of damages claimed by the plaintiff, $1,723.81. This was error : Lerch v. Bard, 177 Pa. 197; Fineburg v. Passenger Railway Co., 182 Pa. 97 ; Hayes v. Penna. R. R. Co., 195 Pa. 184; Burns v. Penna. R. R. Co., 213 Pa. 280.
    It is submitted that the judgment in this case was erroneously entered.

      O. B. Dickinson, with him V. G. Robinson, for appellee.—
    The plaintiff rests upon the proposition that a corporation not in the exercise of the right of eminent domain which, in the operation of its works, causes special injury to another, is guilty of air actionable nuisance whether there is proof of negligence or not: Gavigan v. Atlantic Refining Co., 3 Pa. Superior Ct. 628; s. c., 186 Pa. 604; Rogers v. Traction Co., 182 Pa. 473 ; Farver v. American Car & Foundry Co., 24 Superior Ct. 579; Hauck v. Tidewater Pipe Line Co., 153 Pa. 366 ; Stokes v. Penna. R. R. Co., 214 Pa. 415 ; Pottstown Gas Co. v. Murphy, 39 Pa. 257.
    If appellant had wished the court to direct the attention of the jury to any special feature of the defense, they should have asked the court to do so : Kehoe v. Traction Co., 187 Pa. 474; Jones v. Matheis, 17 Pa. Superior Ct. 220 ; Crawford v. Wittish, 4 Pa. Superior Ct. 585.
    The obligation of a tenant does not extend to injuries which it was not in his power to prevent, and there is no obligation to restore or repair buildings which have been damaged without fault on his part: Earle v. Arbogast, 180 Pa. 409.
    The landlord can recover for an injury to the freehold; the tenant for an injury to the use or enjoyment: Devlin v. Snellenburg, 132 Pa. 186 ; Seely v. Alden, 61 Pa. 302.
    Assignment 19 is purely technical, and does not go to the reversal of the judgment: Act of April 6, 1859, P. L. 381; 2 Purdon’s Dig. (Stewart ed.), p. 1989 ; Maus v. Maus, 5 Watts, 315; Kelsey v. Murphy, 30 Pa. 340.
    February 25, 1907:
   Opinion by

Henderson, J.,

One of the plaintiff’s complaints was that the defendant wrongfully and injuriously constructed its works and negligently maintained and carried on its business, as a result of which the plaintiff’s buildings were damaged. No evidence of negligence was introduced, however, the plaintiff relying on testimony tending to establish the existence of a nuisance in the business which the defendant conducted. There is also an averment that the atmosphere was made unwholesome and injurious to the plaintiff’s tenants. The latter charge, however, was eliminated from the case by the court, together with all the evidence relating thereto, the issue being confined to- the inquiry whether the defendant maintained a nuisance and whether that nuisance was injurious to the buildings occupied by the plaintiff’s tenants. The plaintiff had been a resident of Marcus Hook for many years and was the owner of several houses which he rented.' The defendant, a New Jersey corporation, erected its works in the borough in 1902 and engaged in the business of refining Texas petroleum. The plaintiff’s allegation was that in the process of refining, offensive and noxious vapors were emitted which destroyed the paint upon the houses referred to, blackened the paper on their walls and corroded their metal roofs. Many witnesses were called who testified to the presence of offensive vapors in the atmosphere which they attributed to the defendant’s refinery. They were not observed before the refinery was put in operation and the observation of the witnesses led them to believe that they were given out by the defendant’s works. Some- of this evidence related to the effect of the vapors on the witnesses, themselves. Other parts of the testimony had reference to this effect on the plaintiff’s houses and other property in the vicinity. None of it, however, was admitted by the court for any other purpose than to show the origin of the objectionable fumes and the deleterious effects of them. Their existence might be proved both by the senses of the witnesses and their effect on the surrounding buildings and vegetation. Neither jury nor counsel could have understood that the evidence was admitted for the purpose of showing special damage to the witnesses or to other property than the plaintiff’s. Evidence that immediately after the works were put in operation sulphurous fumes were thrown out which were observed by many persons living in the vicinity, that a corrosive precipitate, injurious to metals, was deposited from these fumes and that other property in the same neighborhood was affected in the same way as the plaintiff’s, was directly in line with the complaint and tended to sustain the charge against the defendant that in carrying on its business it maintained a nuisance. The first six assignments of error except to the admission of evidence of this character. ' An examination; of the testimony in the light of the complaint makes it clear that the evidence was admissible for the purpose stated. Living in an atmosphere pervaded by injurious vapors the witnesses were properly called to prove the existence of them and. their pernicious effects ;■ this for the purpose of relating the plaintiff’s injury to the business carried on by the defendant. If, as is suggested in the appellant’s argument, the defendant is at a disadvantage because of the number of persons there residing who have similar causes of complaint against the defendant and have a common interest in the result of the litigation, the fact ■ is not one which changes the rules of evidence or excepts the defendant from the operation of the law which bears upon all alike. The doctrine is established by many cases that a corporation which is not invested with the right of eminent domain is liable to another who sustains special injury in person or property from the operation of its works: Pennsylvania Lead Co.’s Appeal, 96 Pa. 116 ; Gavigan v. Refining Co., 186 Pa. 604, and Farver v. American Car and Foundry Co., 24 Pa. Superior Ct. 579 are among the cases in which the principle is declared and applied. The injury complained of was peculiar and special to the plaintiff. It consisted in the destructive effects .and depreciation in value consequent upon, the fumes thrown off by the defendant’s works. It was something more than the general inconvenience to which the whole community was subjected by reason of the character of the business carried on in the vicinity. So far as appears from the evidence the defendant’s refinery was the only one there which was engaged in refining Texas oil and we may conclude from the evidence that it was the peculiar quality of this oil which caused the trouble. The burden rested upon the plaintiff to satisfy the jury of the existence of the nuisance complained of and the evidence furnished abundant support to the verdict. It is not an answer to the plaintiff’s charge to say that the defendant has erected extensive works at large cost and is engaged in the prosecution of a business useful to the public, and that the plaintiff’s rights are subordinate to the larger interests of the defendant and the public. The defendant chose to locate its works in proximity to the plaintiff’s property and to engage in a business which the jury has declared to be harmful to him. Neither the magnitude nor the importance of its business permits an invasion of the rights of another. “Whether it be the great corporation with its lead works or the mechanic with his tin shop the rule is the same: ‘ So use your nwn as not to' injure another: ’ ” Judge Gobdon in Pennsylvania Lead Co.’s Appeal, 96 Pa. 116. If in the advancement of its own interests the defendant has trespassed upon the rights of the plaintiff it cannot justify such conduct by showing that it gives employment to a large number of men and is an important factor in the commerce of the state.

The plaintiff does not seek to recover damage for the injury to the tenants. His allegation was that there was a physical injury to the property. The damage was to the freehold and not to the tenants’ occupancy. For such an injury the landlord may maintain an action notwithstanding the occupancy by a tenant: Devlin v. Snellenburg, 132 Pa. 186. There is no evidence that the tenants were bound to repair, and certainly no obligation rested on them to make reparation of the injury alleged to have been caused by the defendant: Earle v. Arbogast, 180 Pa. 409. The plaintiff is none the less entitled to recover even if he has not actually made the repairs. The value of his property is reduced to the extent of the injury whether he should determine to apply the amount of his damages to the improvement of his property or keep the money in his pocket. If his property had been wholly destroyed by the unlawful and injurious act of the defendant he would be entitled to compensation whether he rebuilt or not.

The declaration charged negligence, but it was not necessary that the plaintiff offer evidence in support of this averment. A nuisance is sufficiently charged and the question of negligence is not necessarily involved: Hauck v. Tidewater Pipe Line Co., 153 Pa. 366; Stokes v. Penna. R. R. Co., 214 Pa. 415.

The learned trial judge did not undertake to review the evidence of the many witnesses who testified in the case, but the attention of the jury was directly and pointedly called to the matter at issue which the court said was a plain question of fact; did the fumes from the defendant’s plant injure the plaintiff’s property in a substantial manner ? if it did, the defendant is liable for what it will cost to restore it. It is true the amount of the plaintiff’s claim was stated, but there was no intimation from the court that that was the amount to which he was entitled; on the contrary the jury was particularly directed to take into consideration all the evidence bearing upon the question as to what would compensate the plaintiff for his loss. We think the charge is not obnoxious to the criticism that it presented the plaintiff’s case more fully than the defendant’s. Under no aspect of the case would the court have been justified in giving binding instructions for the defendant. There was evidence tending to support the claim set forth in the declaration and it was the duty of the court to submit the question of fact to the jury.

The objection to the addition of interest to the amount of the verdict is purely technical. The verdict carries interest and the defendant has, therefore, sustained no injury. In order, however, that the judgment may be had in conformity to the proper practice, judgment is now entered in favor of the plaintiff for the amount of the verdict, $1,250, with interest from the date of the verdict, November 3, 1905.

The assignments are all overruled and the judgment affirmed.


author: Oblady, J.,

text:
    Ditchfield v. Philadelphia & West Chester Traction Company, Appellant.

      Street railways — Passengers—Ejection of passenger with violence.

    A street railway company permitted persons to line up along a track approaching its terminal and board cars before they reached their final stopping point. On account of the danger incident to such a proceeding special employees were placed on the rear steps of the cars to prevent persons entering until the passengers had been discharged and the cars came to a full stop. On the morning this order went into effect, the plaintiff made an attempt to board a car while it was still moving, and was struck in the chest by an employee of the company and thrown a considerable distance, sustaining serious injuries. An announcement was made by the special officers warning persons not to attempt to get on the car, but plaintiff testified that he did not hear such warning. Held, that the case was for the jury, and that a verdict for plaintiff should be sustained.
    Argued Oct. 5, 1906.
    Appeal, No. 72, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1905, No. 4,243, on verdict for plaintiff in case of Samuel Y. Ditchfield v. Philadelphia & West Chester Traction Company.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Biddle, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $800. Defendant appealed.

      Prror assigned among others was in refusing binding instructions for defendant.

      Reginald S. Innes, with him Parlcer S. Williams, for appellant.
    — At the time of the accident to the plaintiff he was an attempting trespasser and not entitled to any of the rights of a passenger. There was no evidence that a degree of force was used against him wrongful as against a trespasser: Pennsylvania Railroad Co. v. Price, 96 Pa. 256; Knox v. Phila. & Reading Ry. Co., 202 Pa. 504.

      February 25, 1907:
    The uncontradicted, evidence in the case was that the plaintiff’s accident occurred while he was attempting to board a moving car of the defendant company. Pie was, therefore, guilty of contributory negligence : Bacon v. D., L. & W. R. R. Co., 143 Pa. 14 ; Sharrer v. Paxson et al., 171 Pa. 26,; Boulfrois v. Traction Co., 210 Pa. 263.

      Walter Thos. Fahy, with him Thomas A. Fahy, for appellee,
    cited: Sharrer v. Paxson, 171 Pa. 26 ; Pass. Railway Co. v. Boudrou, 92 Pa. 475.
   Opinion by

Oblady, J.,

The defendant company operates a line of trolley cars between Ardmore and the city of Philadelphia, the city terminus being at Sixty-third and Market streets, where the cars are reversed and run back over the same track. Owing to the large number of persons using these cars, it frequently occurred that persons would line up along the track, and board the car coming towards the city before it would reach its final stopping point. On account of the danger incident to such a proceeding, the trolley company endeavored to prevent it, and the morning the plaintiff received his injuries, special employees of the defendant were placed on the front and rear steps of the cars to prevent persons entering until all the passengers therein had been discharged at the terminus and the cars were at a full stop. The plaintiff with others made the attempt to board a car “ while it was very near to a stop, just moving.” The witnesses for the plaintiff and the defendant disagreed in a radical way as to what occurred when the plaintiff attempted to get on the car, but taking the plaintiff’s version of the story, which has the confirmation of the verdict to sustain it, it appears quite clear that when he grabbed the handle bar with his left hand, having his dinner box on his right arm, and was making an effort to catch the other handle bar with his right hand, he was struck in the chest by an employee of the company, and thrown a distance, varying according to the testimony, of from five to ten feet, and sustained the injuries represented by this verdict. An announcement was made by the special officers on the platforms to the persons attempting to get on the car, not to do so until it came to a full stop, though the plaintiff declares under oath that he did not hear this announcement until after he had been forcibly pushed or knocked from the car. It is conceded by the plaintiff, and must be so, that the defendant company had a clear legal ■ right to police the cars so as to prevent intrusion into them while they were in motion; and to enforce this salutary rule, they were justified in using all reasonable precautions to protect the passengers on the cars, and those seeking carriage thereon, from all such unwarrantable conduct. But it is contended, and we think with a fair show of reason, that the defendant company is nevertheless liable in damages when, as under the circumstances established in this case, it uses unnecessary violence in forcing an intended passenger from the steps after he has mounted, or was in the act of mounting-thereon. True, he had no right to get on the moving car, but the injuries sustained by him were not traceable to his getting on the moving car. He did not trip or slip from the car as it was about stopping, but all the testimony shows that such force w-as exerted by the company’s employee as to throw him quite a distance with great force to the ground, and without which he would have entered the car in safety. It was purely a question for the jury in the light of all the testimony, and was fairly left to that tribunal by the trial judge as follows : “ The question it seems to me is the degree of force that a man is entitled to use in putting a man off the car who has no right to be there, or who is attempting to do what is contrary to the rules of the company; but he has a right to do that, of course with discretion, and if he uses unnecessary violence in doing it, I think the company who put him there is responsible,' and I think that is the question here; assuming the man had a right to do what he did, did he do it in such a way as he had no right to do ? Did he use unnecessary violence which brought injury upon the plaintiff.” It appears that the employees of a nearby manufactory were in the habit of getting on these cars at an early hour in the morning, and that this usage had been continued for quite a while, and no objection to this unreasonable manner of getting on the cars had been made by the company, until the morning when the plaintiff received his injuries. The case is a very close one, and we affirm the judgment solely because of the disputed testimony as to the notice given to the plaintiff, and the degree of force used in ejecting him from the car. Even if treated as a trespasser, the company would not be justified in resorting to such a degree of force as would imperil life or limb.

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


author: Beaver, J.,

text:
    McFadden v. McFadden, Appellant.

      Dower — Deed—■Assignment for benefit of creditors.

    Where a wife does not join with her husband in a deed of assignment for the benefit of his creditors, she may after her husband’s death maintain her common-law action of dower against the purchaser at the assignee’s sale.

      Practice, C. P. — Removal of cause to United States court.

    A cause will not be removed to a federal court on the ground that certain parties in interest are not residents of Pennsylvania, where it appears that the application for removal is made by the only defendant in the case who is present, and is admittedly a resident of Pennsylvania.

      Practice, C. P.- — Plea of surprise — Continuance.
    The refusal of the court to heed the plea of surprise and continue the case, is, under ordinary conditions, a matter of discretion.

      Marriage — Evidence—Reputation—Cohabitation.
    In a common-law action of dower, the plaintiff’s marriage may be proved by evidence of reputation and cohabitation, and in the absence of other evidence on the subject, may be conclusive.

      Practice, C. P. — Refusal of new trial — Assignment of error.

    The refusal of the court below to grant a new trial, is not the subject of an assignment of error, except for a gross abuse of discretion.

      Dower — Common-law action — Evidence.
    In a common-law action of dower brought by a widow who had not joined her husband in a deed of assignment for the benefit of his creditors, it is incompetent to show that no action was brought by the plaintiff against the assignee for dower, during his administration of the estate; or that an auditor had decided adversely to plaintiff’s claim for dower against funds in the hands of the assignee.

      Practice, C. P. — Dower—Form of verdict — Evidence—Deeds.
    In a common-law action of dower a verdict in the following form is not improper; “For plaintiff for one-third of the real estate described in the writ.” Such a verdict cannot in the nature of the case confer a fee.
    February 25, 1907:
    In a action of dower the plaintiff need go no further back in showing title than a conveyance in fee to her deceased husband.
    In a common-law action of dower where the defendant refuses to produce the deed under which he claims title, it is not error for the court to allow parol evidence as to the identity of the land conveyed to the defendant as to which recovery is sought.
    Argued Oct. 24, 1906.
    Appeal, No. 71, Oct. T., 1906, by defendant, from judgment of C. P. Blair Co., Oct. T., 1902, No. 75, on verdict for plaintiff in case of Barbara McFadden v. Mary A. McFadden.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in Hollidaysburg. Before Shull, P. J., specially presiding.
    The opinion of the Superior Court states the case.

      Errors assigned appear by the opinion of the Superior Court, except as to the form of verdict, which was as follows:
    “For plaintiff one-third part of the land described in the writ.”

      H. O. Madden, with him Harry A. McEadden and IF. P. Mervine, for appellant.
   Opinion by

Beaver, J.,

Plaintiff brought her common-law action of dower against the defendant, who was the purchaser at assignee’s sale of certain property conveyed by her husband during his lifetime to an assignee for the benefit of creditors.

As to her remedy: A widow may claim her statutory dower by the common-law action, when the land is in the adverse possession of one denying her right, or of one not amenable to the orphans’ court process : Evans v. Evans, 29 Pa. 277.

Was she dowable of the land as to which she sought to recover? Blackstone in his Commentaries says (vol. 2, 131) : “ She is now by law entitled to be endowed of all lands and tenements, of which her husband was seized iii fee simple or fee tail at any time during the coverture, and of which any issue which she might have had might by possibility have been her heir.”

In Mills v. Ritter, 197 Pa. 353, it is said: “ The assignor passes to the assignee only such estate or property as he himself could sell or dispose of, and, in the case of real estate, only such interest in it as he, if married, could convey without his wife’s joining in the deed.” In that case as here, the wife did not join in the deed. And it was further said: “ But the wife not having joined in the deed of assignment, her incipient or contingent dower did not pass by it.”

The right of action and its form, therefore, rest upon a secure foundation.

The assignments of error are numerous, some of them trifling and none of them fundamental. They relate principally to the incidents of the trial.

It appeared from the record that the assignee sold the property in question to Harry A. McFadden, executor of Samuel P. McFadden. Before issue joined defendant demurred, and, upon the overruling of his plea, appealed to the Supreme Court. The appeal was quashed, 211 Pa. 599, in which the Supreme Court refused to certify the case to the Superior Court, because a session of the Superior Court had intervened in the meantime, and imposed the penalty provided by the Act of May 19, 1897, P. L. 67, on the ground that the “ appeal had been sued out merely for delay.”

Defendant first moved the court to remove the ease to the United States district court, on the ground that certain parties in interest were not residents of Pennsylvania. This petition, however, was made by' the only defendant in the case who was present, and is admittedly a resident of Pennsylvania. Under the circumstances, we do not think the defendant was entitled to have the case removed.'

The suit, as originally brought, was against Harry A. McFadden. By amendment, the words “ executor of Samuel P. McFadden, deceased,” were added after issue joined and the jury had been sworn. The defendant thereupon plead surprise, supporting the plea by affidavit, and asked for a continuance, which request was refused.

The refusal of the court to heed the plea of surprise and continue the case was, under ordinary conditions, a matter of discretion. Under the circumstances, as they appeared at the trial, and in view of the fact that the rule of court relating to such a continuance, if there was one, is not quoted for our information, we cannot see that the court failed to exercise a proper discretion in disposing of the motion.

The testimony adduced on the part of the plaintiff as to the marital relations existing between the assignor of the real estate, under whom the defendant claimed, and the plaintiff, was entirely competent. It is true that neither of the witnesses, one of whom had been her counsel and the other was her son, had been present at the marriage ceremony, but the evidence of reputation and cohabitation is competent, and, in the absence of other evidence on the subject of marriage, may be conclusive. The defendant was scarcely in a position to question the fact, however, in view of the admissions in his demurrer, which is of record.

The refusal of the court to grant a new trial is assigned for error. The opinion of the court, refusing the motion, in our view of the case, abundantly justifies its action, and such a refusal is not the subject of an assignment of error, except for a gross abuse of discretion, which is not apparent here.

A number of assignments relate to the refusal of the court to admit the testimony offered by the defendant, under a number of offers, such as: By the assignee: “ That at no time during his administration of said estate was action brought against him for dower in this particular property, or demand made upon him for dower.” By the auditor, appointed by the court of common pleas of Blair county to pass upon the accounts of John M. Snyder, assignee of Archibald McFadden: “ That he decided adversely to Mrs. Barbara McFadden, plaintiff herein, on her claim for dower against funds in the hands of said assignee and to her claim for exemption ; also to show that the said estate was insolvent at the time he made his report on the last account of John M. Snyder, assignee.” Also : “ That the records showed that considerable sums of money had been paid to the plaintiff on account of any claim or any demand she had against the estate.”

None of these offers contained competent evidence, relevant to the issue, then trying, and they were all properly rejected.

The objection to the form of the verdict is also without merit. It was rendered, of course, with reference to the action upon which it was founded, and, inasmuch as that action was for dower, and dower only, the verdict could not, in the nature of the case, confer a fee.

Title was shown in the assignor. This was sufficient for the . purposes of the action. “In an action of dower the plaintiff need go no further back, in showing the title, than a conveyance in fee from defendant to her deceased husband: ” Evans v. Evans, 29 Pa. 277.

The defendant having refused to produce the deed, under which he claimed title, it was not error for the court to allow parol evidence as to the identity of the land conveyed to the defendant as to which recovery was sought. Indeed, this was practically admitted by the defendant himself, who was called as on cross-examination.

Without discussion of the various assignments of error seriatim, it is enough to say that, having carefully considered them all, we find nothing in any of them which would warrant any interference on our part with the judgment entered upon the verdict.

Judgment affirmed.


text:
    Laukhuff’s Estate.

      Wills — Probate—Appeal from register — Leave of orphans’ court — Act of March 15, 1832, sec. 31, P. L. 135.
    Under the Act of March 15, 1832, sec. 31, P. L. 135, an appeal from an order of the register of wills revoking letters of administration, is a matter of right, and it is not necessary to secure the allowance of the orphans’ court to bring such an appeal.
    After the case is brought into the orphans’ court by appeal without special allowance, the proper practice is for the appellant to present a petition to the court setting forth the facts of the case, upon which citation will be granted on the parties interested to show cause why the appeal should not be sustained and the decision complained of set aside.
    It is immaterial that the paper filed as an appeal does not by its caption certify that the case is in the orphans' court, where the record of the docket entries shows that such an appeal was filed.

      February 25, 1907:
    Argued Nov. 13, 1906.
    Appeal, No. 4, Oct. T., 1906, by plaintiff, from decree of O. C. Lancaster Co., Oct. T., 1905, No. 56, quashing appeal from Register of Wills in case of William Rock v. Carrie Laukhuff Macintosh.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Appeal from register of wills. Before Smith, P. J.
    The appeal was in the following form :■
    “APPEAL.
    “ In the Estate of Andrew 1 Latticftttw, deceased, late , of Salisbury Township Lancaster County, Penna. Oct. Term, 1905. No. 56.
    “ To Benjamin Wissler, Esq., Register of Wills of said County:
    “ I, William Rock, to whom Letters of Administration were granted by you, in the estate of said Andrew Laukhuff, deceased, on the 12th day of October, A. D; 1905, hereby take an appeal to the orphans’ court of Lancaster county, from your order, judgment or decree, revoking the granting of letters to me and issuing letters thereon to Carrie Laukhuff Macintosh.
    “ William Rock.”
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree quashing appeal.

      B. F. Davis, for appellant.

      Charles W. Eaby, for appellee.
   Opinion by

Henderson, J.,

The appellant was duly appointed administrator of the estate of Andrew Laukhuff, deceased. Afterwards on the application of the appellee the letters of administration were revoked and new letters issued. From the order of removal Rock appealed to the orphans’ court. This appeal was quashed by the orphans’ court for the reason that it was not taken in accordance with section 1 of rule 5 of the rules of that court. The only question presented now is whether an effective appeal was taken to the orphans’ court by the appellant. Section 31 of the act of March 15, 1832, P. L. 135 gives an appeal from all the judicial acts and decisions of the several registers of wills. Since the abolition of registers’ courts the appeal is directly to the orphans’ court. The rule of court referred to has apparent application to cases in which appeals may be had on cause shown. It provides for a citation on the adverse parties to show cause why an appeal should not be allowed, and implies a discretion in the court after hearing to refuse an appeal. It does not regulate the practice in disposing of appeals, but provides for a preliminary inquiry whether an appeal shall be granted or not. So far as it confers upon the orphans’ court a discretion to determine whether an appeal shall be allowed it is inconsistent with the section of the act of 1832 above referred to. It cannot be successfully contended that the rule as applied to cases of this class is in aid of the expeditious administration of justice, for it would be a vain thing for the court to engage in the investigation of the propriety of allowing an appeal when no statutory duty was imposed to make such inquiry and when it was powerless to refuse it. The register of wills is a judicial officer and his final decisions under the statute investing him with official functions are subject to appeal. The appeal was taken in conformity to the statute and in an approved form : 3 Brewster’s Pr., secs. 4118-4119. The question presented- by the appeal was one of law which the orphans’ court could only dispose of after a hearing according to the practice in that court. After the case is brought into the orphans’ court a proper practice is for the appellant to present a petition to the court setting forth the facts in the case, upon which a citation will be granted on the parties interested to show cause why the appeal should not be sustained and the decision complained of set aside: 3 Brewster’s Pr., sec. 4126. An issue is thus presented for the determination of the court as a question of law or fact as the case may be. The learned judge of the orphans’ court in disposing of the motion to quash proceeded upon the theory that the appellant was only entitled to appeal when allowed by the orphans’ court for cause shown. As the appellant had a right to have the question raised in the orphans’ court whether he was lawfully removed as administrator it was not necessary that he should have the consent of the orphans’ court to bring that question there for determination. The exercise of discretion by the court in deciding whether an issue shall be framed is not involved in the case. At the time the decree of the orphans’ court was made the case had not proceeded to the point where the court was called upon to determine whether an issue should be granted. The appellant should have been permitted to file a petition calling upon the appellee to answer his complaint. Comment is made by the orphans’ court on the fact that the paper filed does not certify by its caption that the case is in the orphans’ court. This is purely a matter of form, however, and not essential to the determination of the rights of the parties. The record of docket entries shows that the appeal was filed in the orphans’ court November 4, 1905. Section 43 of the act of 1832 provides that no immaterial variation from the form prescribed in this act shall vitiate or render void any proceeding in which said forms shall be used. 'The intention of the legislature was that where a case was clearly and substantially presented technical objections to form should not prevail. We are not called upon to considera large part of the appellant’s argument, which relates to the merits of his case. That is a question for the orphans’ court. In the light of Riegel’s Appeal, 17 W. N. C. 279, he may have difficulty in showing that an error was committed.

The decree is reversed and a procedendo awarded.