author: Beaver, J.,

text:
    Nelson’s Contested Election.

      School law — School districts — Independent school district — Mercer school • district — Acts of May 8, 1854, P. L. 617, May 8, 1855, P. L. 509, May 13, 1856, P. L. 574, and April 11, 1862, P. L. 471 — Election of school directors.

    The Mercer school district, formed under the Act of May 13, 1856, P. L. 574, out of the borough of Mercer and the parts of three adjoining townships, is in fact an independent school district within the meaning of the Act of May 8, 1855, P. L. 509, and is governed in its election of school directors by the Act of April 11, 1862, P. L. 471.

      October 7, 1907:
    Argued May 17, 1907.
    Appeal, No. 98, April T., 1907, from order of Q. S. Mercer Co., April T., 1906, No. 34, dismissing petition in election contest In re Election of R. N. Nelson and R. C. Kerr, School Directors of Mercer School District.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition to avoid the election of school directors in Mercer school district.
    The opinion of the Superior Court states the case.
    The court in an opinion by Williams, P. J., dismissed the petition.

      Error assigned was order dismissing the petition.

      James D. Emery, with him A. B. Thompson, for appellants,
    cited: Williams v. Crook, 17 Pa. 199; Colvin v. Beaver, 94 Pa. 388.

      B. Magoffin, for appellee, filed no printed brief.
   Opinion by

Beaver, J.,

By the Act of May 13, 1856, P. L. 574, entitled, “An act authorizing the citizens of the borough of Mercer to erect a union school house in said borough,” it was enacted “ that all that territory lying within the following bounds,” which are fully set forth therein anR said to constitute parts of three several townships adjacent to, and outside of, the limits of the borough of Mercer, “ shall hereafter form a new school district and be known by the name of the Mercer school district, which said district shall possess all the rights and privileges and be subject to all the restrictions contained in the school laws of this commonwealth, except so far as the same is modified by this act.”

On May 8,1855, P. L. 509, an act, entitled, “A further supplement to an act for the regulation and continuance of a system of education by common schools, approved the eighth day of May Anno Domini one thousand eight hundred and fifty-four,” provided for the establishment of independent school districts, in which it is provided : “ Section 6. That whenever a new district shall be erected, according to the provision's of this act, it shall become, to all intents and purposes of the common school system of the state, a separate and independent district,” etc.

In the ninth section of the Act of April 11, 1862, P. L. 471, it is provided: “ That in independent districts, established or hereafter to be established by the legislature, without specifying the mode, time or place of electing directors, the first election shall be held at such time and place, within the proper district, as shall be specified by written or printed notices thereof, put up at not less than ten public places therein, signed by not less than five taxable citizens thereof, and giving ten full days’ notice of such election, and subsequent elections shall be held at such time and place annually as shall be designated by similar notices, signed by the president and secretary of the proper board; said elections, in all other respects, to be held and conducted in the manner in this section before provided.”

An election for school directors in the district established by the special act of 1856, was held on February 20, 1906, at the general municipal election in the borough of Mercer. The appellees are R. N. Nelson and R. C. Kerr, who claim to have been elected school directors of the aforesaid special district at this election. The certificate of election was signed by “ the judge and inspectors of an election held in the borough of Mercer, in the county of Mercer.” ,

It appears from the testimony taken at-a former hearing, on an application for a writ of quo warranto, which by consent was incorporated in the record of this case, that the borough of Mercer is divided into two election districts ,• that the usual notice of election in the borough included school directors for the special district; that there was no separate polling place and usually no separate ballot box for receiving the votes for school directors; that school directors were usually nominated by the caucuses of the several political' parties within the borough and that the persons from the several-townships outside the limits of the borough composing the special district voted for school directors by using the usual municipal ballot. There does not seem to have been any special designation as to the polling place in the borough at which the citizens of the district outside its limits should vote. It will thus be seen that the inhabitants of the several townships outside the borough had practically no voice in the choice of the candidates for school directors of the district in which they resided; that, if they voted at the municipal election for school directors, they were compelled to use the ballot containing the names of officers to be chosen for the borough, and that there was no special designation as to the polling place at which they should vote. There was, therefore, a double inducement for illegal voting: first, as to the municipal officers to be elected, for whom, of course, the inhabitants of the several townships had no right to vote, and, secondly, as to the voting at both of the polling places instead of one, it being assumed that they were permitted to vote at either one or the other.

Is there no escape from this anomalous condition of affairs ? Is there no way of avoiding the temptation and inducement to wrongdoing, under the guise of a legal right ? It seems to us that the demands of the law must be strict and unyielding, under which such an election should be held valid. It is true that the school district created by the special act of May 13, 1856, might have been created under the general law of May 8, 1855, by the court of common pleas of Mercer county, under ordinary conditions, but it must be remembered — and this is very significant — that special powers were sought and given, by the special act, to the commissioners appointed therein to carry out the provisions thereof in relation to the organization of the new district thereby created.

For example, in the second section of the special act, it was provided: “ That the property, real and personal, of the Mercer Academy and of the common school districts, as existing within the limits of the said new district and of the Mercer Female Institute, be converted into money to the best advantage, and appropriated to the erection of a suitable building for a union school, and that Joseph Kerr, Samuel Geibner and William M. Stephenson be commissioners to sell and convey said property for said purpose and to take charge of the moneys or securities for moneys and all funds belonging to said academy, common school and female institute, and appropriate the same to the purpose aforesaid.”

Other special provisions were contained in the act which could not have been provided for in a decree of the court of common pleas, as, for example, in the seventh section, it was provided: that “ all students pursuing classical studies may be required to pay the prices usual for such branches in academies or private schools, also for those branches denominated ornamental, such as painting and drawing and instrumental music; foreign modern languages may also be taught in said school, but to be considered extra and to be paid for by the persons receiving instruction in them.”

It was also provided in the eighth section : “ That the female department in the higher branches shall be under the separate superintendence of a competent female principal, and shall be subject to the visitation and control of the executive committee of the Mercer Female Institute, as now organized.”

These and other provisions clearly show why application was made to the legislature instead of to the court, under the general act of 1855.

It is argued that, because the legislature did not, in the act of 1856, use the words “ independent school district ” and chose to use the words “ new district,” it was, therefore, not an independent school district within the meaning of the act of 1855, and that of 1862, which provides for the election of school directors in the ninth section, as above cited.

What was the new district created by the act of 1856 ? It was a separate district. It was independent of territorial limits, as previously established by the several municipalities from which it was carved. It had all the attributes of an independent district, as provided in the general act of 1855, and, by the very terms of the act creating it, possessed “ all the rights and privileges .... contained in the school laws of this commonwealth,” of which that act was a part. Surely it was in fact an independent district regardless of what it was called in the act which created it and, in our opinion, the act of 1862, providing for elections of directors “ in independent districts established or hereafter to be established by the legislature,” applied thereto. It is the legal entity created by the act rather than the name by which it was called which should determine its status.

Sections 5 and 6 of the general school law of May 8, 1854, P. L. 617, unquestionably apply to the election of school directors for school districts which are coincident and conterminous with municipal divisions, such as townships, wards, boroughs or cities. This seems to us plainly apparent from the language of the act, which is in part: “ But in districts where directors have not been elected, or in new districts which may be established by the erection of a new ward, borough or township, six directors shall be elected in such districts,” etc. Nothing whatever is said about a district composed of more than one municipal division. It seems to us unreasonable to impute to the legislature the intention of either disfranchising the inhabitants of the parts of the three outlying townships which compose part of the district or of bringing those inhabitants, without legal notice and without the right to vote for other officers in the borough at a regular municipal election, to vote for school directors, in whose selection as candidates they had no voice, and where the other practical difficulties as to the determination of their qualifications, etc., were of such a fundamental character.

As already intimated, at which of the two .polling places should they vote ? How was this to be determined ? The right to vote at a municipal election depends upon the residence of the voter, but in this case the voter from, one of the outlying districts would not be a resident of tlie ward or election district in which he voted. If he had a right to vote in either, what was to prevent him from voting in both ? If his right to vote is recognized, how should a ticket be provided ? There would seem to be no legal authority, under our present election laws, for providing such a ticket. As a matter of fact, as appeals by the testimony, the usual borough ticket was used. What was to prevent the voter from the township voting for the candidates for each office contained thereon? So many and such serious questions touching the purity of the ballot and the rights of citizens are raised by the decree of the court below, that we are constrained to hold that the legislature could not have intended to aim such a serious blow at the fundamental right of suffrage as is implied by this decree, even if the difficulties of interpretation as to the special act were much more serious than upon examination they prove to be.

All these serious difficulties are obviated by holding that, when the legislature, by the special act of 1856, created this important new school district, it intended it to be, as it actually was, a separate and independent school district, possessing all the attributes and “ all the rights and privileges ” of a new district created by the court of common pleas, under the general act of May 8, 1855, which, in its sixth section, provides, that “Whenever a new district shall be erected according to the provisions of this act, it shall become, to all intents and purposes of the common school system of the state, a separate and independent district.”

The court below has given much thought and careful consideration to the question herein involved, and we have read its opinion with care and considerable interest, but we are unable to agree with the conclusion reached, that the election of the appellees, Nelson and Kerr, was held in a lawful manner.

It is, therefore, adjudged and decreed that the order of the court, declaring that, “ after due consideration, it appearing to the court that there was no illegality in the said election for school directors, held on the third Tuesday of February, 1906, said election is hereby confirmed,” be and the same is hereby reversed, the election of R. N. Nelson and R. C. Kerr as school directors at said election is declared null and void, and the record is remitted to the court below, to the end that a special election under the provisions of the ninth section of the act of April 11, 1862, may be held, upon proper notice.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Henry’s Estate.

      Statute of limitations — Decedents’ estates — Lien of debts — Act of June 14, 1901, P. L. 562.
    A claim against an estate of a decedent based on an order in the nature of a judgment of the quarter sessions of another county, which was never a hen upon after-acquired real estate in the county where the decedent died domiciled, has only the lien of a general debt on the lands of the decedent in the latter county, and is subject to the limitation of the Act of June 14, 1901, P. L. 562, requiring an action for the recovery thereof, to be commenced within two years after the decedent’s death.
    Argued May 16, 1907.
    Appeal, No. 222, April T., 1907, by Charles R. Henry et al., from decree of O. C. Lawrence Co., Dec. T., 1905, No. 23, refusing the sale of real estate in Estate of Patrick Henry, deceased.
    October 7, 1907:
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for sale of real estate.
    The opinion of the Superior Court states the case.

      Error assigned was decree refusing order of sale.

      John D. Watson, with him JT. K. Gregory and T. W. Dickey, for appellant, cited:
    Ziegler v. Schall, 209 Pa. 526.

      Charles W. Wallace, with him Allen B. Angney, for appellee, cited:
    Craig’s App., 5 W. N. C. 243 ; Oliver’s App., 101 Pa. 299 ; Bindley’s App., 69 Pa. 295; Emerick’s Est., 172 Pa. 191.
   Opinion by

Rice, P. J.,

The debts for the payment of which the appellants petitioned the court for an order of sale, arose out of a proceeding in the court of quarter sessions of Allegheny county, brought under the twenty-eighth section of the Act of June 13, 1836, P. L. 539, to compel Patrick Henry, the decedent, to relieve and maintain his indigent father. That proceeding resulted on May 12, 1893, in an order of the quarter sessions directing the respondent to pay to his father for the latter’s support a specified sum every week and to pay the costs. This order not having been complied with, a proceeding was instituted for the imposition of the penalty provided by the act, which, on July 31, 1897, resulted in an order imposing a penalty of $300 on the respondent to be paid to the Department of Charities of the city of Pittsburg for the use of Charles Henry, and directing that $250 of the penalty be paid by the department to him in quarterly installments of $50.00 each, and that the remainder thereof be paid to the attorney for his professional services in the matter. The respondent was also directed to pay costs, in which was included and specifically allowed by the court, the commissioner’s fee of $35.00. This order of July 31,1897, was not complied with in any particular, and after it was made PatrickTIenry removed to Lawrence county, where he acquired an estate, both real and personal, and died on May 18, 1902. At the audit in June, 1904, in the orphans’ court of Lawrence county, of the final account of the administratrix of his estate, these claims, consisting (1) of the installments that accrued between May 12, 1893, and December 18, 1897, (2) the penalty, (3) the fee of the commissioner, were presented, but were disallowed by the auditor and the court because, as considered by them, they were barred by the statute of limitations of 1713. Upon appeal it was determined by this court, in an opinion by our Brother Henderson, that the orders of the quarter sessions were in the nature of judgments, that the claims founded thereon were debts of record, and therefore were not barred by the act of 1713, but were entitled to participate in the distribution of the personal estate: Henry’s Estate, 28 Pa. Superior Ct. 541-544. Accordingly the decree was reversed and the record remitted to the court below, with direction to make distribution of the funds among the parties entitled thereto, including these claimants. Subsequently, the claimants applied to the orphans’ court of Lawrence county, for an order directing the sale of the real estate of the decedent for the payment of debts. The administratrix filed an answer in which she admitted that the personal estate was insufficient to pay all of decedent’s debts, but averred that the claimants had wholly failed to comply with the provisions of the statute which it was necessary to comply with, in order to make their claims liens upon the decedent’s real estate after the period of two years from his death, and, therefore, the court had no jurisdiction to decree a sale of the real estate for the payment thereof. The court refused the application and thereupon the claimants took this appeal.

To recapitulate: the claims are debts of record based on orders in the nature of judgments of the quarter sessions of Allegheny county; all of them accrued on or before December 18, 1897 ; they never were liens upon the real estate of the decedent in Lawrence county in his lifetime ; and no action or proceeding for the recovery of them was commenced and indexed within two years after his death.

That the lands of the decedent were assets for the payment of these debts is not disputed. The question is, whether as against the decedent’s heirs they were so liable without limitation as to time. The first section of the Act of June 14,1901, P. L. 562,. which amended and re-enacted the Act of June 8, 1893, P. L. 392, which in turn was enacted as a substitute for section twenty-four of the Act of February 24, 1834, P. L. 70, provides that “ no debts of a decedent, except they be secured by mortgage or by judgment entered or revived by scire facias within five years .prior to the death of such decedent, shall remain a lien on the real estate of such decedent longer than two years after the decease of such debtor, unless an action for the recovery thereof be commenced, and be indexed in the judgment index as other liens, are indexed against such decedent, his heirs, executors or administrators, within the period of two years after his decease, and duly prosecuted to judgment,” etc.

In support of the claim that these debts are within the expressed exception to the general rule prescribed by the statute, counsel for appellants cite Ziegler v. Schall, 209 Pa. 526, Colenburg v. Venter, 173 Pa. 113, and other cases, which decide that the lien of a judgment against the decedent at the time of his death, as against his heirs and devisees, is without limit as to time. But these cases are distinguishable from the present in that the judgments there in question were liens upon the real estate at the debtor’s death. A case which upon a hasty view seems to be more closely analogous to the present is Baxter v. Allen, 77 Pa. 468. The Supreme Court there said: “ A judgment of record at the time of the death of the defendant, though without lien on his real estate at the time of death, does not fall into the class of mere debts, whose lien is limited to five years after the death of a decedent, unless suit be brought for the same according to section 24 of the act of February 24, 1834. That section expressly excepts debts secured by mortgage or judgment; suit is unnecessary when the debt is already in judgment. The record gives notice of the debt to all persons interested, and it remains unaffected by time, as to all volunteers, until a presumption of payment arises.” If this case must be regarded as holding that as against heirs and devisees a judgment against the decedent, though never a lien upon his land and never entered of record in the county where the land lies, immediately upon his death acquires a lien upon that land which is without limit as to time, it can scarcely be said that the purpose of the statutory limitation, which, in Kerper v. Hoch, 1 Watts, 9, Oliver’s Appeal, 101 Pa. 299, Cooper’s Estate, 206 Pa. 628, and other cases, has been declared to be the promotion of the security and the repose of titles in the hands of heirs and devisees, as well as purchasers from them, will be fully accomplished. But Baxter v. Allen,, whether it be considered in the light of its special facts or of the reasoning of the opinion, is not authority for so broad a proposition. When the court said that the record gives notice of the debt to all persons interested, it is warrantable to presume' that the court had reference to a judgment which was at one time a lien upon the land and could be found by search of the records of the county where the land is situated. This is not that kind of a case, but is analogous to Moorehead v. McKinney, 9 Pa. 265. In that case a judgment was entered of record against one who afterwards purchased real estate and died. It was held that as the judgment was not at the moment of the death, and never was, a lien upon that land, it fell within the class of general debts. The authority of this case was recognized in Konigmaker v. Brown, 14 Pa. 269, and again in McMurray’s Administrators v. Hopper, 43 Pa. 468, where it was held applicable to a case where the judgment was restricted to other real estate than that in question. These decisions are not questioned in Baxter v. Allen, nor in any of the cases cited by the appellants’ counsel. We think the present case is within the principle upon which they were decided, and, therefore, that the court was right in holding that these claims, arising out of the orders of the court of quarter sessions of Allegheny county, had only the lien of general debts upon the lands subsequently acquired by the decedent in Lawrence county and were subject to the limitation of the act of 1901 applicable to general debts.

The decree is affirmed at the costs of the appellants.


text:
    Pulaski Township Poor District v. Lawrence County, Appellant.

      Constitutional law — Special and local legislation — Poor law — Act of March 6, 1903, P. L. 18.
    Those parts of the Act of March 6, 1903, P. L. 18, which provide for the relief of needy, sick and indigent persons who have no known legal settlement within the commonwealth, at the expense of the county where relief is required, do not contravene sec. 7, art. Ill of the constitution, relating to special and local legislation regulating the affairs of municipalities. The fact that the operation of the Act of June 4, 1879, P. L. 78, led to a diversity of method of accomplishing the same result in this class of cases, is not a valid reason for declaring the act of 1903 a local and special law; nor is it special because it divides paupers into two classes, namely, those without a settlement in this state, or whose settlement is unknown, and those who have a settlement, and establishes a different rule as to the relief of each class.
    Submitted May 15, 1907.
    Appeal, No. 63, April T., 1907, by defendant, from order of C. P. Lawrence Co., March T., 1906, No. 97, overruling demurrer to claim in case of Pulaski Township Poor District v. Lawrence County.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Demurrer to statement. Before Porter, P. J.
    The opinion of the Superior Court states the case.

      Hrror assigned was the order of the court.

      A. W. Gardner, for appellant.
    The statute relates to particular things of a class and is, therefore, special: Wheeler v. Phila., 77 Pa. 338 ; Lehigh Valley Coal Co.’s App., 164 Pa. 44 ; Ayars’s App., 122 Pa. 266 ; York Hospital, etc., v. County of York, 16 York, 117 ; Thatcher v. County Commissioners, 16 York, 205.
    The attempted classification by this act of counties into two classes, viz.: those that have poor houses and those that have not, is unnecessary and uncalled for: Ruan Street, 132 Pa. 257.
    There cannot be one law in some counties relating to the maintenance of all paupers as a class, and another law in certain counties as to the support and burial of a portion of that class: Weinman v. Pass. Ry. Co., 118 Pa. 192; Perkins, v. Phila., 156 Pa. 554.
    October 7, 1907 :
    In the recent case of Renovo Borough Poor District v. Clinton County, 32 Pa. C. C. Rep. 209; 53 Pitts. L. J. 318, the act in question was declared unconstitutional as special or class legislation, as was the former Act of June 6, 1893, P. L. 328, relating to the same subject, in Conyngham Township v. Luzerne County, 5 Pa. Dist. Rep. 183 ; 17 Pa. C. C. Rep. 83.

      Aaron L. Hazen, with him John P. Lockhart and Gregory Sp Dickey, for appellee.
    The test by which to determine whether an act is local or special within the prohibition of sec. 7, art. Ill of the constitution, is not actual results, but possibilities : Frost v. Cherry, 122 Pa. 417 ; Com. v. Reynolds, 137 Pa. 389; Bennett v. Norton, 171 Pa. 221; Com. v. Gilligan, 195 Pa. 504; Com. v. Mintz, 19 Pa. Superior Ct. 283.
    A general statute will not be rendered unconstitutional by the fact that by its own terms it is not to apply to those portions of the state where there may be in force local or special statutes inconsistent with its provisions, but relating to the same subject-matter: Evans v. Phillipi, 117 Pa. 226 ; Bitting v. Com., 20 W. N. C. 178; Bennett v. Norton, 171 Pa. 221.
   Opinion by

Rice, P. J.,

The question involved in this case is the constitutionality of the Act of March 6, 1903, P. L. 18, or, to be more exact, the constitutionality of those parts of the act which provide for the relief of needy, sick and indigent persons, who have no known legal settlement within the commonwealth, at the expense of the county where relief is required. It may be surmised that the draftsman of the act had particularly in mind counties not operating under the Act of June 4, 1879, P.L. 78, the constitutionality of which was upheld in Rose v. Beaver County, 20 Pa. Superior Ct. 110 ; s. c., 204 Pa. 372. But the words of the act are broad enough, and must be construed to cover all counties in which a poor or almshouse for the support, care and shelter of the needy and indigent is not maintained, either by general or local law, by and at (Sounty expense. It is claimed that the effect of the qualifying words is to limit and restrict the provisions of the act to a particular class of counties, and, therefore, they are in contravention of sec. 7, art. Ill, of the constitution, which declares that the legislature “ Shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” But, as in the counties to which it is claimed the act does not apply, the duty of furnishing relief to the class of poor persons described in the act who have no known legal settlement in the commonwealth was already devolved by law upon the county, it is apparent that the immediate effect of the act was to promote uniformity, by putting all other counties upon the same basis so far as that general duty is concerned.

But until every county of the state has taken advantage of the provisions of the act of 1879, there must of necessity be diversity of method of caring for the poor between counties that have taken advantage of its provisions and those in which the poor district system is retained. For example, in the former, orders of relief and removal are granted to and upon the county commissioners, and in the latter, to and upon the directors or overseers of the poor of the proper district. In the present case an order of relief issued to the overseers of the poor of the township poor district, and, it is admitted by the demurrer, that the person for whom it issued had no known legal settlement in the state. Under the act of 1908 it became the duty of the county commissioners, from and after notice from the overseers of the poor, either to take charge of him and furnish the needed relief, or, in the event of their election not to do so, to reimburse the poor district the amount necessarily expended. The result is to compel the county to bear the expense of relief. The same result would have been reached, but by a different method, if the county, having availed itself of the privilege of the act of 1879, were operating under its provisions. This diversity of method of accomplishing the same result in ■ this particular class of cases, necessitated by the fact that under the operation of a valid and constitutional statute there are in some counties poor districts and overseers of the poor and in others the whole county is a single poor district, and its affairs are administered by the county commissioners, is not a valid reason for declaring the act of 1903 a local ■or special law within the prohibition of the constitution. In support of this conclusion we refer to Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44, with the doctrine of which, we think, it is in full accord.

But, in determining whether an act is local or special within the prohibition of this section, not only present results but possibilities must be considered: Frost v. Cherry, 122 Pa. 417. Hence, if the act must be construed as permanently excluding from its operation all counties which at the time of its enactment were operating under the act of 1879, or similar laws, the legal possibility of local and special results being accomplished by it upon repeal of those laws is apparent. We think it clear, however, that the words of the act do not require such construction, if any attention whatever is to be given to the sound principle, that “ where the legislative intent is not to evade the restrictions the courts are not required to he astirte in extending them over cases not really within the evil prohibited, though the form may have the appearance of coming within the literal words of the constitution: ” Commonwealth v. Gilligan, 195 Pa. 504. As the learned compiler and annotator of the last edition of Purdon’s Digest well says, and as the authorities abundantly show, there is a marked distinction between inclusive and exclusive provisions under this section : 1 Stewart’s Purdon’s Digest, 153. Assuming the legal possibility of a repeal of the act of 1879, and of all local or special laws under which particular counties are now charged with the duty of supporting, caring for and sheltering poor persons needing relief, the result would be to re-establish the poor districts in such counties. When that change occurs, if it ever shall, and the duty is again cast primarily on the poor districts, there is no clause or provision of this act which will exclude any of those counties from its operation. On the contrary, it will at once become operative throughout the state, without any change or amendment thereof. As already stated, the immediate effect of the act is to promote uniformity, not to produce local or special results that are forbidden by the constitution, and it does not appear that it can by any possibility have the latter effect in the future. This being so, the same principle that sustained the legislation construed in Evans v. Phillipi, 117 Pa. 226; Reading v. Savage, 124 Pa. 328, and kindred cases is applicable here.

It is argued further that the act is special, and, therefore, invalid, because it divides paupers into two classes, namely', those without a settlement in this state or whose settlement is unknown, and those who have a settlement, and establishes a different rule as to the relief of each class. But there are obvious reasons which might properly move the legislature to conclude that it would be just and expedient to shift the burden from the poor district into which a poor person without legal settlement there or in any other poor district of the state, might chance to come, to the county, which would not hold good in the case of a poor person who has a legal settlement in some poor district of the state to which he can be removed. There is no provision of the constitution which só ties the hands of the legislature that it cannot do the former, unless it also relieves all poor districts of the burden of earing for the poor who have legal settlements therein and casts it on the county. This, it seems to us, does not require discussion.

The judgment is affirmed.


author: Orlady, J.,

text:
    Johnston, Appellant, v. Johnston.

      Divorce — Hopeless insanity — Act of April 18, 1905, P. L. 211.
    Hopeless insanity is not a ground for divorce in Pennsylvania.
    Argued May 14, 1907.
    Appeal, No. 196, April T., 1907, by plaintiff, from decree of C. P. Butler Co., June T., 1906, No. 36, refusing divorce.in case of A. V. Johnston v. Ida Johnston.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce. Before Galbreath, P. J.
    From the record it appeared that the ground alleged for divorce was hopeless insanity.
    The court dismissed the petition.

      Error assigned was the decree of the court.

      October 7, 1907 :

      R. R. (rouoher, witli him Lev MoQuistion, and O. L. Mc-Quistion, for appellant.
    No appearance for appellee.
   Opinion by

Orlady, J.,

The question involved in this case is considered and decided in Baughman v. Baughman, ante, p. 271, in which an opinion is filed herewith. For the reasons therein given the decree of the court below is affirmed.


author: Rice P. J.,

text:
    Commonwealth v. Rodman, Appellant.

      Criminal law — Conveying means of escape to prisoner — Attempt—Indictment — Act of March 31, 1860, sec. 4, P. L. 382.
    In Pennsylvania it is a misdemeanor punishable by fine and imprisonment for any person to convey, or cause to be delivered to a prisoner lawfully committed or detained in any jail, any disguise, instrument or arms proper to facilitate the escape of such prisoner, although no escape or attempt to escape be actually made. An attempt to commit such a misdemeanor is a misdemeanor itself.
    An attempt to commit a misdemeanor is a misdemeanor whether the offense is created by a statute or was an offense at common law.
    An indictment charged that the defendant “did attempt to commit an offense prohibited by law,” and then in apt terms described an attempt to convey certain tools to prisoners in jail with the intent that the prisoners might thereby and therewith escape or attempt to escape from jail. The indictment concluded, “that the said defendant then and there did fail in the perpetration of said offense, and was intercepted and prevented in the execution'of the same.” Held, that the indictment plainly meant that the defendant failed to perpetrate the offense he attempted, and that it was not reasonably susceptible of being interpreted to mean that he failed to perpetrate the attempt.
    Argued May 20,1907.
    Appeal, No. 200, April T., 1907, by defendant, from judgment of Q. S. Warren Co., Dec. T., 1906, No. 15, on verdict of guilty in case of Commonwealth v. George Rodman.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.

      Indictment for an attempt to convey and deliver to prisoners in jail three steel saws proper to facilitate the escape of such prisoners. Before Lindsey, P. J.
    The material portion of the indictment was as follows :
    “ And the inquest aforesaid do further present that one George Rodman, late of said county, yeoman, afterwards, to wit: on the third day of October, in the year of our Lord one thousand nine hundred and six, in the county of Warren aforesaid, and within the jurisdiction of this court, the above-mentioned E. D. Martin (alias E. D. Morton), William A. Wentworth and John T. Hannon, then and there being prisoners in the jail aforesaid, lawfully committed to and detained in said jail as above set forth, under the authority and for the offenses aforesaid, respectively, and whilst the said E. D. Martin (alias E. D. Morton), William A. Wentworth and John T. Hannon, continued to be so detained in said jail, did attempt to commit an offense prohibited bylaw,to wit: did unlawfully attempt to convey and deliver to the above named E. D. Martin (alias E. D. Morton), William A. Wentworth and John T. Hannon, prisoners in the jail aforesaid, three steel saws, being instruments proper to facilitate the escape of the said prisoners from the said jail, with the intent that the said prisoners might thereby and therewith escape, or attempt to escape, from said jail, and in such attempt did then and there convey into said jail the three saws aforesaid concealed upon his person, with intent then and there to convey and deliver said saws to the said E. D. Martin (alias E. D. Morton), William A. Went-worth and John T. Hannon, prisoners as aforesaid, without the knowledge and privity of the keeper or keepers of said jail, but the said George Rodman then and there did fail in the perpetration of said offense, and was intercepted and prevented in the execution of the same, contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.”
    The court charged the jury in part as follows:
    You have heard the testimony on the part of the commonwealth, heard the testimony as to the finding of the file in the jail and where it was found, and also the other implements lying upon the table there connected with the' file, and you have heard the testimony of Mr. Wright, the deputy sheriff, who testifies in substance that Mr. Rodman, the defendant, came to him and wanted to go into the jail, I believe this was on Wednesday night, October 3, and that he allowed him to go into the jail, that he went with him and when they got into the corridor of the jail he told him he must search him and he proceeded to search him and found, he says, the three saws which have been exhibited here to you, inside of his breast pocket and he took the saws away from him. The defendant had a pie and perhaps something else which he was taking in to the prisoners to eat. It is also testified by Mr. Miller, a prisoner in the jail at the same time, that he saw Mr. Rodman give to one of the prisoners named in the indictment the file which lies upon the table. It is also testified by Mr. Miller that he heard a conversation between the defendant, Rodman and John Hannon, one of these prisoners, and gives you in detail the conversation, and says he heard him tell Rod-man to bring him in two saws and gave him some money, and that this was on Thursday, the Thursday before the saws were found upon Rodman when he went in there.
    Now, gentlemen of the jury, Mr. Rodman denies this testimony — he does not deny the fact that he had the saws, but he tells you that he sent by Mr. Wilson to get these saws and that Mr. Wilson got them and gave them to him on the night that he went in there with the food for these prisoners, and he tells you the purpose for which he got them. Mr. Wright testifies that he has told him that he got them to cut threads on pipe. He says that he got them to cut the pipe, and as I understand him, gentlemen, he said to cut the pipe or the end of the pipe where the thread was made. However, you will remember exactly what he did say. . . . Now he was engaged in putting this pipe together, as I understand his testimony. Were these instruments such as he would naturally want and would facilitate him in doing that ? These are inquiries for you in connection with determining how much credit to give to his evidence.
    Now, Wilson corroborates Mr. Rodman in getting the saws and giving them to Mr. Rodman that night. Mr. Wright says that Wilson told him that he got them and gave them to Rod-man during that day before he went to the ball game. Wilson admits that he did tell Mr. Wright that, but he denies telling it to Mr. Magee. Now Magee, the constable, is called as a witness in rebuttal and he testifies that Wilson did tell him that he gave the saws to Mr. Rodman in the daytime before he went to the ball game. So that Mr. Wilson is contradicted in this by the evidence of Mr. Magee.
    Verdict of guilty', upon which the court sentenced the defendant to pay a fine of $50.00, and to be confined in the Western Penitentiary for a period of one year and seven months by solitary confinement at labor.
    The defendant filed a motion for a new trial, assigning the following reasons:
    1. Because no evidence was produced nor proof adduced showing where the alleged offense was committed, either township, borough, county nor state, and, therefore, the cause was not within the jurisdiction of this court.
    2. That the indictment does not charge an indictable offense against any statute of the state and should have been quashed.
    8. Because the indictment in this case alleges that the defendant did not commit the alleged offense which is first alleged in said indictment to have been committed.
    4. Because there was no legal and competent evidence that the defendant committed an offense which is indictable under the statutes of Pennsylvania.
    5. Because the verdict of the jury, “We find the defendant, George Rodman, guilty as indicted,” is not in fact a judgment rendered against the defendant; too uncertain, and not on a valid indictment.
    6. Because the indictment charges the defendant with an alleged offense which can be no more than an attempt at an attempt, and sets out below therein that “the said George Rodman then and there did fail in the perpetration of said offense, and was intercepted and' prevented in the execution thereof.”
    7. Because the verdict was against the weight and preponderance of the evidence.
    8. Because the court erred in not quashing the indictment in this case for reasons set out in motion made in proper time for that purpose. 9. Because the court erred in admitting the evidence offered by the commonwealth and objected to by defendant in relation to searches made and materials found at the county jail by officers before the alleged offense was said to have been committed — to be given, to which exception was made and bill sealed — within the four days provided by rule of court, and supplementary hereto.
    October 7, 1907:

      Errors assigned were in not quashing the indictment and in not arresting the judgment.

      George B. Mann, with him Qurtis M. Shawkey, for appellant.

      Wm. S. Clark, for appellee.
   Opinion by

Rice P. J.,

In this commonwealth it is a misdemeanor punishable by fine and imprisonment for any person to convey, or cause to be delivered to a prisoner lawfully -committed or detained in any jail, any disguise, instrument or arms proper to facilitate the escape of such prisoner, although no escape or attempt to escape be actually made: Act of March 31, 1860, sec. 4, P. L. 382. The defendant was tried and convicted upon the theory that the indictment charged an attempt to commit this statutory offense. The objection that the evidence did not show that it was committed within the jurisdiction of the court is not sustained. There was ample evidence of this essential. Nor, even if there were any assignment properly raising the question, could it be held that there was any error in the admission of the testimony referred to in the motion for a new trial. In connection with other testimony of which it forms a part, which is not set forth in the so-called assignment as our rules require, it had a direct and legitimate tendency to negative the defendant’s claim that he had the instruments on his person for an innocent purpose, and was clearly within the principle of the recognized exceptions to the general rule, that a distinct and independent crime cannot be given in evidence against the accused upon trial for another offense. See 1 Greenleaf on Evidence (15th ed.), sec. 53 and notes; 1 Wigmore on Evidence, pp. 390-395; Commonwealth v. House, 6 Pa. Superior Ct. 92, at pp. 106-7, and cases there cited. The only remaining question attempted to be raised is whether the indictment charged an indictable offense. It is true section 50 of the criminal procedure Act of March 31, 1860, P. L. 427, provides that a party indicted fora felony or misdemeanor may be found guilty of an attempt to commit the same. But this did not abrogate the common-law rule (see Smith v. Commonwealth, 54 Pa. 209; Commonwealth v. Jones, 10 Phila. 211; Rex v. Roderick, 7 C. & P. 795; 12 Cyc. of Law and Procedure, 176) that, in general, an attempt to commit a misdemeanor is a misdemeanor whether the offense is created by a statute or was an offense at common law. Therefore it was not necessary to indict the defendant for a crime of which he was not guilty in order to convict him of a crime of which he was guilty. But it is claimed that the indictment is contradictory in terms and so ambiguous and uncertain in meaning that it cannot support the judgment. After certain material preliminary averments, not necessary to be noticed here, it charges that the defendant “ did attempt to commit an offense prohibited by law,” and then in apt terms and according to approved form, describes the offense attempted and the acts constituting the attempt, and concludes, “but the said George Rodman then and there did fail in the perpetration of said offense and was intercepted and prevented in the execution of the same. Contrary, etc.” This averment must be read with the context, and being so read it plainly means that the defendant failed to perpetrate the offense he attempted ; it is not reasonably susceptible of being interpreted to mean that he failed to perpetrate the attempt. See Wharton’s Prec. of Ind. 1046, 1047; Hackett v. Commonwealth, 15 Pa. 95.

We find no error in this record; the evidence fully justified the submission of the case to the jury; and it was submitted in a charge to which no exceptions were taken, and no valid exception could be taken. Therefore the conviction must be affirmed. In thus deciding the appeal upon its merits it is not to be understood that the objections to the assignments of error ai’e regarded by us as either trifling or unimportant.

The judgment is affirmed.


text:
    Titusville, Appellant, v. Gahan
    (No. 1).

      Municipalities — Taxation—General revenue — Police powers — License tax on theaters and billposters — Cities of the third class. *
    A city of the third class has no power to levy and collect a license tax from theaters or billposters exclusively for general revenue' purposes. It has authority, however, to levy such tax upon theaters and opera houses under the police power expressly delegated to it, and upon billposters under the police power conferred by the general welfare clause of the city’s charter; but an ordinance imposing such a license tax which expressly states in its title that the tax is “for general revenue purposes,” will be construed as a revenue and not as a police measure, and will be declared invalid by the courts.
    Argued May 20, 1907.
    Appeal, No. 143, April T., 1907, by plaintiff, from judgment of C. P. Crawford Co., Sept. T. 1900, No. 20, for defendant on case stated in suit of Titusville v. John Gahan.
    Before Rice, P. J., Porter, Henderson, Or-lady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine the validity of a license tax on theaters and billposters.
    From the case stated it appeared that the defendant was the owner of a theater or opera house in the city of Titusville, which was a city of the third class. For the years 1896,1897, 1898 and 1899, licensed taxes were leved upon defendant both as the owner of the theater and as billposter under an ordinance entitled as follows : “ An ordinance to provide for the levy and collection for general revenue purposes, Of annual license taxes in the city of Titusville, Pa., approved June 25, 1888, and amendments and supplements thereto.”
    Thomas, P. J., filed the following opinion:
    The claims in each of these cases are of the same nature and of a twofold character, though covering different periods of time. The actions are brought to recover license taxes imposed upon the defendant for the years mentioned in two different capacities. First, as the owner of an opera house, which was conducted and maintained as a theater and opera house in which public exhibitions were given for pay, which exhibitions were not for local, religious, educationál or charitable purposes ; and, secondly, as a billposter in said city of Titus-ville.
    The question involved and the onty serious contention, as we understand it, is as to whether the ordinance under which these taxes were imposed is valid as against the defendant for the purposes for which they were imposed.
    It is urged that these taxes or licenses were lived for general revenue purposes, and that the city was without power so to do. As we understand the contention, the plaintiff practically admits that the assessments can only be imposed by virtue of the police power of the municipality, and whether this is admitted or not, we think that such is clearly the law.
    Under the Act of May 23, 1874, P. L. 230, cities of the third class have power to “.levy and collect licenses on auctioneers,” etc., and “to regulate the same by ordinance,” on a number of persons and institutions, including “shows, theaters and all kinds of exhibitions for pay.”
    The Act of May 24, 1887, P. L. 204, which was subsequently declared unconstitutional, is the act under which this ordinance was framed. By art. VII, sec. 2, clause 4, of said act cities of the class in which the plaintiff was included were allowed to levy and collect for general revenue purposes an annual license tax on auctioneers, etc., but' it is significant that some of the terms in the act of 1874, and especially that of theaters, was omitted therefrom; but under clause 26 of said section said cities were given power “ to license and collect license taxes from shows, theaters,” etc., and “to regulate the same and to restrain and prohibit all exhibitions of an indecent or immoral character.”
    The Act of May 23, 1889, P. L. 277, art. V, sec. 3, empowers cities of the third class to “ levy and collect for general revenue purposes a license tax not exceeding #100 each, annually, on all auctioneers,” etc. This section follows that of 1887, and excludes theaters. The 25th clause of said sec. 3 of said act empowers the city to “ license and collect a license tax from all skating rinks, operas, theaters,” etc., and to “regulate the same and to restrain all exhibitions of an indecent or immoral character.”
    It is clear to us that clause 4, sec. 2 of art. VII, of the act of 1887, and clause 4, sec. 3, of art. V, of the act of 1889, relate to taxation for general revenue purposes, and that the state has not delegated to municipalities of this class the power or authority to levy and collect for general revenue purposes a tax against theaters, but that the same may be regulated and a license tax imposed under clause 26, sec. 2, of art. VII, of the act of 1887, and clause 25, sec. 3, of art. V, of the act of 1889, but that under these provisions the power delegated to the municipality is that of regulation and by virtue of police powers.
    In none of these sections are billposters directly made the subject of taxation for general revenue purposes, nor license regulation by virtue of police powers delegated to the municipality. But each of said acts contains a general welfare clause under which, in our opinion, billposters might be regulated, subject to the police powers of the city, to wit: under clause 47 of said sec. 2, of art. VII, of the act of 1887, and clause 46 of sec. 3, of art. V, of the act of 1889.
    We see no reason why it would not be proper to regulate the occupation of billposter, both as to the structures where tiie bills might be posted, and as to the nature and character of the matter posted thereon. Certainly this looks to the protection, welfare and morals of the community, and, in our opinion, would be covered by the general welfare clause of eacli of said acts of assembly.
    Having arrived at the conclusion that theaters are under the expressly delegated police powers of a municipality, and that billposters are subject to regulation under the general welfare clauses of said acts of assembly, it is necessary to determine whether the taxes here sought to be collected were imposed by virtue of the police powers or for general revenue. If for the latter, it seems clear to us that the city was without authority to so impose them. If for the former, they had the power so to impose them, and the defendant is liable therefor in this action.
    From the title of the ordinance under which these taxes were imposed, it appears that the same was for the purpose of levying and collecting an annual license tax “ for general revenue purposes.” It is probably true that this does not determine the real character of the taxes imposed, but it will aid us somewhat in knowing what the purpose of the legislative body was in passing the ordinance, and may assist us in determining the purposes as provided by the ordinance itself. Most of the taxes imposed by said ordinance are allowed expressly by the act of assembly as a means for raising revenue, but not so as to theaters and billposters.
    The state has the power as a means to an end, namely, the better exercise of the police power, to impose a fee or license upon property uséd in a certain manner or upon certain callings or occupations. Ordinarily, the state has no right under this power to impose' license fees for purposes of revenue without regard to the question of the regulation, control or use of such property or occupation. The imposition of license fees, having for their purpose the better regulation and control of such occupations, or the use of certain property, is valid as coming within the proper exercise of the police power, when they are imposed not for the purpose of obtaining a revenue, but for the ostensible one : 1 Abbott on Municipal Corporations, p. 258.
    Strictly speaking, there is a distinction between a license granted or required as a condition precedent before a certain business can be carried on, and a tax assessed on the business in which such license may authorize one to engage. In statutes, however, and even in the decisions of the courts, this distinction is frequently disregarded; and in order to determine whether a sum imposed by statute or ordinance is a license fee proper or a tax, it is generally necessary to ascertain the purpose of the exaction, and. to determine the power by virtue of which it is made. Thus, where the fee is imposed for the purpose of regulation, and the statute requires compliance with certain conditions in addition to the payment of the prescribed sum, such sum is a license proper, imposed by virtue of the police power; but where the fee is exacted solely for revenue purposes, and payment of such fee gives the right to carry on the business without the performance of any further conditions, it is a tax : 21 Am. & Eng. Ency. of Law (2d ed.), pp. 778, 774.
    We are persuaded that this is a proper definition, and when applied to the case in hand clearly reveals that this ordinance is one wholly for the purpose of raising revenue generally, and not for the purpose of regulation, and that the payment of the fee is the only prerequisite to the carrying on of the business taxed.
    The plaintiff contends that this is a proper exercise of the police powers of the city, and refers us to several authorities on that subject. Our attention is first called to the case of the City of Chester v. P., R. & P. Telegraph Co., 148 Pa. 120. We are not informed as to the character of the ordinance in said case, but in the opinion of the lower court it is said: “ It is not a tax for revenue, but a police charge for the necessary liability of the city to supervise the use of its streets.” If such provisions were made it would seem that there was some legislation here with reference to regulations, but from the case as reported it is impossible for .us to determine the terms of the ordinance. The case is decided, however, on the authority of Telegraph Co. v. City of Philadelphia, 22 W. N. C. 39, and the City of Allentown v. Western Union Telegraph Co., 148 Pa. 117. In the former of said cases, to which our attention is called, the terms of the ordinances are not given, but, from the holding of the court that the city of Philadelphia had a right, as a matter of police regulation, to supervise and control the erection of poles upon and the stretching of wires along its streets, we are persuaded that some legislative provision for regulation was made. In the latter of said cases it would appear from the per curiam opinion that there was not only the imposition of a license fee or tax, but that the city had enacted an ordinance requiring telegraph, telephone and electric light poles to be inspected by the police department, and that the same should be licensed. It was held that was an exercise of the police power of the city.
    Our attention is called to the case of Johnson v. Philadelphia, 60 Pa. 445. In that case an annual sum was imposed upon each street car operated in the streets of said city. It was held that the same might be imposed as a police regulation, but could not as a tax, for raising revenue, and in that case it was held that the same was: a valid police regulation. The title to the ordinance in that case is one “ To regulate passenger railways,” and made provision for regulating and the operation of street cars in said city, though the full terms of the ordinance are not made known. It seems that such would be a valid exercise of the police powers.

      Attention is also called to the case of Oil City v. Oil City Trust Co., 151 Pa. 454. The tax imposed in this case rested on the authority of the act of 1874, but the same was supplied and repealed by the act of 1889. The court says : “ By the express language of clause 4, above referred to, the authority given to cities by this act to license bankers is for general revenue, and as if to emphasize the change of legislative purpose, the grant is transferred from its previous place in the enumeration of police powers to a place among the powers of taxation for revenue. It is, therefore, unquestionably a tax in the general sense, and we have to consider whether appellant is exempted from it by the acts of June 30, 1885, and June 1, 1889.” The court held that they were exempt under said act. Later on the court says : “ The result, therefore, is that banks are only subject to license tax by municipalities by virtue of express legislative authority; that the only authority shown in cities of the third class since the act of 1889 is to license as a tax for revenue purposes, and that as to such tax the appellant was exempt during the years of 1889 and 1890.” In our opinion this case does not support the contention of the plaintiff.
    Attention is also called to the case of Pittsburg Railways v. Pittsburg, 211 Pa. 479. This case is authority chiefly for the proposition that the naming of a certain tax as a license tax by legislative authority does not make it such, but that the court must look to the ordinance to determine what it actually is. From the title of said ordinance it appeared that the city of Pittsburg attempted to levy a license tax for general revenue purposes upon the street railways and others, and that they attempted to tax each lineal foot of track maintained and operated, and it was held that under the act by virtue of which the ordinance was passed they only had authority to levy and-collect a license tax, while, as a matter of fact, they had attempted to collect a property tax, which was contrary to law.
    Our attention is also called to the case of the Borough of North Braddook v. Second Avenue Traction Co., 8 Pa. Superior Ct. 233. Section 1 of a supplement to a certain ordinance is here recited and does not show that there was any provision for regulation such as to warrant the exercise of police powers in the taxing of street cars. Whether the courts would take judicial notice of the fact that supervision is required in such case is not necessary for us to consider. The question involved in the case at bar was not involved in this case. The only questions raised were the excessiveness and unreasonableness of the tax, and the vagueness, indefiniteness and lack of means to provide for reasonably assessing the cars operated.
    By both the act of 1887 and that of 1889 municipalities are permitted to levy taxes upon street cars for general revenue purposes and for that reason it is possible the question as to whether it was assessed by virtue of the police powers or for general revenue purposes was not made a material matter of inquiry.
    Attention is called to the case of the Borough of Warren v. Geer, 117 Pa. 207, but it is there held that the authority exercised by the borough in the passage of the ordinance was expressly conferred by virtue of the borough law of April 3,1851, sec. 2, par. 11, P. L. 320.
    It is not necessary for us to take into consideration the more recent decisions of the federal courts and the courts of this commonwealth with reference to the imposition of taxes on telegraph, telephone companies and the like, either by virtue of police powers, or by authority of the acts of assembly, and especially with reference to the regulation of the amount of said taxes by virtue of the sum spent in supervision.
    It seems clear that the city of Titusville enacted this ordinance as a general revenue measure and has attempted to include in it all persons, firms, etc., allowed by the act of assembly, and in addition thereto some that are hot. As to such as are permitted to be levied by virtue of police power alone the ordinance is invalid, and the claims in these cases are of that character.
    And now, to wit: July 16, 1906, pursuant to agreement in the case stated it is ordered that judgment be entered in favor of the defendant and against the plaintiff, with costs of suit.

      Error assigned was in entering judgment for defendant on case stated.

      M. J. Heywang, for appellant.
    It is not necessary to the validity of an ordinance imposing a license tax that the power, or authority, or purpose under or for which the license tax is imposed be stated, or in any manner referred to; and if reference be made in any part of the ordinance to the matter of power, authority, or purpose it is wholly immaterial and is not properly the subject of criticism. If a power for any purpose exists and the exercise thereof has been reasonable it does not matter what the municipal authorities call it, their action will be sustained and the collection of the license tax enforced: City of Chester v. Phila., Reading & Pottsville Telegraph Co., 148 Pa. 120; Johnson v. Philadelphia, 60 Pa. 445; Oil City v. Oil City Trust Co., 151 Pa. 454; Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479; Braddock Borough v. Allegheny County Tel. Co., 25 Pa. Superior Ct. 544.
    Boroughs are not specifically empowered by state legislation to impose license taxes on canvassers, yet, an ordinance imposing a license tax on such persons was sustained in Warren Borough v. Geer, 117 Pa. 207, under the general powers conferred in the borough act of 1851.
    In North Braddock Borough v. Second Avenue Traction Co., 8 Pa. Superior Ct. 233, a license tax was imposed on the cars of a street railway company, and was sustained as an exercise of the police power.
    When the general power to assess exists, the remedy for illegal taxation or assessment is by appeal; if none be given, the.courts cannot reverse the judgment of the taxing or assessing officers. On the other hand, if a specific remedy is provided, it must be pursued: Moore v. Taylor, 147 Pa. 481; Hughes v. Kline, 30 Pa. 227; Clinton School District’s App., 56 Pa. 315 ; Stewart v. Maple, 70 Pa. 221; Van Nort’s Appeal, 121 Pa. 118; Crist v. Morris, 2 W. N. C. 620; Hodge v. Muscatine County, 196 U. S. 276 (25 Sup. Ct. Repr. 237); Western Union Telegraph Co. v. Missouri ex rel. Gottlieb, 190 U. S. 412 (23 Sup. Ct. Repr. 730).

      Eugene Machey, with him Axtell J. Byles, for appellee.
    The license taxes in question are not levied under the police power of the city for the purpose of regulation, but are mere taxes imposed solely for the purpose of revenue: Com. v. Vrooman, 164 Pa. 306; Association for the Relief of Disabled Firemen v. Wood, 39 Pa. 73 ; Hilbish v. Catherman, 64 Pa. 154; North Hudson County Ry. Co. v. Hoboken, 41 N. J. L. 71; Pitts v. Vicksburg, 72 Miss. 181 (16 So. Repr. 418).
    October 7, 1907 :
    It is ultra vires of the city appellant' to tax billposters, theaters and opera houses for the mere purpose of raising revenue: Laramie County v. Albany County, 92 U. S. 307; Pittsburg Railways Company v. Pittsburg, 211 Pa. 479; Thompson v. Lee County, 70 U. S. 327; Thomas v. Richmond, 79 U. S. 349; Dalrymple v. Wilkes-Barre, 2 Kulp, 39 ; Schroeder v. Gas & Water Company, 20 Pa. Superior Ct. 255.
    The delegation of a power to license particular occupations by name must be strictly ’ construed and confined to those names. The naming of certain occupations as subject to license precludes levying a tax upon those not named, the rule being expressio unius est exclusio alterius: Kiel v. Chicago, 176 Ill. 137 (52 N. E. Repr. 29) ; Thomas v. Railroad Co., 101 U. S. 71.
   Opinion bt

Rice, P. J.,

If such a charge as that in question here is in reality an annual tax, and is imposed for revenue only, the municipality must show some express legislative authority to impose it. The naming of certain occupations in a statue delegating power to levy and collect, for general revenue purposes, an annual license tax on them precludes levying a tax for those purposes upon those not named, the rule being expressio unius est exclusio alterius. It is not claimed by appellant’s counsel (and, if the claim were made, it could not be sustained) that either thé act of 1874, or the act of 1887, or the act of 1889 conferred upon cities of the third class the power to levy and collect a license tax on theaters or billposters exclusively for general revenue purposes. But he does claim, and the appellee’s counsel concede, that the city had authority to license and collect license taxes, so called, from theaters and opera houses under the police power expressly delegated to it, and from billposters under the police power conferred by the general welfare clause of the city’s charter. In view of these concessions and of the adequate review of the pertinent legislation contained in the opinion filed by the learned judge below, we need not discuss either of these propositions further. But the appellant’s counsel contends further that if the authority to impose a charge exists, it matters not what the nominal or expressed purpose of its exercise may be termed by the municipal authorities, the ordinance and charge will be enforced and sustained. In support of this proposition he cites Chester v. Philadelphia,. Reading & Pottsville Telegraph Co., 148 Pa. 120; Johnson v. Philadelphia, 60 Pa. 445; Oil City v. Oil City Trust Co., 151 Pa. 454; Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479; Braddock Boro. v. Allegheny County Telephone Co., 25 Pa. Superior Ct. 544. The learned judge below has reviewed these cases in the opinion filed by him and has shown very satisfactorily that they do not go as far as is claimed. Johnson v. Philadelphia goes as far as any in tlnit direction, and there the doctrine is stated as follows: “ Certainly, if a municipal regulation is adopted, which would be lawful if intended for one purpose, and unlawful if for another, the presumption is that the purpose was lawful, unless .the contrary clearly appear. ” To the same effect are Limsdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156; Kittanuing Boro. v. Kittanning Consolidated Natural Gas Co., 26 Pa. Superior Ct. 355. Applying that rule, the omission to state in the ordinance the purpose for which the license fee or tax was imposed or the police regulation or supervision in aid of which it was intended might not be a fatal objection. But it would be an unwarranted extension of the rule to hold that it is a matter of indifference what the expressed purpose of the ordinance is. If, with respect to a particular business or occupation, the city has merely the police power, an ordinance adopted ostensibly as a police measure, but used as a mere subterfuge for the purpose of raising revenue, and that onty, will not be upheld if such abuse of the city’s power be shown: Kittanning Borough v. Kittanning Consolidated Natural Gas Company, 26 Pa. Superior Ct. 355. How, then, can it be presumed that the imposition of a license tax was intended as a police regulation, or in aid of police supervision, when the ordinance was not adopted ostensibly as a police measure, but it appears on the face thereof that it was adopted exclusively for revenue purposes? There is in such a case no room for presumption. Looking at this ordinance we find that its title is, “ An ordinance to provide for the levy and collection, for general revenue purposes, of annual license taxes in the city of Titus-ville. ” There is nothing in the body of the ordinance to indicate that it was adopted for any other purpose or in the exercise of any other power than the power of taxation, or to raise a presumption that the amount of the fee or tax was fixed with any regard to those matters that it was the duty of the corporate authorities to consider in the imposition of such a charge in the exercise of the police power. By the acts creating and governing cities of the third class it is provided that “ no bill shall be passed containing more than one subject, which shall be clearly expressed in its title. ” Therefore, the title is part of .an ordinance, and a very important part in its construction: Beechwood Ave., 194 Pa. 86. It makes plain that the purpose of the ordinance in question was revenue, and, there being nothing in the body of the ordinance which notwithstanding the title would warrant a different construction, it must be construed as revenue and not a police measure. It has been so decided, or at least assumed, in former cases in which it was involved: Brennan v. Titusville, 153 U. S. 289; Commonwealth v. Clark, 195 Pa. 634; affirming 10 Pa. Superior Ct. 507. There being no authority in law for the levy and collection of a license tax upon theaters and billposters for general revenue purposes, the defendant was not bound to appeal from the assessment, but could interpose the objection in defense to the action brought to recover the tax or fee: Reading v. Bitting, 167 Pa. 21. There are numerous other cases wherein the question of the power of the municipality to impose such a charge for revenue purposes has been raised in that way. They are plainly distinguishable from the cases cited by the appellant’s counsel in support of the proposition that if the power of taxation exists the remedy for the correction of errors in the exercise of that power is by appeal.

The judgment is affirmed.


text:
    Titusville, Appellant, v. Gahan
    (No. 2).
    October 7, 1907:
    Argued May 20, 1907.
    Appeal, No. 144, April T., 1907, by plaintiff, from judgment of C. P. Crawford Co., Sept. T., 1906, No. 1, on verdict for defendant on case stated in suit of City of Titusville v. John Gahan.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

The legal question arising in this case is precisely the same as that considered in ante, p. 613.

The judgment is affirmed.


author: Henderson, J.,

text:
    Turner, Appellant, v. Richards.

      Fence law — Township auditors — Fence viewers — Practice, C. P. — Acts of March 11, 1842, P. L. 62, and April 14, 1905, P. L. 162.
    Township auditors when acting as fence viewers have judicial functions but do not constitute a court, nor is their decision subject to appeal. No particular form is made essential to the validity of their report. Where their duty has been substantially performed, their certificate has all the force intended by the statute. The auditors are not required to measure the length of the fence, but may adopt the measurement made by the township supervisors. It is not necessary that they should deliberate and consult together as to the length of the fence since that is a matter not requiring an exercise of judgment; nor is it necessary that their report be prepared at the time of the view, nor that all sign at one time. The report of the viewers is not invalid because it was handed to the parties instead of a justice of the peace, and was not filed with the justice until twelve days after the view.
    The imposition of costs on a defendant by fence viewers does n'ot affect the validity of their report. The costs are fixed by statute, and no discretion is placed in the viewers with reference thereto in the Act of April 14, 1905, P. L. 162.
    Argued May 16, 1907.
    Appeal, No. 24, April T., 1907, by plaintiff, from judgment of C. P. Mercer Co., Oct. T., 1905, No. 97, for defendant non obstante veredicto in case of Henry Turner v. Anna R. Richards.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from judgment of justice of the peace. Before Williams, P. J.
    The case orignated before the justice in the report of township auditors acting as fence viewers.
    The report of the viewers was as follows :
    “ We, the undersigned, auditors of Cool Spring township, Mercer county, Pa., after having duly qualified as fence viewers, went on the grounds, pursuant to a notice in writing served on us by Henry Turner, and viewed the line or division fence between said Henry Turner and Anna R. Richards, and we find that the portion, or half, of said fence, consisting of 39-^ rods, already erected by said Henry Turner, to be a sufficient and lawful fence as a line or division fence ; and that the other portion, or half, of said fence, consisting of 39^- rods, to be insufficient as a line or division fence. Said fence is located on the north side of the farm of said Anna R. Richards, and begins at a point on the W. N. Y. & P. R. R., and runs to a point or corner where the land of said Henry Turner and said Anna R. Richards and Mary J". Turner all join, and the direction of said fence is east and west. We further find that said fence cannot be repaired, and that it is necessary to build a new fence of 39-L- rods, specified above, and fix the probable cost of building said new fence at $21.00. And in case said Anna K. Richards shall not build said fence mentioned above within the time required by law, then we adjudge and award to said Henry Turner the sum of $21.00, above mentioned, as the probable cost of building said fence, in case he shall build the same. And we further adjudge the said Anna R. Richards to be delinquent, and award against her the lawful costs of this view.”
    Verdict for plaintiff for $21.00. The court subsequently entered judgment for defendant non obstante veredicto.

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

      Joseph W. Nelson, with him W. C. Pettit, for appellant.—
    There was a sufficient compliance by township auditors, acting in the capacity of fence viewers, with the Act of April 14, 1905, P. L. 162: Shriver v. Stephens, 20 Pa. 138 ; Barber v. Mensch, 157 Pa. 390; Evans v. Jayne, 23 Pa. 34; Rohrer v. Rohrer, 18 Pa. 367.
    October 7, 1907:
    Where action is required to be taken within a certain time, the mere failure of a public officer or a public body to act within the set time is not fatal, and the requirement as to time may be held directory: Walker v. Edmonds, 197 Pa. 645.

      S. IL Miller, for appellee.
   Opinion by

Henderson, J.,

The plaintiff’s action had its origin in the omission of the defendant to build her part of the fence on the. division line of the lands of the parties. The plaintiff notified the township auditors of the defendant’s neglect and these auditors in their capacity as fence viewers examined the division fence and made out a report to T. W. McClain, Esq., a justice of the peace of the county. This report shows that the plaintiff had erected half of the division fence; that the other half was insufficient; that it could not be repaired; that it was necessary to build a new fence and that the length of the portion to be built was thirty-nine and one thirty-third rods. The probable cost of building the fence was fixed at §21.00. The report further adjudged that the defendant was delinquent and that she pay the costs of the view. The defendant having failed to build her part of the fence after notice from the justice with whom the report was filed the plaintiff built the fence and brought his action to recover the cost thereof. The report of the viewers was in strict conformity to the provisions of the Act of April 14, 1905, P. L. 162, and exhibits a prima facie liability of the defendant for the cost of the fence. The report was filed with the justice June 13, 1905. It appeared at the trial that the view was had on the first day of that month and that the auditors gave to the adjoining owners a certificate prepared in accordance with the provisions of the Act of March 11; 1842, P. L. 62, the auditors not being aware at that time that the act of April 14,1905, had been passed. Between that time and the thirteenth of the same month the plaintiff caused the report to be prepared which was filed with the justice and obtained the signatures of the auditors to it separately. It was contended by the defendant that after the auditors separated on June 1, no action could be taken by them unless they reassembled and as the report of June 18 was not signed while they were together it was invalid and not admissible in evidence' and that the plaintiff was, therefore, not entitled to recover. The learned trial judge took this view of the case and entered judgment for the defendant non obstante veredicto. Two questions are presented for our consideration : (1) was the report of the auditors filed with the justice in substantial compliance with the act of 1905; and (2) if it was defective for any reason may the plaintiff maintain his action on parol proof of the cost of the fence? The act of 1842 constituted the board of township or borough auditors a sort of pie-poudre tribunal with authority to investigate and summarily determine controversies in regard to the erection of division fences. The purpose of the enactment was to provide a means of disposing of such questions expeditiously and with slight cost to the parties interested. The auditors when acting as viewers have judicial functions but do not constitute a court, nor is their decision subject to appeal. This duty of the auditors has for a long time been looked upon with favor by the legislature and the courts, and the statute relating to their action should be interpreted as far as possible in support of their proceedings. No particular form is made essential to the validity of their report and it has, therefore, been held that where their duty has been substantially performed their certificate should have all the force intended by the statute : Shriverv. Stephens, 20 Pa. 138. The important matter is that the substance of the things required of them be done. Under the act of 1842 they were directed to view and examine the fence and' to make out a certificate in writing setting forth whether in their opinion the fence, if one has already been built, is sufficient and, if not, what proportion of the expense of building a new or repairing the .old fence should be paid by each party. They were also to set forth the sum Avhich each party ought to pay to the other in case he shall repair'or rebuild his portion of the fence and a copy of this certificate was to be delivered to each of the parties. The act of 1905 requires the viewers to examine the division fence and if they find it insufficient they are to report to a justice of the peace residing in the county whether a new fence is required or whether the old one can be repaired, and designate points and distances of such fence with the probable cost of a new fence or the repair of the old fence. The justice is required to notify the delinquent owner of the auditors’ report and if the latter fail to erect or repair, as the case may be, within forty days from the date of such notice the aggrieved party may cause the fence to be erected or repaired and the cost thereof collected from the delinquent owner as other debts are collected by law. The latter act differs from the former with respect to the action of the viewers in that they report to a justice of the peace of the county and in their report designate the points and distances of the fence. All of the essential requirements of the act were taken into consideration by the viewers as indicated by their report and as shown by the parol evidence offered at the trial. They viewed the fence, determined that the part built by the plaintiff was a sufficient fence and that the other half was not sufficient, that it could not be repaired and that the probable cost of building it would be $21.00. The fence in question extended from the W. N. Y. & P. R. R. to a corner where the lands of the plaintiff and defendant and Mary J. Turner join. One-half of this had already been built by the plaintiff. The auditors did not measure the length of the fence, but adopted the measurement which two of the supervisors of the township had taken. Their report also imposed the cost on the defendant. That the duty of the auditors must be discharged in consultation is undoubtedly true. Many cases hold that consultation and deliberation are necessary to the proper discharge of their duties by such officers, but this obligation only applies to those matters with respect to which there maj'be an exercise of judgment and a difference of opinion as to the propriety of the course of action about to be adopted. As to those matters which do not require deliberation and consultation they may act separately or authorize someone to act for them as in the case of preparing their report. It is not necessary that their report be prepared at the time of the view nor that all sign at one time. It is only essential that their deliberative conclusions be agreed upon while they are together. The only particular as to which it is alleged the auditors did not determine all the facts set forth in the' report when they were on the g'round is the designating “ points and distances of such fence.” They did, however, observe the points and distances of the fence and determine that half of it should be built by the defendant. They also saw that the fence began at a point on the railroad and extended to Mary Turner’s corner. The ascertainment of the length of the fence to be built by the defendant was not a matter requiring deliberation and consultation. It was a fact to be determined by measurement which might be made by the viewers or by any person whom they might designate for that purpose or they might adopt the distance reported by a reputable person who had made the measurement. Deliberation and consultation could not fix nor change that distance. It was a mathematical fact ascertainable by a surveyor’s chain or other method of measurement. The conditions on the ground disclosed to any observer the portion of the fence to be built by the defendant and all the subjects for consultation and deliberation were taken into account while the viewers were on the ground. This appears from the certificate which they gave to the parties at the time of the view. If they had included in that account the points and distances of the fence it would have covered all the facts to be reported by them. The signing of the report by the viewers was a ministerial act and if the report correctly set forth the result of their deliberation it is not invalid because the auditors were not all together when they attached their signatures. The essential thing was the view and a determination whether a fence was necessary and what would be its probable cost. No time is fixed by the statute within which the report must be prer sented to the justice of the peace audit was not invalid because filed twelve days after the view. Even if the act had fixed a time within which the report must be filed, a report filed at a later date would not have been invalid in the absence of negative words in the statute : Walker v. Edmonds, 197 Pa. 645. It is true the viewers did not know at the time of the view that the report must be made to a justice of the peace, but they, nevertheless -had jurisdiction of- the subject and if they found the facts required by the act of 1905,.their report was.a compliance with the requirements of that statute. Nor is the report affected by the action of the viewers in giving the certificates to the parties as provided for in the act of 1842. They were not required to give such certificates, but their misapprehension of the law does not affect their power nor render void the report which they afterward made. Even if the length of the fence was improperly inserted the report ought not to be rejected on that account. The requirement of the statute with reference thereto should be considered directory and the fact might be shown by parol. There is no pretense that the distance is in dispute and we think the plaintiff should have been permitted to prove the fact if the auditors had omitted it from their report. It is not to be expected that fence viewers in all cases will have the expertness and knowledge of the law to make a report which will stand legal criticism, but where its substance shows. the delinquency of an adjoining owner it ought to be upheld if the facts support it: Shriver v. Stephens, supra.

The imposition of the costs on the defendant by the auditors does not affect the validity of their report. The costs are fixed by statute and no discretion is placed in the auditors with reference thereto in the act of 1905. Moreover, the plaintiff oiily recovered the actual cost of the construction of the fence.

We conclude that the report of the auditors to the justice of the peace was a valid exercise of their authority. This view of the case renders it unnecessary to discuss the question whether the plaintiff could recover the cost of the fence built for the defendant irrespective of the report of the viewers. Shriver v. Stephens, supra, goes a long way in that direction if it does not expressly so decide. It was there held that a defective certificate did not deprive the plaintiff of a right to recover. . He could not introduce the certificate as evidence in his favor, but might otherwise prove the value of the labor and material used in the construction of the fence.

We are of the opinion that the verdict was not open to impeachment because of the invalidity of the auditors’ report and that the court was in error in entering judgment for the defendant non obstante veredicto.

The judgment is reversed and judgment is now entered for the plaintiff on the verdict.