author: Rice, P. J.,

text:
    F. C. Austin Manufacturing Company, Appellant, v. Ayr.

      Townships — Supervisors—Contract—Road machine.

    The purchase of a road machine by township supervisors is a deliberative as distinguished from a purely ministerial act, and is governed by the general rule applicable to such acts.
    In an action against a township to recover the price of a road machine, the plaintiff makes out a prima facie case for the jury where he shows that the two supervisors met and conferred with regard to the machine, and after inspecting it and observing the manner in which it worked, agreed between themselves to accept it, and did accept it, gave their note on behalf of the township for the price, and that thereafter the machine remained in possession of the township.
    In such a case the plaintiff is not bound, in the first instance, to go further and adduce express evidence that the supervisors discussed the matter before them for determination, or that they expressed their views one to the other regarding the many things it was their duty to consider before taking such action, or that each did, in fact, honestly, fairly, deliberately, and adequately consider the interests of the taxpayers and inhabitants of the township.
    Argued Oct. 17,1905.
    Appeal, No. 101, Oct. T., 1905, by plaintiff, from judgment of C. P. Fulton Co., Jan. T., 1899, No. 52, on verdict for defendants in case of F. C. Austin Manufacturing Company now to use of Florence Hanks v. Ayr Township.
    Before Rice, P. J., Beaver, Oready, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit to recover the price of a road machine. Before Swore, P. J.
    The facts are stated in the opinion of the Superior Court.

      The defendants presented the following points:
    1. The purchase of the road machine such as is involved in this case, by the supervisors of the township, is a deliberative as distinguished from a ministerial act, and in order to recover in this case, the plaintiff must show to the satisfaction of the jury and by a preponderance of the evidence, that the supervisors in purchasing the machine for the price of which the notes in suit were given, consulted, deliberated and agreed together with respect to the advisability of its purchase, in view of the financial condition and the wants and necessities of the township in making and repairing its roads. Answer: This point is affirmed. [1]
    2. The order given by the supervisors for the machine was not binding, and imposed no liability upon the township to take or pay for the machine, even if it did fulfill the terms of the warranty contained therein, the evidence of the plaintiff showing that the said order was given without any consultation or deliberation between the supervisors with respect to the advisability of its purchase. Answer: This point is affirmed. You understand this point to mean that because of the order, given separately and without deliberation and consultation, it was not binding upon the township at all. To justify the purchase of this machine there had to be consultation and deliberation in the interest of the taxpayers thereof. [2]
    3. If the jury believe from the evidence that the notes in the suit were signed by the supervisors because, and only because, they believed that the machine had fulfilled the warranty contained in the order, and representations made with respect to it by plaintiff’s agent, and that they were therefore under obligation and bound to take and pay for the machine, there is no liability upon the township in the premises and the plaintiff cannot recover. Answer: This point is affirmed, for the same reasons given in affirming the second point. [3]
    4. The giving of the notes in the suit by the supervisors is not of itself binding upon the township; but the burden, is upon the plaintiff to show to the satisfaction of the jury, and by a preponderance of the evidence, that the two supervisors, in their official capacity, and after consultation and deliberation on the subject, agreed together, uninfluenced by any supposed liability created by the order, that it was to the interest of the township that the machine would be purchased. Answer: This point as stated is not affirmed and we answer it as follows: The giving of the notes in the suit is not of itself binding upon the township. You may consider it, however, as a presumption of deliberation, but the burden is upon the plaintiff to show that to the satisfaction of the jury. With the exception of a word, we affirm the latter part of this point, with the use of the word uncontrolled instead of uninfluenced. [4]
    5. If the jury believe from the evidence that during the interview, which ended with giving of the notes in suit, and before the notes were given, the agent, Crosby, told the supervisors that the township was bound, by reason of the order previously given, to pay for the machine, and that this statement influenced the supervisors, or “either of them', to a material degree in signing the notes, the plaintiff cannot recover.” Answer: This point as stated we refuse, and answer as follows : If the jury believe from the evidence that before the notes were given, the agent, Crosby, told the supervisors that the township was bound to pay for the machine, and this statement controlled the supervisors, the plaintiff cannot recover. Here again we use the word controlled instead of influenced. [5]
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were (1 — 5) above instructions, quoting them.

      W. Bush Gillan, with him M. B. Shaffner and W. Scott Alexander, for appellants,
    cited: Climax Road Machine Co. v. Allegheny Twp., 10 Pa. Superior Ct. 437; Austin Mfg. Co. v. Ayr Twp., 24 Pa. Superior Ct. 91.

      O. C. Bowers, with him J. Nelson Sipes and John P. Sipes, for appellee,
    cited: American Road Machine Co. v. Washington Twp., 9 Pa. Superior Ct. 105 ; Cooper v. Lampeter Twp., 8 Watts, 125; Case of Turnpike Road, 5 Binney, 481; Union Twp. v. Gibboney, 94 Pa. 534; School District v. Fuess, 98 Pa. 600; Nason v. Poor Directors, 126 Pa. 445; Butler v. School District, 149 Pa. 351; Penna. R. R. Co. v. Montgomery Co. Pass. Ry. Co., 167 Pa. 62.

      June 30, 1906 :
   Opinion by

Rice, P. J.,

It is well settled that the purchase of a road machine by township supervisors is a deliberative, as distinguished from a purely ministerial, act, and is governed by the general rule applying to such acts : American Road Machine Co. v. Washington Twp., 9 Pa. Superior Ct. 105; Climax Road Machine Co. v. Allegheny Twp., 10 Pa. Superior Ct. 437 ; Westera. Wheeled Scraper Co. v. Butler Twp., 24 Pa. Superior Ct. 477; Austin Mfg. Co. v. Ayr Twp., 17 Pa. Superior Ct. 419; 24 Pa. Superior Ct. 91. The rule is commonly stated in these words: “ One supervisor cannot bind the township for performance of a contract, the propriety of entering into which is the subject of deliberation and the exercise of judgment; but he may in matters purely ministerial. When the' business requires deliberation, consultation and judgment, all should be convened, because the advice and opinions of all may be useful, and though they do not unite in opinion, a majority may act when there are more than two : ” Union Township v. Gibboney, 94 Pa. 534 ; Cooper v. Lampeter Twp., 8 Watts, 125 ; Somerset Twp. v. Parson, 105 Pa. 360. See also Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; Logan v. Rochester Twp., 21 Pa. Superior Ct. 113. Hence it has been held that a written order in the form of a conditional contract for the purchase of a road machine, to which the supervisors, without previous joint consideration or meeting for consultation upon the subject, have been induced by the vendor or his agent to attach their signatures separately, imposes no obligation upon the township to take and pay for it. But, as supervisors have power to make such a contract they have power to ratify it, notwithstanding the irregularity of their action at the outset. See 1 Dill. Municipal Corporations, § 463; McKnight v. Pittsburg, 91 Pa. 273; Philadelphia to use of O’Rourke v. Hays, 93 Pa. 72; Silsby Mfg. Co. v. Allentown, 153 Pa. 319; Sandy Lake Boro. v. Sandy Lake, etc., Gas Co., 16 Pa. Superior Ct. 234. If while the order or contract, given in this irregular manner, is still executory and is in legal effect but an offer to treat upon the subject, the two supervisors meet and confer with regard to the matter, and after inspecting the machine and observing the manner in which it does the work for which it is designed, agree between themselves to accept it, and do accept it, give their note on behalf of the township for the price, and from that time the machine remains in the possession of the township, without offer, so far as the evidence shows, upon the part of its officers to return it to the vendor, — in an action to recover the agreed price where such a state of facts appears, what is the prima facie presumption ? Is it that the supervisors, in disregard of their official duty, accepted and retained the machine and promised to pay for it without that deliberation and the exercise of that judgment and discretion which, when convened to decide the matter, the law required of them ? Must the plaintiff establish the fact that they performed their whole duty in that regard to the inhabitants and taxpayers of the township by proof of what they said, one to the other, when thus convened? - Is their action invalid because some of the matters, which it was their official duty to consider before consummating the purchase, were not discussed at their conference ? Can tire action be defeated by proof of the belief or motives, undisclosed to the other contracting party, which erroneously but honestly one or both of-tlie supervisors permitted to influence or control their action ? In view of certain expressions in the charge to the jury and its tenor as a whole, these az’e pertinent questions. If they must be answered in the negative, the ’ case was submitted to the jury upon an eri’oneous theory as to the burden of proof, and must be sent back for retrial. They az'e to be considered in the light of the fact that this is an action upon a fully executed contract of sale which the supervisors had undoubted power to make ; and it is to be borne in mind that the legitimate scope of inquiry is much narrower than it would be upon the official audit of their accounts, wherein the township seeks to surcharge them for an improvident and ill-considered exercise of their power. In the leading ease upon the subject of the duties and powez’s of supervisoz’s with reference to acts of a deliberative nature these distinctions were expressly recognized. Justice Rogers, who delivered the opiziion of the court, said: “ An improvident exercise of power, although it may affect the agezits personally, yet furnishes zzo reason for an avoidazice of the contract.” And in concluding the opinion he said: “ Whether the township would be bound,. if the contract had beezi made by the supervisors, is a point not altogether so clear. The act vests a discretion in the aupervisors, and if on consultation they have determined that this was an expense which it was proper the township should bear, it may be doubtful whether their incorrect judgment should not be made to bear upon their principals, rather than on the contractors, who were not bound to examine the correctness of their decision. It may admit of question whether the remedy would not be the ordinary one, the loss of the confidence of their constituents, for an unwise and unskillful exercise of a public trust Cooper v. Lampeter Twp., 8 Watts, 125. Keeping these distinctions in mind and confining attention to the precise questions above stated, we think that all of them must be answered in the negative. When it is said that this is of a class of acts requiring consultation, deliberation and judgment, it is not implied that there must be-debate or discussion in which every relevant consideration is brought into view; much less, that a party who has parted with his property, or done work of which the township has the benefit, upon the contract of the two supervisors acting together, must fail in his action for the price unless he can show that there was such discussion, debate or interchange of views. What is implied is that the two supervisors shall meet in consultation upon the subject, so that there shall be afforded to each the opportunity of expressing to the other and obtaining from the other his advice and judgment upon the question, as well as the facts within his knowledge pertinent thereto. But when in such action as we are considering the plaintiff has shown that there was such meeting for consultation upon the subject, and such examination of the machine and its working as we have described, and that following this they accepted and retained the machine in their possession, and, still acting together, gave their obligation on behalf of the township for the price, we think he has shown all the facts necessary to be proved expressly and affirmatively .in the establishment of a valid contract. There arises from these facts a prima facie presumption that the concurrence of the supervisors as to the act was the result of that deliberation which their duty to the inhabitants and taxpayers of the township required of them before accepting the machine and pledging the credit of the township for the price. Applying the doctrine of analogous cases, — Childs v. Brown Township, 40 Pa. 332 ; Cook v. Deerfield Twp., 64 Pa. 445; Oakland Twp. v. Martin, 104 Pa. 303; Climax Road Machine Co. v. Allegheny Township, 10 Pa. Superior Ct. 437; Harshman v. Dunbar Township, 11 Pa. Superior Ct. 638, — the vendor would have a right to assume from the facts above stated that the supervisors had done their duty in this regard, if the preliminary contract or order had not been given, and we are not convinced that this alone was sufficient to repel the presumption arising from the other facts, that the purchase of the machine was the act of the supervisors, as aboard, after consultation and deliberation. As shown by the opinion filed by our Brother Hendeeson, this was the view taken by the court when- the case was before us the second time (24 Pa. Superior Ct. 91), and a full reconsideration of the question has not led us to a different conclusion. We do not regard this as a mere inference of fact which a jury may or may not draw from the facts stated, but as a presumption, which, though disputable, holds good until it is invalidated by proof or a stronger presumption.

Thus far we have not alluded to the testimony, which, apart from the presumption we have discussed, tended to show that the machine was accepted and the notes were given after such deliberation as the law requires. That there was such testimony sufficient to carry the question to the jury was clearly decided on the two former appeals, and is not now seriously questioned. Therefore we need not go over that ground again. The points to which the present discussion has been directed, and the conclusions reached, may be summarized as follows: First, proof satisfactory to the jury of the facts specifically mentioned in the former parts of this opinion would, of itself, establish a prima facie right to recover and shift the burden of proof; second, the plaintiff was not bound, in the first instance, to go further and adduce express evidence that the-supervisors discussed the matter before them for determination, or that they expressed their views, one to the other, regarding the many things it was their duty to consider before taking such action, or that each did, in fact, honestly, fairly, deliberately and adequately consider the interests of the taxpayers and inhabitants of the township; third, there being no allegation of fraud, collusion or corrupt motive, proof that they were influenced or controlled in their action by an erroneous belief, not disclosed to nor induced by the other contracting party, as to their legal obligation under the prior contract or order, would not defeat the action.

But the presumption arising from the facts specifically mentioned at the outset of the foregoing discussion is not conclusive. “ Those who deal with such agents ” (township supervisors) “ must take care to have the express consent of all to whom the law has intrusted' the transaction of the public business. The inhabitants of the township whose interest must be protected have a right to the counsel and judgment of all to whom such trusts are committed:” Cooper v. Lampeter Township, 8 Watts, 125. The party who induces them to forego that deliberation and the exercise of that judgment and discretion in the interest of the township which the law requires of them is not in position to say that he had a right to assume that they had done their duty in that regard. He had no right to assume that which he knew was not the fact, when he himself not only acquiesced in their omission of official duty to the public, but advised and incited it. We conclude, therefore, that the presumption would be rebutted, a,nd the right of the plaintiff to invoke it would be gone, if the preponderance of testimony establishes the facts to the satisfaction of the jury, that the only subject which the supervisors considered, or upon which they deliberated and consulted, when brought together, was the fulfillment of the warranty contained in the original order separately signed' by them; that they accepted the machine and gave the notes, without prior joint deliberation upon or consideration of, any other question, because they assumed and believed, even though honestly, that they were bound to do so if the warranty was fulfilled ; provided, these facts were known to the plaintiff’s agent at the consummation of the transaction, and this action and belief on the part of the supervisors were induced by his positive assertion at that time that they were bound by the order previously given.

The foregoing discussion, without separate discussion of each assignment of error, shows wherein we agree with and wherein we differ from the learned judge below.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Commonwealth v. Hartman, Appellant.

      Criminal law — Indictment—Conspiracy—Election laws.

    Nine persons were indicted for a conspiracy to violate the election laws. Three of these at the time of the indictment were fugitives from justice. For an irregularity at the preliminary hearing the bill was quashed as to all. the defendants except the three fugitives; as to the latter the bill stood. In the meantime one of the other defendants died. A new indictment was then found for the same offense against the five living persons as to whom the first bill had been quashed. At the trial the court made an order that all of the defendants under both bills of indictment should be tried together before the same jury. Held, that the order .was proper.

      Criminal law — Crime against the ballot — Opening ballot box.

    On the trial of an indictment for a conspiracy against election laws a ballot box, when properly identified, may be opened, and for this purpose a commissioner may be appointed to open the box in the presence of the district attorney and counsel for defendants so as to sort and arrange the contents of the box in such order that they could more rapidly and conveniently be inspected by the jury.
    On the trial of such an indictment where it appears that certain of the defendants made a violent attempt to seize a window book, and that one of the defendants asked the watcher whether he intended to put it out of sight, such book may be offered in evidence against the defendants.
    At a criminal trial á witness against the defendant may be asked if there existed any quarrel or ill feelings between himself and the defendant, and if he answers this in the negative, the defendant may contradict the witness, but he cannot testify as to the origin or subject-matter of the alleged quarrel.
    Argued March. 15, 1906.
    Appeal, No. 238, Jan T., 1906, by defendant, from judgment of Q. S. Phila. Co., Nov. T., 1905, No. 156, and Aug. T., 1905, No. 757, on verdict of guilty in case of Commonwealth v. Thomas H. Hartman, Jr., et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Or-lad y, Head and Beaver, JJ.
    Affirmed.
    Indictment for conspiracy. Before Wiltbank, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were (1) in making the order as to the trial; (2, 3) in appointing a commissioner to open the ballot box; (4, 5) in permitting the ballot box to be opened; (6) in admitting in evidence the window book; (8) in refusing to permit the defendant to show the cause of animosity of the witness-W oehlcke.

      William T. Connor, with him John JR. K. Scott and J. Joseph Murphy, for appellants,
    cited as to the order: State v. Devlin, 25 Mo. 174.
    Cited as to the rulings on evidence: Kneass’ Case, 2 Parson’s Select Equity Cases, 553; McCullough’s Election, 12 Phila. 570; Preserving Co. v. Miller, 52 Conn. 444; First Nat. Bank of DuBois v. Bank, 114 Pa. 1; Edwards v. Gimbel, 202 Pa. 30; Hottle v. Weaver, 206 Pa. 87.
    Cited as to the prejudice of the witness Woehlcke: Com. v. Payne, 205 Pa. 101; Com. v. Farrell, 187 Pa. 408.

      Chester N. Farr, Jr., assistant district attorney, with him John C. Bell, district attorney, for appellee,
    cited as to the order : Com. v. Dupes, 14 Pa. C. C. Rep. 238; Withers v. Com., 5 S. & R. 59.
    Cited as to the opening of the ballot box : In re Massey, 45 Fed. Repr. 629; State v. Shay, 101 Indiana, 36 ; Com. v. Brangan, 10 Pa. Dist. Rep. 739; In re Election of Councilmen in 20th Wd., 2 Pa. Dist. Rep. 635 ; People v. Londoner, 13 Colo. 303 (22 Pac. Repr. 764) ; Hudson v. Solomon, 19 Kansas, 177; Bertolet’s Case, 3 Pa. Dist. Rep. 643.
    June 30, 1906 :
   Opinion by

Head, J.,

During the summer of 1905, an information was made charging nine persons, to wit: Otto F. Kurz, William Reagan, Charles Judge, Benjamin Williams, E. M. Gunkle, Thomas H. Hartman, Jr., Edward McCaffrey, Charles Kane and John Falvey, with a conspiracy to violate the election laws of the state, by the receipt and computation of a large number of false and fraudulent ballots at the preceding spring election, and the making of a false and fraudulent return.of the result of said election in a certain precinct of the city of Philadelphia. Three of those so charged, viz.: Reagan, Falvey and Kane, were not arrested, it being alleged they were fugitives from justice. The remaining six were arrested, had a hearing before a magistrate and were held to bail to appear at the next term of tlie court'. To No. 757 of the August sessions of that court, a bill was presented to the grand jury formally charging the nine persons above named with the conspiracy already referred to, aud was returned a true bill as to all of them, permission of the court having been first applied for and obtained to present the bill as to the three persons who, as already stated, were fugitives. The preliminary hearing had been held by the committing magistrate, not in the regular magistrate’s court, but in the private law office of the magistrate in a part of the city outside the territorial limits of his jurisdiction. For this reason a motion to quash the bill was, after argument, sustained by the court and the bill was quashed as to all of the defendants except the three fugitives; as to them the bill stood. Meantime, Edward McCaffrey, one of the defendants, had died. A new information was then made against the five living persons as to whom the bill had been quashed, they were rcarrested, had a hearing, were again held to bail for court, and to No. 156 of November sessions, a bill was again presented to and found by the grand jury, charging these five with having conspired with the three already indicted under the former bill, to commit precisely the same offenses charged against the entire nine in the earlier bill. When the time for trial came the record thus showed that eight persons stood indicted before the court, charged with having participated in one and the same act of conspiracy to accomplish one and the same object, or, in other words, with the commission of a single crime; but, by reason of the technical error of the magistrate and the action of some of the defendants consequent thereon, under two bills of indictment instead of one as the commonwealth intended they should be. On motion of the district attorney, and against the objection of the appellant, the learned trial court made an order that all of the defendants under both bills of indictment should be tried together before the same jury, and that order is the error alleged in the first assignment.

As it seems to be agreed we have neither statute nor precedent to give us the aid of authority in disposing of the question now before us, we must turn to the general principles on which our system of criminal law rests, and to the decisions of our courts in cases more or less analogous to the present one, and from a study of these determine whether or not the action of the court below was in harmony with these principles and in ■line with these decisions. A natural and orderly course of procedure would seem to require that all who are charged to have joined in the commission of a single offense should be tried together. This should be true even where the offense is of such a character that it-could be committed by a single person ; and a fortiori should it be true where the crime charged can be consummated only by the concerted action of several. Where it is alleged that a number of persons, for the purpose of striking a more effective blow against the state, have voluntarily bound themselves together in such an intimate union that the hand and voice of each become the hand and voice of all, there should be no just ground of complaint that the union, so claimed to have been created by themselves, is recognized and insisted upon by the state when the time to answer for their acts arrives. This conclusion would not be denied had there been but a single indictment. Is there anything in the naked fact that, in this case, it, required two bills of indictment to bring all of the defendants regularly before the trial court, which necessarily deprived the commonwealth of the right it would have otherwise had to have tried all of the alleged conspirators together? The power to weld together, at a proper time and under proper circumstances, two proceedings begun separately is, in essence and substance, precisely the same power which separates, under like conditions, a single proceeding into two or more. Such power must be lodged somewhere, and reason and authority unite in designating the trial court as the proper repositoxy of this power and in declaring that it should be exercised or withheld as a sound judicial discretion would determine on the facts of each paxticular case.

Where two or more defendants have been jointly indicted in one bill, the right to sever them in their defense and permit separate trials, upon proper showing, has been often and fi'eely exercised by trial courts, and is beyond question. But the offense of conspiracy is so pecxiliar in character and so strongly does the law incline to the natux'al conclusion that co-conspirators should be tx-ied together, that an application for a severance in such a case, was refused by an eminent judge, even when based on reasons that would have ordinarily' prevailed: Commonwealth v. Manson, 2 Ashmead, 31. We are not to be understood, however, as holding that in no case of conspiracy may a. severance properly be allowed. So the correlative power to consolidate two indictments for conspiracy and try them as one before a single'jury was held to have been properly exercised by the trial court in Withers v. Com., 5 S. & R. 69. • In that case the bills charged separate and distinct offenses, but the defendant was the same. Here the defendants are different, but the crime charged in both bills is but one and the same. In that case Gibson, J., says : “ In the present case the prisoner was allowed his challenges on each indictment and has, therefore, no ground for complaint. But, had it been otherwise, we could view these two charges only as if they had been included in the same indictment.” So we find the general rule thus laid down in 4 Ency. Pl. & Pr. page 733 : “ Conspirators are generally tried jointly, yet such -is not the invariable practice.” We conclude, therefore, that the only real question raised by the first assignment of error is whether or not there was any abuse of power by the learned trial court. Inasmuch as it has not been made to appear that any right, secured to the appellant by our constitution or laws, has been impaired or taken away by the consolidation of' the two bills, we can find no tangible ground upon which to convict the court below of error, and the first assignment must be overruled.

Numerous objections were made to the rulings of the court directing the ballot box to be opened and permitting its contents to go to the jury as evidence. It is contended that the identity of the box was not sufficiently proven and that the commonwealth should have been required to show affirmatively that it had not been tampered with in the time intervening between the election and the trial. The testimony showed that shortly after midnight on the night of the election the box from the 12th division of the 14th ward was regularly delivered in the usual way at city hall and, along with others, was placed in a vault devoted to that purpose. The vault was protected by two doors, each having its own key.

One of these keys was placed in the custody of the mayor or one of his deputies, the other of the prothonotary. When the court ordered the production of the box the vault was opened and the box found in its proper place, with a tag indicating that it was the ballot box of the particular division and ward under investigation. True, the evidence failed to show who wrote the inscription on the tag and there was no attempt made to prove the negative which, it is now argued, should have been established before opening the box, or that it had not been tampered with by anyone after being placed in the vault. This would have been obviously impracticable. Besides, when the box was actually opened and the defendants, who were election officers, were confronted with the records therein contained, signed by themselves and corresponding in all respects with the duplicates from the prothonotary’s office, previously offered in evidence, no possible doubt could remain as to the identity of the box, or that its contents were other than as they had been left by the conspirators on the completion of their work.

It is also alleged that the court erred in directing that the box be first opened by a commissioner appointed for that purpose. In what way the appellant was or could have been prejudiced by this order is not made to appear. It did not result in the submission to the jury of any secondary evidence as to the contents of the box, but only in the sorting and arranging of those contents in such order that they could be more rapidly and conveniently inspected by the jury during the trial. This was done in the presence of the district attorney and counsel for defendants. To thus facilitate the labors of the jury in ascertaining the contents of the box when it was offered in evidence and opened in their presence, violated no rule of law or evidence. It infringed upon no right secured to the defendants. It left them precisely where they would have been had the jurors been compelled to expend the time and labor necessary to do for themselves the preliminary work done by the commissioner. None of the assignments of error on this subject can be sustained.

During the trial the court permitted the commonwealth, against the objection of the defendants, to offer in evidence the “window book” kept by the witness Monaghan. He was the properly accredited “ watcher ” of one of the political parties, duly appointed under the provisions of the act of June 18,1893. He was supplied with a book, commonly known as a “ window book,” containing the name and residence of each elector entitled to vote in that precinct. By the aid of this book, properly kept during the day, the witness would be able to testify, not only to the entire number of ballots actually cast, but to the names of the persons who had cast them, if that became a material inquiry, as it certainly was in the present case. It is earnestly argued, however, that even in such an inquiry the “ window book,”' which was but a written memorandum, kept by the witness himself, of what transpired, could not properly be offered as an independent piece of testimony, although it is conceded the witness might use it to refresh his recollection as to names, dates, etc. Were there nothing else in the situation to warrant the admission in evidence of the book itself, the force of this argument would be apparent. But there was evidence that another watcher, the witness Woehlcke, had been forcibly ejected from the polling place about forty minutes before the election closed. Just before this occurrence one of the defendants, Falvey, made a determined effort to secure the book kept by that watcher. “ Then he (Falvey) made a grab for the book and tore a pai't of it, but Woehlcke retained the bigger portion of it.” (App. page 214.) Monaghan retained his book until the work of the board was about finished, showing not only 372 ballots in the box as against 172 actually cast according to his book, but also the preparation of the voting lists, tally lists, etc., to make them correspond, when the following occurred (App. page 217) : “ Q. Did anybody say anything to you about that window book during the day ? A. Yes, sir; about the time they were making out the outside statement of the returns, Mr. Hartman came to me and asked me what I intended to do with my window book ; whether I intended to put it out of sight. I said, ‘ I will let you know when we get everything straightened out.’ ”

The appellant, Hartman, who made that inquiry, was himself a watcher at that election, and kept or aided in keeping his own window book. He must thus have known what the book about which he inquired would, if honestly kept, reveal, and if then actually contemplating or engaged in committing the crime, of which he was afterwards convicted, his anxiety to suppress the book would be easily understood. The jury could not gather the full force and significance of the question unless they had before their eyes the very book and its contents which were in the mind of the appellant when he asked it. The book was so much a part of the statement made by the appellant that it could not be withheld from the jury without weakening the force of the statement itself, ■which was clearly competent evidence. For this reason we think the offer of the book was properly admitted.

When the witness Woehlcke was on the stand he was asked if there existed any quarrel or ill feeling between himself and the defendant Hartman. He replied in the negative. Certainly it was competent for the defendant to show any bias on the part of the witness against any of the defendants, and Hartman was permitted properly to contradict the witness and assert that there was a quarrel between them. In the fact that a quarrel existed, if such were the fact, the jury were interested, as that might warrant the inference that the testimony of one or both of the parties to it was colored by feeling. But they had no interest whatever in the origin or subject-matter of the alleged dispute. To have permitted the appellant to testify on these subjects would have opened up an entirely new and collateral issue, tending rather to confuse and obscure the material question than to aid in answering it, and the learned court was, therefore, right in rejecting such testimony.

A careful examination of the whole record and of the able argument of the learned counsel representing the appellant has failed to convince us that the latter was deprived of any substantial right during the trial, or that there was any error in the several orders and rulings complained of.

The appeal is dismissed at the costs of the appellant, the judgment is affirmed and the record is remitted to the court below with direction to have the sentence put into execution.


text:
    Commonwealth v. Williams, Appellant.

      Criminal law — Election law — Crime against the ballot — Conspiracy.
    A clerk of elections may be convicted with the other election officers of conspiracy to violate the election laws, where it appears that he was present during the whole election day, saw without protest numerous illegal acts committed by the election officers, took part in the count and signed the election return.
    Argued March 15, 1906.
    Appeal, No 239, by defendant, from judgment of Q. S. Phila. Co., Nov. T., 1905, No. 156, and Aug. T., 1905, No. 757, on verdict of guilty in case of Commonwealth v. Benjamin Williams et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for conspiracy. Before Wiltbank, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty upon which judgment of sentence was passed.

      Error assigned was in refusing binding instructions for defendant.

      William T. Connor, with him John R. If. Seott and J. Joseph Murphy, for appellants.

      Chester AT. Farr, Jr., assistant district attorney, with him John C. Bell, district attorney, for appellee.
    June 30, 1906:
   Opinion by

Head, J.,

Seven of the eight assignments of error in this appeal are identical with those disposed of in the case of Commonwealth v. Thomas H. Hartman, Jr., ante, p. 364, and for the reasons therein set forth, which need not be repeated here, all of these assignments must be overruled. The remaining assignment in this ease is based on the refusal of the learned trial court to direct a verdict of not guilty as to this appellant. The request for such direction must have been based on the assumption there was no evidence before the jury on which a verdict of guilty could rest. What, then, was the situation when the court was asked to direct a verdict in favor of the appellant? Williams was one of the election officers, being one of the clerks, and was present during the entire day from before the polls were opened in the morning until the votes were counted and the returns signed late in the evening. There was testimony tending to prove that as soon as the polls were opened and before any ballot had been put in the box thereafter, a demand was made by one of the watchers that the box be opened so that it could be known it was empty, which demand was refused. That the watcher then attémpted to seize and shake it for the same purpose, but was prevented by the others present who surrounded the box. That Williams was then present. That during'the day he kept one of the voting lists. That in the evening before the polls closed an attempt was made to “ grab ” the window book of the same watcher, which was torn in the scuffle, after which the watcher was ejected from the polling place. That only 172 votes had been actually cast during the day, but that when the box was opened 872 ballots were found therein, read off and counted, the appellant assisting in the count. That several attempts to remove from the room during the count the various return papers, were made by members of the board, but. were detected by the watcher present, who openly called attention to them and prevented them until after the number of ballots' in the box was ascertained. That the papers were finally removed and kept out of the room for a long time, when they were brought back and about midnight signed by all of the election officers, including the appellant. These returns, in duplicate, certified that 372 votes had been cast and they were counted for the various candidates. All these things transpiring in the polling place were seen and heard by the witnesses who testified to them. Could they have escaped the observation of the appellant? The witness Monaghan, on pages 216, 217 of the appendix, after describing the efforts to remove the election papers from the room, testifies as follows: “Finally Charlie (Charles Judge, one of the defendants) knocked the books on the floor back of the counter. Next he opened his vest, got down, and made an attempt to put the books inside his vest. I called to him again and told him to leave those books alone. I told him I could not count those ballots and watch the books. I said, I will tell you what I’ll do. You leave those books alone until we count how many ballots come out of the box. Then I will tell you what you can do with them. That was decided on. The books were left there. We counted the ballots out of the box, and when 372 ballots came out of the box I said: ‘Now you can take the books and pad them as you padded the box.’ Charlie Judge picked the books up and took them in the back room.”

“ Q. What was the defendant Williams doing during this time? A. Mr. Williams was helping count” the returns. Q. Who kept the voters’ list during that day ? A. The two clerks.”

Hartman, a co-defendant with the appellant, testified that the counting of the ballots, in which the appellant was engaged, occupied them “ up until twelve o’clock in the evening.” That then the return sheets were executed in triplicate, all signing there together. With this evidence before them, could a jury fairly infer that the occurrences of the day were of a character to put an honest member of the election board on guard as to the return he would sign? Would they have warrant for finding that, if the appellant had honestly kept his voting list during the day showing 172 votes cast and then counted 372 ballots out of the box, he could not have refrained from protesting against the crime thus openly committed ? Can it be said that if he signed the returns as late as midnight those returns did not then fully exhibit the evidence of the wrong that had been perpetrated ? There is no tribunal that can answer such questions but a jury. That tribunal having declared, after a submission to them of all the evidence in a manner of which no complaint has been made, that the appellant must have had at least a guilty knowledge of the daring crime which deliberately overthrew the legally expressed will of the electors, Ave find ourselves Avholly unable to say, as matter of law, that there is no evidence on Avhich their verdict can rest. The seventh assignment of error is therefore overruled and the appeal is dismissed at the cost of the appellant, the judgment is affirmed and the record remitted to the court below with direction to have the sentence put ■ into execution.


text:
    Herr v. Altoona, Appellant.

      Road law — Sewers—Change of grade — Damages—Remedy.
    Where a municipality through its councils has adopted a plan for grading a street and constructing a sewer, and has made the improvements in accordance with the plan, and without negligence, a property owner whose property has been injured by the work cannot maintain an action of trespass against the municipality for the injuries sustained; where, however, after the completion of the improvement the municipality permits a vent in the sewer to become and remain closed, in consequence of which there is a backage of water into the owner’s cellar, he may maintain an action of trespass for such injuries; but in such action he cannot recover for the injuries resulting from the original construction without negligence. For such injuries he must pursue the statutory remedy.
    Argued March 13, 1905. Reargued, April 18, 1906.
    Appeal, No. 49, Oct. T., 1904, by defendant, from judgment of C. P. Blair Co., Oct. T., 1900, No. 19, on verdict for plaintiff in case of William H. Herr v. City of Altoona.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for injuries to real estate. Before Bell, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [Were it not for one alleged fact in this case we would not submit this question of negligence on the part of the city to you at all; but it is alleged on the part of the plaintiff that this filling up of the channel was in direct opposition to the judgment and professional opinion of Mr. Linton, the engineer of the defendant city. You will recollect Mr. Linton’s testimony on that point. There is some controversy between counsel just as to what he did say. You heard it, and you are the final arbitrators as to just what he did say. It is claimed on the part of the defendant that when he said the channel was filled up in opposition to his judgment, that he was referring to the channel on Sixth avenue alone, that he was not referring to the old channel on Twenty-fourth street from Sixth avenue to Ninth avenue. It is alleged, however, on the part of the plaintiff that he was referring to all of that old channel northwest of Fifth avenue, or north of the Logan Valley Railway ; and, if the contention of the plaintiff is right in this matter, and if Mr. Linton did say that he was opposed to filling up this old channel northwest of Fifth avenue, that would include, necessarily, the channel up on Twenty-fourth street and you would then consider whether the city, in view of all the circumstances, were guilty of negligence if they allowed this channel to be closed up, in disregard of the judgment and advice of their own engineer. Now, .you will consider all this evidence on the question of negligence on the part of the city. If there was no negligence on the part of the city in closing up this old channel, that is an end of plaintiff’s right to recover that element of damage, and, in fact, would be an end to his right to recover any damage, because his whole claim is founded on negligence in closing this channel.] [1]
    [On this question of damage by reason of surface water, we feel free to say to you that that question of damage would be but inconsiderable, because Mr. Herr testified substantially that his main ground of damage was not from surface water, but from sewage backing into his cellar. But if he was damaged by surface water, then you should allow him the amount of damage which the weight of the evidence shows he has sustained by reason of surface water getting into his cellar.] [2]
    Verdict and judgment for plaintiff for 1865.75. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them, and the portion of the charge quoted in the opinion of the Superior Court.

      Thomas H. Q-reevy, for appellant.
    — In the absence of negligence on the part of municipalities, there can be no recovery for damages resulting from the insufficient capacity of a sewer causing overflow: Fair v. Phila., 88 Pa. 309, and Collins v. Phila., 93 Pa. 272, followed ; Fairlawn Coal Co. v. Scranton, 148 Pa. 231; Bealafeld v. Verona Borough, 188 Pa. 627 ; Sullivan v. Pittsburg, 5 Pa. Superior Ct. 357 ; Pressman v. Dickson City Borough, 13 Pa. Superior Ct. 236; Michener v. Philadelphia, 118 Pa. 535; Gift v. Reading, 3 Pa. Superior Ct. 359; Flagg v. Worcester, 79 Mass. 601; Stewart v. Clinton, 79 Mo. 603.

      A. V. Dively, of Dively & Dively, for appellee.
    — In regulating the flow of surface water on the streets, municipalities have no right to cast it upon adjacent property: Borough of West Bellevue v. Huddleston, 23 W. N. C. 240; Elliott v. Oil City, 129 Pa. 570; Weir v. Plymouth Borough, 148 Pa. 566.
    June 30, 1906 :
   Opinion by

Rice, P. J.,

Dry Gap Run, a natural water course, ran along Twenty-fourth street from Ninth avenue to Sixth avenue, and then turned to the south. Owing to its having become contaminated by sewage, and perhaps for other reasons, the city constructed a sewer in the street, and turned the stream into it, but did not at once close up the old channel. It is alleged that a vent was placed in the sewer, so that in times of flood, when the sewer should be insufficient to carry the whole volume, the surplus could escape into the old channel and be carried off in that way. Afterwards, in the latter part of 1894, or early part of 1895, the city filled the old channel, which was at one side of Twenty-fourth street, and as a substitute curbed the street on both sides, and lowered the grade in the center, or, as one of the witnesses describes it, “concaving it, making the center of the street the channel instead of the side.” The description of what was done, testified to by the street commissioner, will aid to a correct understanding of the legal questions for decision. He says: “ By resolution of council we graded Twenty-fourth street and made it in shape, kind.of a dip to carry the water down in case of an overflow, made it deeper in the center than at the sides, so in case of an overflow the water would run down Twenty-fourth street.” The evidence as to the effect of these changes upon abutting and neighboring properties is conflicting, but there is evidence from which a jury could find that they were affected injuriously thereby. In this action, brought in 1900,. the plaintiff, who was the owner of several houses and - lots in the vicinity, claimed on the trial that they were injuriously affected, in that, since the city filled the bed of the stream, changed its course, and built the sewer, at each heavy rain, “ the said subway or sewer not having sufficient capacity to carry away the water which was wont to flow formerly in the channel of said Dry Gap Run,” the water now (1) flows over the surface of the land, and enters his cellar windows, and (2) backs up from the sewer through his drain pipes and accumulates in his cellars. He also alleged another cause of damage which we shall consider later and separately.

It is to be observed that this was an action of trespass. The question is not whether the plaintiff could recover for the alleged injuries in the method provided by the statutes where a municipal corporation injures private property in the changing of grade of streets, and changing water courses. By suing in trespass the plaintiff elected to treat the defendant’s action as tortious and must prove that it was so, or fail in his suit: Cooper v. City of Scranton, 21 Pa. Superior Ct. 17 ; Robinson v. Boro. of Norwood, 27 Pa. Superior Ct. 481. In the first case our Brother Porter stated the rule and the reasons for it as follows : “ The ascertainment of the damages and benefits arising from the execution of a public work by a municipality, is a matter in which the public has, and many private individuals may have, an interest. It is important that those who are to receive compensation for injuiies, and those who are to pay for benefits accruing to the property, should all be heard before the same board of viewers, in order that all conflicting rights may be considered. The measure of damages in such a case is different from that which applies in an action of trespass. The benefits to the property as a whole must be taken into consideration, in connection with any injury that may result to land or buildings. If each individual owner of land upon a newly graded street were permitted to settle his rights in an action of trespass, the result would lead to confusion and be prejudicial to the rights of the public. When the injury to property is such only as is the direct, immediate and necessary or unavoidable consequence of the act of eminent domain itself, irrespective of care or negligenee in the manner of the execution of the work, a proceeding before viewers is the appropriate remedy: Denniston v. Philadelphia Company, 161 Pa. 41; Stork v. Philadelphia, 195 Pa. 101.”

So in the second case it was held that where a borough has adopted a plan for the grading and improvement of streets in a manner authorized by law, the courts are without jurisdiction to review the exercise of the discretion of the borough authorities. Whatever damages necessarily result from the action of the borough are recoverable in a proceeding before viewers, without regard to whether the borough might have adopted some other plan by which the injury to the property would have been avoided. The borough cannot be held liable to answer in an action of trespass because the plan adopted by its officers was not the best that engineering skill might have devised. The principle upon which these two cases were decided has been recognized and applied in many other cases, which are therein cited. It is clear, therefore, that the learned trial judge was right in charging the jury “ that before the plaintiff can recover he must show by the weight of the evidence negligence on the part of the city.” But we are unable to concur in his conclusion that the evidence referred to in the first assignment was sufficient to warrant submitting to the jury the question whether the city was negligent in closing up the old channel. This was part of the plan which the city had power to adopt and put in operation without liability in trespass (however it might be in the statutory proceeding), except for negligence in the execution of it. There are few municipal improvements concerning which there is not room for honest difference of opinion as to the plan which would be best suited to accomplish the desired end. The law does not vest the power of conclusively deciding such questions in the city engineer. He may advise, but the duty and power of deciding are vested in councils. Moreover, there are other considerations besides the superiority of one plan over another, viewed as engineering propositions, which may properly influence councils in deciding between them. So that, even though the city did go contrary to the opinion and advice of the city engineer, that fact would not convict the city of negligence in adopting the plan. As there was no other evidence of negligence, so far as the original construction is concerned, there was no right of recovery in this action because of the insufficient capacity of the sewer, or of that in connection with the changes of the water course, and the grading, concaving and curbing the street.

To be more explicit, there was no right of recovery unless there was negligence on the part of the city in permitting of the vent in the sewer, heretofore spoken of, to become and remain closed, and in consequence the water and sewage backed into the plaintiff’s cellars through his drains. Upon this feature of the case the court charged the jury as follows : “ In this case there is no allegation that there is any negligence on the part of the city in the construction of that sewer, but the plaintiff does allege there was negligence on the part of the city in maintaining the sewer after it was constructed, and as we understand the claim of the plaintiff, the negligence consisted in allowing a relief outlet at Sixth avenue and Twenty-fourth street to be closed up. Defendant replies that that could hardly be alleged as negligence on the part of the city • by plaintiff, because when Engineer McEalls was on the witness stand plaintiff, by his objection, virtually absolved the city from negligence in maintaining the sewer. But the plaintiff claims that there was a relief valve or relief opening. We are left a little in ignorance as to just what the character of the opening was, but we suppose it was an opening arranged so that when the sewer was not filled with water it would close and remain closed and keep the odors in the sewer; then when the sewer became filled with water it would open automatically and leave the water out. The plaintiff alleges that this was a necessary part of the sewer. It was put in by the city engineer, and that they thought that was the proper way to construct a sewer, and that they put it right here on Sixth avenue and Twenty-fourth street because here was the channel running along the northwest of the Sixth ward school, which would vent the water which flowed out of this sewer at this opening in times of flood; and that a reasonable supervision of this sewer on the part of the city would have disclosed to the city the fact that somebody had closed up this channel on Sixth avenue, and had closed up this relief vent. Now, on this question, we instruct you that the city is not an insurer of the proper maintenance of that sewer. All the city is bound to do is to exercise reasonable supervision, such supervision as a person of ordinary prudence and judgment under the circumstances would exercise, to see that it was kept in order. The defendant alleges that they did not close that sewer up at all; that it was the unauthorized act of Stall Brothers in dumping dirt there in closing that Sixth avenue channel and closing up the relief valve; that the city had nothing to do with it. The plaintiff replies to this that a reasonable supervision of the sewer and the street in that locality could have disclosed to the proper city authorities if they had exercised that supervision, that the valve or relief opening was closed up and it must have been closed up for several years, and the city took no steps to open it, and that the city is negligent in this matter and that they should be paid the damages which are the direct result of this negligence. You will determine on the weight of the evidence whether the city was negligent in maintaining this sewer, in alleging the relief valve at Sixth avenue and Twenty-fourth street to be closed up.”

The foregoing summary of the evidence pro and con is sustained by the record, and under the law applicable to the facts the jury could have found, there might be a recovery of damages for the injury to the plaintiff’s premises directly traceable to the closing of the vent. Mere absence of notice does not necessarily absolve a city from the charge of negligence. Its duty to keep its sewers in repair is not performed by waiting until notified that they are out of repair, and repairing them only when the attention of the officials is called to the damage resulting from their dilapidation or obstruction; but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time. “Where the defect is observable and has existed so long as to become notorious, the city is as liable as if there had been express notice. The city is presumed to have knowledge of an open defect after a reasonable time has elapsed for its ascertainment and removal: ” Vanderslice v. Philadelphia, 103 Pa. 102; Boehm v. Bethlehem Boro, 4 Pa. Superior Ct. 385. Our conclusions upon this branch of the case are: first, the questions of the city’s negligence in this particular, and of consequent injury to the plaintiff, were questions of fact, whicli fairly arose upon the evidence and'were properly submitted to the jury; second, to the extent, and only to the extent, that the backing of water and sewage through the plaintiff’s drains in consequence of the negligence of the city in this particular, contributed to the injury complained of, the city is liable; third, but to the extent that the injury complained of was consequent upon the lawful exercise of its discretionary power, as heretofore explained, the city is not liable in this action; fourth, the difficulty of determining the proportion of injury attributable to the city’s negligence, and the proportion attributable to its exercise of the discretionary power to change the grade of streets and water courses, and to construct sewers, is not a valid reason for holding that damages for both may be recovered in this action. Upon the last point we cite Little Schuylkill Nav., etc., Co. v. Richards’s Adm., 57 Pa. 142; Gallagher v. Kemmerer, 144 Pa. 509, where the difficulty of apportioning the damage between several trespassers, not acting in concert, was considered. The remarks of the court in the first case are quite as pertinent in a case like that before us.

Manifestly the alleged injury resulting from permitting the relief vent in the sewer to be closed was not permanent in its nature; in other words, the presumption is, that the negligent condition will be remedied by the city, if that has not been done already, not that it will be permitted to continue permanently. Therefore the damages are to be assessed accordingly. The ordinary rule applicable to such case is that the cost of restoring the premises to their original condition, if that can be done, together with compensation for the loss or impairment of the use of the premises meantime, is the measure of damages. In the present case, having regard exclusively to the only ground of recovery that exists under the evidence, we cannot see that the cost of putting in traps and cementing the cellar floors would be the proper measure of damages, unless' that would be less than the proportionate part of the loss in rental value attributable to this particular injury, in which latter case such cost might be. This is as far as we need go in discussing the question of the measure of damages. In view of our conclusions upon the main questions separate discussion of each assignment of error is unnecessary.

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


author: Henderson, J.,

text:
    Commonwealth v. Henderson, Appellant.

      Criminal law — Oleomargarine—Restraining order — Act of May 29, 1901, P. L. 327.
    A petition under the act of May 29, 1901, for a restraining order to prevent a person indicted for illegally selling oleomargarine, from further sales of that article, is sufficient if it charges that the defendant had again been guilty of the particular offense set forth in the indictment, and also charges that the defendant’s action was contrary to the act of May 29, 1901.
    Argued May 11, 1906.
    Appeal, No. 64, April T., 1906, by defendant, from order of Q. S. Allegheny Co., June T., 1905, No. 211, granting restraining order under the oleomargarine act of May 29,1901, in case of Commonwealth v. G. B. Henderson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for restraining order.
    The petition was as follows :
    The petition of E. D. Miller respectfully represents:
    That he is a special agent of the department of agriculture of Pennsylvania, acting for and by the direction of the state dairy and food commissioner.
    That at his instance John Banzhoff purchased from G. B. Iienderson, of 128 Frankstown avenue, in the city of Pittsburg, state of Pennsylvania, on or about February 18, 1905, one or more pounds of an article or compound known as oleomargarine, and handed the same over to your petitioner, which was by him delivered to F. T. Aschman, chemist for the dairy and food department, and upon an analysis by him found to be oleomargarine, which said article or compound was sold contrary to the provisions of an act of assembly entitled, “ An act to prohibit the manufacture and sale of oleomargarine and butterine,” etc., approved May 29, 1901.
    That upon the information so obtained a warrant was issued by Alderman Groetzinger for the arrest of the said G. B. Henderson on or about March 15, 3905, and hearing waived, and the defendant held in bail for court; and subsequently a true bill of indictment was found against'him, to wit: on June 9, 1905, the said bill of indictment being of June sessions, 1905, No. 211. A copy of said bill of indictment is hereto attached and marked exhibit “ A.”
    That subsequent to the commencement of this prosecution, to wit: on June 17, 1905, the said G. B. Henderson, at his place of business, No. 128 Frankstown avenue, in the city of Pittsburg aforesaid, has again violated the provisions of the .act of assembly aforesaid by selling to F. J. Enfield one or more pounds of a similar article which, upon analysis, proved to be oleomargarine.
    Your petitioner therefore asks the said court to make an order- commanding and restraining the said G. B. Henderson, or his agents, from further violating any of the provisions of the act of assembly aforesaid until such time as the said prosecution shall have finally decided and determined.
    The court granted the order prayed for.

      Error assigned was the order of the court.

      John Marrón, of Marrón & McGirr, for appellant.
    — The petition was insufficient: Com. v. Andrews, 24 Pa. Superior Ct. 571; Thompson’s App., 126 Pa. 367.

      Joseph A. Langfitt, of Langfitt $ McIntosh, for appellee,
    cited: Com. v. Andrews, 24 Pa. Superior Ct. 571.
    June 30, 1906:
   Opinion by

Henderson, J.,

The petition upon which this proceeding was instituted sets forth as a part thereof an indictment containing several counts returned to the court of quarter sessions charging the defendant with having violated the provisions of the act of May 29,1901, P. L. 327, prohibiting the manufacture and sale of oleomargarine, and also a copy of the complaint on which the indictment was framed. In the complaint and indictment it was charged that the defendant unlawfully exposed and offered for sale and sold and had in his possession with intent to sell the product known as oleomargarine. It was further alleged that after the finding of said indictment the defendant had again violated the provisions of the act of assembly by selling one or more pounds of oleomargarine, The act of 1901 provides that “ whenever any prosecution for a misdemeanor on account of any violation of the provisions of this act has been returned to any court of ' quarter sessions, it shall be lawful for the dairy and food commissioner, his agents or attorneys, in case the person or persons who have been .... prosecuted for such misdemeanor, have' since the commencement of such .... prosecution again viólated any of the provisions of this act, to apply to the court having jurisdiction of such .... prosecution, or to any law judge thereof, by petition setting forth the facts and asking the said court to make an order commanding and restraining the person or persons so .... prosecuted as aforesaid, from further violating any of the provisions of this act until such time as .... the said prosecution shall have been finally decided and determined,” etc. This provides a mode of bringing to the attention of the proper tribunal the unlawful act committed by the defendant, not for the purpose of inflicting a penalty, but to enable the court to determine whether facts exist warranting the issuing of a restraining order. It is not necessary that the averments of the petition be set forth with the formality and elaboration of an indictment or a bill in equity. It is sufficient if the fact of the former indictment and the subsequent act in violation of the statute be clearly set forth in order that the court and the defendant may understand the specific character of the charge. Considering the petition as a whole it is manifest that the averment that the defendant had again violated the provisions of the act of assembly by selling oleomargarine had reference to the particular offense set forth in the first count of the indictment. In both the indictment and petition it is stated that' the defendant's action was contrary to the act of 1901. These averments are in conformity to the requirements of section 9 of the statute and are sufficient for the purpose. A perusal of the petition would inform the defendant that he was charged with having a second time sold oleomargarine in violation of the act. The object sought was a decree. The petition was the foundation for a rule on the defendant to show cause why such a decree should not be entered. The defendant had a day in court when upon a hearing the court was satisfied that he had committed the act complained of and which rendered him liable to the- order sought. It is not pretended that the evidence was insufficient to sustain the decree and we do not find any defect in the petition which deprives the court of jurisdiction.

We do not deem it necessary to enter into a discussion of the question of the constitutionality of the section of the act upon which this proceeding is founded. The same question was recently before this court in Com. v. Andrews, 24 Pa. Superior Ct. 571, and the Supreme Court in Com. v. Andrews, 211 Pa. 110, and was decided adversely to the appellant’s present contention. The proceeding for a restraining order is no more the trial of a misdemeanor than is the hearing before a committing magistrate on a complaint for a similar offense. Upon the hearing of the rule the court does not convict the defendant norimpose a sentence, but concludes if satisfied of the existence of the facts that he is likely to continue to violate the law and therefore enters a decree. This does the defendant no harm and does not restrain him from any lawful action. It requires him to refrain from the further prosecution of the business which has been declared to be unlawful and criminal.

The assignments are overruled and the decree affirmed.


author: Peb Cübiam,

text:
    Cowanshannock Poor District, Appellant, v. Armstrong County.

      Statutes — Construction—Judicial inquiry.

    Where the words of a statute are plainly expressive of an intent, not rendered dubious by the context, the question whether the same reasons that impelled the legislature to enact the law would justify a still broader provision is not the subject of judicial inquiry.

      Poor laws — Burial of pauper — County—Notice to commissioners — Act of March 6, 1903, P. L. 18.
    A poor district cannot recover from a county under the Act of March 6, 1903, P. L. 18, the expenses of burying a pauper who had no settlement in the state, if it appears that such expenses were paid before any notice was given to the county commissioners.
    Argued May 14,1906.
    Appeal, No. 67, April T., 1906, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1905, No. 28, for defendant on case stated in suit of Cowanshannock Poor District v. Armstrong County.
    Before Rice, P. J., Poe-tee, Henderson, Moeeison, Oelady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability to bury a pauper.
    Patton, P. J., filed the following opinion:
    August 16, 1905: The case stated is brought under the Act of March 6, 1903, P. L. 18, by the poor district to recover from the county the expenses sustained by the plaintiff in the burial of a certain Frank Shrefrick, a pauper, who died in said district, but had no legal place of settlement in the state of Pennsylvania.
    By an opinion this day filed in the case of Parks Township Poor District v. Armstrong County, we held that the county is not liable for any such expense incurred before notice to its commissioners. The case stated shows that the expenses were incurred on March 17, 1905, and the county had no notice until April 18,1905. This in our opinion was too late. We are of the opinion that it was the duty of the overseers to furnish aid to the pauper as soon as required, and that it should be paid for by the proper poor district up until such time as they notify the county commissioners. After the notice was given then the burden was shifted from the poor district to the county. The purpose of this act of assembly was to spur the overseers to prompt action, if they desired to hold the county liable. If a delay of one month was excusable, so would be the delay of one year, and thus the provisions of the act of assembly are frittered away. If we hold all parties to the words of the act of assembly, no injustice is done. At most, the poor district would only have to pay such expenses as were incurred from the time that they were rendered until notice was given to the county commissioners, which at most could be but for a few days, and would not be an unjust or undue burden on the poor district. For further reasons for reaching the above conclusion, we refer to the opinion this day filed in the case of the Overseers of the Poor of Parks Township v. Armstrong County, No. 27, Sept. Term, 1905.
    And now, August 16, 1905, judgment is entered in favor of Armstrong county and against the overseers of the poor of Cowanshannock township, for costs. To which order and decree plaintiff excepts and at its request bill of exceptions sealed.

      Error assigned was judgment of the court.

      Floy G. Jones, for appellant.
    — The legislature will be presumed to have intended what is reasonable and effectual, and not what is productive of absurd or anomalous consequences, or is impossible or incapable of execution: Howard Assn.’s Appeal, 70 Pa. 344; Pittsburg Brewing Co.’s License, 12 Pa. Superior Ct. 176; Baker v. Gartside, 86 Pa. 498.
    Without a previous order of relief, a physician may recover for services to a sick pauper, provided such order be subsequently sustained: Directors of House of Employment v. Murry, 32 Pa. 178; Blakeslee v. Chester County Poor Directors, 102 Pa. 274; Neale v. Plumcreek Twp. Overseers, 12 Pa. C. C. Rep. 649.
    Where a number of statutes form a system, all are to be considered, together with the general purpose of the series, in construing anyone doubtful or apparently unjust statute: Brady St., 99 Pa. 591; West Branch Lumberman’s Exchange v. Lutz, 2 Pa. Superior Ct. 91; Com. v. Vetterlein, 21 Pa. Superior Ct. 587; Howard Assn.’s App., 70 Pa. 344; Pettit v. Fretz, 33 Pa. 118.

      E. 0. Golden, for appellee,
    cited: Perry County Poor Directors v. Chillisquaque Twp. Overseers of Poor, 110 Pa. 153; Barnes v. Com., 2 Penny. 506.
    June 30, 1906:
   Peb Cübiam,

The Act of March 6, 1903, P. L. 18, was passed to relieve poor districts by imposing a liability on counties which had not existed before. The extent to which the poor districts were to be thus relieved was for the legislature to determine. Under the plain words of the act the liability arises “ from and after such notice” as is prescribed therein. We find nothing in the context or in legislation in pari materia to qualify these words; therefore there is no ground for reasonable implication of a legislative intent to create liability before such notice. Where the words of a statute are plainly expressive of an intent, not rendered dubious by the context, the question ■whether the same reasons that impelled the legislature to enact the law would justify a still broader provision is not the subject of judicial inquiry. But if this were a matter to be reasoned about by the courts, we think the learned judge below has shown quite clearly that the provision of the statute under which the liability of the county arises “from and after such notice ” is a wise one, and ought not to be impaired by judicial construction.

Judgment affirmed.


author: Morrison, J.,

text:
    R. H. Bellman, Appellant, v. Pittsburg and Allegheny Valley Railway Company.

      Practice, C. P. — Nonsuit—Evidence—Contract—Principal and agent— Corporation — Railroad.
    A peremptory nonsuit is in the nature of a judgment for defendant on demurrer to the evidence; and hence, in testing the validity of such non-suit the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them.
    It is immaterial that the evidence in support of the plaintiff’s claim may be very slight, provided that it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends, it must, according to well-settled rule, be submitted to the jury.
    In an action against a railway company to recover for services rendered in securing rights of way, plaintiff claimed that he was employed by a person who was an agent of the company. The evidence tended to show that the defendant opened an office, placed its name upon the door, and left the alleged agent to occupy it in such a manner that his agency might be inferred; that he represented himself as the agent of the company; and that the stockholders and officers of the company knew this, and knew that the plaintiff was employed by the alleged agent in the interest of the company. Held, that the question of the agency was for the jury.
    While the declarations of an alleged agent are not evidence of the existence of the agency, continuous acts performed by him in and about the business of his alleged principals, and their recognition of these acts, are evidence from which an agency may be fairly inferred by a jury.
    Argued May 14; 1906.
    Appeal, No. 162, April T., 1906, by plaintiff, from order of C. P. Armstrong Co., June T., 1905, No. 165, refusing to take off nonsuit in case of R. H. Bellman v. The Pittsburg and Allegheny Yalley Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for services. Before Patton,. P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      William II Martin, for appellant.
    — The case was for the jury: The Brig Odorilla v. Baizley, 128 Pa. 283; Louden Savings Fund Society v. Hagerstown Savings Bank, 36 Pa. 498; Lamb v. Irwin, 69 Pa. 436; Fanning v. Cobb, 20 Mo. App. 577; DeBaun v. Atchison, 14 Mo. 543 ; Rice v. Groffmann, 56 Mo. 434; Cupples v. Whelan, 61 Mo. 583; Mechem on Agency, sec. 84.

      Walter J. Guthrie, with him John Q. Cochrane, for appellee,
    cited: Allegheny County Workhouse v. Moore, 95 Pa. 408; Twelfth St. Market Co. v. Jackson, 102 Pa. 269; Cooper v. Lampeter Twp., 8 Watts, 125; Curry v. Cemetery Assn., 5 Pa. Superior Ct. 289; Stoystown, etc., Turnpike Road Co. v. Craver, 45 Pa. 386; Stouffer v. Latshaw, 2 Watts, 165; Elliott v. Wanamaker, 155 Pa. 67; Langenheim v. Anschutz-Bradberry Co., 2 Pa. Superior Ct. 285; Beal & Simons v. Express Co., 13 Pa. Superior Ct. 143; Ludwig v. Gorsuch, 154 Pa. 413; Slease v. Naysmith, 14 Pa. Superior Ct. 134.
    June 30, 1906:
   Opinion by

Morrison, J.,

The defendant is a corporation organized for the purpose of building and operating an electric railway from Pittsburg to Apollo. The plaintiff alleges that the defendant had an office in Pittsburg with the name of the corporation upon its door; that one W. W. Staub occupied this office for a long time and appeared to be in charge' of it, attending to the business of the company; that Staub represented himself to the plaintiff as agent for the defendant; that by request of Staub plaintiff performed services in attempting to procure necessary rights of way and ordinances in certain boroughs named, through which the defendant company desired to locate its road. There is evidence that Staub was a stockholder of the defendant and that he appeared to be in charge of the office of the corporation before, during and after the time when the plaintiff alleges he was employed by the corporation. There is also evidence that J. D. Orr, secretary of the defendant, and a stockholder and subsequently a director, and J. Q. Cochran, another stockholder and director, and one Colonel Jackson, testified before a justice of the peace, in the presence of the plaintiff, that W. W. Staub was their agent. It is also argued that in the affidavit of defense, sworn to and filed by J. D. Orr in this case, he said that “ the defendant company was informed that there was some negotiation between the plaintiff and W. W. Staub, an emplojme of the defendant company.”

But we are unable to find that this affidavit of defense was put in evidence and, therefore, it cannot be considered upon the pending question. There is also evidence that the plaintiff spent some time and money in endeavoring to obtain rights of way for the defendant and that he was written to in July, 1904, by J. Q. Cochran, a stockholder and vice-president of the defendant, as follows: “ R. H. Bellman. Dear Sir: I enclose you copy of the ordinance. I wrote W. W. McGeary at Cambridge Springs. He has not answered yet. I am inclined to think that he will approve the ordinance at once. Push it along as fast as you can. Very truly, John Q. Cochran.” There is also evidence that plaintiff went often to the office of the defendant company and there reported at different times to Staub, in the presence of both stockholders and officers of the defendant, in regard to the work he was engaged in.

The plaintiff sued for his services and expenses while engaged therein, alleging that they were worth §150. He alleged that Staub had authority to employ him and bind the company for his payment. It must be conceded that there is a lack of clear and concise evidence of the agency of Staub, but it is not so clear that under all of the evidence a jury would not have the right to infer his authority. The sole question here now for decision is this: Was the learned court justified in granting a compulsory nonsuit and refusing to take it off ? In Hill v. Trust Co., 108 Pa. 1, the Supreme Court, by Mr. Justice Sterrett, said: “ In our practice, a peremptory nonsuit is in the nature of a judgment for defendant on demurrer to the evidence; and hence, in testing the validity of such nonsuit, the plaintiff is entitled to the benefit of every inference of fact which might have been fairly drawn by the jury from the evidence before them: Maynes v. Atwater, 88 Pa. 496. It is immaterial that the evidence in support of the plaintiff’s claim may be very slight, provided it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends-, it must, according to well-settled rule, be submitted to the jury.” To the same effect is Lerch v. Bard, 153 Pa. 573 ; Bucklin v. Davidson, 155 Pa. 362; Bank v. Carr, 15 Pa. Superior Ct. 346.

It seems to us that from the evidence it might be inferred that some of the stockholders and some of the directors and officers of this corporation knew that the plaintiff was employed by Staub and rendering services for the defendant, and if so, the jury could infer that Staub was the agent of the corporation. From several rulings of the learned court it is to be inferred that he held the plaintiff to proof of Staub’s authority by official action of the board of directors. These rulings are not excepted to and therefore we cannot reverse on them. In our opinion, the plaintiff was not bound to prove by positive evidence that the directors officially authorized Staub to employ the plaintiff. Nor was it necessary to prove that they officially ratified his act in employing the plaintiff. If they personally knew of Staub’s act they should have assembled the board and disavowed such act, if unwilling to be bound by it: Kelsey v. National Bank of Crawford County, 69 Pa. 426. In The Brig Odorilla v. Baizley, 128 Pa. 283, it is stated in the syllabus: “ While the declarations of an alleged agent are not evidence fof the existence of the agency, continuous acts performed by him in and about the business of his alleged principals, and their recognition of these acts, are evidence from which an agency may be fairly inferred by a jury.” See the opinion of Mr. Justice Clark in that case, p. 292.

“In all cas^s where the authority .of an agent, whether general or special,; is to be implied from the conduct of the principal, or where the medium of the proof of agency is per testes, the jury are to judge of the credibility of the witnesses, and of the implications to be drawn from their testimony; it is error for the court to decide the point as a matter of law.” 1st syllabus in London Savings Fund Society v. Bank, 36 Pa. 498 ; see also Mechem on Agency, secs. 83 and 84; , Lamb v. Irwin, 69 Pa. 436.

In the case at bar the evidence certainly is not strong, but we cannot see how the court could disregard the inferences which might reasonably be drawn from the proof.

The defendant company opened an office, placed its name upon the door and left Staub to occupy it in such a manner that his agency might be inferred, and he represented himself as the agent of the company; and it may be inferred that the stockholders and officers of the company knew this and knewthat the plaintiff was employed by Staub in the interest of the defendant, and, therefore, if Staub was not in fact such agent, the company may be liable on the theory that, “ Where one of two innocent persons must suffer loss by reason of fraud or deceit of another, the loss should fall upon him by whose act or omission the wrongdoer has been enabled to commit the fraud: ” Syllabus of Vanderslice v. Insurance Co., 13 Pa. Superior Ct. 455 ; Brooke et al. v. New York, Lake Erie & Western R. R. Co., 108 Pa. 529 ; Chemical Co. v. Purchasing Co., 22 Pa. Superior Ct. 426; McNeile v. Cridland et al., 168 Pa. 16.

While this case is close to the border line, yet we think it was for the jury and, therefore, the learned court erred in granting a compulsory nonsuit and refusing to take it off. The second assignment of error is sustained and the judgment is reversed with a venire facias de novo.