author: Rice, P. J.,

text:
    Hygienic Fleeced Underwear Company, Appellant, v. Way.

      Libel — Trade libel — Probable cause — Negligence—Province of court and fury.

    While in general, the question of probable cause is one of law for the court, it is for the jury to determine whether the facts relied on to constitute it are established by the evidence, unless they be admitted or be beyond controversy.
    When proof of the plaintiff’s case or defendant’s defense depends upon oral testimony it is the province of the jury to decide, under instructions from the court as to the law applicable to the facts, subject to the salutary power , of the court to award a new trial if it should deem the verdict contrary to the weight of the evidence.
    In an action for trade libel against a patented article, where the plaintiff has presented a prima facie case upon which it has a right to go to the jury, and the defendant presents oral evidence that the publication was made in good faith upon advice of competent counsel who knew the facts, the defendant is not entitled to binding directions in his favor, inasmuch as it is the function of the jury to p^ss upon the oral evidence as to whether the advice was given, and whether under all the circumstances defendant honestly believed that he had a right to publish the libel in question.

      Libel — Trade libel — Blander of title.

    An action for the wrong called slander of title, is not like an action for ordinary defamation. It is an action on the case for special damage sustained by reason of the speaking, or publication of the slander of the plaintiff’s title. Actual malice — that is, absence of good faith — no less than special damage is of the gist of the action. If there is no evidence of special damage, the plaintiff cannot recover.
    Argued Oct. 11, 1907.
    Appeal, No. 7, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1905, No. 3,459, for defendant non obstante veredicto in case of Hygienic Fleeced Underwear Co. v. John Howard Way, trading as The Way Muffler Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for trade libel or slander of title. Before Ralston, J.

      February 28, 1908:
    The facts are stated in the opinion of the Superior Court.

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

      Joseph W. Shannon, with him Hector T. Fenton, for appellant.
    —This case is ruled by Stroud v. Smith, 194 Pa. 502.

      C. Berkeley Taylor, for appellee.
    — Cases exactly similar to this have not arisen in Pennsylvania, but in England, in the federal courts, and in other states, cases have arisen, and in every instance the court has either nonsuited or directed judgment for defendant: Dicks v. Brooks, L. R. 15 Ch. D. 22; Wren v. Weild, L. R. 4 Q. B. 730; Halsey v. Brotherhood, L. R. 19 Ch. D. 386; Kelley v. Ypsilanti Dress-stay Mfg. Co., 44 Fed. Repr. 19; N. Y. Filter Co. v. Schwarzwalder, 58 Fed. Repr. 577; Hastings v. Giles Lithographing Co., 51 Hun, 364; J. W. Lovell Co. v. Houghton, 116 N. Y. 520.
   Opinion by

Rice, P. J.,

This is an appeal by the plaintiff from a judgment for the defendant non obstante veredicto in an action in the nature of an action for slander of title. Two reasons were assigned by the learned court below for the judgment, first, that there was not, under all the evidence, sufficient proof of malice upon the part of the defendant; secondly, that there was no proof of special damage and there could be no recovery of punitive damages in the absence of such proof. We shall consider these separately.

1. For several years prior to the bringing of the action the parties thereto were severally making and selling similar garments, called by the defendant mufflers and by the plaintiff muffiets. Some of these were made of a single piece and others of two pieces. Defendant had obtained two patents, one a design patent, dated November 30, 1897, which expired on May 30, 1901, the other dated November 16, 1897, running fourteen years, containing three claims, the first and third' for a garment made of two pieces and the second for a garment formed of a single piece. In a suit to which, the defendant was a party upon the latter patent, claims one and three thereof were declared invalid, and subsequently defendant filed a disclaimer in the United States Patent Office as to these two claims. Subsequently to the expiration of the patent of November 30, 1897, and to the above referred to adjudication and disclaimer of claims one and three of the patent of November 16, 1897, the defendant inserted an advertisement in various trade journals and issued circulars to plaintiff’s customers and others, headed by a picture of a muffler, underneath which were the words “Patented Nov. 16 & 30,1897, Way’s Muffler.” Then, after setting forth how his goods would be marked, the advertisement proceeded as follows: “Notice the label carefully and do not buy any infringing goods. Amy goods not thus marked, or not marked with .my old label thus: ‘Way’s Muffler Pat. Nov. 16 and 30, 1897. . . .’ are unlicensed infringements upon my patent, and their use or sale will be enjoined by me. I am pushing the suit to enjoin all the goods which the Hygienic Fleeced Underwear Company have put out, and, since the Court of Appeals has decided the ownership of the .patent in my favor, I propose to stop their infringing goods whenever I find them. Particularly guard against goods marked ‘Mufflet’ made by the Hygienic Fleeced Underwear Co.; they are infringements.” The plain import of the words of this advertisement is that all of the mufflets manufactured and sold by the plaintiff, including the two piece as well as the one piece garment, were unlicensed infringements of the defendant’s patents. Nor is there anything in the picture to qualify the words or to indicate to the public that only the one piece garment was meant; on the contrary, the evidence adduced by the plaintiff was to the effect that it was a picture of the two piece garment. The verdict in favor of the plaintiff, considered in the light of the charge of the court, implies a finding that the charge of infringement, at least so far as it related to the two piece garment, was false, that the defendant knew it to be false, and that it was maliciously made. And if the case rested here, it could not be declared that the finding was unsupported by evidence. In reply to this prima facie case, the defendant adduced evidence tending to show that the advertisement, with the exception of the picture and the words “Patented Nov. 16 & 30, 1897” underneath it, were prepared by his counsel who were familiar with his patents and the litigation concerning them, and that they were published by the defendant under advice of counsel that all of the goods manufactured by the plaintiff, both the one piece and the two piece garments, infringed claim two of the defendant’s patent. Assuming for present purposes that this evidence, if believed by the jury, would have warranted them in finding that the defendant acted in good faith upon advice of competent counsel who knew the facts, and that if they so acted this would repel all inference of malice and constitute a complete defense, does it follow that binding direction for the defendant ought to have been given? Clearly not. Apart from the question of damages, which we shall consider later, the. plaintiff had presented a prima facie case upon which it had a right to go to the jury, and that right was not affected by the fact that the defendant’s evidence if believed by the jury would have sustained a verdict in his favor. While, in general, the question of probable cause is one of law for the court, it is for the jury to determine whether the facts relied on to constitute it are established by the evidence, unless they be admitted or be beyond controversy. In the present case, proof of the facts relied on by the defendant to constitute probable cause depended wholly upon oral testimony of communications between. defendant and his counsel. From the very nature of the evidence the plaintiff could not be expected to produce witnesses to deny that such communications were had, and no implication of an admission of the facts testified to arose from its failure to do so. Not only the question whether the defendant’s counsel gave the advice testified to, but the question whether in consequence thereof and in view of all the circumstances he honestly believed that he had a right to make the charge of infringement, was for the jury. It was a plain case for the application of the general rule that when proof of the plaintiff’s case or defendant’s defense depends upon oral testimony it is the province of the jury to decide, under instructions from the court as to the law ap~ plicable to the facts, subject to the salutary power of the court to award a new trial if it should deem the verdict contrary to the weight of the evidence: Reel v. Elder, 62 Pa. 308; Perkiomen R. R. Co. v. Kremer, 218 Pa. 641; Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619. As there could not have been a binding direction in favor of the defendant upon the question of probable cause, it follows that the judgment against the verdict, if it rested alone upon the ground that the plaintiff was’ concluded by the defendant’s evidence upon that question, could not be sustained: Dalmas v. Kemble, 215 Pa. 410; Bond v. Penna. R. R. Co., 218 Pa. 34; Ackley v. Bradford Township, 32 Pa. Superior Ct. 487.

2. We come then to the question of damages. Notwithstanding the current name, an action for the wrong called slander of title is not like an action for ordinary defamation; “it is an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff’s title:” Webb’s Pollock on Torts, 389, citing Malachy v. Soper, 3 Bing. N. C. 371. In the same connection it is said, actual malice — that is, absence of good faith — no less than special damage is of the gist of the action. The learned author then goes on to say that while formerly this kind of action appears to have been applied only to statements in disparagement of plaintiff’s title to real property, it is now understood that the same reason applies to the protection of title to chattels and of exclusive interests like patent rights and copyrights; and this is the view generally held at this time: 25 Cyclopedia of Law & Procedure, 559. In Odgers on Libel and Slander, 138, we find the following clear statement of the nature of the action. “But .... there is a branch of the law (generally known by the inappropriate but convenient name — slander of title) which permits an action to be brought against anyone who maliciously decries the plaintiff’s goods or some other thing belonging to him, and thereby produces special damage to the plaintiff. This is obviously no part of the law of defamation, for the plaintiff’s reputation remains uninjured; it is really an action on the case for maliciously acting'in such a way as to inflict loss upon the plaintiff. All the, preceding .rules dispensing with proof of malice and special damage are, ■therefore, wholly inapplicable to cases of this kind. Here, as in:all other actions on the case, there must be et damnum et injuria. The injuria consists in the unlawful words maliciously spoken, and the damnum is the consequent money loss to the plaintiff.” ■ Speaking further of the prerequisites to recovery ■the learned author says: “Lastly, special damage must be proved, and shown to have arisen from the defendant’s words.” Again .he says, citing authorities: “The special damage must always be such as naturally or reasonably arises from the use of .the .words.”'- The same doctrine as to the nature of the action and as to the necessity of alleging and proving special damage is stated very clearly and sustained by the citation of 'numerous .authorities in 25 Cyclopedia of Law & Procedure ;at pages 558-561. The following language of Parke, B., in Brook v. Rawl, 4 Exch. 521, which is quoted in 2 Addison on Torts (Wood’s ed.) 361, and by other writers on the .subject, shows the strictness with which it is held that special damage must be shown: “To support the action, it ought to be shown.that the false statement was made mala fide, and that special damage ensues therefrom. If some portions of the statement are bona fide, the injured party cannot recover, unless he.-can distinctly trace the damage as resulting from that part which is mala fide.” An instructive case upon the subject in which numerous authorities are cited and the doctrine as above stated is elucidated is Burkett v. Griffith, 90 Cal. 532, 13 L. R. A. 707. While the decisions of our Supreme Court upon the subject are not numerous, and none of them discusses the precise question presented here, yet it seems .permissible to say that the necessity of alleging and proving special damage is .taken for granted. See Paull v. Halferty, 63 Pa. 46; Young v. Geiske, 209 Pa. 515. The plaintiff’s statement of claim was evidently framed with these principles in ■view “,tp recover damages for the aforesaid willful and malicious .slander of the plaintiff’s right to manufacture and sell the said _■ garment, -and .to .recover -the loss actually sustained by it from ,.the;loss .of-orders which it otherwise would have received for ■its said, goods,’ .and for the loss sustained by the cancellation by plaintiff’s customers of their existing orders for said goods, directly occasioned by reason of said advertisement and written and printed notices sent to plaintiff’s customers.” But on the trial counsel stated: “We do not propose to go into the details of the actual loss. In an action for slander of title, we have two remedies: the right to relief for the actual loss occasioned, and we have a right to punitive damages if we show malicious intent. We do not propose to take the time of your honor and the jury and go into the details of the actual loss that has come to our knowledge, but we propose to rely upon the evidence showing malicious intent and ask for punitive damages.” It is true that afterwards the plaintiff offered to show that immediately after the publication its customers canceled orders previously placed with the plaintiff, but these offers were rejected and the rulings are not assigned for error. Whether erroneous or not, the result is the same, .that as the record comes before us it contains no evidence of special damage. It is true it was declared in Stroud v. Smith, 194 Pa. 502, that under the circumstances of that case punitive damages could have been recovered; but in that case there was proof of special damage. The case is not authority for the proposition that an action for slander of title can be maintained without alleging and proving special damage. As that is of the gist of the action it is impossible to see how there can be a recovery in the absence of such allegation and proof.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Birkhead v. Ward, Appellant.

      Justice of the peace — Jurisdiction—Contract—Title to land — Trespass —Trespass vi et amis — Appeals.
    The legislature in conferring jurisdiction on justices of the peace of causes of action arising from contract, either express or implied, had in view those contracts which arise immediately out of a course of dealing between the parties, and not that sort of contract that arises remotely out of the compact of government.

      In an action to recover the cost of repairing a retaining wall which was alleged to belong to defendants, and which had fallen on plaintiff's land, the justice of the peace has no jurisdiction where no express contract is averred by the plaintiff, and there is no implication of a contractual obligation of the defendants to pay for the cost of repairs, which could be enforced by action of assumpsit before the justice. Even if it might be held that such an action was upon a contract, the contract is plainly one “where the title to land or tenements may come into question,” and the justice has no jurisdiction under the act of 1810.
    Where the transcript of a justice of the peace shows that the plaintiff “claims ten dollars and fifty cents, cost of repairing retaining wall belonging to defendants,” the transcript does not show a cause of action ex delicto.
    A justice of the peace has jurisdiction over trespass only where the trespass is vi et armis, and the injury is immediate; his jurisdiction under the act of 1814, did not extend to injuries for the redress of which the action of trespass on the case was the appropriate and exclusive remedy.
    If a justice of the peace has no jurisdiction of the cause of action, either under the act of 1810, or the act of 1814, the common pleas has no jurisdiction thereof on appeal.
    Argued Oct. 11,1907.
    Appeal, No. 139, Oct. T., 1907, by defendants, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 1,043, overruling defendants’ demurrer to plaintiff’s statement, in case of Samuel J. Birkhead v. Mary Ward et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from judgment of justice of the peace,
    The material portion of the transcript of the justice of the peace was as follows:
    Now, September 19, 1906, counsel of both parties appear. Samuel J. Birkhead sworn, claims sum of $10.50 cost of repairing retaining wall belonging to defendants.
    F. S. Cantrell for defendants offered no defense and judgment was publicly given to plaintiff for full amount claimed, $10.50 and costs of suit, $2.50; total amount, $13.00.
    Plaintiff filed a statement in common pleas as follows:
    The above-named plaintiff, the said Samuel J. Birkhead, has owned premises known as No. 223 Cedar street, now Jamestown street, in the twenty-first ward of the city of Philadelphia since the year 1884, and still is the owner thereof. That one James Harper was the owner of the adjoining lot to the northeast of the plaintiff’s premises, and while still the owner of the said adjoining lot, he, the said James Harper, changed the grade of his land so that it became considerably higher than the land of the said plaintiff, and that it was necessary for the said James Harper to erect a retaining wall along the dividing line between the two properties. That James Harper did erect a stone retaining wall along the line of the party fence, the purpose of which was to support the soil of Harper’s land. That soon after erecting such a wall, Harper divided his land into three smaller lots, erecting a house facing on Jamestown street on each lot, and two alleys, one running along the northeast line of the plaintiff’s land into Cedar, now Jamestown street, and the other along the rear of the said three houses, to give them an outlet into Jamestown street. And that all the owners of the said three houses have the free use and privilege of these alleys for the purpose aforesaid and that the plaintiff has no right whatsoever to the use of the alley.
    That the defendants are now the owners in fee of premises No. 229 Jamestown street, which is one of the houses formerly built by Harper, the then owner of the premises. And that the defendants as owners of this house have the free use and privilege of the alley leading into Jamestown street.
    That during the month of June, 1906, the said stone retaining wall which divides the premises of the plaintiff and the aforesaid alley, as well as supports the bed of the alley, fell into the yard of the plaintiff. That he, the said plaintiff, notified the owners of all the premises abutting on or having the use of said alley to repair the wall, and that the defendant refused so to do. That the said plaintiff at his own cost repaired the wall, and that the defendant’s share of the cost of repairing the wall was $10.50, for which amount the plaintiff has made frequent demands to the defendant, and that defendant has refused and neglected to pay the same.
    The court overruled the demurrer and entered judgment for plaintiff.

      Error assigned was in overruling demurrer to statement.

      February 28, 1908:

      Francis S. Cantrell, Jr., with, him Francis S. Cantrell, for appellants.
    — A justice of the peace has no jurisdiction in any case arising out of contract, expressed or implied, where the title to real estate may come in question: Lauchner v. Rex, 20 Pa., 464; Goddard v. McKean, 6 Watts, 337; O’Neill v. McVi'ckar, 21 W. N. C. 496.
    The fact that the case was actually removed from the magistrate’s court to the common pleas by appeal does not give the common pleas jurisdiction if the magistrate did not have jurisdiction: Township of Moreland v. Gordner, 109 Pa. 116.

      James Hay Simms, with him Daniel A. Stewart, for appellee.
    —Where the owner of a lot reduces its grade below that of the adjoining owner’s land he must support his neighbor’s, land suitably: Atwater v. Woods, 1 W. N. C. 23; Bell v. Reed, 1 W. N. 0. 70.
    As a general rule, easements impose no personal obligation upon the owner of the servient tenement to do anything — the burden of repairs falls upon the owner of the dominant tenement: Washburn on Easements, 683; Gale on Easements, 528; Pomfret v. Ricroft, 1 Saunders, 321.
    ■ It is the nature of the demand, not merely the form of action in which the summons issues, that determines the - justice’s jurisdiction: Gingrich v. Scheaffer, 16 Pa. Superior Ct. 299.
    Although the action here is in form assumpsit, the action is in substance an action ex delicto, and the practice in action ex delicto should have been followed.
    ■ • The act of March 22, 1814, gave the justice jurisdiction: Lauchner v. Rex, 20 Pa. 464.
   Opinion by

Rice, P. J.,

The legislature in conferring jurisdiction on justices of the .peace of causes of action arising from contract, either express or implied, had in view those contracts which arise immediately out of a course of dealing between the parties, and not that sort of contract that arises remotely out of the compact.of government: Zeigler v. Gram, 13 S. & R. 102; Zell v. Arnold, 2 P. & W. 292; Schaffer v. McNamee, 13 S. & R. 44; Commonwealth v. Reynolds, 17 S. & R. 367; Montgomery v. Poorman, 6 Watts, 384; Ellsworth v. Barstow, 7 Watts, 314; Seitzinger v. Steinberger, 12 Pa. 379; Pittsburg v. Daly, 5 Pa; Superior Ct. 528; Katch v. Benton Coal Co., 19 Pa. Superior Ct. 476. No express contract is averred in plaintiff’s statement of claim; and, recognizing the principle of the foregoing cases, no' implication of a contractual obligation of the defendants to pay to the plaintiff the whole, or such share as the- plaintiff might demand; of the cost of repairing the wall in question,' which could be enforced by action of assumpsit- before a justice of the peace, arose from the facts recited in the statement. And even if by any liberality of construction it might be held that the action was upon a contract, it was plainly a contract “where the title to land or tenements may come in question,” and in that view a justice of the peace would not have jurisdiction under the Act of March 20, 1810, 5 Sm. L; 161.

But it is argued by plaintiff’s counsel that although the action was assumpsit in form, the cause of action was clearly ex delicto. It would require a wide stretch of the imagination to infer this from the transcript of the magistrate, wherein the sole statement of the cause of action is, the plaintiff “claims ten dollars and fifty cents, cost of repairing retaining wall belonging to defendants;” and it must' be borne in.mind that the cause of action, whatever change be made in the pleadings or evidence, cannot be departed from in- the common pleas: Knappenberger v. Roth, 153 Pa. 614; Katch v. Benton Coal Co., 19 Pa. Superior Ct. 476. But assuming that the-cause of action alleged in the statement of claim is the same as that alleged before the magistrate, we cannot assent to the proposition that a cause of action ex delicto is alleged of which justices of the peace have jurisdiction under the Act of March 22, 1814, 6 Sm. L. 182. According to the averments of the statement, the wall was not built by the defendants, nor was it upon or contiguous to the land to which they acquired title after it was built, nor- did it fall upon plaintiff’s land in consequence of anything that the defendants did. Hence the familiar’ illustration of the -force- that will sustain an action of trespass at common law for an act of the defendant upon his own land — that where one lays rubbish so near the plaintiff’s Wall that the necessary or natural consequence is that some of it rolls against the wall, the injury is immediate and trespass is the remedy — is not pertinent to the facts of the present case. Moreover, the utmost extent of the plaintiff’s claim, giving his statement every possible intendment, is that as the wall supported an alley which the defendants in common with other purchasers from Harper; who built the wall, had a right to use, it was the joint and several duty of the defendants and the owners of the other lots to keep it in proper repair, and as it fell upon the plaintiff’s land it was their duty to restore it to its former condition, and, failing in that after notice, to pay to him in proper proportions the cost that he was put to in doing that which they ought to have done. It is well settled that the action of trespass for the recovery of damages for injury done or committed on real or personal estate, of which justices of the peace were given jurisdiction by the act of 1814, was the action of trespass vi et armis, where the injury is immediate; their jurisdiction did not extend to injuries for the redress of which the action of trespass on the case was the appropriate and exclusive remedy: Hobbs v. Geiss, 13 S. & R. 417; Gingrich v. Sheaffer, 16 Pa. Superior Ct. 299; Township of Moreland v. Gordner, 109 Pa. 116. The Act of May 25, 1887, P. L. 271, which abolished the distinction theretofore existing between trespass vi et armis and trespass on the case, so far as relates to procedure,” did not extend the jurisdiction of justices of the peace to causes of action not theretofore embraced therein. Whether an action of trespass on the case to recover damages for the breach of a duty arising out of the circumstances could be maintained by plaintiff upon proof of the facts alleged in the statement of claim, need not be determined. It is sufficient to say, that by no construction of the statement, no matter how liberal, can the conclusion be reached that the cause of action averred therein — the matter for which the action' was brought — was cognizable in the common-law action of trespass vi et armis.

As the magistrate did not have jurisdiction of the cause of action, either under the act of 181.0 or the act of 1814, the common pleas had not jurisdiction thereof on appeal: Township of Moreland v. Gordner, 109 Pa. 116; Katch v. Benton Coal Co., 19 Pa. Superior Ct. 476.

The judgment is reversed and judgment is now directed for the defendants upon the demurrer.


text:
    Commonwealth v. Martin, Appellant.

      Constitutional law — Special privileges and immunities — Emblems— Badges, etc. — Secret fraternal associations — Act of March 28, 1907, P. L. 35.
    The Act of March 28,1907, P. L. 35, which makes it a misdemeanor for any person “to wear or use, or aid in the wearing or use of, any emblem, button, device or insignia, falsely or with intent to deceive,” applies exclusively to the emblems of “any secret, fraternal association, society, order or organization which has hád a grand lodge having jurisdiction in this commonwealth for ten years or longer;” and as thus construed, the clause which creates the misdemeanor does not conflict with clause 27, sec. 7, art. Ill of the constitution of Pennsylvania, which forbids the legislature to pass any local or special law “the granting to any corporation, association, or individual, any special or exclusive privilege or immunity.”
    Argument that certain legislation is unwise, or dangerous in its tendencies, or contrary to the spirit of our institutions, or is special in that it does not apply to every case equally within the mischief to be remedied, can be of little avail upon the question of its validity unless the provision of the fundamental law with which it conflicts can be pointed out. Nothing but a clear violation of the constitution, a clear usurpation of powers prohibited, will justify the judicial department in pronouncing an act of the legislature department unconstitutional and void.
    The Act of March 26, 1907, P. L. 35, simply provides a public remedy for a kind of fraud and deceit, which, apart from its infringement of the rights of societies or individuals, as such, was deemed by the legislature to involve such turpitude and to affect the public injuriously in so large a degree as to justify it in declaring it to be a misdemeanor and punishable as such.

      Constitutional law — Title of statute — Emblems—Secret fraternal associations — Act of March 28, 1907, P. L. 35.
    The Act of March 28, 1907, P. L. 35, entitled “An act to prohibit the fraudulent use of the name or title of secret fraternities, associations, societies, orders, or organizations; also prohibiting the fraudulent wearing or use of any emblem, badge, button or insignia of such secret fraternal organization, and fixing the penalty for violation of this act,” does not contravene sec. 3, art. Ill of the constitution of Pennsylvania, which reads: “No bill, except general appropriation bills shall be passed containing more than one subject which shall be clearly expressed in the title.”
    The courts will sustain such portion of an act of which the title gives notice, if it be in itself a complete and sensible enactment, which is capable of being executed, unless it be so linked with the unconstitutional provisions as to lead to the conclusion that the former would not have been adopted by the legislature without the latter.
    Argued Oct. 14, 1907.
    Appeal, No. 101, April T., 1908, by defendant, from judgment of Q. S. Washington Co., Aug. T., 1907, No. 60, on verdict of not guilty but directing costs to be divided in case of Commonwealth v. Joseph W. Martin.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for fraudulently wearing the emblem of a secret society.
    The indictment was as follows:
    “The grand inquest of the commonwealth of Pennsylvania, now inquiring in and for the body of the county of Washington, upon their oaths and solemn affirmations respectively do present:
    “That Joseph W. Martin, late of the county, aforesaid, yeoman, on the twenty-fourth day of May, in the year of our Lord one thousand nine hundred and seven, in the county aforesaid, and within the jurisdiction of this court, with force and arms, unlawfully, willfully, fraudulently and maliciously, did then and there wear and use, and did aid in the wearing and using of a certain emblem, badge, button, device and insignia, of the Free and Accepted Masons of Pennsylvania, which said Free and Accepted Masons of Pennsylvania has had a grand lodge having jurisdiction in the commonwealth of Pennsylvania, for ten years and longer, which said grand lodge is known and designated as, and called, the Right Worshipful Grand Lodge of the Most Ancient and Honorable Fraternity of the Free and Accepted Masons of Pennsylvania and masonic jurisdiction thereunto belonging, with the intent, then and there, unlawfully, willfully, fraudulently and maliciously, to cheat and deceive, 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.”
    At the trial the jury returned a verdict of not guilty and the defendant was sentenced to pay one-half the costs, the costs amounting in all to $537.90. Defendant appealed.

      Error assigned was the judgment of the court.

      R. P. Lewis, for appellant.
    — The Act of March 28,1907, P. L. 35, is unconstitutional and void because the title to the act does not sufficiently express a purpose to make such an enactment; the provisions of the act are not germane to the subject as expressed in its title, and the title gives no notice that the rights of certain secret fraternal societies not having a grand lodge in this state for ten years or longer, and the members of, such societies will be affected by the statute: Commonwealth v. Lloyd, 2 Pa. Superior Ct. 6; Otto Township Road, Wright’s Appeal, 2 Pa. Superior Ct. 20; Rogers v. Manufacturers’ Improvement Co., 109 Pa. 109; Philadelphia v. Railway Co., 142 Pa. 484; Sewickley Boro. v. Sholes, 118 Pa. 165; In re Road in Phcenixville, 109 Pa. 44; Beckert v. Allegheny, 85 Pa. 191; Dorsey’s Appeal, 72 Pa. 192; Commonwealth v. Green, 58 Pa. 226; Commonwealth v. Samuels, 163 Pa. 283; Union Pass. Ry. Co.’s Appeal, 81* Pa. 91; Hatfield v. Commonwealth, 120 Pa. 395; Evans et al. v. Willistown Twp., 168 Pa. 578; Ridge Ave. Pass. Ry. Co. v. Philadelphia, 124 Pa. 219.
    There is absolutely nothing in the title to indicate to the appellant that the wearing or use of his charm containing the insignia of the order to which he belongs is prohibited: Stegmaier v. Jones, 203 Pa. 47; Dailey v. Potter County, 203 Pa. 593; Road in Phcenixville, 109 Pa. 44; Pierie v. Philadelphia, 139 Pa. 573; Mt. Joy Boro. v. Turnpike Co., 182 Pa. 581.
    The act is special and class legislation. However disguised, classification can never be successfully invoked for the purpose of evading the constitutional inhibition against local or special legislation. If an act be clothed in the guise of a general enactment and it will have the effect of, or results in, classifying its subjects so as to make it operate upon certain classes, or a part of a class, to the exclusion of all others, as does the act under consideration, it comes within the inhibition of sec. 7 of art. Ill, of the constitution, and is null and void: Sample v. Pitts-burg, 212 Pa. 533; Ayars’s Appeal, 122 Pa. 266; Weinman v. Railway Co.; 118 Pa.-192; Sayre Boro. v. Phillips, 148 Pa. 482; Commonwealth v. Zacharias, 181 Pa. 126; Davis v. Clark, 106 Pa. 377; Scowden’s Appeal, 96 Pa. 422; Wyoming St., Pittsburg, 137 Pa. 494; Scranton Sch. Dist’s Appeal, 113 Pa. 176; City of Scranton v. Silkman, 113 Pa. 191; Morrison v. Bachert, 112 Pa. 322; Shamokin Boro. v. Flannigan, 156 Pa. 43; City of York Sch. Dist’s Appeal, 169 Pa. 70; Philadelphia v. Cemetery Co., 162 Pa. 105; Commonwealth v. Patton, 88 Pa. 258.
    February 28, 1908:

      B. W. Irwin, with him Owen C. Underwood, district attorney, Jas. A. Wiley and A. T. Morgan, for appellee.
    — The title was sufficient: Sugar Notch Borough, 192 Pa. 349; Allegheny County Home’s App., 77 Pa. 77; Phila. v. Ridge Ave. Ry. Co., 142 Pa. 484; Dewhurst v. City of Allegheny, 95 Pa. 437; Dorsey’s Appeal, 72 Pa. 192; Lea v. Bumm, 83 Pa. 237; Wynkoop v. Cooch, 89 Pa. 450; Blood v. Mercelliott, 53 Pa. 391; Commonwealth v. Green, 58 Pa. 226; Yeager v. Weaver, 64 Pa. 425; Commonwealth v. Jones, 4 Pa. Superior Ct. 362.
    Nor do we think that the act is fairly open to the objection that it is class legislation.
   Opinion by

Rice, P. J.,

As the assignments of error do not relate to any ruling upon a question of evidence or to any instruction which the court gave or declined to give to the jury, and as neither the evidence nor the charge of the court is printed in the appellant’s paper-book, any allusion by us to the merits of the case is not required and would be out of place. We make this remark, because both in the appellant’s history of the case and in the appellee’s counter history we find reference to the relation of the defendant and of the lodge of which he is said to be a member to the Masonic order. Whatever may have been the relevancy of these matters to the questions that.arose upon trial, it is obvious that they have no pertinency to the question whether the indictment charged an indictable offense.

The judgment to be entered on this appeal depends exclusively upon the determination of that question, and that in turn depends upon the constitutionality of the clauses of the Act of March 28, 1907, P. L. 35, which make.it a misdemeanor for any person “to wear or use, or aid in the wearing or use of, any emblem, badge, button, device or insignia, falsely or with intent to deceive.” The appellant’s counsel argue from the context that this clause refers exclusively to the emblem, badge, insignia, etc., of “any secret fraternal association, society, order or organization which has had a grand lodge having jurisdiction in this commonwealth for ten years or longer.” This view Was evidently taken in drawing the indictment, it is not controverted by the commonwealth’s counsel, and we are inclined to think it is the correct view. Does this restriction of the provision bring it into conflict with clause 27, section 7, article III, of the constitution which forbids the legislature to pass any local or special law “ granting to any corporation, association, or individual any special or exclusive privilege or immunity”? Argument that certain legislation is unwise, or dangerous in its tendencies, or contrary to the spirit of our institutions, or is special in that it does not apply to every case equally within the mischief to be remedied, can be of little avail upon the question of its validity unless the provision of the fundamental law with which it conflicts can be pointed out. “Nothing but a clear violation of the constitution, a clear usurpation of powers prohibited, will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void:” Sharswood, J., in Penna. R. R. Co. v. Riblet, 66 Pa. 164. “The party who wishes ■ to pronounce a law unconstitutional takes upon himself the burden of proving beyond all doubt that it is so:” Black, J., in Erie & North-East R. R. Co. v. Casey, 26 Pa. 287. “Nor are the motives of the legislators, real or supposed, in passing the act, open to judicial inquiry or consideration. The legislature is the lawmaking department of the government, and its acts in that capacity are entitled to respect and obedience until clearly shown to be in violation of the only superior power, the constitution:” Mitchell, J., in Commonwealth v. Moir, 199 Pa. 534. The fact that the framers of the constitution specified in great detail the subjects in relation to which the legislature is prohibited to pass any special law would of itself be a conclusive reason, even if there were no other, for adhering strictly' to the rule that exceptions from the general grant of legislative power are not to be carried beyond the proper import of the words used. Viewing the case before us in the light of these principles, we are unable to conclude that the statutory provision above quoted and the constitutional provision are in conflict. The former applies to the whole state and no person is excepted from its operation. It neither grants nor denies to any fraternal association or individual the exclusive right to use any particular emblem, badge, button, device or insignia. Whatever rights, exclusive or otherwise, which the secret organizations of the class mentioned in the act have in that regard are not derived directly or indirectly from this legislation, and are neither strengthened nor confirmed thereby; the law does not undertake to deal with that subject. Nor does the act make it lawful to wear or use the emblems, badges, insignia, etc., of other secret or nonsecret societies fraudulently or with intent to deceive; nor does it change the quality of that act or deprive such societies or their members of any existing remedy relating thereto. It is to be observed further that the act does not grant to the societies described therein and their members, while withholding it from other societies and their members, any private remedy for the prevention or redress of injury arising from the fraudulent use of their emblems, insignia, etc. It siipply provides a public remedy for a kind of fraud and deceit, which, apart from its infringement of the rights of societies or individuals, as such, was deemed by the legislature to involve such turpitude and to affect the public injuriously in so large a degree as to justify it in declaring it to be a misdemeanor and punishable as such. Whether there was equal propriety or occasion for extending this public remedy to the fraudulent use of the emblems, badges, and insignia of all fraternities, secret or otherwise was a legislative question. The strongest argument that- can be made to show that there was such propriety or occasion falls far short of proving that the legislature did not act in good faith and upon deliberate judgment in making the distinction, or that its motive was to favor a particular class of secret societies, or that the effect of the legislation, even though no favoritism was intended by the legislature, was to grant any special privilege or immunity to anyone. The conclusion that this clause of the act .does not violate the constitutional provision under consideration is supported by the case of Commonwealth v. Norton, 16 Pa. Superior Ct. 423, wherein the constitutionality of the provision of the act of May 21, 1895, making it a misdemeanor to counterfeit labels adopted by workingmen’s unions was under consideration. The ground of the decision appears in the following quotation from the opinion of Judge W. W. Porter: “So far as the case before us is concerned, we are determining only that the legislature has the right to impose a penalty upon the commission of an act of turpitude. That the man who counterfeits or imitates a label, purporting to be a union label, is doing that which is wrong, has been already decided: McVey v. Brendel, 144 Pa. 235. It is the public wrong that is being redressed, not a private injury. It is the counterfeiting of instruments of a certain class with which we have to do. We are not prepared to hold that a statute declaring such an act a public wrong and an indictable offense is unconstitutional and void, because it does not include every trade-mark or label which individuals or associations may adopt.”

It is urged further that the act is in contravention of section 3, article III, of the constitution which reads: “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in the title.” Two questions are presented, first, whether the act contains more than one subject, secondly, whether the subject is clearly expressed in the title.

The history and purpose of this constitutional provision have been stated many times in cases involving its construction and are well understood. The purpose of the provision that the act shall not contain more than one subject was, not to require that every distinct legislative mandate or prohibition shall be the subject of a separate bill, but to prevent a number of different and unconnected subjects from being gathered in one act, and thus to prevent unwise or injurious legislation by a combination of interests. Whatever objection may be urged upon other constitutional grounds against some of the provisions of this act, we think it cannot be said that the act as a whole is of the character of vicious legislation which the constitutional provision as to singleness of subject was intended to prevent.

The remaining inquiry is as to the sufficiency of the title. We need not stop to show that if an act contain two or more subjects within the meaning of the constitutional prohibition, the fact that these are clearly expressed in the title would not save it; but it has occurred more than once that although the act could not be said to contain more than one subject, and although the title was sufficient to give notice of the legislation contained in some of its provisions, yet as to other matters the scope of the act was broader than the title indicated. The general rule applicable to such cases is to sustain the portion of the act of which the title gives notice, if it be in itself a complete and sensible enactment which is capable of being executed, unless it be so linked with the unconstitutional provisions as to lead to the conclusion that the former would not have been adopted by the legislature without the latter: Dorsey’s Appeal, 72 Pa. 192; Allegheny Co. Home’s Appeal, 77 Pa. 77; Allegheny City v. Moorehead, 80 Pa. 118; Dewhurst v. Allegheny, 95 Pa. 437; McGee’s Appeal, 114 Pa. 470; Commonwealth v. Lloyd, 2 Pa. Superior Ct. 6; McGarry v. McGarry, 9 Pa. Superior Ct. 71; Commonwealth v. Hanley, 15 Pa. Superior Ct. 271; Commonwealth v. Caulfield, 27 Pa. Superior Ct. 279. This act is not within any of the recognized exceptions to this general rule. Hence, even if it be conceded (as is very earnestly and ably argued by appellant’s counsel) that the first clause relative to publication or the third and fourth clauses are beyond the scope of the title or are in contravention of any other section of the constitution, this would not impair the validity of the clause under which the indictment was drawn. As to that feature of the legislation we are of opinion that the title is sufficient.

The judgment is affirmed.


text:
    Commonwealth v. Brownell, Appellant.

      Practice, Q. S. — Desertion—Record—Filing of record — Appeals.
    Where the transcript of a record of a magistrate in a desertion case is duly certified by the magistrate, and indorsed “filed,” with a date named, and the docket of the quarter sessions sets forth exactly the contents of the magistrate’s transcript, but does not state in so many words that the transcript was filed in the clerk’s office of the quarter sessions, or that the indorsement was made by the clerk of the. quarter sessions, the Superior Court, when the whole record is taken up to that court by certiorari, will dismiss as untenable the objection that the record does not show that the transcript was filed in the court below.

      Appeals — Certiorari—Evidence—Recital of facts in opinion of court below.

    The evidence given in desertion proceedings upon a hearing, and the recital of facts in the opinion filed by the court of quarter sessions in such a proceeding, cannot be considered by the Superior Court in reviewing the proceedings upon certiorari.
    Argued Oct. 14, 1907,
    Appeal, No. 22, Jan. T., 1908, by defendant, from order of Q. S. Lackawanna Co., April T., 1907, No. Ill, for support in case of Commonwealth v. Brownell.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Certiorari to justice of the peace in desertion proceedings.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order directing the defendant to pay to his wife $12.00 per month.

      February 28, 1908:

      John D. Miller and R. J. Manning, for appellant.

      Joseph O’Brien, district attorney, with him J. E. Brennan, for appellee.
   Opinion by

Rice, P. J.,

Among the papers sent up with the record in return to the certiorari there appears what purports to be a transcript of the proceedings in this case before the magistrate, duly certified by him on March 2, 1907, and indorsed, “Filed March 4, ’07.” It is true it is not stated, in so many words, in the docket entries that it was filed in the clerk’s office, and it is not stated in the indorsement that it was made by the clerk of the quarter sessions, but the docket does set forth the title of the case, the name of the prosecutrix, the nature of the charge, the amount of the prosecutrix’s recognizance, the amount of bail the defendant was under, and the name of his surety. These entries correspond exactly with the magistrate’s transcript, and evidently were taken therefrom. Upon consideration of these facts, and the fact that the transcript comes from the proper custody, and was sent up to us in obedience to the certiorari, we dismiss as untenable the objection that the record does not show that the transcript was filed in the court below. Perhaps it would have been better practice to set forth the fact and date of filing in the docket, but taking the record as a whole the unavoidable implication is that the indorsement on the transcript was the act of the clerk of the quarter sessions and that the transcript was filed as thereby stated. Therefore it is to be considered as part of the record, and as the foundation of the proceedings which resulted in the order of support from which this appeal was taken. We need not recite the transcript or its substance'; it is enough for present purposes to say, as we may upon the authority of Commonwealth v. Hart, 12 Pa. Superior Ct. 605, where the subject was fully considered, that the return thus made of the proceedings before the magistrate was sufficient in form and substance to give the court jurisdiction. And, although the record of the court .below does not state that the order of support was made after hearing, this is to be presumed.

Having determined that the court had jurisdiction and that there is no such defect or irregularity in the proceedings as would warrant us in setting aside the order, we come to the question upon the merits which the defendant’s counsel with great earnestness press for consideration. It appears from the transcript that the information upon which the prosecution was instituted alleged that the defendant deserted the prosecutrix on April 3, 1905, and that since that time he had neglected to support her or to contribute to her support. It is claimed that after the date of the alleged desertion the prosecutrix prosecuted the defendant in Susquehanna county upon a similar charge, and that in August, 1905, after a full hearing, the court of that county discharged him. It is claimed further that the evidence given on the hearing of the present prosecution showed that no change of any kind in the situation had taken place which would justify a rearrest of the defendant on a similar charge; therefore, it is claimed, the court erred in not holding that the former acquittal was a bar to this prosecution. We need not go further into detail in stating what it is claimed the evidence shows. It is apparent from this general statement óf the defendant’s contention that it 'involves questions of fact which cannot be determined by inspection of the record; and it is needless to say that the evidence given upon the hearing, although printed in the paper-book, cannot be resorted to for that purpose. It is equally well settled that the recital of facts in the opinion filed by the court of quarter sessions in a desertion proceeding does not bring them upon the record for purposes of review: Commonwealth v. Smith, 200 Pa. 363; Commonwealth v. James, 142 Pa. 32; Commonwealth v. Mills, 26 Pa. Superior Ct. 549; Commonwealth v. Isaacman, 33 Pa. Superior Ct. 384. The opinion of Mr. Justice Brown in the first cited case is very clear upon the subject. We think it not out of place to say that if this case were to be reviewed upon the facts recited in the opinion of the learned judge below and those alone, we should hesitate to concur in the conclusion that they were sufficient to affect the conclusiveness of the alleged former acquittal. But it is plain that the case cannot be so reviewed, and that, to adopt the language of Justice Brown in Commonwealth v. Smith, “we can review this record no further than to ascertain whether the court below had jurisdiction and the proceedings were regular.” We are therefore constrained to say that if error was committed in the decision of questions arising out of the evidence it is beyond our power to correct it.

The appeal is dismissed and the record remitted to the court below.


author: Head, J.,

text:
    Srolovitz v. Margulis, Appellant.

      Vendor and vendee — Incumbrances—Suit for hand money — Affidavit of defense.

    A vendee of real estate who was entitled under his contract to receive a marketable title to the premises, is under no obligation to take a title which, even if it might be finally determined to be good, is in a condition to involve him in litigation to establish or secure it.
    In ah action to recover hand money paid on the execution of a contract for the sale of land, it appeared that the premises were to be conveyed clear of all incumbrances, and the title was to be insured by a title insurance company. The statement charged that there were two outstanding equitable estates, that three mortgages incumbered the land, and that a title insurance company had refused to insure the title as a marketable title. Defendant filed an affidavit of defense in which he averred payments on account of the mortgages but only evidenced by matter in pais of the most vague and indefinite character; and that he endeavored to make an arrangement with some or all of the mortgagees to carry the loans. The affidavit did not deny the refusal of the title insurance company to insure the title; nor was it averred that any steps had been taken to convey or secure a conveyance of the outstanding equitable titles. Held, that the affidavit of defense was insufficient to prevent judgment.
    Argued Oct. 10,1907.
    Appeal, No. 43, Oct. T., 1907, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1906, No. 1,575, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Wolf Srolovitz v. Abraham Margulis.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      February 28, 1908:
    Assumpsit to recover hand money.
    Order making absolute rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      George D. Hay and B. Gordon Bronley, with them Bernard L. Shapiro, for appellant.

      Alfred Aarons, with him Henry N. Wessel, for appellee.
   Opinion by

Head, J.,

The agreement for the sale of real estate, entered into by the plaintiff and defendant, contained the following covenants on the part of the latter, viz.: that he would “sell and convey” the property described; that “the premises are to be conveyed clear of all incumbrances and easements;” and that “.the title is to be such as will be insured by any Title Insurance Company of Philadelphia.” Upon the strength of these undertakings the plaintiff agreed to pay $5,200 and actually did pay the hand money called for, $500. It is not denied in the affidavit of defense that he further expended the sum of $150 in the manner averred in the statement. The defendant having, as is alleged, made default, and having been, at the time fixed in the agreement, and for some time afterwards, unable to convey the property as agreed on, the plaintiff rescinded and brought this action to recover the moneys paid and expended as set fprth.

We think it clear enough that, under his contract, the plaintiff had the right to. demand and receive a marketable title to the ground he bought. He was under no obligation to take a title which, even if it might be finally determined to be good, was in a condition to involve him in litigation to establish or secure it: Swayne v. Lyon, 67 Pa. 436; Kostenbader v. Spotts, 80 Pa. 430.

Now it appears from the statement filed, and it is not denied by the affidavit of defense, that at the time the contract was signed, and when the date therein fixed for settlement arrived, the situation was this: The legal title of record was in Dorfman and Krewchensky. They had entered into an agreement for its sale to one Lewis Comer, who had paid a portion of the purchase money. Comer, in turn, had made a like executory agreement with Margulis, the defendant, who had also paid a portion of the purchase money. There were thus two outstanding vested equitable estates intervening between Srolovitz and the holders of the legal title. The title was incumbered by the liens of three mortgages, viz: one to Sara Rowlands, due in 1909, $2,000; one to Amos Shallcross, due also in 1909, $1,000; and a third, due in 1906, to The Phoenix Building and Loan Association, $3,600. The last-mentioned mortgage embraced some additional property, but was not apportioned. The aggregate of these mortgages greatly exceeded the entire purchase money. The plaintiff further averred that the premises covered by the agreement had become subject to a drainage easement in favor of the adjoining property, by a continuous adverse user of the same for more than twenty-one years, and that The Real Estate Title Insurance and Trust Company of Philadelphia, had refused to insure the title as a marketable title. Unless the defendant, in his affidavit, fairly raised issues of fact as to these material averments, he had no right to subject the plaintiff to the delay and expense of a trial by jury.

It was not denied that the mortgages existed, of record, in the number and amounts stated, but the defendant averred, on information, that payments had been made on the one to the building association, sufficient to reduce it to $1,200. The defendant did not undertake to say that these alleged payments were evidenced by any written receipts in his possession or subject to his control, and the affidavit, in this respect, would leave the plaintiff in the position of being obliged to accept a title, subject to a record incumbrance of $3,600, and rely upon matter in pais, of the most vague and indefinite character, to defend himself against the greater part of that record debt. We know of no principle of law that would cast such a heavy and dangerous burthen upon one who had undertaken to buy only a marketable title.

The affidavit further sets up that plaintiff had endeavored to effect an arrangement with some or all of the mortgagees to carry the loans. If so, this was a matter to which defendant was no party and in which he had no interest. If such an arrangement had been finally completed it would have been in relief of the defendant’s covenant. But the plaintiff was at liberty to change his mind and abandon his efforts in that direction; when he did so the defendant could not complain, as he was then left precisely where he had placed himself by his voluntary act.

It is not denied that the title insurance company refused to insure the title, nor is it averred in the affidavit that the defendant ever took any active or effective steps .to carry out his agreement. It is not stated that he ever executed a deed to divest his own equitable estate, or that Comer, who owned a like estate, was at any time ready, to convey. The averment in the statement, that the owners of the legal title were not present on the day of settlement, nor were any deeds from them forthcoming, is not denied in the affidavit, nor is the absence of the parties or their conveyances satisfactorily explained.

Indeed, it would seem from an examination of the whole record, as if the defendant, after receiving the hand money, became entirely indifferent to the consummation of the contract. Under these circumstances, we think the plaintiff was well within his rights in rescinding, and the obligation of the defendant to pay the moneys here sued for would follow. The learned court below was therefore right in making absolute the rule for judgment.

Judgment affirmed.


text:
    Thirty-eighth Ward Election.

      Election law — Election contest — Costs—Acts of May 19, 1874, P. L. 208, May 8,1876, P. L. 148, and April 28,1899, P. L. 118.
    The Act of May 19,1874, P. L. 208, designating the several classes of contested elections in Pennsylvania, and providing for the trial thereof applies to the contest of an election in which a tie vote is returned. If, after a judicial investigation of the election in the mode prescribed in the statute, it is determined that the respondent received a majority of the votes legally cast, and he is given a certificate of election, there is no warrant in the statute for holding that the disposition of the costs is to be different, where a tie vote is returned from what it would be if a plurality of votes had been returned in favor of the respondent.
    The Act of May 8, 1876, P. L. 148, relating to the apportionment of costs in certain classes of election cases “among proper districts,” has no application to the contest of an election of common councilmen in a city of the first class, for the obvious reason that no occasion for apportionment of the costs can possibly arise in such a case. Prior to the Act of April 28, 1899, P. L. 118, the law governing liability for costs in such a contest was contained in sec. 9 of the Act of May 19,1874, P. L. 208.
    Under the Act of April 28,1899, P. L. 118, amending sec. 9 of the Act of May 19, 1874, P. L. 208, the petitioners in an election contest over the election of a common councilman in a city of the first class, will be charged with the costs of the contest if the contestant fails to establish his right to the office, and this is the case although the contestant was not a petitioner, and took no part in the contest either as a party or a witness. In such a case the person claiming the right to the office need not be a petitioner, in order to become a contestant within the meaning of the act.

      Statutes — Amendments—Repeal.
    A statute amendatory of another declaring that the former shall read in a particular way, must, in general, be held to repeal all provisions not retained in the altered form.
    Argued Oct. 15, 1907.
    Appeal, No. 151, Oct. T., 1907, by-George A. Richmond et al., from order of Q. S. Phila. Co., March T., 1907, imposing costs of proceedings on petitioners in an election contest In re Election of Common Councilman in the Thirty-eighth Ward of City of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Petition for an election contest.
    The court below, in its opinion, stated the case to be as follows :
    In the case at bar, twenty-seven electors of the thirty-eighth ward took it upon themselves to question the accuracy of the official count for the office of common councilman which had been returned by the election court as a tie vote, alleging that the vote was not a tie, and that they believed Percy H. Clark to have been properly elected a councilman. Mr. Clark, however, was not a petitioner, neither did he sign the bond, nor does his name appear anywhere in the case, either as a party or as a witness, or as being in any manner interested in the result. The question is, under these circumstances, can Mr. Clark be properly classed as a “contestant” within the meaning of the act of assembly so that the costs must be placed upon the petitioners, or has the court the power to hold that probable cause has been shown and to place the costs upon the county?
    The court entered a decree directing'the petitioners to pay the costs.

      Error assigned was the order of the court.

      R. W. Barrett, with him T. R. White, for appellants.
    — The Act of April 28, 1899, P. L. 118, has no application to the case at bar: Hayes’s Election, 33 Pa. Superior Ct. 310; Upperman’s Election, 13 Pa. Dist. Rep. 268.
    The act of 1899 cannot be construed to impose costs on petitioners whenever the complaint fails; even if it could be so construed, the complaint in this case has not failed: Thomas’s Election, 198 Pa. 546.
    The act of 1876, independently of previous legislation concerning costs, makes it the duty of the court of quarter sessions to impose costs on the county or municipality in all cases where it decides that probable cause exists.
    The act of 1876 being a supplement to the act of 1874 (and so entitled) is to be construed as a part of the original act and as if it were a section of it: Delaware Mutual Safety Ins. Co. v. Loughlin, 18 Phila. 380; Warfield v. Fox, 53 Pa. 382; Kolb v. Ref. Episcopal Church, 18 Pa. Superior Ct. 477; Marquette v. Berks County, 3 Pa. Superior Ct. 36; Neeld’s Road, 1 Pa. 353; Keeling’s Road, 59 Pa. 358; Van Riper v. Essex Public Road Board, 38 N. J. L. 23; Sutherland on Construction of Statutes, sec. 237; Marquette v. Berks County, 3 Pa. Superior- Ct. 36; Searight’s Est., 163 Pa. 210.
    February 28, 1908:
    In proceedings to determine the result of a vote returned as a tie, the costs should always be imposed upon the proper county or municipality.

      James Alcofn, for appellee, filed no printed brief.
   Opinion by

Rice, P. J.,

1. It was decided in Erdman v. Barrett, 89 Pa. 320, that the Act of May 19, 1874, P. L. 208, designating the several classes of contested elections in this commonwealth, and providing for the trial thereof, applies to the contest of an election in which a tie vote is returned. “The contest,” said the court, “is to be begun and carried on in the same manner and is to be followed by the same judgment as when one candidate is apparently in the majority and the other in the minority.” Consequently, the petition must set forth the cause of complaint, showing wherein it is claimed the election is undue or illegal — which requirement would not be satisfied by a mere averment that a tie vote was returned — and notice of the filing of the petition with a copy thereof must be served on the opposing candidate because, as was '.held in the case above cited, he is the person whose right of office is contested. “The contest is between the candidates voted for; they only can claim the right of office under the election to be investigated.” The object of the petitioners in instituting the proceeding is not merely to break the tie so that the office may be filled, but to establish the right of a particular candidate to the office to which he claims to have been elected, and the petition under consideration was framed with that end in view. If, after a judicial investigation of the election in the mode prescribed in the statute it is determined that the respondent received a majority of the votes legally cast, and he is given a certificate of election, we can find no warrant in the statute for holding that the disposition of the costs is to be different where a tie vote is returned from what it would be if a plurality of votes had been returned in favor of the respondent.

2. The provisions of the ninth section of the act of 1874 relative to costs were (a) if the court should decide the complaint to be without probable cause the petitioners were jointly and severally liable for all the costs; (b) in contested elections of presidential electors and state officers whose jurisdiction extends over the state if the court should not decide the complaint to be without probable cause the commonwealth was fiable for all costs; (c) in contested elections of president and additional law judges, of senators and representatives in the legislature and of county, borough, township and municipal officers, if the court should not decide the complaint to be without probable cause “the proper district, county, city, township, borough, ward, school district or municipality” was liable for all costs. But where — taking this as a single illustration of the operation of the law — a judicial district or a senatorial district comprised two or more counties, the provision that the costs should be paid by the “proper district” was plainly inadequate, first, because it left it uncertain who were meant by the authorities of the proper district; secondly, if the officers of the counties comprising the district were meant, it provided no mode of determining the proportion each county should pay. This, we may safely infer, was the occasion of the enactment of the Supplement of May 8, 1876, P. L. 148, which authorized the court to “apportion all the costs among the proper districts, counties, cities .... of the whole district in which contest is had in such way as said court or judge shall think just, and to compel by order, the payment of such amounts so apportioned to each by the properly constituted authorities of each,” etc. The language which precedes the foregoing is somewhat involved and tends to obscure the meaning, but reading the act as a whole in the fight of the act which it supplemented, and with regard to the mischief to be remedied, we are led to the conclusion that it cannot be regarded as an independent law upon the subject of liability for costs as between the petitioners and the public, but was intended simply to enable the court to apportion the costs for which a district should become hable under existing laws among the counties, and perhaps other municipalities, constituting the district, and to compel payment of the sums so apportioned. It was intimated in In re Contested Election of John O’Neil, 98 Pa. 461, that “due and full effect can be given to the language and spirit of the statute by applying it to districts of that character,” namely, judicial or senatorial districts composed of two or more counties. But be that as it may; it follows from what we have said as to the scope and intent of the act that it cannot be made to apply in the contest of an election of .common councilman in a city of the first class for the obvious reason that no occasion for apportionment of the costs can possibly arise in such a case. We conclude, therefore, that prior to the act of 1899 the law governing liability for the costs in such case was contained in section 9 of the act of 1874.

3. A statute amendatory of another, declaring that the former shall read in a particular way, must, in general, be held to repeal all provisions not retained in the altered form: Reid v. Smoulter, 128 Pa. 324. Applying that rule here we must look to the Act of April 28, 1899, P. L. 118, for the law governing the question raised by this appeal. By comparing it with the ninth section of the act of 1874 which it supplanted it will be seen that the only retained provisions which make liability for costs depend upon the question of probable cause for the complaint are those which relate to contested elections of presidential electors, of state officers whose jurisdiction extends over the state, and of senators and members of the house of representatives. As to all other contests to which any reference is made, either in the act of 1874 or in the act of 1899, the statutory provision now reads as follows: “In contested elections of president or additional law judges, and of county, borough, township, municipal officers, or school directors or school controllers, if the contestant or contestants fail to establish his or their right to the office to which he or they claimed to have been elected, the petitioners and each and every of them shall be jointly and. severally liable for all the costs, and the same may be collected as debts of like amount are by law collectible, or payment thereof may be enforced by attachment. In case the contestant or contestants establish his or their right to the office in either of the above-named cases, the costs shall be paid by the proper district, county, borough, township, municipality or school district.” Whatever else may be claimed for this clause of the statute it cértainly cannot be claimed that it furnishes any warrant for holding that in contested elections of this class liability for costs is dependent upon the question of probable cause. But it is claimed that it has no application to the case at bar because Mr. Clarke, the person alleged in the petition to have been elected, was not a petitioner, and, so far as the record shows, took no part in the contest either as a party or a witness. Under these circumstances, say counsel, the condition provided in the act, upon the happening of which costs could be imposed upon the petitioners, has not occurred. They tersely state their contention thus: “The petitioners, if they be the contestants, have claimed no office, and Mr. Clarke, if he be meant, has not contested. Therefore the act of 1899 cannot apply.” It seems improbable from the context that in the use of the words “contestant or contestants”, the legislature had in mind any person or persons whose right to the office was not claimed in the petition. But we are unable to conclude that the person claiming the right to the office must be a. petitioner in order to- become a contestant within the meaning of the act. The logical conclusion from such construction of the statute would be that if he did not sign the petition, or if it could not be shown in some other way that he caused the contest to be instituted, or that he carried it on, neither the petitioners, nor the district, county or other municipality in which the contest arose would be liable for the costs, whether it was successful or unsuccessful, whereas if he did sign the petition the act would apply and the costs would be recoverable from the petitioners or the district or other municipality according as the contest was successful or unsuccessful. It is an elementary principle that the effects and consequences of a proposed construction of a law, as well as its reason and spirit, will be looked into in determining the legislative intent. The obvious unreasonableness, not to say absurdity, of a statute that would make recoverability of the costs of a contested election from any source whatever depend upon the mere fact that the person claiming the office did or did not sign the petition is ground for a very strong argument that this is not what the legislature intended. Prior to its passage the word contestant, ” as used in proceedings to contest elections, had acquired a meaning by usage which, whether etymologically correct or not, was broad enough to include the claimant of the office in whose behalf the contest was instituted. For the sake of convenience, and to distinguish him from the respondent, he was frequently designated in common speech as the ■ contestant, and we find the word used in that sense in judicial opinions. It was so used in another act passed at the same session of the legislature. See Act of April 28,1899, P. L. 118. If we assume, as we think may be done, that it was used in that sense in this connection, the construction of the act is free from difficulty. The contest having been properly instituted the person alleged to have been elected is enabled to establish his claim to the office if the proofs warrant. If the decision be against him, whether that be due to the weakness of his proofs, or to his entire inaction, or to the strength of his adversary’s proofs, it is perfectly proper to say that he has “failed” to establish his right to the office. This fulfills the condition upon which the petitioners become liable for costs. On the other hand, if the decision be in favor of the person on whose behalf the contest was instituted and his right to the office is established, the condition is fulfilled upon which liability for the costs falls upon the district, county or other municipal division in which the contest arose, and that, too, even though such person did not sign the petition or it can be shown that the result of the contest was not brought about by his efforts. In Thomas’s Election, 198. Pa. 546 — a contest of the election of city treasurer — Mr. Justice Mestrezat reviewed the legislation relative to costs and, while this was not the precise point upon which the decision of that case turned, the view was expressed that the act of 1899 “imposes the costs in contested elections upon the petitioners if the contest be unsuccessful and upon the city if the contest be successful.” Although the point was not positively decided, the same view was expressed in the opinion of our Brother Beaver in Hayes’s Election, 33 Pa. Superior Ct. 310. We entertain no doubt that that was the intention of the legislature and that that intention may be effectuated without doing violence to the language of the act.

The order is affirmed.


author: Henderson, J.,

text:
    Klein, Appellant, v. Rand.

      Practice, C. P. — Parties—Unincorporated associations.

    In the case of unincorporated associations, having a large membership, actions may be brought by some of the members in their own names in behalf of all. This modification of the usual requirement as to necessary parties is an equitable exception suggested by convenience. Where the number of members is very large it would be, if not impracticable, very inconvenient and certainly unnecessary to include all their names as parties when the right of action exists in the association and when individuals are named who may be made liable for costs. Where the action is brought for all the parties in interest the requirement of the law is met by the use of some of the individuals composing the organization.
    Where an unincorporated association is composed of about 160 members, an action may be brought in its name by its president, secretary and three other members. In such a case a resolution of the association requiring the members appointed to conduct the suit to give security, is a matter with which the defendant has no concern. The court will assume in the absence of objection by other members that security has been entered.

      Statute of frauds — Promise to pay debt of another — Pecuniary interest of promisor.

    The statute of frauds does not apply where the promisor has a present pecuniary and personal interest in a transaction in which a third party was the original obligor.
    Where the creditor of an insolvent promises another creditor of the insolvent to pay the debt of the insolvent to him, the promise is not within the statute of frauds, and need not be in writing.

      Argued Oct. 15, 1907.
    Appeal, No. 131, Oct. T., 1907, by plaintiffs, from order of C. P. No. 4, Phila. Co., Dec. T., 1904, No. 1,658, refusing to take off nonsuit in case of Ike Klein, Abraham Davidson, Aaron L. Ingber, Harry Fineman, Barney Sindel and others, lately trading as Commercial 'Co-operative Association, v. Israel or Isador Rand.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on promise to pay the debt of another. Before Carr, J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      Bernard Harris, for appellants.
    — There was ample proof that the association decided to sue.
    When members of an unincorporated association voluntarily withdraw from it, the rights to the property and choses in action of the association are abandoned by them to the adhering members: Manning v. Shoemaker, 7 Pa. Superior Ct. 375; Washington v. White, 44 Pitts. L. J. 338; Skinner v. Byrd, 29 Pa. C. C. Rep. 194.
    Any number of the members may sue in behalf of the association, if it appears to the court that they represent the interests of the association.
    The case is without the statute of frauds: Maulé v. Bucknell, 50 Pa. 39; Davis v. Patrick, 141 U. S. 479; Emerson v. Slater, 63 U. S. 28; Russell v. Babcock, 14 Maine, 138; Fehlinger v. Wood, 134 Pa. 517; Pizzi v. Nardello, 209 Pa. 1; Dock v. Boyd & Co., 93 Pa. 92; Burr v. Mazer, 2 Pa. Superior Ct. 436.

      Henry N. Wessel, with him Alfred Aarons, for appellee.—
    There is no evidence of the acceptance by the association of the alleged offer of defendant to pay the plaintiff if the plaintiff would forbear to bring suit against Kohn.'
    There is no evidence of authority on the part of the persons bringing the suit: Liederkranz Singing Society v. Germania Turn-Verein, 163 Pa. 265; E. P. Blair Council v. Benefit Association, 12 Pa. Superior Ct. 29; Council v. Association, 12 Pa. Superior Ct. 29; Sentinel Printing Co. v. Long, 28 Pa. Superior Ct. 608.
    February 28, 1908:
    The promise was a verbal one to answer for the debt of another and therefore not enforceable under the statute of frauds: Packer v. Benton, 35 Conn. 343; Nugent v. Wolfe, 111 Pa. 471; Maulé v. Bucknell, 50 Pa. 39; Townsend v. Long, 77 Pa. 143; Gable v. Graybili, 1 Pa. Superior Ct. 29; Shoemaker v. King, 40 Pa. 107; Hearing & Co. v. Dittman, 8 Phila. 307; Hollow-bush’s Est., 13' Phila. 217; Riegelman v. Focht, 141 Pa. 380.
   Opinion by

Henderson, J.,

The plaintiff’s evidence, if credited by the jury, would show the following facts: For some time prior to June 15, 1903, an unincorporated association, -known as the Commercial Co-operative Association, existed in Philadelphia, whose object was the accumulation of a fund to be loaned to members of the organization. On June 15, 1903, Martin Kohn, a member of the association, borrowed therefrom $750 and gave his promissory note for the same, payable on demand, on which note Weisen Brothers were indorsers. A payment of $200 was subsequently made thereon by the maker. At a later date in the same year the association learned that the indorsers had become insolvent and thereupon, by resolution of the board of directors at a meeting at which all were present, the secretary was given full power to collect the note or to secure a new note with another indorser. The secretary then called on the maker of the note and demanded payment or a new note with a new indorser. The defendant was at the maker’s place of business and stated to the secretary that he was a creditor of Kohn’s to the amount of about $3,000; that he had purchased the stock of goods, or was about to do so, and was taking an account of stock. The plaintiff’s secretary stated to him and Kohn that he must have the money due the plaintiff and that if it was not paid that day he would see a lawyer and issue an attachment; whereupon the defendant said to him that if he did that “none of us will get any money. I will take the shop with stock and with everything in my name, and I will pay you the money.” He asked the secretary to be quiet and not issue an attachment against the property, nor make any disturbance, and in a day or two he would bring him the money. The defendant was then engaged in putting the business in order so that he might take it over on his own account and said in the same conversation that as soon as that was done the plaintiff would get a check. The secretary reported this state of facts to the association, including the promise of the defendant, on November 9, 1903. In consideration of this report it was determined that everything should remain quiet until the defendant paid the money. On November 10, in the same year, one of the directors of the association saw the defendant and called his attention to- his promise to pay the Kohn liability and the defendant told him that he would pay the debt in about two days; that the matter would take about two days more. The defendant having refused to pay the association the claim was placed in the hands of an attorney and the officers were directed to proceed with the collection of the claim. No further proceedings were had against Kohn looking to the collection of his note. Four reasons were presented by the defendant in support of the motion for nonsuit: first, that the alleged agreement was by Rand Brothers and not by the defendant; second, that there was no evidence of an acceptance by the association of the offer of the defendant to pay if the plaintiff would forbear to bring suit against Kohn; third, that there was no evidence of authority on the part of the plaintiff to bring the suit; fourth, that the promise was a verbal one to answer for the debt of another and not enforceable under the statute of frauds. The learned judge of the court below sustained the motion for the third reason, but they are all urged by the appellee in support of the judgment.

That the promise upon 'which the plaintiffs rely was made 'by the defendant rather than by Rand Brothers is shown by very direct and positive evidence. It appears from the testimony that one of the witnesses identified him in court as the Mr. Rand who made the promise and another named him as the person who had made the promise to him. It is true that the minutes of the association make reference to the claim against Rand Brothers: This is probably because of business relations sustained by the defendant, but all of the evidence of the contract relied upon by the plaintiff relates to Isador Rand and not to Rand Brothers.

There was some evidence of acceptance by the association of the promise of Rand to pay the debt. The minutes of November 9, 1903, as we interpret them, show an acquiescence by the plaintiff in the proposition of the defendant that he would pay their debt if they did not interfere with his arrangement to take over Kohn’s stock in satisfaction of his own claim and theirs. The minutes were written in the Yiddish dialect and the translation does not present a grammatical construction in accordance with English models, but the meaning is reasonably clear. It should be further observed that no efforts appear to have been made to collect the debt from Kohn.

The association was composed - of about 160 members. The action was brought in its name by the president, secretary and three other members, one of whom at least was a director. It is a well-established rule that in the case of unincorporated associations, having a large membership, actions may be brought by some of the members in their own names in behalf of all. This modification of the usual requirement as to necessary parties is an equitable exception suggested by convenience. Where the number of members is very large it would be, if not impracticable, very inconvenient and certainly unnecessary to include all their names as parties when the right of action exists in the association and when individuals are named who may be made liable for costs. Where the action is brought for all the parties in interest the requirement of the law is met by the use of some of the individuals composing the organization: Story, Eq. Pl., sec. 107; Phipps v. Jones, 20 Pa. 260; Liederkranz Singing Society v. Germania Turn-Verein, 163 Pa. 265; Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393. The right of the association to sue is not questioned. The benefit of the action, if any, accrues to the association and the presumption is that the interests of all are subserved by the proceeding. A judgment in favor of the association would protect the defendant and he has no interest in the disposition of what he may pay thereon. The officers of the association were the actors in bringing the suit and were in the discharge of their official duties in so doing if the cause of action exists as claimed. The minutes of April 4, 1904, contain a provision that the members appointed to conduct the suit on behalf of the association should give security, but this is a matter with which the defendant has no concern. None of the members of the association is objecting; it does not appear that security was not given and, in the absence of objection by those interested, we should assume that that requirement has been complied with.

It is not to the point that some of the members of the association retired therefrom after the alleged liability of the defendant arose and formed a new organization which they caused to be incorporated and which was afterward dissolved. The right of action here asserted remained in the Commercial Cooperative Association to which the obligation of Kohn was given and to whose representatives the promise of the defendant is alleged to have been made. This case is not a contest between warring members of an association, but between the association represented by the only persons who appear to have any right to represent it and a stranger who is alleged to be a debtor. All who are entitled to participate in the assets of the association can be heard when there is a fund for distribution.

The case of Orbin v. Stevens, 13 Pa. Superior Ct. 591, is not an authority in support of the appellee’s position. That was a case where 90 of the 500 and more survivors of the Eighty-fifth Pennsylvania Volunteers formed an association and asserted their right to the custody of the regimental flag which had for years before that been in the keeping of the defendant. It is a proposition too obvious to evoke debate that the flag was no more the property of one or all of the members of the association than of the person in whose custody it was or of the other 400 members of the regiment who were not members of the association. If the flag had belonged to the association and had come into the possession of the defendant the right of the organization to recover it would be clear, whether its membership was large or small.

We are unable to agree with the contention of the appellee that the agreement as set forth by the plaintiff is not enforceable. The evidence tends to show that the defendant was largely interested as a creditor of Kohn; that he either had taken or was about to take the latter’s stock in satisfaction of his debt. It was a matter of prime importance to him, therefore, that he be not disturbed by an attachment issued by another creditor. He had a direct personal interest in securing forbearance by the plaintiffs. If he made the promise alleged his primary object was not to pay Kohn’s debt to the plaintiff, but the more easily to get Kohn’s property in satisfaction of his own debt. The defendant apparently had control of Kohn’s goods at the time the plaintiff’s officers were at, the latter’s place of business trying to secure the collection of the note and the jury might well conclude that the promise set up was one to save "himself and not to aid Kohn. The statute of frauds does not apply where the promisor has a present pecuniary and personal interest in a transaction in which a third party is the original obligor. This principle is well expressed in Emerson v. Slater, 63 U. S. 28: “Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.” In Fehlinger v. Wood, 134 Pa. 517, the law is thus stated: “Where the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, his promise is not within the statute.” A promise to pay on forbearance to issue an execution was considered in Russell v. Babcock, 14 Maine, 138, in which it was held that “ actual damage or a suspension or forbearance of right, or possibility of loss occasioned to one to whom the promise is made, constitute a sufficient consideration to give validity to the promise.” The late case of Pizzi v. Nardello, 209 Pa. 1, is in line with the authorities referred to, as is also Burr v. Mazer, 2 Pa. Superior Ct. 436, in which a clear and convincing opinion is given by President Judge Rice. There was slight evidence in that case of individual advantage to the promisor, but it was held to be sufficient to support a verdict. The plaintiff’s evidence brings the case within the doctrine of the foregoing and other authorities and the facts if found would exempt the contract from the operation of the statute of frauds. We are of the opinion that the plaintiffs established a prima facie case on which they were entitled to go to the jury and that the court was in error in refusing to take off the nonsuit.

The judgment is therefore reversed, and a procedendo awarded.