text:
    Sprissler v. McFetridge, Appellant.

      Affidavit of defense — Practice, C. P. — Insufficiency of — Omission of essential facts — Physician’s claim — Set-off.
    An affidavit of defense should set forth fully and fairly facts sufficient to show prima facie a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasion in the mode of statement, it will be insufficient to prevent judgment.
    In an action by a physician to recover for attendance, where the statement set forth the exact number and the dates of visits and the charge for each visit, an affidavit of defense is insufficient which does not deny that visits had been made on every day specified, but avers that the defendant is uncertain as to the number of days upon which the plaintiff made two visits, and is unwilling-to fix that number, and also avers.that the charges were excessive, unfair and unwarranted. In such a case the defendant should explicitly aver in order to prevent judgment that the number of visits charged were not made, and state how many visits were made, or fix upon a number which she was willing to swear had not been exceeded; and as to the alleged excessive charge distinctly aver that fact, and state what rate had been agreed upon, or, in the absence of any agreement, the usual and ordinary rate for such services.
    The averments of the set-off in an affidavit of defense must be with the same clearness and particularity that are required of the plaintiff in his statement.
    Argued Oct. 22, 1908.
    Appeal, No. 125, Oct. T., 1908, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1908, No. 3,059, making absolute rule for judgment for want of a sufficient affidavit of defense.'in case of Oscar Sprissler v. Elizabeth McFetridge.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for medical services'.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense for part of plaintiff's claim.

      Wm. B. Crawford, with him Julius C. Levi, for appellant,
    cited: Lord v. Ocean Bank, 20 Pa. 384; H. O. Co. v. Powell, 9 Del. County Rep. 412; Langfield v. Lyon, 132 Pa. 441; Moore v. Smith, 81 Pa. 182; Hydraulic Works v. Peto, 1 W. N. C. 42; Betz v. Shepperson, 8 Atl. Repr. 175; Stewart v. Coulter, 12 S. & R. 252; Riley v. Eigo, 1 Pa. Superior Ct. 139; Lawrence v. Smedley, 6 W. N. C. 42.

      Geo. W. Harkins, Jr., with him Regnault Johnson, for appellee,
    cited: Erie City v. Butler, 120 Pa. 374; Ogden v. Beatty, 137 Pa. 197; Paving Co. v. Young, 166 Pa. 267; Lord v. Ocean Bank, 20 Pa. 384; Moore v. Smith, 81 Pa. 182; Andrews v. Packing Co., 206 Pa. 370; Griel v. Buckius, 114 Pa. 187; Appleby v. Barrett, 28 Pa. Superior Ct. 349; Riley v. Eigo, 1 Pa. Superior Ct. 139.
    December 14, 1908:
   Opinion by

Porter, J.,

The plaintiff brought this action to recover of the defendant for medical attendance and filed a statement showing the exact number and dates of visits and the charge for each visit. The defendant filed an affidavit of defense averring, among other things, that during a part of the period for which the charges were made her husband was living, and that the services were rendered at his request and upon his account; and that on no occasion did the plaintiff make more than two visits a day. The plaintiff took a rule for judgment for that part of the claim to which the affidavit of defense was insufficient. The court below held the affidavit of defense to be sufficient as to the charges for services rendered during the lifetime of the husband and as to all charges for over two visits a day, and as to the balance of the claim held the affidavit of. defense to be insufficient and entered judgment in favor of the plaintiff in the sum of $373. The defendant appeals.

It is not necessary to quote the affidavit of defense at length, for the two questions which it presents for consideration are fairly stated in the brief presented by the counsel of appellant. “1. Is the averment that the charges are excessive, and the accounts are padded, followed by the allegation that the appellant is unable to specify the exact number of visits made, sufficient to prevent judgment being rendered against the appellant for any sum? 2. Did the affidavit aver sufficient facts to entitle the defendant to set off against the claim of the plaintiff a debt due from the plaintiff to Samuel L. Mc-Fetridge, a son of the defendant?”

An.affidavit of defensé should set forth fully and fairly, facts sufficient to show prima facie a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasion in the mode of statement, it will be insufficient to prevent judgment. The affidavit in the present case admitted that the plaintiff had attended the defendant as a medical practitioner during the period in question, and did not deny that he made visits upon every day specified in the claim. The most that it can be held to aver, as to the number of visits, is that the defendant is uncertain as to the number of days upon which the plaintiff made two visits, and is unwilling definitely to fix that number. The allegation that the charges are excessive, unfair and unwarranted is not sufficiently ■ definite. If the defendant intended to deny that the number of visits charged for were made, she ought to have explicitly averred that fact and stated how many visits were made, or fixed upon a number which she was willing to swear had not been exceeded. If the defendant by her allegation that the claim was excessive meant that the rate at which the visits were charged for was too high, she should have distinctly averred that fact and stated what rate had been agreed upon, or, in the absence of any agreement, the usual and ordinary rate for such services. The allegation of a direct defense, as to the part of the claim for which the court below entered judgment, was too vague and indefinite to warrant us in reversing the action of the court below: Erie City v. Butler, 120 Pa. 374; Ogden v. Beatty, 137 Pa. 197; Paving Company v. Young, 166 Pa. 267; Griel v. Buckius, 114 Pa. 187; Fish v. Barr, 22 Pa. Superior Ct. 131.

The allegation of a set-off was wholly insufficient. The affidavit averred, in substance, that the plaintiff and Samuel L. McFetridge, the son of the defendant, had, in March, 1904, agreed that any amount due the plaintiff for attendance upon the defendant, should be subject to the set-off of any indebtedness of the plaintiff to Samuel L. McFetridge, “who was associated with the plaintiff in a business known as the American Gas Heated Iron, in which there was to be advanced by the said Samuel L. McFetridge, sufficient capital to exploit an invention for a gas heated iron, without calling upon the plaintiff for any contribution. As a result of this agreement entered into between the plaintiff and the son of the defendant, there is due the said, son the sum of $957.82.” It is not necessary to consider the question whether this defendant could, in the absence of any undertaking on her part to pay to her son, upon account of his claim against the plaintiff the amount for which she was indebted to the plaintiff for services, avail herself of the contract between the plaintiff and her son, as a defense to this action. Even if this defendant had herself made the contract which the affidavit avers her son made with the plaintiff, the claim which she avers arose out of that contract and which she now seeks to set-off is not sufficiently stated. The averments of a set-off must be set forth by the defendant in her affidavit with the same clearness and particularity that are required of a plaintiff in his statement: Appleby v. Barrett, 28 Pa. Superior Ct. 349. The contract which the affidavit avers was entered into in March, 1904, did not by its terms make the plaintiff a debtor of Samuel L. McFetridge for any sum, and if the plaintiff ever became so indebted it was because of something done under the contract. If* Samuel L. McFetridge advanced money under the contract, the affidavit should have stated how and when such money was advanced, or if the business to which the contract related had been settled and it had been found upon such settlement that there was a balance due from the plaintiff to Samuel L. McFetridge, the facts sufficient to charge the plaintiff as a debtor should have been stated.

The judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Mifflin Township Poor District v. Schuylkill County Poor District, Appellant.

      Poor law — Order of removal — Exceptions—Appeals.
    On an appeal from an order affirming.the order of removal of a pauper, a single general exception to the opinion or decree of the court is not sufficient to authorize the appellate court to review the whole case upon the merits, or to review particular rulings upon points of evidence or of law, even though they be assigned for error; and in such a case it is not sufficient to merely file exceptions. They must be noted by the court, and it must appear in some form that they were presented to the court, and were put upon the record with the express sanction of the court. Such exceptions should be presented within a reasonable time after the .order was made, and before the appeal may be taken.
    Where there is a specific exception to each finding and conclusion complained of, and after all of the exceptions the court makes a note, signed and sealed by the judge, “ the exceptions above taken are hereby noted, and bills sealed in each instance,” but without such a note after each exception, sufficient compliance is made with the provisions of the statute, and the record is sufficient to sustain the suing out of an appeal.

      Poor law — Notice to pauper — Order of removal.

    An order for the removal of a pauper cannot be sustained where no notice has been given to the alleged pauper of the complaint that he was likely to become chargeable upon the poor district.
    Argued March 6, 1908.
    Appeal, No. 21, Jan. T., 1908, by defendant, from order of Q. S. Columbia Co., Feb. T., 1905, No. 14, confirming order of removal in case of Overseers of the Poor District of Mifflin Township v. Directors of the Poor and of the House of Employment for the County of Schuylkill.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from order of removal of a pauper. Before Evans, P. J.
    From the record it appeared that Harvey Gearhart had no notice of the complaint and hearing thereon, that he was likely to become chargeable to the poor district of Mifflin township. Other facts appear by the opinion of the Superior Court.

      Errors assigned were in not finding certain facts and conclusions in favor of the defendant, including the fact that no notice had been served upon Harvey Gearhart of the complaint and the hearing (3).

      William Chrisman and W. F. Shepherd, with them M. H. Moyer, for appellants.
    The complaint made against Harvey Gearhart in this case by the overseers of Mifflin township, through their attorney, T. J. Vanderslice, alleged that he was likely to become chargeable upon the poor district of Mifflin. It was, therefore, the duty of the justices of the peace to direct notice to Harvey Gearhart of that fact; and having given such notice to inquire into and adjudicate upon the truth thereof: He would then have had a chance to show that the complaint was unfounded, which was his legal right. That notice was required to be given to him has been settled beyond the possibility of dispute: Overseers of Gilpin Township v. Overseers of Parks Township, 118 Pa. 84; Commonwealth v. Darr, 11 Pa. Superior Ct. 74; Poor District of the Borough of Edenburg v. Poor District of the Borough of Strattanville, 5 Pa. Superior Ct. 516.

      Grant Herring, with him S. P. Wolverton, S. P. Wolverton, Jr., and T. J. Vanderslice, for appellee.
    Under the Act of March 16, 1868, P. L. 46, relating to appeals from orders of removal of paupers, separate exceptions must be taken to any particular finding of fact or conclusion of law alleged as error. A mere general exception to the findings of fact and conclusions of law is insufficient, and the fact that the general exception is repeated after each assignment of error to a particular finding of fact or conclusion of law does not bring the appeal within the provisions of the statute: Sibley v. Robertson, 212 Pa. 24; Petri v. Carracciolo, 33 Pa. Superior Ct. 312; Wingert v. Teitrick, 31 Pa. Superior Ct. 187.
    If it should be contended that the exceptions noted and bills sealed as of October 8,1907, and October 16,1907, are sufficient in law, then we contend that these exceptions were taken and these bills sealed too late, more than six months having elapsed between' the filing of the opinion approving the order of removal and the obtaining of the exceptions, etc.: Haines v. Com., 99 Pa. 410.
    December 21, 1908:
   Opinion by

Rice, P. J.,

Upon the allowance of the court of quarter sessions of Columbia county an appeal was entered by the directors of the poor of Schuylkill county from an order of removal of Harvey Gearhart from the poor district of Mifflin township in Columbia county to the poor district of the county of Schuylkill. Upon April 1, 1907, the court filed an opinion. setting forth its findings of fact, conclusions of law and answers to the written points that had been submitted by the parties, and concluding with an order affirming the order of removal and directing the Schulykill county poor district to pay the costs. On April 3, 1907, the following exceptions were filed on behalf of the latter district: “1st. The opinion is contrary to law. 2d. The opinion is contrary to the law in the case.” On April 19, 1907, the same day that the appeal was taken to this court, specific exceptions were filed to certain of the court’s findings and answers to the points. These exceptions referred to the findings and answers to the points by their respective numbers, and set forth the same in substance, and, in some instances, in the exact words of the court. At the end of the paper appears the following: “Now, April 15th, 1907, upon request of counsel for the poor district of Schuylkill County, the exceptions above taken are hereby noted, and bills sealed in each instance for the poor district of Schuylkill. By the Court, Charles C. Evans, P. J. [Seal].” Referring, however, to the body of the paper we find that following each of five of the exceptions there is a note in these or equivalent words signed and sealed by the judge: “Refused, exception noted and bill sealed, Oct. 16, 1907,” and that following each of the other exceptions there is a note signed and sealed by the judge, in these or similar words: “Assignment of error is overruled. Exception noted and bill sealed, Oct. 8, 1907.” The later dates, it will be noticed, were more than six months after the order appealed from was made, and more than five months after the paper was filed and the appeal was taken. '

The statute giving the right to have the decisions of the quarter sessions in such case reviewed in the appellate court provides, that “upon the hearing and argument .... it shall be lawful for either of the parties to the issue to except to any decision of the court upon any point of evidence or law, which exception shall be noted by the court and filed of record as in civil cases, and a writ of error (now appeal) to the Supreme Court (now to the Superior Court) may be taken by either party to the judgment of the court with like effect as in civil cases:” Act of March 16, 1868, P. L. 46. A “point of evidence,” in the contemplation of this statute, is whether a witness offered is competent or whether evidence offered is competent or relevant as tending to prove a fact material to the issue, and a “point of law” is a question of law applicable to the facts as they may be found by the court, which the party may propose in the shape of a written point and require an answer: Lower Augusta v. Selinsgrove, 64 Pa. 166. It results from this construction of the statute, as well as from the provision assimilating the proceedings to those in use in civil cases, that the exceptions must be specific; a single general exception to the opinion or decree of the court is not sufficient to authorize us to review the whole case upon the merits, or to review particular rulings upon points of evidence or of law, even though they be assigned for error. Therefore, the exceptions filed on April 3, 1907, may be dismissed from consideration without further notice. Again, it is not sufficient to merely file exceptions. They must be noted by the court. This is absolutely essential to entitle them to go upon the record. It must appear in some form that they were presented to the court and were put upon the record with the express sanction of the court. As the decisions of the court upon the several written points of law submitted by the parties are not usually made upon the hearing and argument, it is apparent that the legislature did not intend to make it an imperative requirement that the exceptions be noted at that time. Nor do we think they may not be noted after the date on which the decisions were rendered. It is due to the court, however, that they be presented to it within such reasonable time thereafter, “ as that the matter may be still fresh in the recollection of the court,” and we have no doubt that it is within the power of the quarter sessions to declare by a general rule what is the reasonable time within which they must be presented. See Haines v. Commonwealth, 99 Pa. 410. But be that as it may, having regard to the reason of the requirement that the exceptions be noted by the court, as well as to the very words of the act, we think it clear that this must be done before the writ of error (now appeal) allowed by the act may be sued out. And this seems to have been the construction given to the act in Overseers of Parker Township v. Overseers of East Franklin Township, 13 W. N. C. 141, wherein the court said: “Such writs are authorized only where there is any exception to any decision of the court upon any point of evidence or law.” The practice is in some respects analogous to that on an appeal from the refusal to give judgment for want of a sufficient affidavit of defense, in which it has been held to be an essential prerequisite to the right to have the court’s decision reviewed that the plaintiff’s exception be of record, by the allowance of the court, before suing out the appeal: Mehring v. Commonwealth B. & L. Assn., 17 W. N. C. 422; Chambers v. McLean, 23 Pa. Superior Ct. 551.

Viewing the record in the light of the foregoing'conclusions, we are constrained to hold that if there were nothing to show that the exceptions were tendered to and allowed by the court before October 8th and 16th, the motion to quash ought to prevail. There remains to consider the effect of the court’s action on April 15th, as shown by the paper filed on April 19th. In Overseers of East Franklin Township v. Overseers of Rayburn Township, 23 Pa. Superior Ct. 522, it was held that a mere general exception to the judge’s' findings of fact and conclusions of law was insufficient to bring those findings on the record for purposes of review. But in this case there was a specific exception to each finding and conclusion complained of, and by the unequivocal terms of the order referring to them the court noted each of the exceptions. It is true, the court did not actually repeat after each exception the words “Exception noted and bill sealed,” and attach thereto his signature and seal, but the note made at the end was evidently intended to have the same effect as if the judge had gone through that formality. Having regard to substance, every purpose of the statutory provision is carried out by treating this as a bill of the exceptions presented by the appellant and noted and sealed by the court, as it was evidently intended to be. See Commonwealth ex rel. v. Arnold, 161 Pa. 320. We cannot agree that the entry purporting to be made on April 15th is contradicted by the entries purporting to be made on October 8th and 16th. The paper was sent up by the court in obedience to the writ as part of the record, and as the date of filing indorsed on the paper corresponds with the date of filing mentioned in the docket entries, there is no room for doubt that the paper with the final entry made by the court at the end is the paper referred to in the docket entries. Assuming, as we must, that the entries were made by the court at the dates they purport to have been made, the presumption is that the later entries were not intended to qualify or negative what the earlier entry imports, but were intended to be in addition thereto. We therefore conclude, that as the bill of the exceptions presented to and allowed by the court on April 15th and filed on April 19th was sufficient to bring the rulings complained of on the record for purposes of review, the motion to quash must be overruled.

The appellee's counsel concede that if the motion to quash be not sustained the third assignment of error is well taken. As they well say, they could not contend otherwise under the authorities: Overseers of Gilpin Township v. Overseers of Parks Township, 118 Pa. 84; Commonwealth v. Darr, 11 Pa. Superior Ct. 74.

The third assignment of error is sustained, the order of the quarter sessions from which this appeal is taken is reversed, and the order of removal is quashed at the costs of the appellee.


author: Morrison, J.,

text:
    Schaefer v. Lange, Appellant.

      Affidavit of defense — Contract—Book entries — Case for jury.

    In an action of assumpsit for an amount named on an account containing lumping charges for a large number of items of furniture, an affidavit of defense is sufficient which specifically denies the purchase of the goods to the amount named, or any part thereof, on open book account as averred by plaintiff, and specifically avers that the contract was to furnish certain rooms for a sum stated which was less than the sum set forth in the statement of claim, and further avers that the plaintiff failed to comply with his contract in a material and substantial manner, that the goods delivered were not in accordance with the contract, and that the defendant refused to accept the same and notified the plaintiff to remove them from the house.
    Argued Oct. 23, 1908.
    Appeal, No. 150, Oct. T., 1908, by
    defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1907, No. 1,253, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Louis Schaefer v. Mary Lange.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

      William C. Schwebel, for appellant.

      John E. Sibble, for appellee.
    December 21, 1908:
   Opinion by

Morrison, J.,

The learned judge below, without filing an opinion or giving reasons therefor, granted judgment against the defendant for want of a sufficient affidavit of defense. A careful consideration of the declaration and the affidavit of defense leads us all to the conclusion that the case should have gone to a jury. The account contains lumping charges for a large number of items with a total amount carried out, as for instance, “6 bedstead and springs $21.60;” “8 mattress $18;” “3 stove $16.50;” “5 bureau $20,” and so on till a total footing is reached of $212.70.

To bring this so-called book account within the affidavit of defense law it seemed necessary, to the pleader, to aver as follows: “The prices charged therein for said goods are the fair market price for the same and are the same prices agreed upon by the said plaintiff and defendant and the said prices are correct, just and reasonable.” But this averment must go for naught because the affidavit of defense states that the defendant has a full and legal defense to all of the plaintiff’s claim of the following character. The defendant then specifically denies that the goods mentioned in the plaintiff’s claim were sold to her at her instance and request at the times and in the amount and for the prices specified therein, and says that no such contract was entered into by the defendant for the said goods or any part of them, and that the defendant is not in any way indebted to the plaintiff for any goods so alleged to have been delivered. The affidavit then avers a contract entered into by defendant with plaintiff whereby the latter agreed, for the consideration of $200, to be paid him by the defendant, to furnish eight rooms in her house completely with furniture, carpets, matting, bedding, fifteen wall pictures, stoves and other household articles necessary to make up a living room, so that the eight rooms in the house could be rented to as many small families for living purposes, said furniture, carpets, matting, bedding, pictures, stoves and other necessary articles to be second hand and in good condition, and the' plaintiff also was to set up all this furniture and lay the carpets and matting; that the plaintiff did deliver some goods at the above-mentioned premises purporting to be under said contract, and refused upon demand to deliver the balance of the same for which he had contracted; that this balance which he so refused to deliver included one parlor suite, fifteen pictures, hall carpet, blankets and comforts for the beds, two stoves, two bureaus and one wash stand; that some of the furniture that was so delivered was unfit for use, was broken and ill fitting, which the deponent refused to accept; that deponent refused to accept the goods so delivered, first, because they were not in pursuance of .the contract entered into by her with the plaintiff, and secondly, because 'they were in bad condition, and made tender of the goods to the plaintiff directing him to remove the same, and declared the contract to be at an end unless the plaintiff would deliver goods as he had originally contracted. The affidavit then denies the validity of the copy of the plaintiff’s book of original entries and avers it to be incorrect and defective, and insufficient to maintain an action thereon and demands an inspection of the’ plaintiff’s book of original entries at the trial.

We here have a specific denial of the purchase of the goods, amounting to $212.70, or any part thereof, on open book account as averred by the plaintiff. We next have the specific averment of a contract with the plaintiff to furnish eight rooms as stated in the affidavit of defense for the sum of $200, and if this is true, then the goods so furnished would not be the subject of a book account for goods sold and delivered at the special instance and request of the plaintiff, but, having complied with his contract, the plaintiff’s remedy would be an action on the contract to recover $200 and no more. We then have the specific averment that the plaintiff failed to comply with his contract in a material and substantial manner and this would prevent his recovering the $200. We next have the notice given by defendant to the plaintiff that the goods delivered were not in accordance with the contract and the refusal to accept the same and a notice to the plaintiff to remove them from the house. This, in substance, was a rescission of the contract on the part of the defendant and assuming, as we must for present purposes, that the matters set up in the affidavit of defense are true, it was the duty of the plaintiff to either comply with his contract promptly or remove the goods. We do not think the defendant was bound to return the goods to the plaintiff under the facts averred in her affidavit.

It is not necessary to cite authorities to establish the familiar rule that the facts well stated in an affidavit of defense must be taken as true where summary judgment is demanded.

The first and second assignments of error are sustained and the judgment is reversed without prejudice, etc.


text:
    Commonwealth v. McCloskey, Appellant.

      Criminal law — Burglary—Evidence—Reasonable doubt — Guess by jury.

    On the trial of an indictment for burglary the commonwealth can only ask a conviction on sufficient evidence to establish the guilt of the prisoner beyond a reasonable doubt. While in such a case the jury at most may guess that the prisoner is guilty, and they may guess rightly, still the verdict and judgment cannot stand if there is not sufficient evidence to establish guilt beyond a reasonable doubt.
    Argued Oct. 19, 1908.
    Appeal, No. 22, April T., 1909, by defendant, from judgment of O. & T. Allegheny Co., May T., 1908, No. 0000, on verdict of guilty in case of Commonwealth v. George McCloskey.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for burglary. Before Kennedy, P. J.
    The court charged in part as follows:
    [If you are convinced beyond a reasonable doubt that they all three or any one of them was guilty of the offense, it will be your duty to say so by your verdict. If you are not convinced beyond a reasonable doubt that they committed the offense, then it will be your duty to acquit one or two or three of them accordingly as you find from the testimony that they are guilty or innocent. You can, by your verdict, acquit one or more or you can find one or more guilty of the offense.] [1]
    [Now the parties, it seems, were together here. The apartments or flat on the first floor of the house was occupied by the mother of one of the defendants, Mrs. Hannan, and she was absent from home at the time of the occurrence, having made preparation to move from this house to Johnston.] [2]
    [The testimony on the part of the commonwealth would tend to show that there were persons in the apartment under the Misses Brown’s rooms, which were on the second story; they hearing conversation there during the time, and especially the night. One of -the ladies during the night in which the burglary is alleged, to have been committed, says of this talking that she heard men’s voices in the room below, and at about half past nine, when the elder Miss Brown returned from church, one of these defendants, McAteer, who is identified by her, was seen. First, she heard knocks at the apartment of Mrs. Melville, which is just across the hall from her rooms, and hearing knocks there, she opened her door and told him that the occupants of that apartment were away from home, and he thereupon left and went downstairs. Now she identifies McAteer as the man knocking at that apartment on this evening on which this burglary is alleged to have been committed. The next day, McAteer was found somewhere in Craft avenue, or I believe on Forbes street, where it crosses Craft avenue, and was arrested by an officer and taken to the police station, and while on his way there, or when he was taken to the police station — the officer took him back to the apartment house to make further investigation as to the crime that had been committed — on his way there back to the house, he found that he had a pistol, and carried him then to the police station and he was locked up. And, according to that officer, when McAteer found he was to be locked up, he then told him in substance that he ought to get the rest of the persons — the two others — that they were concerned in the commission of the crime with him.] [3]
    [But there are circumstances connected with the case that it is your duty to consider from the testimony and ascertain whether or not Porter and McCloskey were connected in any way with the offense charged.] [4]
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-4) above instructions, quoting them.

      John F. Cox and A. M. O’Brien, with them George W. Brawner, for appellants.

      Harry H. Rowand, assistant district attorney, with him Harry L. Goehring, district attorney, for appellee.

      December 14, 1908:
   Opinion by

Morrison, J.,

The defendant and Charles H. Porter and Harry McAteer were jointly indicted and convicted of the crime of burglary. After sentence, Porter and McCloskey appealed to this court. This opinion is in the appeal of the latter, but it is intended to apply also to Porter’s appeal, as both cases and appeals rest on the same ground. McAteer did not appeal and it seems to be conceded that his conviction and sentence were warranted by the evidence.

At the close of the case of the commonwealth counsel for Porter and McCloskey moved the court to direct a verdict in their favor for the reason that the commonwealth had failed to produce sufficient evidence to warrant the conviction of either of them. This motion was refused and the defendants then offered the evidence of several witnesses and also took the stand in their own behalf. An examination of the testimony convinces us that the defendants did not strengthen the commonwealth’s case, and, therefore, the question remained, was there sufficient evidence to carry the case to the jury as to Porter and McCloskey? No formal points were presented to the court on the part of the defendants and all the questions raised by the assignments of error are under a general exception to the charge of the court taken in behalf of the defendants.

The first assignment is only open to criticism on the ground of the insufficiency of the evidence as to Porter and McCloskey. We feel compelled to hold that the evidence was insufficient as to them and, therefore, the first assignment is sustained.

The fourth assignment is: “The Court erred in its charge to the jury as follows: 'But there are circumstances connected with the case that it is your duty to consider from the testimony and ascertain whether or not Porter and McCloskey were connected in any way with the offense charged.’ ”

We have examined the evidence with care and cannot see that it warranted the jury in finding Porter and McCloskey guilty of the burglary charge against them. If there had been such evidence, then it cannot be denied that there were some slight circumstances in evidence that would, or might have been corroborating. But in the whole record there is a want of evidence to support the verdict of guilty of burglary as to Porter and McCloskey. Therefore, it was error to charge as quoted in the fourth assignment and it is sustained.

At most, the jury could only guess that Porter and Mc-Closkey were guilty, and while they may have guessed rightly the verdict and judgment cannot stand for the reason that the commonwealth can only ask a conviction on sufficient evidence to establish the guilt of the defendants beyond a reasonable doubt.

The first and fourth assignments of error are sustained, and the judgment is reversed as to George McCloskey and he is discharged without day.


text:
    Commonwealth v. Porter, Appellant.
    Argued Oct. 19, 1908.
    Appeal, No. 27, April T., 1909, by defendant, from judgment of 0. & T. Allegheny Co., May T., 1908, No. 8, on verdict of guilty in case of Commonwealth v. Charles H. Porter.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    December 14, 1908:
   Opinion by

Morrison, J.,

For the reasons contained in the opinion this day filed in Commonwealth v. George McCloskey, No. 22 of April Term, 1909, ante, p. 621, the first and fourth assignments of error are sustained and the judgment against George H. Porter is reversed and he is discharged without day.


author: Orlady, J.,

text:
    Likins’s Petition
    (No. 1).

      Constitutional law — Special sessions of legislature — Proclamation by governor — Title of act — Corrupt practices act — Act of March 5, 1906, P. L. 78.
    The Act of March 5, 1906, P. L. 78, known as the corrupt practices act, and entitled “ An act to regulate nomination and election expenses, and to require accounts of nomination and election expenses to be filed, and providing penalties for the violation of this act,” does not violate sec. 25 of art. Ill of the constitution, which provides that “When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such sessions.”
    The subject of secs. 9, 10, 11 and 12 of the act of March 5, 1906, is sufficiently designated in sec. 3 of the governor’s supplemental proclamation of January 9, 1906, as follows: “To designate the uses to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nominations and elections,- and to require the managing committee and managers of all political parties to file with some designated official at the close of each campaign, a detailed statement in writing accompanied by affidavit, of the amounts collected and the purposes for which they were expended.”
    In order to interpret the proclamation of the governor the courts are bound to give the words used the same fair and reasonable meaning and intendment which they apply when considering a statute, >and the general scope and sufficiency of the proclamation is to be determined by the same well-known rules. The purpose of the proclamation is to inform the members of the legislature of the designated subject which they are convened to consider, and when the general assembly enacts a law which is fully and clearly responsive to such a call, both in its title and in the body of the act, such law will be maintained by the courts.
    The Act of March 5, 1906, P. L. 78 is sufficient in title and is not in conflict with sec. 3, art. Ill of the constitution.
    The subject in a title to a general law should be more comprehensive and clearly expressed than in a proclamation to the members of. the general assembly who are convened to consider particular legislation. The framers of the constitution had this difference in mind in not requiring the same particularity in the word used in the proclamation and that required in the title of a statute.
    The courts are not at liberty to declare statutes void because of their apparent injustice or impolicy. Neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the constitution. The only duty and power of the courts is to scrutinize the act with reference to its constitutionality in order to discover which principle of the constitution, if any, is violated.
    Whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution.
    Argued April 20, 1908.
    Appeal, No. 222, April T., 1908, by W. M. Likins et al., from order of Q. S. Fayette Co., Dec. T., 1907, No. 285, dismissing petition of W. M. Likins et al. for audit of the account of John R. Byrne, chairman and treasurer of the republican county committee.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition for appointment of auditor. Before Umbel, P. J.
    The case turned upon the constitutionality of the act of March 5, 1906, known as the corrupt practices act.
    The court in an opinion by Umbel, P. J., held that the act was unconstitutional, and dismissed the petition.

      Error assigned was order dismissing the petition.

      M. H. Stevenson, with him L. L. Minor, for appellants.—
    The courts are not to be astute in finding or sustaining objections to titles in which the subject is to be “clearly expressed:” Sugar Notch Borough, 192 Pa. 349; Wilson v. Edwards, 32 Pa. Superior Ct. 295; Com. v. Gilligan, 195 Pa. 504.
    By how much more are they not to be hypercritical with proclamations in which the only requirement is that the subject be “designated.”
    Here we have two widely different expressions, and surely the stricter construction should not apply to the milder of the two: Allegheny County Home’s Case, 77 Pa. 77; Powell v. Com., 114 Pa. 265; Com. v. Moore, 2 Pa. Superior Ct. 162; Pittsburg’s Petition, 32 Pa. Superior Ct. 210; Com. v. Meads, 29 Pa. Superior Ct. 321.

      E. C. Higbee, of Sterling, Higbee & Dumbauld, with him George Patterson, for appellee.
    The proclamation of the governor designates only a small portion of the general subject. An act of very limited provisions was the legislation he thought necessary to supplement and correct any defects that might exist in the present system of election law in Pennsylvania. That there is a wide variance between the proclamation and the act is manifest. That the proclamation does not designate this act as a subject, is plain: Pittsburg’s Petition, 217 Pa. 227.
    The title of the act is defective: Road in Phœnixville, 109 Pa. 44; Com. ex rel. v. Samuels, 163 Pa. 283; Com. v. Kebort, 212 Pa. 289; Stegmaier v. Jones, 203 Pa. 47; Sugar Notch Borough, 192 Pa. 349.
    December 21, 1908:
   Opinion by

Orlady, J.,

In accordance with the provisions of the. Act of March 5, 1906, P. L. 78, known as the corrupt practices act, this proceeding was instituted in the court below upon a petition signed by five qualified electors, praying for an audit of an account filed by John R. Bryne, chairman and treasurer of the Republican committee of Fayette county for 1907. A motion to quash, an answer and a demurrer were filed, and after a full hearing the court held the governor’s proclamation and the subject of thé Act of March 5, 1906, P. L. 78, to be in conflict with, and to offend against sec. 25, art. Ill of the constitution; and then dismissed the petition and quashed the proceedings; whereupon the petitioners bring this appeal. We are met at the threshold of this case with a large number of adjudications by the appellate courts which define our duty in considering the question involved as stated by the appellant, viz.: Does the governor’s supplemental proclamation of January 9, 1906, designate the subject of sections nine, ten, eleven and twelve of the Act of March 5, 1906, P. L. 78? Second. Do these sections conflict with or offend against section 25, article III, of the constitution, which provides that 'When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such sessions.’ ” The appellee urges that while the controversy involves the constitutionality of the whole of the act, in a narrower and stricter sense, its ninth section is particularly the subject of attack, and if either the whole act, or the ninth section is held unconstitutional, the judgment of the court below should be affirmed. The proceeding has its foundation in the ninth section, which requires that when such an account has been filed, five electors may present a petition to the court of quarter sessions of the county in which the office is situated, where such account has been filed, praying for an audit of such account, and it was at this stage of the proceeding that the petitioners invoked the aid of the court to appoint an auditor to audit the account. The whole course of decision in the appellate courts has been consistent in the effort to carry out the true intent of statutory enactments instead of resorting to sharp criticism, which must often bring legislation to naught, and as said in Allegheny County Home’s Appeal, 77 Pa. 77: “ It will not do, therefore, to impale the legislation of the state upon the sharp points of criticism, but we must give each title, as it comes before us, a reasonable interpretation. If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to the contents, as has often been said,” as such an interpretation would make the act and the title but repetitions of each other. In Sharpless v. The Mayor, etc., 21 Pa. 147, the mode of construction of legislative enactments is stated as follows: “The federal constitution confers powers particularly enumerated; that of the state contains a general grant of all powers not excepted. The construction of the former instrument is strict, against those who claim under it; the interpretation of the latter is strict, against those who stand upon the exceptions, and liberal in favor of the government itself. The federal government can do nothing but what is authorized expressly or by clear implication; the state may do whatever is not prohibited.” We can declare an act of assembly .void, only when it violates the constitution clearly, plainly and in such manner as to leave no doubt or hesitation in our minds. This principle is asserted by judges of every court, both federal and state, and by some of them it is expressed with great solemnity of language. In Erie & Northeast Railroad Company v. Casey, 26 Pa. 287, the same thought is expressed as follows: “The right of the judiciary to declare a statute void and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibility so grave that it is never to be exercised except in very clear cases. One department of the government is bound to presume that another has acted rightly.”

These principles are necessary incidents of the lawmaking power. “In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete authority as it vests in and may be exercised by the sovereign power of any state, subject only to such restrictions as they have seen fit to impose, and to the limitations which are contained in the constitution of the United States. The legislative department is not made a special agency for the exercise of specially defined legislative powers, but is entrusted with the general authority to make laws at discretion:” Cooley’s Con. Lim. 87; Powell v. Commonwealth, 114 Pa. 265. We cannot try the constitutionality of a legislative act by the motives and designs of the lawmakers, however plainly expressed. If the act itself is within the scope of their authority it must stand, and we are bound to make it stand if it will upon any intendment. It comes to us with the seal of approval of two co-ordinate departments of the government, and to doubt is to decide in favor of its constitutionality, and again, it is said, nothing but a clear violation of the constitution — a clear usurpation of power prohibited — will justify the judiciary department in pronouncing an act of the legislative department unconstitutional and void: Pennsylvania R. R. Co. v. Riblet, 66 Pa. 164. The constitution allows the legislature every power which it does not positively prohibit. The wisdom, justice or expediency of the passage of an act of the legislature is not the subject of debate in our courts of justice. In one of the more recent cases, Sugar Notch Borough, 192 Pa. 349, the present chief justice stated r “ It must not be lost sight of that the attitude of courts is not one of hostility to acts whose constitutionality is attacked. On the contrary, all the presumptions are in their favor, and courts will not be astute in finding or sustaining objections. . . . The express enumeration of the specific subjects must be affirmatively misleading as to the intent to exclude others, or the title will not be made invalid by it. The constitutional requirement as.to the title.is not to be strained to apply to cases not really within its reasonable intent,” and in Com. v. Moir, 199 Pa. 534, “The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason and expediency with the lawmaking power. If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the constitution:” Cooley on Constitutional Limitations, chap. 7, sec. 4. Our only duty, and our only power is to scrutinize the act with reference to its constitutionality in order to discover which principles of the constitution, if any, it violates. Whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution: Com. v. Reeder, 171 Pa. 505. The power of construing the constitution devolves upon the judiciary through the manifestation of the political principle that ours is a government of laws, rather than of men. In exercising that power the courts should take a large and comprehensive view of the constitution, ever mindful that every scripture is to be interpreted in the same spirit that gave it forth, and with a deep desire to enforce its full meaning.

It is specially urged that in the proclamation of the governor of January 9,1906, item “Third. To designate the uses to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nominations and elections, and to require the managing committees and managers of all political parties to file with some designated official at the close of each campaign, a detailed statement in writing, accompanied by affidavit, of the amounts collected and the purposes for which they were expended,” is not sufficiently specific to sustain the act, as being in conflict with and offending against sec. 25 of art. Ill of the constitution, which reads: “ When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling the special session.”

Among the specially delegated powers of the governor of this commonwealth, is the authority given in sec. 12 of art. IV of the constitution as follows: “He may, on extraordinary occasions, convene the General Assembly,” etc., etc. Pursuant to this authority the governor issued a proclamation and indicated as one of four subjects the item third above quoted, “for the consideration of the General Assembly, with a view to legislation at the said session with respect to them.” An additional article was included in the same proclamation, relating to legislation on the subject, “To enable cities that are now, or may hereafter be, contiguous or in close proximity, to be united in one municipality,” etc., etc. This latter feature of the proclamation as well as the legal effect to be given to it, was considered by this court (32 Pa. Superior Ct. 210), and exhaustively reviewed in Pittsburg’s Petition, 217 Pa. 227, when it was conclusively established that “Whether the general assembly ought to be called together in extraordinary session is always a matter for the executive alone. How it shall be called together, and what notice of the call is to be given, are also for him alone. The constitution is silent as to these matters and wisely so. ... A proclamation, however, is the proper mode of calling the legislature together, and the constitution seems to so contemplate, for section 25, article III, speaks of the proclamation. But no form of proclamation is to be followed. . . . This, however, is not for the judiciary, but for the governor alone. . . . With every presumption in favor of compliance by the executive with the constitutional requirements relating to his calling the general assembly together in extraordinary session, it would be judicial hypercriticism to declare his second notice or proclamation insufficient to authorize the legislature to pass the act under consideration.”

The subject embraced in the third item of the second proclamation should be considered, not in subdivisions or detached parts, but in its entirety. It represents a continuous and complete thought in one sentence, which refers to a general project, the uses to which money may be applied in political campaigns, and in ascertainment of this, the required, the filing of statements in writing of the amount of such moneys collected and the purposes for which they were expended. In order to interpret the proclamation of the governor, we are bound to give the words used the same fair and reasonable meaning and intendment which we apply when considering a statute, and the general scope and sufficiency of the proclamation is to bé determined by the same well-known rules. The purpose of the proclamation is to inform the members of the legislature of the designated subject which they are convened to consider, and when the general assembly enacts a law which is fully and clearly responsive to such a call, both in its title and in the body of the act, it is playing on words to say that the call, as such, was misleading or insufficient. As we said in Pittsburg’s Petition, 32 Pa. Superior Ct. 210, “While it is mandatory upon the Executive to designate the subjects to be considered by the general assembly, it is outside our duty to go beyond the words of the law to inquire whether all of the other precedent formalities have in fact been complied with.” Moreover, the designation of the subject, so far as this case is concerned, is in no wise ambiguous; and that the general assembly clearly understood its meaning, and that this enactment was responsive to the call of the governor, is clearly shown by the title to and body of.the act. That the proclamation, so far as it relates to the act under consideration, was equally clear and that the notice it carried was plain, is demonstrated by the records of the legislature with the debates, amendments and final enactment followed by the approval of the governor. The necessity for such legislation was manifested by the call of an extraordinary session of the general assembly.

Had this legislation been enacted at a regular, instead of an extraordinary session of the general assembly, the attack against it would have been confined to the sufficiency of the title, but this feature of the assault was not sustained by the court below, as the learned judge properly denied and refused the contention that the title to the act did not clearly express the subject, and he held that it was not in conflict with sec. 3, art. Ill of the constitution. The oath of office prescribed by art. VII of the constitution of 1873, includes the declaration — “That I have not paid or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to procure my nomination or election or appointment, except for- necessary and proper expenses expressly authorized by law.” Sections 8 and 9 of art. VIII of the same fundamental law, define and declare the offense of bribery of an elector and prescribe a penalty for violation of the election laws. Former legislative enactments were deemed inadequate, and this was a step forward as an added requirement to safeguard the ballot box from the pollution of fraudulent and unqualified votes, by making more specific and by defining with greater particu.larity “the uses to which money may be applied by candidates, political managers and committees in political campaigns both for nominations and elections.” The constitution and the general assembly by prior declarations had directed attention to this general subject, and the provisions contained in the body of the act under consideration are but details of the general purpose expressed in the title, which fairly and clearly expresses its purpose by which all those who are interested, or may be affected by its provisions, are put upon inquiry. No one could read either the proclamation of the governor, or the title of the act without meeting the subject referred to in both— the use of money in elections — and as we said in Com. v. Jones, 4 Pa. Superior Ct. 362, “The subject may have but one object, while the means necessary for the attainment of that object may necessarily embrace separate subjects differing in their nature and particular effect, yet all contributing to it and comprised within the principal subject. Everything which the language of the subject of a title reasonably suggests as necessary or appropriate for the accomplishment of its express purpose, is sufficiently enacted by its title,” and either the. proclamation or the title is sufficiently clear and explicit to in-' vite an inquiry into the body of the bill. Nor is the requirement of the law satisfied by anything short of an examination of the whole body of the act, when an inquiry is once invited by a sufficient title, and the same reasonable rule applies to the sufficiency of the proclamation. The learned court below concluded that the' legislature, under this proclamation, could not at this special session pass a law of a general character “regulating” nominations and election expenses, and that there was no authority to go beyond what is implied and expressed in the proclamation — the enactment of a law on the subject “designating” the uses to which moneys may be applied, etc.; and held that, “while the authority to regulate includes and carries with it the authority to designate, the authority to designate does not and cannot be said to include and carry with it the authority to regulate. Under authority to pass a law regulating any matter, a general system of law may be formulated, embracing every feature, specification and detail that would be germane to the subject.” The last proposition has ample authority for its support in Sugar Notch Borough, 192 Pa. 349, in which case the present chief justice says in regard to the Act of April 3, 1851, P. L. 320, entitled, An act regulating boroughs: “Nothing more general and comprehensive on that subject could have been devised. It included the entire range of borough affairs so far as they were within legislative control.

“The whole controversy in this case is made to hinge on the effect and meaning to be given to the word ‘designate’ as used in item third of this proclamation, and the word f regulate’ as used in the title of the act.” The mandate of the constitution with reference to the proclamation is — there shall be no legislation upon subjects other than those designated. The prohibition in regard to the form of a statute is, it shall not contain more than one subject, which shall be clearly expressed in its title. There is apparent justice and reason in providing that the subject in the title to a general law should be more comprehensive and clearly expressed than in a proclamation to the members of the general assembly, who are convened to consider particular legislation. The framers of the constitution evidently had this difference in mind in not- requiring the same particularity in the word used in the proclamation, and that required in the title of a statute. In construing a statute, the title may be consulted in aid of the interpretation of the body of the act in cases of ambiguity and uncertainty, and the preamble may be resorted to for aid in its interpretation or.to reconcile seeming inconsistences (Com. v. Marshall, 69 Pa. 328), and generally the words of a statute are to be construed according to their popular and ordinary acceptation, and not necessarily according to the strict rules of etymology or grammar: Com. v. Phila. County Commrs., 1 S. & R. 382; Phila., etc., Railroad Co. v. Railroad Co., 53 Pa. 20. A general and comprehensive, rather than a strained, technical or specific, meaning is ordinarily to be adopted: Commonwealth v. Light & Power Co., 145 Pa. 105.

In applying these rules to the proclamation, we must keep in mind that when the genéral assembly was convened to enact this statute, it was in response to two proclamations: the earlier one, dated November 11, 1905, “to consider legislation upon the following subjects:” First. To enable contiguous cities to be united, etc. Second. To increase the interest paid for use of state moneys, etc. Third. To. reapportion the state into legislative districts, etc. Fourth. To provide for personal registration of votes, etc. Fifth. To provide for the government of cities of the first class, etc. Sixth. To designate the amount to be expended for the erection of county bridges, etc. Seventh. To abolish certain fees, etc., and the later one, dated January 9, 1906, in' which the governor adopts his original call, and designates, “additional subjects for the consideration of the general assembly with a view to legislation at the said session with respect to them:” viz.:. First. To revise the laws relative to primary elections, etc. Second. To establish a civil service system, etc., and the third and fourth items above quoted. We conclude that the designation of the subject in the proclamation and its regulation in the title and body of the Act of March 5, 1906, P. L. 78, were sufficient. Standard authorities give more than twenty recognized synonyms in common use for the word “ designate,” and the word regulate ” is credited with nearly as many. While each word has a distinct and limited meaning, yet each has a number of suggestive equivalents, that are so frequently used and so generally understood that they become intelligible substitutes because of the various senses, primary and secondary, in which they are used. To insist on applying such a restricted meaning to words in common use in the construction of statutes would limit the legislative vocabulary to words understood by technical scholars only. Such refined distinctions between two words of such flexible meanings and often interchangeable in use are not adopted in the general affairs of men, and it would be drawing too fine a sight for the practical interpretation of statutes.

The order of the court below is reversed and the record is remitted with a procedendo.


author: Orlady, J., Rige, P. J., Porter and Henderson, JJ.,

text:
    Likins’s Petition
    (No. 2).

      Constitutional law — Special session of legislature — Proclamation of governor — Act of March 5,1906, P. L. 78.
    In construing art. Ill of the governor’s proclamation of January 9, 1906, convening an extra session of the legislature, the courts are to view it as the members of the general assembly were warranted in viewing it, that is, in the light of the whole document, together with the earlier proclamation of November 11, 1905, under which the general assembly was specially convened with a view to legislation on this and other specified subjects.
    Although a governor who has decided to convene a special session of the legislature is empowered to proclaim, to indicate, to designate the subjects for legislative consideration at such session, he cannot by his proclamation, any more than he can by his message to the same body when in regular session, prescribe or limit the manner in which or the extent to which the legislature may dispose of those subjects, which he designates in his proclamation as matters for legislative consideration. He may by proclamation in the one case, as by message in the other, suggest the lines along which in his judgment the lawmaking body could most wisely or effectively operate. Such recommendations are in nowise restrictive of the legislative power. When, therefore, the governor, by his proclamation, couched in such language as he may select, has fairly indicated to the legislators and the people, a general subject for legislative consideration, the legislature, in special session, may lawfully deal with that subject as fully and completely as at a regular session.
    Article III of the supplemental proclamation of the governor of January 9, 1906, is sufficiently broad to cover the portions of the Act of March 5, 1906, P. L. 78, known as the corrupt practice act, which provide that candidates as well as managing committees and managers of political parties shall file statements of moneys collected and expended in political campaigns for nominations and elections.
    Argued Nov. 16, 1908.
    Appeal, No. 8, April T., 1909, by W. M. Likins et a!., from order of Q. S. Fayette Co., Dec. T., 1907, No. 284, dismissing petition of W. M. Likins et al. for audit of the account of John Q. Van Swearingen.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition for appointment of an auditor. Before Umbel, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was order dismissing the petition.

      M. H. Stevenson, with him L. L. Minor, for appellants.

      E. C. Higbee of Sterling, Higbee & Dumbauld, with him George Patterson, for appellee.
    December 21, 1908:
   Opinion by

Orlady, J.,

This is a companion case to In re Account of John R. Bryne, Treasurer, etc., in which an opinion is filed this day, and is similar to it, except that this is an application for an audit of the account of John Q. Van Swearingen, who was a candidate for the office of judge of the court of common pleas, etc., of Fayette county; and was elected at the general election held November 5,1907, and who on December 4,1907, filed with the. clerk of the court of quarter sessions of the county a detailed' account of money contributed, received and disbursed by him, for election expenses, etc., as required by the Act of March 5, 1906, P. L. 78.

Five qualified electors petitioned the court to appoint an auditor, etc., as required by sec. 9 of the act, and after hearing on a motion to quash, etc., the court below held the act to be unconstitutional for the reason that it was in conflict with sec. 25 of art. 3 of the constitution, in that the provisions of the act relating to the filing and review of accounts filed by candidates are not sufficiently designated in the proclamation of the governor calling the special session at which this act was passed.

Under the facts in the Bryne case, we held the act to be constitutional, and the reasons therein given apply in large measure to this one, so that it is not necessary to recount them here.

Item Third in the second proclamation of the governor is as follows: “To designate the uses' to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nominations and elections, and to require the managing committees and managers of all political parties to file with some designated official at the close of each campaign a detailed statement in writing, accompanied by affidavit, of the amounts collected and the purposes for which they were'expended.”

In the analysis of this item of the proclamation we are to view it as the members of the general assembly were warranted in viewing it, that is,, in the light of the whole document, together with the earlier proclamation of November 11, 1905, under which the general assembly was specially convened with á view to legislation on this and other specified subjects.

It is urged that the third item in this proclamation contains two subjects; or at least a principal and a sub-subject; for the purposes of this case, conceding this to be the fact, yet, the reason for the constitutional mandate prohibiting legislation on any subjects at a special session save those designated in the proclamation of the governor is fairly apparent. The purpose was that the legislators, thus unusually summoned, and the public at large should be advised, as to the general character of the legislation that could or might be constitutionally enacted at such special session. Although a governor who has decided to convene a special session of the legislature. is empowered to proclaim, to indicate, to designate the subjects for legislative consideration at such session, he cannot by his proclamation, any more than he can by his message to the same body when in regular session, prescribe or limit the manner in which or the extent to which the legislature may dispose of those subjects, which he designates in his proclamation as matters for legislative consideration. He may by proclamation in the one case, as by message in the other, suggest the lines along which in his judgment, the lawmaking body could most wisely or effectively operate. Such recommendations are in nowise restrictive of the legislative power. When, therefore, the governor, by his proclamation, couched in such language as he may select, has fairly indicated to the legislators and the people, a general subject for legislative consideration, the legislature, in special session, may lawfully deal with that subject as fully and completely as at a regular session. It is practically conceded that if the proclamation had stopped at what is called by the appellees, the first clause of “Item Third: To designate the uses to which moneys may be applied by candidates, political managers and committees in political campaigns, both for nominations and elections,” the legislature would have had fairly and properly before it the whole subject of the uses of money in political campaigns, and the legislation that followed would have been, in this respect, constitutional. Certain uses of money, expended by certain classes of persons or organizations, could have been declared lawful; other uses, by other classes or organizations, could have been prohibited, and the primary commands of the law could have been surely made effective by an enactment for the filing, auditing and publishing of accounts by those authorized to expend money, and the punishment of those who violated the legislative prohibition. But it is argued, because in the language following the suggested first clause referred to, the governor mentions the filing of accounts, and in that connection mentions only “managing committees and managers of political parties,” and not of candidates, he thereby cut down the dimensions of the subject previously designated, and limited the legislative power so that it could not lawfully prescribe or require the filing of any account by any person or body not specifically mentioned, described or designated in the proclamation. If this construction be sound, the governor has succeeded in practically strangling, before its birth, the very offspring he hoped to call into being through the efforts of the legislature he was summoning. The candidates are the persons most interested in the results of political campaigns, and if they may expend money at will, without being required to make public the nature and extent of their expenditures, the requirement that such accounts must be filed only by “managing committees and managers” who might neither gather nor expend any money, would simply divert the course of the stream into a channel whence it would flow unvexed by any obstruction or supervision, so that this legislative attempt to prevent the pollution of the ballot box would be destitute of sense or significance.

It is necessary that the subject be sufficiently designated in the proclamation to bring about intelligent and responsive action by the assemblymen. It is not required by the constitution that the subject be as clearly expressed in the proclamation as in the title to an act, nor is it required that the details by which the desired results may be accomplished be stated in the call, as this is necessarily a brief suggestion of a subject in such words so as reasonably to direct to it the attention of the legislative mind. This accomplished, the purpose of the constitution is fulfilled and the mission of the call is ended.

In this item, the designated subject was the lawful and unlawful use of money in political campaigns; the tribunal for ascertaining the sources from which moneys are obtained and the method of their disbursement; the uses to which moneys might be applied “by candidates, political managers and committees in political campaigns, both for nominations and elections.” The machinery to be adopted in supervising and restraining its improper use; and, — for legislative deliberation and conclusion, — many cognate provisions for remedying existing evils, through appropriate restrictions and penalties, all these were but details reasonably to be anticipated and resulting from the designated subject. Even if the individual, whether he be candidate, manager or committeeman, should have notice equivalent to the members of the general assembly, of the designated subject for intended legislation, each would see in the proclamation, that he is in the designated class of persons in regard to which the prospective legislation is requested.

The executive and legislative departments are designed to work to a common purpose in order to enact effective legislation. The result of this notice “to consider, with a view to legislation” on this designated subject, is the act before us.

In so far as the question involved in this case is concerned, the designation of the subject in the proclamation is sufficient and the same subject being clearly expressed in the title to the act, the order of the court below is reversed, and the record remitted to the court below with a procedendo.

Rige, P. J., Porter and Henderson, JJ.,

dissenting.

We will merely state the grounds upon which we differ from the majority without elaboration. We are of opinion that the legislation, so far as it relates to filing accounts by candidates, is not within the subject designated by the governor; in other words, the subject of filing accounts as designated by the governor, is expressly restricted to managing committees and managers of political parties. If this construction of the proclamation leads to a result which deprives the act of a beneficial feature, the remedy is with the legislature.