author: Henderson, Smith, J.,

text:
    Commonwealth v. Shaleen, Appellant.

      Mines and mining — Registration of miner — Constitutional law — Constitution of the United States — Act of July 15, 1897, P. L. 287.
    The portion of the fifth section of the Act of July 15, 1897, P. L. 287, relating to the examination and registration of miners who have had “not less than two years’ practical experience as a miner or mine laborer in the mines of this Commonwealth,” violates the Constitution of the United States, inasmuch as it denies to a citizen of another state “the privileges and immunities of citizens in the several states,” and “the equal protection of the laws.” The únconstitutiohality of this portion of the act, however, does not render the act unconstitutional as a whole.
    Although the Act of July 15, 1897, P. L. 287, applies generally to anthracite mines, the act does not render ineligible to employment as miners all persons except, those who had had two years’ experience in anthracite mines.
    Although no good reason may appear to the court why a limitation of the term used in the statute should have been omitted, and although it may seem highly improbable that an omission was intended, the court is not at liberty to enlarge the enactment to cover cases not within the clear and obvious meaning of the language; nor is the court warranted in assuming that the legislature did not attach value to experience in mines outside of the anthracite region, nor is there any presumption to that effect.
    When the effect of a statute is to grant privileges to citizens of the state in which the law is enacted and to deny these privileges to citizens of other states who are similarly situated, the statute cannot be supported under the Constitution of the United States.
    A part of a statute may be unconstitutional, and the remainder constitutional, and that which is constitutional will stand unless its provisions are so connected and dependent on each other in subject-matter that it must be presumed the legislature would not have enacted one without the other. Where the parts are so separable that each can stand alone, and it was evidently the legislative intent that the part held to be valid should be enforced, although the other part should fall, the part so sustained should be declared operative.
    Argued April 24, 1905.
    Appeal, No. 9, Jan. T., 1905, by defendant, from judgment of Q. S. Lackawanna Co., Oct. T., 1904, No. 1282, on verdict of guilty in case of Commonwealth v. John Shaleen.
    Before Rice, P. J., Beaver, Orlady, Smyth, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for violating the Miners’ Certificate Act of July 15, 1897, P. L. 287.
    The jury found the following special verdict:
    On September 10,1904, and at various times before and after that date, the defendant, John Shaleen, was employed and accepted a position and occupation, and exercised the duties of and engaged himself as a miner in an anthracite coal mine in the county of Lackawanna without having previously obtained a legal or proper certificate of competency and qualification to entitle him to be employed as such miner from the miners’ examining board, and without having duly registered as a miner, as such procurement of certificate and registry are required by the act of July 15, 1897. The said defendant had not had prior to the time of Ms acceptance of the employment as a miner as aforesaid two years’ practical experience as a miner or mine laborer in the mines of this commonwealth, nor had' he appeared in proper person before the board of examiners and answered intelligently and correctly at least twelve questions in the English language pertaining to the requirements of a practical miner, or been properly identified under oath as a mine laborer by at least one practical miner holding miners’ certificates, as required by the act of assembly. The defendant, John Shaleen, was at the time he accepted the position of miner in the anthracite mine and performed the duties of such miner a citizen of the state of Illinois, in the mines of which state he had more than two years’ practical experience as a miner and mine laboror.
    There are in the state of Pennsylvania large numbers of anthracite mines, and large numbers of bituminous coal mines, and there are also iron mines and zinc mines and fire clay mines. . There is no substantial or material difference in the method of mining coal in the bituminous mines of Pennsylvania and the bituminous mines of Ohio, West Virginia and Illinois or other states of the United States. Experience as a miner or mine laborer in the bituminous mines of Ohio, West Virginia or Illinois or other states of the United States would as fully qualify a person to exercise the duties of a miner in the anthracite mines as would similar experience as a miner or mine laborer in the bituminous mines of the state of Pennsylvania of some of them or in the iron mines, zinc mines or slate mines of Pennsylvania. If the facts stated and the acts of the defendant above set forth are sufficient in the opinion of the court to warrant a conviction of the defendant of the crime charged in the indictment, then the jury do say that the defendant is guilty in manner and form as he stands indicted. If not sufficient, then the jury find the defendant not guilty.
    The court entered the following order :
    Now, March 11, 1905, sentence of the court by Honorable John P. Kelly, A. L. J., is that you, John Shaleen, pay the costs of prosecution and $100 fine to the commonwealth of Pennsylvania, and stand committed until this sentence be complied with.

      Error assigned was the judgment of the court.

      James H. Torrey, with him Joseph O’Brien, for appellant.
    —The act under consideration is void both as to this particular defendant, and generally, because in contravention of article IV, section 2, clause 1, of the constitution of the United States, which is as follows : “ The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several, states: ” State v. Montgomery, 94 Me. 192 (47 Atl. Repr. 165); Connor v. Elliott, 59 U. S. 591; Corfield v. Coryell, 4 Wash. C. C. 371; Ward v. Maryland, 79 U. S. 418; Slaughter-House Cases, 83 U. S. 36; Paul v. Virginia, 75 U. S. 168; Williams v. Miss., 170 U. S. 213; Collins v. New Hampshire, 171 U. S. 30; Smythe v. Fiske, 90 U. S. 374; Blake v. McClung, 172 U. S. 239; Watson’s Case, 15 Fed. Repr. 511; State v. Mitchell, 97 Maine, 66 (53 Atl. Repr. 887); Reeman’s Case, 41 Fed. Repr. 867; Henderson v. Mayor et al., 92 U. S. 259; Com. v. Shaffer, 128 Pa. 575; Com. v. Simons, 3 Pa. Dist. Rep. 792.
    The act under consideration is void because in contravention of the 14th amendment of the constitution of the United States, sec. 1, as follows : “ No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws : ” Allgeyer v. Louisiana, 165 U. S. 578; State v. Goodwill, 33 W.Va. 179 (10 S. E. Repr. 285); Moredock v. Kirby, 118 Fed. Repr. 180; State v. Cadigan, 50 Atl. Repr. 1079; Busch v. Webb, 122 Fed. Repr. 655; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Braceville Coal Co. v. People, 147 Ill. 66 (35 N. E. Repr. 62); State v. Montgomery, 94 Me. 192 (47 Atl. Repr. 165.)
    An act under consideration is void as an unreasonable and unjust exercise of the police power of the state: Connolly’s Case, 184 U. S. 540; Ritchie v. People, 155 Ill. 98 (40 N. E. Repr. 454); Voight v. Wright, 141 U. S. 62; Brimmer v. Rebman, 138 U. S. 78.
    The act of 1897 being void so far as relates to its discriminating features is wholly void: Pollock v. Trust Co., 158 U. S. 601; Spraigue v. Thompson, 118 U. S. 90; Baldwin v. Franks, 120 U. S. 678; California v. R. R. Co., 127 U. S. 1.
    The construction of the act of 1897 adopted by the court below, is erroneous.
    The court below based its judgment in favor of the commonwealth almost wholly upon the construction of the act of 1897, by which it supplies what it assumes to be an omitted word, to wit: the word “ anthracite ” before the word “ mines ” in the provision requiring that an applicant shall have had at least two years’ practical experience as a miner or a mine laborer in the mines of this commonwealth. We contend:
    1. That this construction would not be admissible even in the ease of an instrument or statute subject to liberal construction.
    2. That this construction is inadmissible in the interpretation of a statute which is in derogation of common right.

      3. That this construction is particularly inadmissible with reference to a severely penal statute for the purpose of reaching a conclusion that the defendant is guilty of a misdemeanor punishable by fine and imprisonment: Marquette v. Berks County, 3 Pa. Superior Ct. 36; Com. v. Gouger, 21 Pa. Superior Ct. 217.

      John R. Jones, with him William B. Lewis, district attorney, George S. Horn and Robert J. Murray, for appellee.
    — Surely legislation for the protection of the lives and limbs of the anthracite coal miners of Pennsylvania from the awful and deadly perils resulting from incompetent miners working in the anthracite coal mines of our state, and providing a system by which such protection is effected, and a penalty for its violation, is a just, wise, reasonable, salutary exercise of that inherent sovereign right — the police power of the state. Such legislation does not fall under the ban of the constitution — state or national: Boston Beer Co. v. Massachusetts, 97 U. S. 25; Dent v. State of West Virginia, 129 U. S. 114; Com. v. Bonnell, 8 Phila. 534; Com. v. Wilkes-Barre Coal Co., 29 Legal Int. 213; Com. v. Moore, 2 Pa. Superior Ct. 162; Morgan’s Case, 47 L. R. A. 52; People v. Warden of the City Prison, 144 N. Y. 529 (39 N. E. Repr. 686); Com. v. Vrooman, 164 Pa. 306; Estate v. Gardner, 58 Ohio, 499 (51 N. E. Repr. 136); People v. Phippin, 70 Mich. 6 (37 N. W. Repr. 888).
    It appearing that the legislature did not violate the fundamental principles of government, or overreach the limits of their constitutional authority in providing for the safety and protection of the anthracite miners, as expressed in the act of 1897, all questions, therefore,' involving the wisdom, policy, justice, necessity and expediency of the law having been decided by the legislature in favor of the act are not subject to judicial review: Mugler v. Kansas, 123 U. S. 623; Powell v. Pennsylvania, 127 U. S. 678; Powell v. Commonwealth, 114 Pa. 265; Kidd v. Pearson, 128 U. S. 1; Lawton v. Steele, 152 U. S. 133; In Re Wilshire, 103 Fed. Repr. 620; Jew Ho v. Williamson, 103 Fed. Repr. 10; Iler v. Ross, 90 N. W. Repr. 869; California Reduction Co. v. Sanitary Reduction Works, 126 Fed. Repr. 29.
    The established law of Pennsylvania is, that the legislature may divide the coal mines of the state into two classes: (1) anthracite, and (2) bituminous, and legislate for each class separately. Such legislation is not local or special within the meaning and spirit of the constitution of our commonwealth: Durkin v. Kingston Coal Co., 171 Pa. 198; Com. v. Jones, 4 Pa. Superior Ct. 362.
    The act of 1897 includes within its terms every anthracite mine and every anthracite miner within the state ; it excludes none. It applies to all such miners equally and impartially ; it does not discriminate in favor of some, at the expense of others of the same class ; therefore it is general, not local or special, legislation, within the meaning and spirit of the constitution of Pennsylvania: Hoyt v. Sprague, 103 U. S. 613; New York & New England R. R. Co. v. Bristol, 151 U. S. 556; Minor v. Happersett, 88 U. S. 162; Hayes v. Missouri, 120 U. S. 68; Pace v. Alabama, 106 U. S. 583; Marchant v. Penna. R. R. Co., 153 U. S. 380; Com. v. Muir, 1 Pa. Superior Ct. 578; Com. v. Clark, 10 Pa. Superior Ct. 507; Com. v. Finn, 11 Pa. Superior Ct. 620; Read v. Clearfield County, 12 Pa. Superior Ct. 419; Com. v. Beatty, 15 Pa. Superior Ct. 5; Com. v. Gilligan, 195 Pa. 504; Sugar Notch Borough, 192 Pa. 349.
    Nothing but a clear, plain, palpable violation of the constitution — an undoubted usurpation of power prohibitSd — will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void: McCann v. Com., 198 Pa. 509; Erie, etc., R. R. Co. v. Casey, 26 Pa. 287; Penna. R. R. Co. v. Riblet, 66 Pa. 164; Com. v. Maxwell, 27 Pa. 444; Sharpless v. The Mayor, 21 Pa. 147; Craig v. First Presby. Church, 88 Pa. 42; Hawthorn v. The People, 109 Ill. 302; Com. v. Butler, 99 Pa. 535.
    “ The miners’ certificate law ” does not contravene the constitution of the United States : The citizens of each state shall be entitled to all privileges and immunities of the citizens in the several states (art. IV, sec. 2): Corfield v. Coryell, 4 Wash. 371; Com. v. McCann, 14 Pa. Superior Ct. 221; Minneapolis, etc., Ry. Co. v. Beckwith, 129 U. S. 26; People v. Phippin, 70 Mich. 6; State v. Green, 112 Ind. 462 (14 N. E. Repr. 352); Dent v. State of West Virginia, 129 U. S. 114; Plumley v. Mass., 155 U. S. 461; Slaughter-House Cases, 83 U. S. 36; Patterson v. Kentucky, 97 U. S. 501; Butchers’ Union, etc. v. Cresent City, etc., 111 U. S. 746; Barbier v. Connolly, 113 U. S. 27; Tick Wo v. Hopkins, 118 U. S. 356; Powell v. Pennsylvania, 127 U. S. 678; Allgeyer v. Louisiana, 165 U. S. 578.
    December 11, 1905:
   Opinion by

Henderson,

The defendant was indicted and convicted for having engaged in the occupation of a miner in an anthracite coal mine in the county of Lackawanna without having previously obtained a certificate of competency from the miners’ examining board of the district and without having been duly registered as provided by the act of July 15, 1897. The validity of the statute under which the defendant was convicted is challenged upon the ground:

1. That it is in contravention of the first clause of section 2, article IV, of the constitution of the United States ;

2. That it is in contravention of the 14th amendment of the constitution of the United States ;

3. That it is an unreasonable and unequal exercise of the police power of the state.

The portion of the act alleged to be invalid is that part of the 5th section which provides that “ all persons applying for a certificate of competency or to entitle them to be employed as miners must produce satisfactory evidence of having had not less than two years’ practical experience as a miner or as a mine laborer in the mines of this commonwealth, and in no case shall an applicant be deemed competent unless he appear in person before the said board and answer intelligently and correctly at least twelve questions in the English language pertaining to the requirements of a practical miner and be properly identified under oath as a mine laborer by at least one practical miner holding miners’ certificates.” It is necessary at the threshold to determine the meaning of the phrase “ in the mines of this commonwealth ” in the clause of the statute above quoted. It appears from the verdict that at the time of the commission of the acts charged in the indictment, the defendant was a citizen of the state of Illinois; that he had had more than two years’ practical experience as a miner and iqine laborer in the bituminous coal mines of that state ; that there is no substantial or material- difference in the method of mining coal in the bituminous mines of Pennsylvania and the bituminous mines of Ohio, West Virginia and Illinois or other states of the United States; that experience as a miner or mine laborer in the bituminous mines of Ohio, West Virginia, Illinois, or other states of the United States, would as fully qualify a person to exercise the duties of a miner in the anthracite mines as would similar experience in the bituminous mines of Pennsylvania. If then, the provision of the 5th section of the act under consideration requiring all persons applying for a certificate of competency to be employed as miners to produce satisfactory evidence of having had not less than two years’ practical experience as miners or mine laborers in the mines of this commonwealth includes all the mines or all the coal mines therein, the legislation, as contended by the appellant, denies to him “ the privileges and immunities of citizens in the several states ” and “the equal protection of the laws.” The statute is in derogation of common right and creates an artificial crime having no relation to guilty intent. In accordance with a familiar principle it must therefore be strictly construed having regard to the common understanding. The words of the statute do not demand that the two years’ experience required should be in anthracite mines. No facts were found by the jury, nor does any presumption arise, indicating that, from the methods of mining in bituminous and anthracite mines, experience in the former would not be valuable to one undertaking work in the latter class of mines. Many of the risks incident to flooding1, explosions, defective ventilation, falling of rock, and the operation of machinery would presumably exist in some degree in both the bituminous and anthracite regions, and experience in one would probably be useful to some extent in the other. It will be observed that competency is not based upon experience alone. The applicant must undergo an examination before the board of mine examiners and there exhibit the necessary qualifications. If the fact of experience in tbe mines for two years were the sole test of competency, it might be contended that the legislature intended to make experience in the anthracite mines an indispensable qualification, but the act provides the further safeguard that the miner shall satisfy the board of examiners that he is qualified to exercise his calling. If experience for two years in the mines of Pennsylvania is made a preliminary qualification, although examination and the approval of the examining board are indispensable prerequisites of the right to work as a miner, are we warranted in concluding that the legislature intended to say the required experience must have been had in an anthracite mine ? The only reason for such a contention is that the statute relates solely to the protection of miners in the anthracite coal mines of the- commonwealth, and provides a mode for preventing the employment of incompetent persons as miners therein. It is argued .that because it was the purpose of the act to guard the lives and -limbs of anthracite miners, it must have been the legislative‘intent to provide that no one but those who had had experience for two years in the mining of anthracite coal should be eligible to apply for examination as expert miners. It is supposed that the provision of the 2d section of" the act that the miners’ examining board shall consist of nine miners and' the requirement of the 8d section that it shall be the duty of all persons employed as miners to be properly registered, without the qualifying word “ anthracite ” as applied to miners in either section, throws light on the sense in which the word “ mines ” is used in the 5th section, and indicates that the word anthracite is implied in each instance. The context in the 2d and 3d sections clearly shows, however, that anthracite miners only are referred to. The 2d section provides for the establishment of a miners’ examining board in each district in the anthracite coal region to consist of nine miners “ from among the most skillful miners actually engaged in said business in their respective districts.” This directly refers to the anthracite coal region, to the districts of that region, and to the miners actually engaged “ in said business ” in their respective districts. The language of the section could not be made to apply to any other class of miners. The 3d section requires the registration of the name and address of every person qualified under the ‘ act to be employed “ as a miner in an anthracite coal mine,” and in immediate connection therewith it is made the duty of all persons employed as miners to be properly registered, and in case of removal from the district in which a miner is registered his duty is to be registered in the district to which he removes. The persons to be registered are miners in anthracite coal mines. Registration is to be made in one of the “ districts in the anthracite coal region.” The use of the words “ district ” and “ miner ” in these sections is in such association with the word “ anthracite ” as to exclude any other understanding than that reference is had to anthracite miners and anthracite districts. The words' have direct and necessary relation to miners of anthracite districts. The preparatory qualification of the miners who may apply for examination is a different subject, however, and has not, necessarily relation to anthracite mines. None of the words in the immediate context limit the phrase “ mines of this commonwealth ” to anthracite mines, nor is any presumption apparent that the legislature intended to render ineligible,to employment as miners all persons except those who had theretofore had two years’ experience in anthracite mines. It is conceded that the literal terms of the act do not limit experience to anthracite mines, but it is contended that a reasonable and beneficial interpretation calls for such limitation, and that manifest injustice would be done without such limitation. It is true the object of a statute should be kept clearly in view in construing its terms, and that the meaning of the words used should be interpreted with reference to the fitness of the matter, but how are we to determine that the legislature evidently intended that a two years’ experience in an anthracite mine should be a condition precedent to the privilege of appearing before the board of examiners for examination as a miner. The fact that an examination is provided for and that it is within the power of the examining board to reject all incompetent applicants would rather indicate that experience in other mines was considered valuable as a qualification.

The language of the court in Pittsburg v. Kalchthaler, 114 Pa. 547, expressed in forcible terms the doctrine applicable here: “We think it is always unsafe to depart from the plain and literal meaning of the words contained in legislative enactments out of deference to some supposed intent or absence .of intent which would prevent the application of the words actually used to a given subject. Such a practice is really substituting the theories of a court which may, and often do, vary with the personality of the individuals who compose it, in place of the express words of the law as enacted by the law-making power. It has been condemned by many text-writers and by many courts.” The legislative intention and the meaning of a statute penal in its character should be found in the language employed according to its fair and usual meaning, and not in the mischief to be remedied, and the supposed intention of the law-making body.

“ The intention of a penal statute must be found in the language actually used, interpreted according to its fair and obvious meaning. It is not permitted to courts in this class of cases to attribute inadvertence or oversight to the legislature when enumerating classes or persons who are subject to the penal enactment, nor to depart from the settled meaning of the words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute:” U. S. v. Harris, 177 U. S. 305 (20 Sup. Ct. Repr. 609); U. S. v. Wiltberger, 18 U. S. 76.

Although no good reason may appear to the court why a ■limitation of the term used in the statute should have been omitted, and although it may seem highly improbable that an omission was intended, the court is not at liberty to enlarge the enactment to cover cases not within the clear and obvious meaning of the language. We are not warranted in assuming that the legislature did not attach value to experience in mines outside of the anthracite region, nor- is there any presumption to that effect. We feel constrained to hold, therefore, that the required two years’ practical experience as a miner or'mine laborer in the mines of this commonwealth, prescribed in the section under consideration, is not limited to experience in the anthracite mines of the commonwealth. It appears from the special verdict of the jury, as we have s,een, that the methods of mining coal in the bituminous mines of Pennsylvania are substantially the same as in the bituminous mines of Ohio, West Virginia and other states, and that experience as a miner in those states would as fully qualify a person to exercise the duties of a miner in the anthracite mines as would similar experience in the bituminous mines of Pennsylvania. The effect of the legislation is to discriminate against miners having experience in the bituminous mines of other states in favor of those engaged in the bituminous mines of Pennsylvania, and to make the latter eligible for examination to become miners in the anthracite region of Pennsylvania, while miners with similar experience in other states are excluded. A person who has had two years’ experience as a miner or a mine laborer in the bituminous mines of Pennsylvania may become a miner in an anthracite mine. A person having similar experience in bituminous mines on the other side of the state line in West Virginia or Ohio may not apply for examination as an anthracite miner nor engage in mining anthracite coal. The restriction does not operate equally on all persons engaged in the same occupation under like circumstances.

Among the privileges and immunities of citizens of the United States the right to labor and engage in lawful trade or business is one of the most fundamental. The object of the federal constitution was in the respect referred to, as held in Paul v. Virginia, 75 U. S. 168: “To place the citizens of each state upon the same footing with citizens of other states so far as the advantages resulting from citizenship in those states are concerned. It relieves them from the disabilities of alien-age in other states; it inhibits discriminating legislation by other states ; .... it insures to them in other states the same freedom possessed by the citizens of those states in the acquisition and enjoyment of property and in the pursuit of happiness, and it secures to them in other states the equal protection of their laws.” Though the law be fair on its face, if it be so applied as to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is within the prohibition of the constitution: Williams v. Miss., 170 U. S. 213 (18 Sup. Ct. Pepr. 583).

When the effect of a statute is to grant privileges to citizens of the state in which the law is enacted and to deny these privileges to citizens of other states who are similarly situated, the statute cannot be supported under the constitution of the United States.

While the enactment under consideration is not in favor of citizens of this commonwealth, its effect is substantially the same as if the discrimination had been specifically in their favor. The direct and necessary result of a statute must be taken into consideration when deciding as to its validity, even if that result is not in so many words enacted or distinctly provided for: Collins v. New Hampshire, 171 U. S. 80 (18 Sup. Ct. Repr. 768). The power of the state is undoubted to legislate for the protection of the public health and the public safety, but if its enactment by its terms or necessary operation amounts to a denial of the equal protection of the laws to persons within its jurisdiction, it is- unconstitutional. The guarantee of the equal protection of the law was said in Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (22 Sup. Ct. Repr. 431), to mean that “ no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstances.”

Our conclusion is that so much of the 5th section of the act under consideration as limits the eligibility of miners to an examination to those who have not had less than two years’ practical experience as miners or mine laborers in the mines of this commonwealth is repugnant to the constitution of the United States. It follows as a corollary that another portion of the same section, which directs that the applicant for examination be properly identified under oath as a mine laborer by at least one practical miner holding mine certificates, must also be considered invalid, for this latter requirement has manifest reference to mine laborers who have had at-least two years’ experience in mines of this commonwealth. The idenification required could only be given as to Pennsylvania mine laborers, and this provision necessarily falls with the other with which it is connected.

We are not willing to decide, however, that the whole statute must be rejected because a portion of it is found to be unconstitutional. It is in effect an amendment of the Act of May 9, 1889, P. L. 142, and relates to a subject which has been recognized by numerous adjudications as a proper one for police regulation. The power of the legislature to classify coal mines and to legislate for each class separately is clearly established in Durkin v. Kingston Coal Co., 171 Pa. 193, and in Commonwealth v. Jones, 4 Pa Superior Ct. 362. The full consideration of the subject in the latter case renders unnecessary an extended discussion at this time. The doctrine there set forth is sustained in Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. Repr. 383). It is a familar rule that a part of a statute may be unconstitutional and the remainder constitutional, and that that which is constitutional will stand unless its provisions are so connected and dependent on each other in subject-matter that it must be presumed the legislature would not have enacted one without the other. Where the parts are so separable that each can stand alone, and it was evidently the legislative intent that the part held to be valid should be enforced, although the other part should fall, the part so sustained should be declared operative: Baldwin v. Franks, 120 U. S. 678 (7 Sup. Ct. Repr. 656); Poindexter v. Greenhow, 114 U. S. 270 (5 Sup. Ct. Repr. 903); Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601 (15 Sup. Ct. Repr. 912); Cooley’s Const. Lim. (5th ed.) 212. The legislative purpose was to provide a method of securing experienced miners for the anthracite mines, and to this end a board of examiners was created before whom all persons desiring to be employed as miners were required to appear and show their ability for such service. A valuable safeguard against incompetency is thus created. A similar regulation was established by the act of May 9, 1889, and the legislature had that in view when passing the act of 1897. This provision for an examination placed in the hands of the examining board, appointed by the courts, ample power to ascertain and determine the qualification of the applicants, and to exclude those who, by a fair test, are found to be deficient in experience and skill: and that was the main purpose of the statute. We hold, therefore, that the statute under consideration, with the exception of the portions which have been declared unconstitutional, is so separate from, and independent of, the eliminated • parts in its scope and purpose that it may, and should be sustained as a valid enactment. Its first and sixth sections forbid any person to engage as a miner in any anthracite coal mine without having obtained a certificate of competency from the miners’ examining board.

The defendant was charged in the first and fifth counts of the indictment with having engaged in the occupation of a miner in an anthracite coal mine without having previously obtained a certificate of competency and qualification provided for in the act of 1897; and in the third and fourth counts with having omitted to comply with other requirements. It is not alleged that there was any compliance on his part with any .of the requirements of the act, or that any attempt was made to comply with its constitutional provisions. The position is assumed that he may disregard these regulations intended to promote the safety of the persons engaged in anthracite mining, and his excuse for so doing is that the statute, which established the regulations, forbids him from applying for an examination or receiving a certificate because of his lack of experience in the mines of Pennsylvania. If this is a good excuse the law would be nullified, although a valid statute, and all persons, irrespective of experience and without examination, might engage in the operation of mining. This we think cannot be done.

It was the duty of the appellant by appropriate proceedings, to obtain judicial declaration that the law is void, so far as it excludes him from the privilege of showing that he is competent to work as a miner in anthracite mines, and not to nullify the statute by disregarding all its constitutional requirements. It may be that this would have involved expense and delay, but he assumed the risk that the statute would be held valid, and that the penalty would be imposed as required thereby. In so far as the act prevented him from appearing before the board for examination to establish his competency and qualification, and required him to identify himself as a mine laborer in the mines of Pennsylvania, it is void, and the courts were open to him to obtain protection against such void provisions, but having failed to avail himself of this redress, 'he has rendered himself liable to the penalty provided by the sixth section of the statute.

The judgment on the first and fifth counts is, therefore, affirmed and the record remitted to the court below to the end that the sentence may be carried out.

Smith, J.,

concurring:

While concurring in the clear opinion of Judge Henderson, I would go a step further and sustain the act of assembly in toto, as aü exercise of the power of police. The paramount purpose of the statute is the protection of miners of anthracite coal, and is well expressed in the title : “ To protect the lives and limbs of miners from the dangers resulting from incompetent miners working in the anthracite coal mines of this commonwealth, and to provide for the examination of persons seeking employment as miners in the anthracite region, and to prevent the employment of incompetent persons as miners in anthracite coal mines, and providing penalties for a violation of the same.” All its provisions relate to this subject, touching details on points where the better security of the miners is deemed necessary. In this particular, communication through a common knowledge and language is as essential as knowledge of the explosives employed, in order to shield from common dangers. The details leading to this are considered material by those engaged in this dangerous occupation,sand should receive the fullest judicial sanction, when not inhibited by constitutional restraint. Being duly enacted “ all presumptions are in favor of its validity, and courts are not to be astute in finding objections to it.”

This statute does not prohibit, but designates the qualifications necessary for miners, and in stating these the main purpose of the statute is not to be ignored or infringed by construction of its details, which serve to give its purpose effect. “ When the calling, profession or business of parties is unattended with danger to others, little legislation will be necessary respecting it, ... . but when the calling or profession or business is attended with danger or requires a certain degree of scientific knowledge upon which others must rely, then legislation properly steps in to impose conditions upon its exercise: ” Justice Field, in Minneapolis, etc., Ry. Co. v. Beckwith, 129 U. S. 26 (9 Sup. Ct. Repr. 207). The appellee cites from many United States Supreme Court cases to the same effect. Anthracite coal mining is especially hazardous, calling for experience in the business. It has outgrown primitive methods, and demands education of a high order, and can best be obtained by actual experience, which is akin to apprenticeship. This experience must be adequate to meet the demands, which cannot be supplied by scientists alone. It is folly to intrust the making of a watch to the unskilled laborer, and would be criminal to intrust the admixing of dynamite to strangers, unacquainted with that compound. These comparisons may be viewed as extreme illustrations, but they serve the purpose. The innumerable fatalities and casualties of the past tell the lesson and value of experience in the anthracite mine. None know it better than the intelligent, practical miner. All others engaged in the mines must be protected by law. This important statute should not be impaired or annulled in purpose or letter by judicial action. The constitution of the United States is not violated by the statute in any particular. This statute relates to the knowledge o.f mining rather than to the persons desiring to perform the work; it protects, not bars, and leaves the way open to all who come with the necessary qualifications. It is indiscriminate and applies to all persons, whether foreigners of distant countries or citizens of other states, as well as citizens of this commonwealth. . In my judgment the effort here is to defeat the express will of the legislature without regard to the safety of persons.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    Simpson v. Summerville, Appellant.

      Equity — Accounts—Remedy at law.

    . A bill in equity for an account will be sustained as the proper remedy where it appears that four separate actions of assumpsit might be necessary for the final adjustment of the matters in dispute involved in the litigation. A partnership is formed by the purchase and sale of leaseholds and a division of the proceeds.
    Argued May 8, 1905.
    Appeal, No. 143, April T., 1905, by H. E. J. Putney, from decree of C. P. Armstrong Co., June T., 1903, No. 196, on bill in equity in case of Joseph W. Simpson v. H. B. Summerville and H. E. J. Putney.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Bill in equity for an account.
    Patton, P. J., found the facts to be as follows:
    1. In 1901, H. B. Summerville made an agreement with Joseph W. Simpson, the plaintiff, that if he (Simpson) would sell certain oil leases that he might have the proceeds thereof over and above fifty cents per acre, which said amount of fifty cents per acre was to be paid by Simpson to Summerville for the leases.

      2. In October, 1901, Simpson met H. E. J. Putney, the other defendant, and entered into an agreement with him by which Putney was to sell the leases mentioned in the first finding of fact, for $1.00 per acre, Summerville to receive out of the proceeds fifty cents per acre, Simpson twenty-five cents per acre and Putney twenty-five cents per acre. About February 1, 1902, the plaintiff and defendant mutually agreed that this agreement should be changed and that each of the parties should receive one-third of the profits arising from the sale of the leases. In pursuance to this arrangement, and with the consent of the plaintiff and defendants, all of these leases were assigned to Putney, absolutely on their face, so that he could more easily dispose of them to an intended purchaser. This assignment was made on October 17, 1901.
    8. H. E. J. Putney reported to Simpson and Summerville, that the Pittsburg Plate Glass Company would purchase these leases and that “ they wanted everything in sight.” At the suggestion of Putney, Simpson and Summerville proceeded to take other leases, and succeeded in getting leases upon about 5,500 acres of land (including the 2,800 acres).. Many of these leases were taken by them in the name of H. E. J. Putney upon his suggestion that if so taken it would save the trouble of a transfer. These leases were turned over to Putney and by him to the Pittsburg Plate Glass Company.
    4. The Pittsburg Plate Glass Company accepted from H. E. J. Putney oil and gas leases covering 8,760 acres, part of the same being part of the 2,800 acres mentioned in the first finding of facts and part of the 5,500 acres mentioned in the third finding of facts.
    5. On February 19,1902, the Pittsburg Plate Glass Company paid H. E. J. Putney $3,426 on account of said leases, and on April 22,1902, paid him $334, the balance, making in all $3,760 paid him for the 3,760 acres.
    6. About February 19, 1902, the defendants, Putney and Summerville, met and divided the $3,426, each taking $1,400, and Putney sending a check to Simpson for $626. Simpson refused to receive the check. This attempted division of the 17, (1906).] Opinion of Court below — Opinion of the Court, profits was tlie arbitrary act of Putney. It was not according to the terms of tbe agreement. He does not attempt to justify his conduct in thus breaking faith with his partners. It was the arbitrary conduct of a man who, having obtained possession of the money belonging to himself and others, divided it as he saw fit, without regard to right or law.
    January 13, 1905:
    7. As to the |334 received by Putney on April 22, 1902, he never notified Simpson that he received it, and he holds Simpson’s one-tliird interest thereon wholly without authority. He has never accounted for it or shown any reason why he should not account for it. The conduct of said Putney throughout the entire transaction has been of bad faith toward Simpson. He does not go upon the witness stand himself or call any witnesses on his behalf, or in any manner attempt to justify his conduct.
    The court held that equity had jurisdiction and decreed an account against Putney.

      Error assigned was the decree of the court.

      W. J. Christy, of McGain & Christy, and Orr Buffington, for appellant.
    — There was an adequate remedy at law: Graham v. Cummings, 208 Pa. 516; Sprigg v. Trust Co., 206 Pa. 548; Howell v. Kelly, 149 Pa. 473; Cleveland v. Farrar, 4 Brewster, 27.

      Ross Reynolds, with him M. F. Reason, for appellee,
    cited: Bradly v. Jennings, 201 Pa. 473; Crow v. Green, 111 Pa. 637; Holbert v. Herrick, 171 Pa. 25; Harrington v. Florence Oil Co., 178 Pa. 444; Tully v. Felton, 177 Pa. 344; Bierbower’s App., 107 Pa. 14; Adams’ App., 113 Pa. 449.
   Opinion by

Smith, J.,

This bill in equity was brought to enforce rights arising under a tripartite agreement and is demurred to. In support of the demurrer Avant of equitable jurisdiction and an adequate remedy at law are set up. Courts are open to litigants for the lawful redress of grievances and for this purpose complaints must be heard. When not fixed by law or by agreement of the parties, the court may designate the manner. The right to be fully heard by a competent tribunal is the essential thing, the form of the action, if adequate to the needs of the case, is of lesser importance. Whether the case shall be heard by a bill in equity or by an action of assumpsit is for the court to decide. The remedy must meet the requirements of the case and, generally, this suggests the appropriate form of action.

Note. — The foregoing opinion and order were written by Judge Smith during his term of office as a member of the Superior Court, the cases having been duly assigned to him for that purpose, and were adopted and filed as the opinion and order of the court on Jan. 13, 1906. Reporter.

This bill was sustained by the chancellor because “ it would be impossible to work out the equities of the parties through the medium of an action of assumpsit.” While in some respects this case may seem close to the dividing line, we think it clear that a bill in equity is the proper form of remedy, and affords ample opportunity to reach the conflicting questions arising. The contention of the appellant is that an action of assumpsit is proper and sufficient. Four separate actions of assumpsit might be necessary for the final adjustment of all the claims arising under this tripartite agreement. It required the purchase and sale of many leaseholds and a division of the profits, and this constitutes a partnership : Bradly v. Jennings, 201 Pa. 473. The parties having failed to agree on the manner of distribution, it was within the power of a court of equity to do this for them.

On the argument here the power of a court of equity to hear the case and make the decree was the only matter presented and as we find that court had the jurisdictional power, the decree is affirmed.


text:
    Follett, Appellant, v. Butler County.

      Taxation — Assessment—Farm lands — Mansion house.

    A farm divided by a township, borough or city line, is taxable where the mansion house is located.
    Argued May 9, 1905.
    Appeal, No. 229, April T., 1905, by plaintiff, from decree of C. P. Butler Co., June T., 1904, No. 8, dismissing bill in equity in case of James Follett v. Butler County et al.
    Before Beaver, Oready, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Bill in equity to enjoin collection of a tax.
    Galbreath, P. J., stated the question involved to be as follows:
    The plaintiff is the owner of a tract of land consisting of about 100 acres, twenty-five acres of which, with the mansion, is situate within the limits of the borough of Bruin, and the remainder in the township of Parker. The territory embraced within the limits of said borough was originally a part of the said township of Parker, out of which it was carved and erected into a borough by decree of court of September 2, 1901.
    The question raised by the bill and answer is as to the proper place of assessment of plaintiff’s land — the plaintiff contending that it should all be assessed in the borough of Bruin, where his mansion house is located, and defendants contending that the portion of the land situate within the present limits of Parker township is properly assessable in that district, which has been done, and taxes are sought to be collected accordingly, which plaintiff seeks to restrain.
    The court entered a decree dismissing 'the bill.

      Error assigned was the decree of the court.

      Lev. McQuiston, with him W. D. Brandon and J. C. Vanderlin, for appellant,
    cited: Bausman v. Lancaster County, 50 Pa. 208; Cassel’s App., 8 Lancaster Law Rev. 260; Bennethum v. Eckert, 7 W. N. C. 373.

      January 13, 1906:
    Note. — The foregoing opinion and order were written by Judge Smith during his term of office as a member of the Superior Court, the cases having been duly assigned to him for that purpose, and were adopted and filed as the opinion and order of the court on Jan. 13, 1906. Reporter.

      H. H. Goucher, with him F. J. Forquer and Everett L. Ralston, for appellee, cited:
    Arthur v. School District, 164 Pa. 410; LaPlume Borough v. Gardner, 148 Pa. 192; Com. v. Wheelock, 13 Pa. Superior Ct. 282.
   Opinion by

Smith, J.,

The general rule governing the question presented on this appeal was stated by the Supreme Court in Arthur v. School District, 164 Pa. 410, as follows: “ The power of borough and township officers to levy taxes upon persons and property rests upon residence and location. The persons who live within the borough, and the lands inclosed by its lines, are subject to the jurisdiction of the borough and its officers. Persons and property located in some other borough or township are subject to the jurisdiction of the town or borough in which they belong.” The observance of this rule properly restricts the exercise of municipal functions to the territorial limits. But the law expressly designates the mansion house as the controlling place of assessment when the farm is used as a whole, without regard to corporate divisions, and this has been recognized in all legislation and judicial decision on the question.

In pursuance of this the case of Bausman v. Lancaster County, 50 Pa. 208, holds that a farm divided by a township, borough or city line, is taxable where the mansion house is located, and there is neither legislation nor contrary decision since on this point. It was fairly deducible from all prior legislation that assessors were to assess each farm as a whole when so used with the mansion house as a dominant point of assessment; and this is still the law. This court has recognized and followed the case cited, so far as pertinent, in Com. v. Wheelock, 13 Pa. Superior Ct. 282.

The decree of the court below is reversed and the bill reinstated, and it is now ordered and decreed that the injunction be issued and made perpetual, in manner and effect, as prayed for.


author: Rice, P. J.,

text:
    Morris Box Board Company, Appellant, v. Rossiter.

      Foreign attachment — Wages—Exemption—Waiver.
    The Act of April 15, 1845, P. L. 459, exempting wages from attachment, is a general law, and applies to foreign attachment. The exemption given by the act cannot be waived.
    While a general appearance in a foreign attachment precludes the defendant from afterward questioning the jurisdiction of the court to proceed in the action as if it had been commenced by summons duly served, it does not, of itself, deprive him of the right to have his wages or salary released from the lien, or pretended lien, of the attachment.
    Argued Oct. 5, 1905.
    Appeal, No. 74, Oct. T., 1905, by plaintiff, from order of O. P. No. 2, Phila. Co., Dec. T., 1904, No. 60, making absolute rule to dissolve attachment in case of Morris Box Board Company v. Maurice L. Rossiter.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to dissolve foreign attachment.
    From the record it appeared that the defendant entered a general appearance and subsequently took a rule to dissolve the attachment. The affidavit in support of the rule averred that the fund attached was commissions claimed to be due as wages to the defendant.
    The court made the rule absolute.

      Error assigned was the order of the court.

      Reynolds D. Brown, with him Charles S. Burr and Malcolm Lloyd, Jr., for appellant.
    — While the conclusion of the court below that the attachment was not properly begun is not conceded by the plaintiff, yet this appeal is rested on the clear proposition that the defendant’s counsel were too late in taking their rule to show cause why the attachment should not be dissolved. Under the authorities it seems perfectly clear that by entering a general appearance the defendant has waived his right to raise any question as to the validity of the attachment: Manuel v. R. R. Co., 2 Miles, 398; Malone v. Lindsley, 1 Phila. 288; Memphis, etc., R. R. Co. v. Wilcox, 48 Pa. 161; Lansford Borough, v. Jones, 5 Pa. Dist. Rep. 483; Pain’s Pyro-Spectacle Co. v. Lincoln Park, etc., Co., 6 Pa. Dist. Rep. 93; Turner v. Larkin, 12 Pa. Superior Ct. 284.
    January 13, 1906:

      Stanley Folz, with him Leon H. Folz, for appellee.
    — The court lack jurisdiction to attach a traveling salesman’s commissions: Matson v. Bryan, 26 W. N. C. 248; Billin v. Froment, 3 Pa. C. C. Rep. 450; Little v. Balliette, 9 Pa. Superior Ct. 411; Hamberger v. Marcus, 157 Pa. 133.
    The defendant did not by his entry of appearance in the cause, disentitle himself from moving for the dissolution of the attachment on the ground that the court lacked jurisdiction over the subject-matter of the attachment: Little v. Balliette, 9 Pa. Superior Ct. 411; Turner v. Larkin, 12 Pa. Superior Ct. 284; Fuller v. Bryan, 20 Pa. 144; Melloy v. Burtis, 124 Pa. 161; Firmstone v. Mack, 49 Pa. 387; Cunliffe v. Rinehart, 2 W. N. C. 79; Com. v. Barnett, 199 Pa. 161; English v. English, 19 Pa. Superior Ct. 586; Nevil v. Heinke, 22 Pa. Superior Ct. 614.
   Opinion by

Rice, P. J.,

The object of a writ of foreign attachment is to compel an appearance; if the- defendant appears and takes defense, the act of 1836 provides that the action shall proceed as if commenced by summons, “ but the attachment shall, nevertheless, continue to bind the estate or effects attached, as in other cases, unless judgment be rendered for the defendant in such attachment.” This clause of the statute is to be read in connection with the proviso in sec. 5 of the Act of April 15, 1845, P. L. 459, “ That the wages of any laborers, or the salary of any person in public or private employment, shall not be liable to at tachment in the hands of the employer.” The latter is a general law and applies to foreign attachment: Hamberger v. Marcus, 157 Pa. 133; Little v. Balliette, 9 Pa. Superior Ct. 411. It was under consideration in Firmstone v. Mack, 49 Pa. 387, where Chief Justice Woodwabd stated the question as follows: “The legislature having thus expressly withheld jurisdiction over the subject-matter, the only remaining question is, can the debtor confer it by- agreeing in writing to waive all objection to its exercise ? ” It was held that he could not. In a later case Justice Sterrett considered the act in connection with the Act of May 23, 1887, P. L. 164, and said: “It has been held that the exemption given by it cannot be waived, - and that alderman and justices of the peace have no jurisdiction in attachment of wages, even upon a voluntary waiver by the party entitled to such exemption, because it. would be against public policy to permit such waiver: Firmstone v. Mack, 49 Pa. 387. The exemption must therefore be regarded as grounded on public policy, looking to the protection of laborers and their families, even against their own voluntary acts: ” Sweeny v. Hunter, 145 Pa. 363. In a still later case Justice McCollum, citing Firmstone v. Mack, said that the exemption of the wages of labor was intended for the benefit of the debtor and his family and he cannot waive it: Steel v. McKerrihan, 172 Pa. 280. “The act of 1845 is frequently spoken of, for convenience’ sake, as an exemption law, and in a sense it is such, but more broadly it is a law forbidding the taking of jurisdiction by attachment over the subject-matter. It was not intended to confer a personal privilege upon laborers merely, but was enacted for the protection of their employers as well. For this reason, as well as upon grounds of public policy, it was held that, the laborer could not waive its provisions, and thereby subje'ct his employer to the liability to the expense and annoyance of attachments: ” Little v. Balliette, 9 Pa. Superior Ct. 411. A general and unqualified appearance is a waiver of defective service, and even non-service, of a regular writ, and of many other defects and irregularities affecting the notice or process necessary to obtain jurisdiction over the defendant. The cases cited by the appellant’s counsel show that the general rule upon this subject has been strictly adhered to in foreign attachment. Blit none of these cases rules the precise question before us, which is, whether a general appearance precludes the defendant from demanding, in any mode, to have his wages or salary released from the attachment which was attempted to be laid upon them in violation of law. It is difficult to see how this question could be ruled in the affirmative, without conceding to the waiver implied from a general appearance an effect in avoidance of the clear inhibition of the act of 1845 which has been denied to an express waiver. Construing the act in connection with sec. 64 of the act of 1836 we conclude, that while a general appearance precludes the defendant from afterward questioning the jurisdiction of the court to proceed in the action as if it had been commenced by summons duly served, it does not, of itself, deprive him of the right to have his wages or salary released from the lien, or pretended lien, of the attachment.

The order is affirmed, without prejudice, however, to the right of the plaintiff to proceed in the action as if it had been commenced by summons duly served ; the costs of the appeal to be paid by appellant.


text:
    Commonwealth v. Wilson, Appellant
    (No. 1).

      Criminal law — Extortion—Public officers — Police captain — Bribery.
    A captain of police may be convicted of common-law extortion.
    Extortion is an abuse of public justice which, consists in an officer’s unlawfully taking, by color of his office, from any man, any money or thing of value that is not due to him, or more than due, or before it is due.
    An essential element of the offense of extortion is, that the fee or reward must be taken by the officer by color of his office, but this does not necessarily imply that it must be taken for an act or service which it is his duty, or he has discretionary power, to perform. It does imply, however, an exercise of official power possessed, as pretended to be possessed by the officer, or distinguished from an act which could have been performed by any other person.
    Bribery on the part of an officer and extortion are not identical, but they are very closely allied; and whilst the former does not necessarily involve a pretense of official authority to do the act for which the bribe is given, yet, if such pretense is used to induce its payment, there is no reason to doubt that the taking of it is common-law extortion as well as bribery.
    Where the conduct' of a captain of police is tantamount to the assertion and use of his official authority as a cover for an act whereby he obtains a pecuniaiy reward to which he is not entitled, the officer may be convicted of extortion at common law.
    Argued Oct. 9, 1905.
    Appeal, No. 66, April T., 1906, by defendant, from judgment of Q. S. Allegheny Co., March T., 1905, No. 608, on verdict of guilty in case of Commonwealth v. James Wilson.
    Before Rice, P. J., Beater, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for extortion at common law. Before Mc-Clttng, J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented the following points :
    1. That even if the testimony of the commonwealth is believed the defendant is not guilty of extortion as alleged in the indictment. Answer: Refused. [1]
    2. That under all the evidence in the case the verdict ought to be for the defendant. Answer: Refused. [2]
    5. That where a person desiring to commit an illegal act or enter into an unlawful business voluntarily offers a police officer a sum of money to be permitted to do an illegal act or enter into such illegal business, even if the officer accepts such sum of money, his offense in such.case is not extortion; and if the jury believe the facts to be as stated in this point, defendant cannot be convicted. Answer: This is true if the facts are just as stated in this point. But if the offer of money is not voluntary, but is induced by the fact that the person is given to understand that money or something of value must be given to secure the noninterference of the defendant, the case is entirely different and you may find extortion. There is no evidence here that this man demanded in terms money from this woman. But if you find that his conduct meant that— that he gave her to understand that — that she must give him money or in some way do a favor to him before he would assent to her request, then you may find him guilty as indicted. [3]
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were (1 — 3) above instructions, quoting them.

      John S. Ferguson, with him W. J. Brennen, for appellant.
    Fear such as will constitute extortion may be induced by a threat to do an unlawful injury to the person or property of the individual injured: People v. McLaughlin, 2 App. Div. 419 (37 N. Y. Supp. 1005).
    Not a single one of these essentials exists in the present case.

      January 13, 1906:

      John Marrón, with him R. H. Stewart, district attorney, and John 0. Haymaker, for appellee.
   Opinion by

Rice, P. J.,

At the time the offense (extortion at common law) charged in the indictment is alleged to have been committed, the defendant was one of the two captains of police in the city of Allegheny. The lieutenants of police and patrolmen in the several wards of the city were his subordinates, and his immediate superior was .the superintendent of police. There was evidence adduced at the trial from which a jury could find that Frances Foley, who had been keeping an assignation house in the city, on April 1, 1904, leased a house on the opposite side of the street, and was desirous of conducting it as a house of prostitution; that she applied to the defendant, whom she had known before his induction into office, for permission to open the house, and he promised to call to see her about it, but failed to do so ; that she made several subsequent applications to him, but he put her off from time to time; that finally she sought the intervention of one Mrs. Freshman, whose busi-. ness was with the prostitutes of that section of the city, whose dwelling and place of business combined the defendant frequently visited, and who, according to her own testimony, was then enjoying protection in her business by reason of favorable intervention .of the defendant, for which she had paid him; that she complained to Mrs. Freshman that “ all of the rest of the houses are opened and he wouldn’t; open mine,” and at their second interview — this is the version of Frances Foley— Mrs. Freshman told her that if she would deposit $50.00 with her she would get the house opened or would return the money; that a couple of days later she went to Mrs. Freshman to give her the money and there met the defendant, who said to her, “ You look worried, little girl; don’t worry,” and after he had departed she deposited with Mrs. Freshman $50.00 to be given to the defendant “ if he would open her house; ” that' prior to this meeting Mrs. Freshman told the defendant of the wish of Frances Foley “ to get her house opened,” and in reply the defendant said that he would see her again, and at this or some other interview between them concerning the matter asked whether the Foley woman had any money; that on the same day that the money was deposited with Mrs. Freshman she informed the defendant of the fact, and he directed her to keep it until he should see her again, and to tell Frances Foley that he would see her in a day or so ; that in the evening of that same day he called upon Frances Foley and told her “ the house was opened ” and she could move over, and upon her stating that she would not be ready for a day or two he replied, “ Well, whenever it suits you it suits me ; ” that two or three days afterward he told Mrs. Freshman he had “ opened” the house, whereupon she gave him the money which had been deposited with her; that from that time, which was in August, 1904, until March, 1905, when she was arrested under a warrant issued upon an information made by the county detective, she conducted the place as a house of prostitution without molestation on the part of the defendant or his subordinates.

The defendant met these allegations, so far as they were incriminating, by a total denial, and by the legal proposition that even assuming them to be true, his offense was not extortion, although it might be common-law bribery. In support of this claim his counsel cite People v. McLaughlin, 2 App. Div. (N. Y.), 419, (37 N. Y. Supp. 1005) where it was held that “ though under the ordinances it was the duty of the defendant as captain of police and of the men under him to keep persons from obstructing the sidewalks without a permit from the proper department, a threat by him to do his duty unless a person paid him money, followed by a failure to do his duty in consideration of the receipt of money, would not be extortion but bribery.” But that decision was based on the construction of a New York statute, and would not necessarily control a case governed by common-law principles. Moreover, the threat under which the bribe was paid in that case implied a denial by the defendant of his official right to perform the act for which it was given. It is true, the evidence in the present case does not show that the defendant made a specific demand for the payment of money, or made any threat as to what he would do if it was not paid. But the evidence taken as a connected whole fully warranted the court in submitting to the jury the"questions, whether the defendant’s conduct was intended, and had the effect, to induce Frances Foley to believe, and to act on that belief, that she must give him money, or reward him in some way, in order to obtain tlie permission she requested. In view of the manner in which the case was submitted to the jury their verdict of guilty implies a finding of that fact.

The indictment charges the offense of extortion at common law, and in general it may be said that any officer, whether he be a federal, state, municipal or judicial officer, and that every person occupying an official or quasi official position may be guilty of this offense: Commonwealth v. Saulsbury, 152 Pa. 554. To extort, in the ordinary meaning of the word, is to obtain by violence, threats, compulsion or the subjection of another to some necessity; but at common law the offense denominated extortion does not necessarily involve actual duress of that sort: Commonwealth v. Brown, 23 Pa. Superior Ct. 470. The form of extortion most commonly dealt with in the decisions is the corrupt taking by a person in office of a fee for services which should be rendered gratuitously; or when compensation is permissible, of a larger fee than the law justifies, or a fee not yet due ; but this is not a complete definition of the offense, by which I mean that it does not include every form of common-law extortion. “ Extortion signifies in a strict sense- the taking of money by any officer by color of his office either where none at all is due, or more than is due, or where it is not yet due: ” 1 Hawkins’ P. C. 418. Blackstone defines it to be “ An abuse of public justice which consists in an officer’s unlawfully taking, by color of his office, from any man, any money or thing of value that is not due to him, or more than is due, or before it is due : ” 4 Bl. Com. 141. This definition without substantial change of phraseology has been adopted in the Pennsylvania decisions. An essential element of the offense is that the fee or reward must be taken by the officer by color of his office, but this does not necessarily imply that it must be taken for an act or service which it is his duty, or he has discretionary power, to perform^ It does imply, however, an exercise of official power possessed, or pretended to be possessed, by the officer, as distinguished from an act which could have been performed by any other person. For example, it was* held in a Georgia case that for an officer, having in his hands a warrant for assault and battery, to receive money which is voluntarily offered and paid by the defendant is not extortion, if the money is received in good faith to be used in settling tlie prosecution and not for tlie officer’s own use. But in the same case it was declared by the court: “ It is not, however, absolutely requisite that the element of costs should be in contemplation in order to constitute extortion. If a ministerial officer should use his authority, or any process of law in his hands, for the purpose of awing or seducing any person into paying him a bribe, that would doubtless be extortion. So in the present case, if the money was taken as a bribe and defendant was an officer, he would be guilty: ” White v. State, 56 Ga. 385. Bribery on the part of an officer and extortion are not identical, but they are very closely allied; and whilst the former does not necessarily involve a pretense of official authority to do the act for which the bribe is given, yet, if such pretense is used to induce its payment, we see no reason to doubt that the taking of it is common-law extortion as well as bribery. Color of office and right of office are not convertible terms. Amongst the judicially recognized definitions of the former are a pretense of official right to do an act made by one who has no such right; the use of official authority as a pretext or cover for the commission of some corrupt or vicious act; an act wrongfully done by an officer under the pretended authority of his office: 7 Cyclopedia of Law and Procedure, 401. The defendant had no lawful authority to grant to Frances Foley the privilege she sought, and it is not claimed that he declared in so many words that he had such authority, but his conduct, if the testimony of the commonwealth’s witnesses is to be believed, might well be found by a jury to be tantamount to the assertion and use of his official authority as a cover for his act, whereby he obtained a pecuniary reward to which he was not entitled. The fact that the office of the defendant is of statutory and modern origin and that no ancient precedent can be found of the conviction of such officer of the offense of extortion upon a precisely similar state of facts, is not sufficient, of itself, to sustain the conclusion that it is not extortion at common law. The cases are numerous where this general doctrine as to common-law offenses has been recognized, and amongst them the following may be cited appropriately : Mifflin v. Commonwealth, 5 W. & S. 461; Commonwealth v. McHale, 97 Pa. 397; Commonwealth v. Young, 16 Pa. Superior Ct. 317; Commonwealth v. Brown, 23 Pa. Superior Ct. 470. Our conclusion is, that it would have been error to affirm the defendant’s first and second points, and that the instructions of the court in answer to the fourth point were warranted by the evidence, and were as favorable to the defendant as he had a right to ask. Some comment was made in the argument as to the extraordinary circumstances under which this and the preceding case were tried, but so far as the record shows the defendant was fairly tried. The charge of the learned judge, as well as the instructions which he gave to the jury before the testimony was taken, were well calculated to remove from the minds of the jury any bias which popular excitement might have created. The court was very careful to protect the defendant in all of his rights, and we find no ground upon which a reversal of the judgment properly could be placed. .

The judgment is affirmed, and it is ordered that the appellant forthwith appear in the court below and by said court be committed for the term of his imprisonment which had not expired at the time the appeal'was made a supersedeas.


text:
    Commonwealth v. Wilson, Appellant
    (No. 2).

      Criminal law — Extortion—Public officers — Police captain — Bribery.
    Where the conduct of a captain of police is tantamount to the assertion and use of his official authority as a cover for an act whereby he obtains a pecuniary reward to which he is not entitled, the officer may be convicted of extortion at common law.
    Argued Oct. 9, 1905.
    Appeal No. 65, April T., 1906, by defendant, from judgment of Q. S. Allegheny Co., March T., 1905, No. 607, on verdict of guilty in case of Commonwealth v. James Wilson.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for extortion at common law. Before McClung, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty upon which judgment of sentence was passed.

      January 13, 1906:

      Errors assigned were in refusing binding instructions for defendant, and in refusing point quoted in opinion of the Superior Court.

      John 8. Ferguson, with him W. J. Brennen, for appellant.

      John Marron, with him R. E. Stewart, district attorney, and John Q. Haymaker, for appellee.
   Opinion by

Rice, P. J.,

The indictment upon which the defendant was tried and convicted was the same, except as to dates and the person who is alleged to have paid the money, as that upon which he was convicted in the succeeding case in which we herewith file an opinion. The two appeals involve practically the same questions and were argued together. In the present case the commonwealth alleged, and adduced evidence from which a jury could find, that one Daisy Hess, a prostitute, desired the defendant’s permission to open the premises No. 60 Robinson street, as a house of prostitution, and deposited with Mrs. Freshman, the intermediary who figured in the other case, $50.00 to be given to the defendant for such permission, he being then one of the two captains of police in the city of Allegheny where the premises were situated; that a short time afterwards, Mrs. Freshman having in the meantime spoken to him about the matter, the defendant sent for Daisy Hess to come to the house of Mrs. Freshman, and there questioned her as to her ability “ to run a house,” and upon her answering that she thought she was capable or she would' not undertake it, he told her “ to go ahead and try it; ” that shortly afterward, Mrs. Freshman took the defendant into the hall of her house and put the $50.00 in his pocket; and that Daisy Hess, acting on the permission the defendant undertook to give, opened, and for a time conducted, a house of prostitution at the premises referred to. The incriminating allegations above recited were positively denied by the defendant.

The two matters' assigned for error are, first, the refusal of the court to charge that even if the testimony of the commonwealth is believed the defendant is not guilty of extortion as alleged in the indictment; ” second, the refusal to charge that under all the evidence the verdict ought to be for the defendant.

Even if the evidence would not warrant a conviction of extortion, the indictment was broad enough to sustain a conviction of common-law bribery, if the evidence warranted it, and we all think it was sufficient, if believed by the jury, to sustain that charge. See Commonwealth v. Warren, 20 W. N. C. 378, cited in Commonwealth v. Brown, 23 Pa. Superior Ct. 470 at p. 492; also, cases cited in note 63, 4th Bl. Com. 139, Lewis’s Ed. Therefore, whatever may be said of the charge of extortion, the refusal of the second point was right. But we are not’convinced that under no view of the evidence which a jury might take could the defendant be convicted of common-law extortion. We have discussed the law bearing upon that subject in the other case and will not go over the ground again. But as has been said in that case so we think it may he said here : The defendant had no lawful authority to grant Daisy Hess the privilege she sought, and it is not claimed that he declared in so many words that he had such authority, but his conduct, if the testimony of the commonwealth’s witnesses is to be believed, might well be found by a jury to be tantamount to the assertion and use of his official authority as a cover for his act, whereby he obtained a pecuniary reward to which he was not entitled. The test is whether the money was taken by color of his office, Commonwealth v. Saulsbury, 152 Pa. 554, and for the reasons given in the discussion of that subject in the succeeding case we are of opinion that the evidence was sufficient to warrant a finding that it was so taken.

The judgment is affirmed, and it is ordered that the appellant forthwith appear in the court below and by said court be committed for the term of his imprisonment which had not expired at .the time this appeal was made a supersedeas.


author: Morrison, J.,

text:
    Klipstein, Appellant, v. Whitesides
    (No. 1).
    January 13, 1906:

      Arbitration — Referee—Findings—Review—Replevin.
    The mistakes, either of law or fact, for which an award made in a submission under the Act of June 16, 1836, P. L. 717, may be referred back to the same referees, under see. 7 of the act, are such plain mistakes as would be obvious to the referees themselves the moment they are pointed out to them.
    Where such plain mistakes are not pointed out to the appellate court, it will not reverse a judgment of the common pleas affirming the report of a referee.
    Argued Oct. 17, 1905.
    Appeal, No. 79, Oct. T., 1905, by plaintiff, from order of O. P. No. 2, Phila. Co., Dec. T , 1895, No. 1093, dismissing exceptions to referee’s report in case of A. Klipstein v. Warren H. Whitesides, trading as Warren H. Whitesides & Company, Merchandise Storage and the Equitable Trust Company, Receiver of the Keen-Sutterle.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of referee.
    The opinion of the Superior Court states the case.

      Error's assigned were in dismissing exceptions to report of referee.

      Joseph de F. Junkin, for appellant.

      George L. Crawford, of Crawford & Loughlin, for appellee.
   Opinion by

Morrison, J.,

This is an appeal by the plaintiff from the final judgment of the court below in an action of replevin where the goods were replevied by the sheriff and delivered to the plaintiff and, after issue joined, the case was referred to a referee under the Act of June 16, 1836, P. L. 717. Section 7 of this act reads: “ If upon exceptions filed to any award it shall appear to the court' that the referees have made a mistake, in fact or law, it shall be lawful for such court to refer the cause back to the same referees, for such further or other proceedings therein as shall be expedient.”

The learned referee having heard the testimony, found the facts and his conclusions of law, and directed judgment for a portion of the goods in favor of the plaintiff, and for tl^e value of the residue directed judgment in favor of the defendants, for the reason that the plaintiff failed to show title to all of the goods replevied, and the learned court below having dismissed the exceptions to this report and entered final judgment thereon, this court can only disturb the judgment in case we are satisfied of a plain mistake, either of fact or law, or of both.

In Gunn v. Bowers, 126 Pa. 552, it was held as stated in the syllabus : “ The mistakes, either of law or fact, for which an award made in a submission under the Act of June 16, 1836, P. L. 717, may be referred back to the same referees, under sec. 7 of the act, are such plain mistakes as would be obvious to the referees themselves the moment they are pointed out to them.” See also Reynolds, Appellant, v. Creveling, Miles & Co., 177 Pa. 267.

A painstaking examination of the evidence, the findings of fact and conclusions of law, submitted by the learned referee, does not convince us of any such plain mistake by the referee as calls for a reversal of 'the judgment and the setting aside of the report. The burden rested upon the plaintiff to show title to the goods replevied, and it is not at all clear that title was shown in the plaintiff to the portion of the goods for the value of which the referee directed judgment in favor of the defendants. At most, there was a vigorous dispute and contention between the parties in regard to the title to a portion of the property. And we think the finding of the learned referee is not without support from the evidence. It may be that he might have found in favor of the plaintiff for all of the goods, but it is not at all clear that he ought to have so found. The parties saw fit to waive a jury trial and submit the facts in dispute to a referee, and it is a familiar rule of law that his report is entitled to the same weight as the verdict of a jury. If his findings of fact are correct, there can be no question as to the correctness of his conclusions of law. We are not convinced-that this case oúght to be tried over again.

The appeal is dismissed- and the judgment is affirmed.


text:
    Klipstein v. Whitesides
    (No. 2).
    January 13, 1906:
   Opinion by

Morrison, J.,

This is an appeal by the Equitable Trust Company, receiver, from the same judgment in which we have this day filed an opinion, ante, p. 35. What is said in that opinión applies with equal force to this appeal, and it is unnecessary to repeat it. We do not discover that the appellant has any just ground of complaint.

The appeal is dismissed and the judgment is aifirmed.


text:
    Klipstein v. Whitesides
    (No. 3).
    January 13, 1906:
   Opinion by

Morrison, J.,

This is an appeal of the Equitable Trust Company, receiver and assignee of the Keen-Sutterle Company, from the judgment of the court of common pleas on the report of a referee under the Act of June 16, 1836, P. L. 715. The questions raised in this appeal do not differ in any material respect from those considered, ante, p. 35, in which opinion is this day filed. This appeal is controlled by the rules of law referred to in the opinion in No. 79. We are not satisfied of any mistakes of fact or law which require the reversal of the judgment and the setting aside of the report of the referee.

The appeal is dismissed and the judgment is affmned.


author: Orlady, J.,

text:
    Black v. Pentony, Appellant.

      Principal and agent — Commissions—Liquor license.

    An owner of a liquor license agreed to pay a certain amount in commissions to an agent if the latter would procure a purchaser for the license. The agreement was conditioned upon the approval by the license court of a transfer of the license to the proposed purchaser. The agent produced a purchaser, but the owner of the license refused to make the sale, and refused to pay the commissions. Held, that the owner of the license was liable for nominal damages -only if he refused for a good reason to make the sale, but that he was liable for the whole commissions if his action in refusing to make the sale was in bad faith.
    Argued Oct. 12, 1905.
    Appeal, No. 168, Oct. T., 1905, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1903, No. 2951, on verdict for plaintiff in case of Robert Black v. Joseph Pentony and Patrick McCabe, trading as Pentony & McCabe.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for commissions. Before Davis, J.
    The facts are stated in the opinion of the Superior Court.
    The defendant presented the following points:
    2. If you believe that Kernan offered to pay $25,000 cash for defendants’ license and business before defendants had withdrawn their offer to sell at that figure, then the plaintiff can recover only nominal damages, because, according to the plaintiff’s own statement of claim filed in this suit, Kernan was “ prepared to pay $25,000 in cash for the purpose of purchasing the said license and business so soon as the transfer would be allowed.” It is not within the province of the jury to guess what action would be taken by the license court in the matter. Answer: If, instead of calling off this deal, the purchaser had accepted it, and the license court had refused to transfer the license from Pentony & McCabe to Kernan, that would have been an end of the matter and the plaintiff could not claim his commission. If, however, the defendants called off the deal after the plaintiff had secured a purchaser, without ascertaining whether the license court would transfer the license or not, the case would be different. I shall have to decline that point. [2]

      January 13, 1906:
    8. According to the plaintiff’s own statement of claim the payment by Kernan of the #25,000 cash for the defendants! license and business was subject to a condition subsequent, to wit: the allowance by the license court of the transfer from defendants to Kernan. In order, therefore, for the plaintiff here to recover you would have to guess what action the license court would take in the matter, and that you are not permitted to do and you will therefore bring in a verdict for the defendants. Answer : I reply to that as to the other point, that if the deal had gone on and the license court had refused to transfer the license, there would have been no liability upon the part of the defendants to the plaintiff, because the contract was, conditional, but if they called the deal off before they ascertained what the license court would do in the matter, they could not, by doing so, affect whatever rights the plaintiff had in the transaction. 1 decline that point. [3]
    1. If you believe that Kernan did not offer to pay #25,000 cash for the defendants’ license and business prior to the time that Kernan was informed that defendants would not sell, then the plaintiff cannot recover in this suit. - Answer: As to that I say to you that if the rights of the plaintiff were fixed before the deal was called off, the subsequent calling off of the deal could not affect those rights. If he had earned the money the defendants could not, by calling off the deal with Kernan, relieve themselves of their liability to him, the plaintiff. [5]
    Verdiet and judgment for plaintiff for #1,112. Defendant appealed.

      Errors assigned were (2, 3-5) above instructions, quoting them.

      Daniel C. Donoghue, for appellant,
    cited: Cronin v. Sharp, 16 Pa. Superior Ct. 76; Vincent v. Oil Co., 165 Pa. 402.

      William C. Gross, with him Harry I. Heistand, for appellee.
   Opinion by

Orlady, J.,

The plaintiff is a salesman for a firm of wholesale liquor dealers, and was promised by the defendants, who are licensed retail liquor dealers, that they would pay him #1,000 if he would procure a purchaser of their license and business at the sum of $25,000. The plaintiff produced John J. Kernan, who expressed a willingness to pay the price exacted, when a controversy arose as to the terms and manner of payment; the defendants then notified the plaintiff and Kernan that the sale or deal was off, and refused to consider the proposition any further. This suit was brought to recover the commission with interest, as averred in the statement, “ for the services rendered in procuring a purchaser prepared to pay $25,000 in cash for said license and business, as soon as the transfer of the license would be allowed by the license court.” It is conceded that this executory contract was conditioned upon the approval by the license court of an application to be made by the defendants to have their liquor license transferred to the proposed purchaser, and further, that if the defendants had made such an application, and the court had refused to transfer the license the defendants would not be liable in any sum to the plaintiff.

The defense was that the modification of the terms as proposed by Kei'nan, and the impossibility of knowing what action the license court would take if the defendants had proceeded to test it with an application for a transfer of the license^ made them liable for no more than nominal damages. The court submitted the case to the jury on the theory that the plaintiff was entitled to recover the whole of the commission as such, or none, saying in substance: “ If the defendants called off the deal after the plaintiff secured a purchaser, without ascertaining whether the license court would transfer the license or not, the subsequent calling off the deal would not affect his right, or relieve themselves- of their liability to him.”

The agreement was entered into with the knowledge that its subject-matter did not have any market value-, and with the understanding that its consummation depended upon a condition over which neither party had any control, nor in regard to which they could make a valid contract. The defendants were not bound to accept any purchaser who might be proffered by the plaintiff, and had a right to withdraw from the contract subject to their liability to him. If they withdrew for a good reason, as explained in Cronin v. Sharp, 16 Pa. Superior Ct. 76, they would be liable for nominal damages only. However, if they did not act in good faith and withdrew from the transaction as a mere subterfuge in order to secure a higher price, or to relieve themselves from the payment of the plaintiff’s .claim, he was entitled to proper compensation for his time, labor and expenses incurred in good faith in the defendants’ interest: Vincent v. Oil Co., 165 Pa. 402; Kelly v. Marshall, 172 Pa. 396.

This view of the subject sustains the objections to the answers to the defendants’ points, as embraced in the second, third and fifth assignments of error.

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

Rice, P. J., dissents.


text:
    Whitley v. Evans, Appellant.

      Negligence — Master and servant — Evidence.
    In an action by an employee against his employers to recover damages for personal injuries, it appeared that at the time the accident occurred plaintiff and two other workmen were engaged, under the immediate directions of one of the defendants, in rolling a heavy and unwieldy wheel into the defendants’ machine shop. All three of the workmen had .been engaged in a similar work on former occasions. In passing through a somewhat narrow space one of the workmen stepped aside, leaving the wheel to be supported by the other two. Almost instantaneously the wheel toppled over and plaintiff was injured. It appeared that before coming to this space, the workman who had stepped aside had previously left the wheel in charge of the other two, in order to close a door, and that during his absence the two workmen maintained the wheel in an upright position. Held, that the evidence was insufficient to convict the defendant of negligence.
    Argued Oct. 13, 1905.
    Appeal, No. 99, Oct. T., 1905, by defendants, from judgment of C. P. No. 4, Phila. Co., March T., 1902, No. 3088, on verdict for plaintiff in case of John Whitley, by bis next friend, Margaret Davis, v. William Evans, Robert Evans and John H. Evans, trading as John Evans & Sons.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Audenried, J. ’

      January 13, 1906:
    The facts are stated in the opinion of the Superior Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      George L. Crawford, of Crawford & Loughlin, for appellant,
    cited: Elliott v. Allegheny Co. Light Co., 204 Pa. 568; Willis v. Armstrong Co., 183 Pa. 184; Gaughan v. Phila., 119 Pa. 503; Durst v. Carnegie Steel Co., 173 Pa. 162; Krause v. Plumb, 195 Pa. 65; Reese v. Clark, 198 Pa. 312; Cunningham v. Bridge Works, 197 Pa. 625.

      Paul Reilly, for appellee,
    cited: Reese v. Clark, 198 Pa. 312; Williams v. Clark, 204 Pa. 416; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543; Wallace v. Henderson, 211 Pa. 142; Lee v. Woolsey, 109 Pa. 124.
   Opinion by

Orlady, J.,

The defendants are manufacturers of car spring machinery, and the plaintiff had been in their employ for three months prior to the happening of the accident complained of in this action Shortly'before ending their day’s work on December 24, 1901, one of the defendants directed the plaintiff and two other laborers to bring from the pavement into the machine shop a balance or fly wheel weighing from 500 to 600 pounds, five feet in diameter, and having a rim face of five or six inches. The moving of the wheel was under the personal supervision of John H. Evans, one of the defendants. It was rolled from the pavement up a slight incline a distance of about ten feet, then turned at right angles to its first course and rolled some four feet, and then at right angles again a few feet when they came to a space between two pieces of machinery, which were distant from each other from eighteen to thirty inches as stated by the plaintiff’s witnesses. One of the laborers, Trumbold, was in front of the wheel, and the plaintiff at the back, each facing the other and holding the wheel in an upright position with their hands and knees. Kensel, the other workman, not being able to pass through the space by the side of the wheel, where he had been aiding the others, was obliged to leave that place to step around one of the machines, so as to resume his part of the work of balancing the wheel. Kensel testified that he had moved but a foot or two, when, almost instantaneously, the wheel toppled over and fell on Whitley, resulting in breaking-his leg. Kensel and Trumbold were not inexperienced laborers, as each had been working with the plaintiff in that shop for some time prior to the accident, and each testified that he had been engaged in similar work on former occasions, and was familiar with the general location of the machines, as well as with the floor over which they rolled the wheel. Not more than five minutes elapsed from the time they took charge of the wheel until the plaintiff was hurt.

Under the undisputed facts, the immediate and proximate cause of the injury was the act of Kensel in leaving the wheel to be kept in motion by the plaintiff and Trumbold. It is conceded that it was not possible for him to pass, by the side of the wheel, through the space between the two machines, and the plaintiff admits that he saw him leave his place to go around the machine. It is undisputed that just after the men entered the shop from the street, Kensel left the wheel on the incline, to the care of Whitley and Trumbold, while he, Kensel, went back to close the door, and that during his absence the two workmen maintained the wheel in an upright position. The appellee urges that, the master being in command during the whole progress of the work, and when the wheel reached a dangerous position, he left them without special orders, hence he was negligent in his duty to them, and further, that if Kensel’s direct negligence contributed to the accident it was still for the jury to say whether the master was not also negligent.

The definition of negligence and the determination of the standard of duty being always a matter of law for the court: (Custer v. Balt. & Ohio R. R. Co., 206 Pa. 529) we feel that the plaintiff’s right to recover is barred by the facts shown by his own testimony.' The three men had performed similar services before; they were familar with the instrumentalities used, and the place where the work was to be done. No special skill was called for, no- machinery or appliancés were involved, and the three men with their unaided strength to be applied with ordinary judgment and common sense could easily handle the wheel, while two' could hold it stationary, as they had done so but a moment before. While a crane was sometimes used to handle the wheels in the shop they were also sometimes rolled in. The plaintiff and his coworkmen had as full knowledge of the place in which they were working, and of their ability to do -it as had their employer. The course to be taken and the final location of the wheel were given by the employer; but urging the men to hurry up with the work, was not exacting more of them than their duty, and did not increase the danger of their labor, which at that time was wholly within their joint control. The most that could have been expected of the master at the moment Kensel left the wheel to the care of the others, would have been to have told them to halt until Kensel could get to the other side. The propriety for so doing was as well known to the plaintiff as to the defendant in charge of the work, and it is so apparent that neither believed that such an order was necessary, nor that the space was not sufficient for the wheel to be passed through in safety. The proximate cause and the unexpected accident conjoined at almost the same instant of time, and under the circumstances neither could have been reasonably anticipated by either master or servant. The master could not be charged with negligence, unless he had notice, actual or constructive, of the danger, at least long enough before the injury was inflicted, to have enabled him to form an intelligent opinion as to the means by which the injury might be avoided, and to apply an appropriate remedy. He was not bound to take into account the contingency, that a reasonably competent and qualified servant would fail to use ordinary care. Up to the point of Kensel’s leaving the wheel, the workmen were not in any special danger through ány act of negligence of the master, and he was not guilty of any breach of duty in expecting that the plaintiff and Trumbold would do the very thing he had seen them do but a moment before, — to hold the wheel stationary while Kensel left it necessarily. It was the master’s duty to see that suitable instrumentalities were provided and safely used ; this duty was discharged under the facts in this case in the light of, their experience in similiar work. While the concurring negligence of a fellow servant with the negligence of the master will not relieve the master of liability (Kaiser v. Flaccus, 138 Pa. 332; Wallace v. Henderson, 211 Pa. 142) the character of the work in which the servant is engaged often furnishes the reasonable measure of duty of each. The moving of the heavy and unwieldy wheel was an operation requiring care to. prevent its toppling over, and this was plain to any man of ordinary intelligence. “ It was held in Titus v. Bradford, etc., R. R. Co., 136 Pa. 618, that an employer performs his duty when he furnishes appliances of ordinary character and reasonable safety, and the former is the test of the latter, for in regard to the style of the'implement or nature of the mode of performance of any work, ‘ reasonably safe ’ means safe according to the usages, habits and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business : ” Cunningham v. Bridge Works, 197 Pa. 625.

In Reese v. Clark, 198 Pa. 312, the servant was cognizant of an anticipated danger, and the added material fact that the master not only knew of the danger, but, in the face of it peremptorily commanded his servant to perform the service with the assurance that the alleged dangerous object was all right, and that he would look after it. With full knowledge of the facts lie gave the plaintiff to understand that the place was not dangerous by reason of the position it occupied, and that, by proper precautions, he would protect him from it. These vital facts distinguish that case from the one before us, as no instructions in regard to how the wheel was to be handled -were given by the master; that phase of the work being entirely left to the judgment of the workmen, who knew of the course they were taking and were just as qualified to see and decide whether they should proceed or desi'st, as the master. In that case (Williams v. Clark, 204 Pa. 416) the Supreme Court say: “We think the defendant’s negligence is apparent from the testimony and that it must have been so regarded on the trial of the case.” In this one we cannot find any evidence on which to charge the defendants with an omission of duty* and the judgment is reversed.