text:
    Free’s License.

      Liquor law — Appeals—Record—Evidence.
    An appeal from an order refusing a liquor license is a substitute for a certiorari, and takes up nothing but the record. The appellate court cannot consider the merits, but only whether the license court has proceeded according to law.
    • When a license has been refused after a hearing, the presumption on appeal is, that the refusal was for a legal reason, unless the contrary affirmatively appears.
    The license judge is not bound to set out the reasons for his action.
    Argued March 5, 1907.
    Appeal, No. 19, March T., 1907, by Richard J. Free, from order of Q. S. Clinton Co., Jan. T., 1907, No. 41, refusing a liquor license.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for a liquor license.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      W. O. Kress, for appellant.

      T. 0. Kipple, for appellees.

      April 15, 1907 :
   Opinion by

Morrison, J.,

This is in form an appeal from the order of the court of quarter sessions refusing an application for a retail liquor license to the appellant. While called an appeal, it is, in reality, a substitute for a certiorari, and brings up nothing but the record. In such a case the appellate court cannot consider the merits, but can only determine whether the license court has proceeded according to law : Branch’s License, Beck’s Appeal, 164 Pa. 427 ; Carlson’s License, 127 Pa. 330.

In Berg’s Appeal, 139 Pa. 354, the Supreme Court said: “ The appeal is a substitute for a certiorari, and brings up nothing but the record. That shows the petition and the refusal of the court below to grant the license. The reasons for such refusal are not material. They do not properly form any part of the record.”

In Sperring’s License, 7 Pa. Superior Ct. 131, the associate judges made the following order: “ Now, the twenty-seventh day of December, 1897, license is refused after due consideration.

“ W. L. Hamilton, A. J.
“ J. Harris McKinney, A. J.”

In that case we said it cannot be denied that the associate judges had the power to make this order, ciling numerous cases. And that they were not obliged to file any reasons for their decision. The record, as set forth, must be accepted as absolute verity, so long as it remains uncorrected by appropriate proceedings. It cannot be contradicted, overthrown or weakened in its effect by the mere certificate of the president judge denying its truth. Neither can we base anything upon the certificate of the associate judges, that a rehearing was had and the application refused a second time. These things are no part of the record, and including them in what are termed the “ bill of exceptions ” and “ additional bill of exceptions ” adds nothing to their character or weight. In that case the order of the associate judges was affirmed.

In Dolan’s Appeal, 108 Pa. 564, the Supreme Court held, from the record, that the court, in the exercise of the discretion with which it was invested, revoked the license. “ If there was anything on the face of the record to show affirmatively that the court acted arbitrarily and without cause, or that the cause shown was wholly insufficient, it would exhibit such an abuse of discretion as would demand a reversal of the order complained of; but nothing of the kind appears in the record before us, and we have no right to go outside in search of something on which to convict the court below of error, nor do we feel disposed to do so.”

In Meenan’s License, 11 Pa. Superior Ct. 575, we said: “ We find nothing in this record to take the case out of the well-settled rule that when a license has been refused after a hearing, the presumption on appeal is, that the refusal was for a legal reason, unless the contrary affirmatively appears.”

The present case comes strictly within the above rule. The court records show that the license court met November 26, 1906, pursuant to its fixed rule or standing order, and the lists of all applications for liquor license were presented to the court, the president judge and both associate judges being on the bench, and on the same day the following order in the present case: “ Now, November 26, 1906, license is refused.”

The appellant’s bill of exceptions concedes that the license court was iii session on November 26, 1906, and that this was the time fixed by rule of court for hearing applications for license to sell vinous, spirituous, malt and brewed liquors, and the full list of applications for license was called over by said court and the announcement made that if anyone desired to object to any of the applications it should then be made known to the court. This shows clearly that the appellant liad an opportunity to be heard. This brings the case within the rule in Quinn’s License, 11 Pa. Superior Ct. 554, and Netter’s License, 11 Pa. Superior Ct. 566. A license judge is not'bound to set out legal reasons for his action; he is only bound to have them : Gross’s License, 161 Pa. 344. •

In Hilleman’s License, 11 Pa. Superior Ct. 567, we said: “ The reasons for the decree are not given, nor is it necessary that they should be on the record.”

The record in the present case shows a regular and lawful exercise of the power of the license court, and there is nothing in it to justify this court in determining that the court below was guilty of an abuse of discretion in refusing to ’ grant appellant’s license. There is absolutely nothing in the record proper from which we can find any failure on the part of the court below to hear, consider and adjudicate the appellant’s application in open court and in a regular and lawful manner.

The order of the court below is affirmed, and the appeal dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Collingdale Borough, Appellant, v. Keystone State Telephone & Telegraph Company.

      Taxation — Telephone and telegraph companies — Incense tax — Affidavit of defense.

    In an action by a borough against a telegraph and telephone company to recover a license tax on poles and wires of #1.00 and #2.50 respectively per annum, an affidavit of defense is sufficient to prevent judgment which avers that the license tax was not based upon the cost of inspection, and that it was more than twenty times the amount that might have been, or could possibly be, incident to such inspection.
    Argued Nov. 22, 1906.
    Appeal, No. 201, Oct. T., 1906, by-plaintiff, from order of CL P. Delaware Co., June T, 1905, No. 280, discharging rule for judgment for want of a sufficient affidavit of defense in case of The Borough of Collingdale v. The Keystone State Telephone & Telegraph Company.
    Before Rick, P. J., Porter, Henderson, Morrison, Or-lady, Head and Beaver, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense. Before Johnson, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned was the order of the court.

      Edward P. Bliss, for appellant.
    — It has been repeatedly decided that the averments contained in the present affidavit of defense are not sufficient .to warrant the court in declaring the license fees unreasonable, or to prevent judgment in favor of the plaintiff. On the contrary, license fees of $1.00 per pole and $2.50 per mile of wire have been uniformly held to be reasonable: Allentown v. W. U. Tel. Co., 148 Pa. 117 ; Chester v. P. R. & P. Tel. Co., 148 Pa. 120; Chester v. W. U. Tel. Co., 254 Pa. 464; Phila. v. Am. U. Tel. Co., 167 Pa. 406 ; Ridley Park v. Citizens’ Electric Light & Power Co., 9 Pa. Superior Ct. 615; Lansdowne v. Citizens’ Electric Light & Power Co., 9 Pa. Superior Ct. 620 ; Kittanning Electric Light, etc., Co. v. Kittanning Boro., 11 Pa. Superior Ct. 31; North Braddock Boro. v. Tel. Co., 11 Pa. Superior Ct. 24; New Hope Boro. v. W. U. Tel. Co., 16 Pa. Superior Ct. 306 ; New Hope Boro. v. Postal Tel. Co., 16 Pa. Superior Ct. 310; Taylor Boro. v. Postal Tel. Co., 16 Pa. Superior Ct. 344 ; Taylor Boro. v. Postal Tel. Co., 202 Pa. 583; West Conshohocken Boro. v. Electric Light, etc., Co., 29 Pa. Superior Ct. 7.
    April 15, 1907:
    The allegation that the fees charged are twenty times the cost of supervision has been held to be vague, unsatisfactory and insufficient to prevent judgment: Chester v. W. U. Tel. Co., 154 Pa. 464; Phila. v. Am. Union Tel. Co., 167 Pa. 406 ; North Braddock Boro. v. Tel. Co., 11 Pa. Superior Ct. 24.

      A. B. Geary, with him Branlt, B. Shattuok, for appellee,
    cited: Lower Merion Twp. v. Postal Tel. Cable Co., 25 Pa. Superior Ct. 306.
   Opinion by

Beaver, J.,

The affidavit of defense in this case, held by the court below to be sufficient to prevent judgment, was filed in a suit brought for the recovery of license fees imposed by the plaintiff against the defendant for the maintenance of telephone and telegraph poles and wires upon the streets and highways of the plaintiff borough.

The affidavit sets forth: “ That the said plaintiff is not, and was not during said period mentioned in the statement of claim filed in this case (the period for which license fees were charged), under any additional or incidental liability, of any kind or nature whatsoever, in looking after the safety of said poles and wires and the maintenance thereof; and is not, or was not, under any additional or incidental liability for any injuries to persons or property which might have arisen, or did arise, during said period, or could possibly arise, by reason of the erection of the said poles and wires within the limits of the said borough. That the said charges were made without any kind or character of expense or liability having been incurred by the said borough of Collingdale. That the said license charge imposed by the said ordinance is not based upon the cost and expense to said borough for inspection, regulation and supervision of the defendant’s lines and business; and the said charge is more than twenty times the amount that might have been, or could possibly be, incident to such inspection, supervision and regulation, together with all reasonable measures and precautions that might have been, or possibly could be, required to be taken by the said borough for the safety of its citizens and the public, or which might have been, or possibly could be, incurred as expenses for the most careful, thorough and efficient inspection and supervision that might have been made to the said poles and wires and the issuing of said license, and notwithstanding, as above set forth, the fact that the said plaintiff has not and does not maintain any inspection, supervision, or care whatsoever over said poles and wires of the said defendant company, and has not incurred any expense whatsoever on account thereof.”

The facts set forth in this paragraph of the affidavit of defense are practically identical with, if not stronger than, those set forth in the affidavit in Lower Merion Twp. v. Postal Telegraph Cable Co., 25 Pa. Superior Ct. 306, in which we held, following the case of Postal Telegraph Cable Co. v. Taylor, 192 U. S. 64, that an affidavit of defense “is sufficient to prevent judgment which avers'that the license tax was not based upon the cost for inspection by the township,-that it was more than twenty times the amount that might have been, or could possibly be, incident to such inspection,” etc. The averments in the affidavit under consideration being quite as sweeping as those contained in the affidavit in the case above referred to, and the court below having followed our ruling in that case, we are not disposed to convict it of ¿rror for having done so.

In that case, it is true, we were controlled by the decisions of the supreme court of the United States in the cases therein cited and in this case we are not. Hence, it cannot be said that the Lower Merion case rules the present. It is true, also, that there are numerous decisions of the Supreme Court of Pennsylvania and of our own court, in which recoveries under ordinances, imposing a license fee of $1.00 per pole and $2.50 per mile of wire, have been sustained. It is to be observed, however, that in none of these cases — excepting the Borough of Taylor case, 192 U. S. 64, which was overruled — was it alleged that the amount of the fee was so grossly disproportioned to the cost of issuing the license and of thorough and efficient police supervision, as it is alleged to be in this case. Nor do any of those cases lay down a rule which forbids inquiry into the reasonableness of the amount of the fee in an action brought therefor. As, in the nature of things, it is ordinarily impossible to determine in advance the exact cost, the municipality is at liberty to make the charge large enough to cover any reasonably anticipated expense, and payment of the fee cannot be avoided because it may appear subsequently that it was somewhat in excess of the actual expense of supervision. Presumably municipal officers will act in good faith and exercise their best judgment and have regard only to the purpose for which the fee may be exacted lawfully in fixing the amount, for that is their duty; but their power is not absolute, nor is their action irreviewable by the courts. “We are not bound to uphold an ordinance adopted ostensibly as a police measure, but used as a mere subterfuge for the purpose of raising revenue. Courts will not sustain municipalities in such abuse of their powers, if it be shown: ” Kittanning Borough v. Kittanning Consolidated Natural Gas Co., 26 Pa. Superior Ct. 355. Unless we are prepared to hold that any municipality has power to fix the amount of the fee at more than twenty times the cost that can possibly be incident to the accomplishment of every purpose for which such fee can be exacted, this appeal should be dismissed and the defendant permitted, if it can, to prove the facts. If the allegation as to the gross disproportion between the fee and the amount of any expense that might have been reasonably and fairly incurred, for the most careful, thorough and efficient inspection and supervision possible and for all measures and precautions that could be required to be taken by the municipality for the safety of its citizens and the public, be proved, there can be but one inference and that is that the ordinance was not adopted as a police measure, but was really intended for revenue purposes, and, therefore, the court ought to declare it unreasonable and void. We apprehend that the defendant may find it difficult to 'establish this sweeping allegation, but all that we decide at present is that it should be given the opportunity to do so, if it can.

The order of the court below, discharging the rule for judgment for want of a sufficient affidavit of defense, is, therefore, affirmed and the appeal dismissed without prejudice at the cost of the appellant.


author: Morrison, J.,

text:
    McManus Contracting Company v. McFadden, Appellant.
    April 15, 1907:

      Corporations — Foreign corporations — Registration—Inspection of certificate — Act of April 22, 1874, P. L. 108.
    Under the Act of April 22, 1874, P. L. 108, relating to the registration of foreign corporations, the certificate of registration may be kept in a safe in the office of the company, instead of being hung up on the wall for public inspection.
    Submitted Dec. 13, 1906.
    Appeal, No. 187, Oct. T., 1906, by plaintiff, from decree of C. P. No. 5, Phila. Co., Dec. T., 1904, No. 4,258, on bill in equity in case of The McManus Contracting Company v. Cornelius McFadden.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, J J.
    Affirmed.
    Bill in equity.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court.

      M. Hampton Todd, for appellant.

      Wm. M. Johnson, for appellee.
   Opinion by

Morrison, J.,

This is a bill in equity and the learned court below having made a final decree, the defendant appealed therefrom to this court. His learned counsel state the question involved as follows : “ Is it sufficient compliance with the Act of Assembly of April 12, 1874, P. L. 108, concerning registration of foreign corporations, that the certificate of registration is kept in a safe instead of being exhibited for public inspection ? ”

The learned court below found as follows: “ The plaintiff is a New Jersey corporation, duly authorized to do business in Pennsylvania. The plaintiff had in its possession the certificate of the secretary of the commonwealth, which it kept in the safe in its office and was at all times ready to exhibit to any person who might desire to inspect it. It was not hung upon the wall. The court thinks this was a sufficient compliance with the act of ■ assembly.” This foreign corporation had in all respects complied with the provisions of the act of assembly of April 12, 1874, unless that act required the certificate to be hung upon the wall, or so placed in the appellee’s office that it could be seen by all persons having occasion to go therein.

The language of the act is: “ And the certificate of the secretary of the commonwealth, under the seal of the commonwealth, of the filing of such statement, shall be preserved for public inspection by each of said agents, in each and every 'of said offices.”

It is contended by the appellant that this language requires that the certificate shall be framed and hung in the office or nailed upon the wall. We are not convinced that this is a proper construction of the provision referred to. The learned counsel cites Lasher v. Stimson, 145 Pa. 30, and quotes from the language of McCollum, J., on p. 35. But we find nothing in that case sustaining the contention that when a foreign corporation has complied with the act of 1874 by filing its statement with the secretary of the commonwealth, opening an office, appointing an agent, and keeping the certificate of the secretary of the commonwealth therein at all times, it must be held powerless to maintain a suit in Pennsylvania because the certificate is not kept hung up on the wall in the office. The important things required by the act of 1874 are the filing of the statement, establishing an office, appointing an agent and having in the office the certificate so that it may be exhibited at any time to all persons desiring to see it.

Building, Loan & Savings Association v. Neal, 15 Pa. Superior Ct. 400 is also cited, and that case is referred to in Wall Paper Company’s Appeal, 15 Pa.’ Superior Ct. 407. But Building Association v. Neal, was reversed by the Supreme Court in 201 Pa. 9, and we do not understand that case to hold that it is mandatory on a foreign corporation to keep the required certificate hung or fastened upon the wall of its office. In that case the certificate of the secretary of the commonwealth was not preserved in the office of the corporation and a person inquiring for it there could not have found it.

The statute says the certificate shall be preserved for public inspection. If the legislature intended that it should be framed and hung or fastened upon the wall of the office, it would doubtless have so said in the act, as was done in the act of 1887, in regard to liquor licenses, and in many city ordinances requiring licenses to be exhibited in conspicuous places. It seems to us consistent with ordinary common sense that the legislative intent was, in prescribing the preservation of the certificate for public inspection, that it should be kept in the office of the corporation for the examination of those interested in its contents.

The appellant does not contend that he did not know the appellee was a foreign corporation, or that he did not know that it had been duly registered, nor does he contend that he did not- know Riedenauer, with whom he was daily in contact, was the agent required by the statute upon whom service could be made.

In Delaware River Quarry, etc., Co. v. Pass. Ry. Co., 204 Pa. 22, there had not been any registration at all until after the corporation had been engaged in business in this common-wealth during a period of six months. And, therefore, the Supreme Court held that the provisions of the act of April 22, 1874, had not been complied with and the plaintiff could not maintain an action in this commonwealth.

In the present case the appellee had put itself within the reach of our courts, and for the technical reason that the certificate- was not hung upon the wall we are not willing to hold that the present suit cannot 'be maintained.

Upon the merits we are not convinced that the decree is not just and we see no sufficient reason for its reversal.

The assignments of error are dismissed and the decree is affirmed at the costs of the appellant.


author: Beayeb., J.,

text:
    Nicholson Township Poor District v. Nicholson Borough Poor District, Appellant.

      Poor laws — Settlement—Quasi settlement — Appeals.
    The court of quarter sessions has power to remove a pauper from the place where there is no pretense of settlement to the place of quasi-settlement, which, as between two contending poor districts in such a situation, is liable for the support of such person.
    Assignments of error in an appeal from an order of removal which do not follow the exceptions to the points of evidence or of law found by the court below, will not be considered by the appellate court.
    Argued Feb. 25, 1907.
    Appeal, No. 19, Jan. T., 1907, by defendant, from order of Q. S. Wyoming Co., directing removal of alleged pauper in case of Nicholson Township Poor District v. Nicholson Borough Poor District.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for order of removal.
    The exceptions to the order were as follows :
    And now, May 7, 1906, Nicholson borough poor district, defendant, by its counsel, respectfully excepts to the opinion of the court filed May 7, 1906, wherein the court holds that Mrs. Avery and her family were “ designedly subjected to a course of treatment,” while residing in the defendant poor district, which compelled them to seek a residence in another ■district, such finding not being warranted by the evidence in the case.
    The said defendant poor district further excepts to that portion of said opinion wherein the court holds “ that at the time Mrs. Avery and her children went into Nicholson township poor district, they had a quasi settlement in Nicholson borough poor district and were proper subjects for relief therein,” there being no evidence in the ease to sustain such finding. .
    The said defendant poor district further except to that portion of the said opinion of May 7, 1906, wherein the court holds that it was a duty incumbent upon the overseers of Nicholson borough poor district, upon application to them made, to assist in finding a house for inhabitants of the district, there being no such duty imposed by law on overseers of the poor.
    And now, May 7, 1906, the defendant poor district respectfully except to the decree of the court entered May 7, 1906, directing the removal of Charles Avery, Lilian Avery and Howard Avery to Nicholson borough poor district, where they had no legal settlement, for the reason that the court was without jurisdiction to make such order or decree, and for the further reason that there was no evidence in the case to warrant the court in entering such a decree.
    And now, May 8, 1906, upon application of the counsel for Nicholson borough poor district, the above exceptions are noted, and that their request a bill is sealed.
    Errors assigned were in the following form:
    1. The court erred in finding as a matter of law that Mrs. Avery was chargeable to Nicholson borough poor district at the time she moved out of it because she had once received relief therefrom and because she could not find a house in that district, said finding being as follows, to wit:
    “ It is argued by the borough district that this family did not require relief when they moved out of it, and consequently was not chargeable thereto. But the facts are against this contention. - Mrs. Avery had applied for and received some aid for herself and children from the borough district, thereby fixing their status as fit subjects for relief, and that of the district as their quasi settlement. If we concede that immediately prior to their removal to the township they were suitably supplied with provisions and other necessaries in their home— which is none too clear — it is apparent they were in urgent need of a house in which to live.”
    2. The court erred in finding as a matter of law that the Avery family were paupers at the time they left Nicholson borough poor district and that they were permitted to wander from the district, said finding being as follows, to wit :
    “ While the overseers of the borough did not leave this family in the township, as appeared in one of the cases above cited, or by artifice induce them to go there, as in another, their conduct is analogous to that of the poor-law officials who, in the case of Milton v. Williamsport, were held culpable for permitting a pauper to wander into another district.”

      3. The court erred in holding that Mrs. Avery and her family, at the time of their removal into the township; had a quasi settlement in Nicholson borough poor district and were subjected to such a course of treatment while in the borough as to compel them to seek a residence elsewhere, said finding being as follows, to wit:
    “ Whenever it become .manifest that a poor person chargeable to one district has been designedly subject to a course of treatment which has compelled him to seek another, such procedure will be condemned and the offending district will be required to perform its statutory obligation. In our opinion such a case is presented here, and we therefore hold that at the time Mrs. Avery and her children went into Nicholson township poor district, where they had no legal settlement, they had a quasi settlement in Nicholson borough poor district, and were proper subjects for relief therein.”
    4. The court erred in granting an order of removal, and in entering the following decree in reference thereto, to wit:
    “ And now, May 7, 1906, in pursuance of the petition presented to the court by the overseers of the poor of Nicholson township poor district, and having determined the cause set forth in said petition upon its merits, as provided by law, it is now adjudged that the aforesaid Charles Avery, Lillian Avery and Howard Avery are poor and indigent persons who have lately come to inhabit and to be chargeable to said Nicholson township poor district; that their last legal settlement is unknown, but that they have quasi settlement in the poor district of Nicholson borough. Accordingly the overseers of the poor of said Nicholson township district are hereby authorized and required to remove and convey the said Charles Avery, Lillian Avery and Howard Avery from said Nicholson township district to the poor district of Nicholson borough and to deliver them, together with a duly certified copy of this order, to the overseers of said Nicholson borough district, who are hereb}r required to receive and care for said persons until they can be removed to the place of their settlement. It is also ordered that the costs of the proceedings, the expense of removing and the proper charges for the relief of said poor persons shall be paid to the petitioners by the overseers of Nicholson borough poor district, to be ascertained according to law.

      April 15, 1907:

      E. K. Little, of Little Little,
    cited: Taylor Overseers v. Shenango Overseers, 114 Pa. 394; Kelly Twp. v. Union Twp., 5 W. & S. 535; Braintrim Twp. Overseers v. Windham Twp. Overseers, 10 Pa. C. C. Rep. 250.

      James W. Piatt, for appellee,
    cited on motion to quash: Parker Twp. Overseers v. East Franklin Twp. Overseers, 13 W. N. C. 141; Lower Augusta v. Selinsgrove, 64 Pa. 166; Cambria County v. Madison Twp., 138 Pa. 109; Elderton Boro. Overseers v. Plum Creek Twp. Overseers, 2 Pa. Superior Ct. 397; Liberty Twp. v. Castanea Twp., 4 Pa..Superior Ct. 411; Moreland Twp. v. Davidson Twp., 71 Pa. 371; Wayne Twp. v. Jersey Shore, 81* Pa. 264; Montoursville Overseers v. Fairfield Overseers, 112 Pa. 99 ; Taylor Overseers v. Shenango Overseers, 114 Pa. 394; Kittanning Twp. v. Madison Twp., 146 Pa. 108; Christy’s Lunacy, 2 Pa. Superior Ct. 259; Edenburg Boro. School District v. Strattonville Boro. School District, 5 Pa. Superior Ct. 516; East Franklin Twp. Overseers v. Rayburn Twp. Overseers, 23 Pa. Superior Ct. 522; Laporte Boro. Overseers v. Hillsgrove Twp. Overseers, 95 Pa. 269; Warsaw Twp. Poor District v. Knox Twp. Poor District, 107 Pa. 301; Galeton Poor District v. Stewardson Poor District, 18 Pa. Superior Ct. 428.
   Opinion by

Beayeb., J.,

A motion is made to dismiss this appeal on the ground “ that no exception was taken to any decision of the court, upon any point of evidence or of law which was noted by the court.” No requests for specific findings of fact or law having been made, the court, instead of making these findings separately, wrote its opinion in narrative form.

The appellant endeavors, by its bill of exceptions, to bring upon the record certain findings of fact, to which it makes specific objection. The assignments of error, however, do not follow these exceptions, save as they relate to the acquisition of a quasi settlement by the paupers in Nicholson borough district and to the validity of the final decree.

The assignment, relating to the final decree, is not such an exception to a point of evidence or of law as has been recognized under the Act of March 16, 1868, P. L. 46, in Lower Augusta v. Selinsgrove, 64 Pa. 166, and the almost innumerable cases which follow it, as a valid one.

We think, however, that the third assignment of error fairly raises the question which is covered by the bill of exceptions in its second paragraph. It may be argued, with much plausibility, that this bill of exceptions does not consist of exceptions to specific findings of law or fact. There is no difficulty, however, in reaching a conclusion as to the specific finding of the court on the question of the liability of the borough of Nicholson for the support of the paupers, because of the quasi settlement which had been acquired therein by residence of their mother at the time an order of relief was first necessarily procured. This is raised by the third assignment of error, which is:

“ 3. The court erred in holding that Mrs. Avery and her family, at the time of their removal into the township, had a quasi settlement in Nicholson borough poor district, and were subjected to such a course of treatment while in the borough as to compel them to seek a residence elsewhere, said finding being as follows, to wit:

“ ‘ Whenever it becomes manifest that a poor person chargeable to one district has been designedly subjected to a course of treatment which has compelled him to seek another, such procedure will be condemned, and the offending district will be required to perform its statutory obligation. In our opinion such a case is presented here, and we, therefore, hold that at the time Mrs. Avery and her children went into Nicholson township poor district, where they had no legal settlement, they had a quasi settlement in Nicholson borough poor district, and were proper subjects for relief therein.’ ”

•We are, therefore, disposed to consider this assignment as though based upon exceptions to specific points, both of evidence and of law.

That the court of quarter sessions has power to remove a pauper from the place where there is no pretense of settlement to the place of quasi settlement, which, as between two contending poor districts in such a situation, is liable for the support of such person, there can be little or no question. It seems scarcely necessary to cite authority for the correctness of the position of the court below upon this subject.

In the early case of Kelly Twp. v. Union Twp., 5 W. & S. 535, Mr. Chief Justice Gibson says: “ Notwithstanding the abandonment of the pauper, then, he remained chargeable, as before, to Kelly township, which was fixed by his application for relief, and must remain so until all things written in the statute be fulfilled. And all the things there written are just and wholesome ; for, if the burden of a pauper could be shaken off by an effort, such as made in this instance, the consequent temptation to acts of inhumanity would be too strong for resistance. The order to remove the pauper from Union township back to Kelly, as the place of his last settlement, ivas substantially right, for he liad a quasi settlement in the latter while he remained chargeable to it, and we are not disposed to ci-iticise the form of the order, the matter contained in it being entirely proper.”

This case was in accord with the law, as then declared, and has been substantially followed in many subsequent cases: Milton Overseers v. Williamsport Overseers, 9 Pa. 46; Moreland Twp. v. Davidson Twp., 71 Pa. 371; Taylor Twp. v. Shenango Twp., 114 Pa. 394. See also Susquehanna Twp. Overseers v. Monroe Twp. Overseers, 4 Pa. Superior Ct. 589, in which our late Brother Wickham said:

“ The court below properly confirmed the order of removal on the grounds that there was no evidence that the paupers had a settlement of any kind in Susquehanna township, while it clearly appeared that they had a quasi settlement in Monroe.”

The court undoubtedly, therefore, had power to remove the paupers, whose mother first became a charge and secured relief in Nicholson borough, to that poor district, there being no allegation of any kind that they had a settlement in Nicholson township, the order of relief obtained by the mother in ■the borough, for anything which appears to the contrary, being in full force when she removed thereto. Whether or not the overseers of the poor intended to compel her removal to the township, or whether they acted inhumanly in allowing it, are matters of little moment. As a matter of fact, she went into Nicholson township, while obtaining relief or at least entitled to relief from Nicholson borough, sick and suffering, with the knowledge and consent, if not at the suggestion, of one of the overseers of the borough; and, until her legal place of settlement was determined, the poor district of the borough was liable for her support. The decree of the court was, therefore, fully justified.

Order affirmed and appeal dismissed at the costs of the appellant.


text:
    Ryan, Appellant, v. Prudential Insurance Company.

      Insurance — Life insurance — Forfeiture—Revival of policy.

    Where an application is made to an insurance company to revive a forfeited policy and the application is accompanied by a statement of the local agent that the applicant is sick at the time, with a recommendation by the agent that the application be granted for advertising purposes, the delay of the company for two weeks, and until after the death of the applicant, in passing upon the question, will not be presumed to be an acceptance of the premiums accompanying the application..
    Argued Feb. 26, 1907.
    Appeal, No. 24, Jan. T., 1906, by plaintiff, from order of, C. P. Luzerne Co., Oct. T., 1903, No. 145, refusing to take off nonsuit in case of Bridget Ryan, Administratrix of the Estate of Mary Menningham, deceased, v. Prudential Insurance Company of America.
    Before Rice, P. J., Porter, Henderson, Orladt, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance. Before Wheaton, J.
    On motion to take off nonsuit, Wheaton, J., filed the following opinion:
    The defendant, on March 11, 1901, and October 20, respectively, issued two policies of insurance'on the life of plaintiff’s decedent.
    Both of these policies afterwards lapsed for failure to pay premiums.
    December 3, 1902, the insured made a written application for a renewal or revival of said policies.
    This application contained the following provisions: .“ I hereby declare that I am in as good state of health as when the said policies were issued, and having allowed them to become lapsed I wish to renew them, upon the understanding that they will not be in force, although I now pay the arrears, until the company shall have consented to .revive the same.”
    At the time of making the application the applicant gave to the local agent the amount of the arrears, $10.00, a revival receipt containing the following provision : “ Under no circumstances will the company be liable under said policy in case of default, until the policy has been revived on the books of the company and the money credited in the premium receipt book belonging to said policy.”
    At the time when the application to revive was made the applicant was sick; she died fifteen days afterwards.
    On December 5 or 6, 1902, the collector to whom the application to revive had been given by the applicant, turned it over to the local cashier, and it was then forwarded to the home office of the company at Newark, New Jersey, with a report of the collector that the applicant was sick, but recommended that as a good advertisement that the policies be revived. The company, however, declined to renew or revive the policies, and so reported to the local agent.
    The $10.00 were then offered to plaintiff, who was a sister of the applicant, but who had not at that time taken out any letters of administration. They were refused by her.
    The plaintiff claims that there was no offer to return the money until about January 9, 1903.
    The failure of the company to act promptly upon the application to' renew is the basis of the plaintiff’s claim.
    The applicant’s right to a revival of her lapsed policies, in the light of the terms imposed by the company, and assented to by her, was no greater than her right to receive a policy upon an original application therefor. This being the case, in the absence of a stipulation as to the time within which the company should act, the mere lapse of two weeks would not in itself warrant a. presumption of acceptance. Particularly would this be true where, as in the case at bar, the application contained a misrepresentation as .to the health of the applicant.
    It must be borne in mind that the applicant died on December 18, 1902, fifteen days after the application to renew was made by her.

      April 15, 1907 :
    It can hardly be argued that the failure of the company to take action by way of accepting or rejecting her application could continue after her death.
    As to the return of the money, there appears to have been no one who had any lawful authority to receive it after the applicant’s death, until letters of administration were taken out, which was not until 1903.
    Npon the whole case we are of the opinion that the non-suit was properly entered.
    Rule to take off the nonsuit is therefore refused.

      Error assigned was refusal to take off nonsuit.

      James II. Shea, with him E. A. Lyneh and T. M. Herbert, for appellant.
    — The receipt and acceptance of the premium makes the company liable: McQuillan v. Mutual Reserve Fund Life Assn., 56 L. R. A. 233; Rasmusen v. New York Life Ins., 91 Wis. 81 (64 N. W. Repr. 301) ; White v. Ins. Co., 22 Pa. Superior Ct. 501.

      John T. Lenahan, for appellee,
    cited : Smith v. Mutual Life Ins. Co., 196 Pa. 314.
   Opinion by

Beaver, J.,

Two policies of insurance upon the life of Mary Mennighan, which had undeniably lapsed for nonpayment of premiums,-were sought to be revived, under circumstances and upon conditions contained in the said policies, fully set forth in the opinion of the trial judge in the court below in overruling the motion to take off the judgment of nonsuit. The facts are so clearly stated in that opinion that it is unnecessary to restate them here. The decedent died within fifteen days after the payment of the money required to secure the revival.

It cannot, of course, be said that the defendant was misled by the representations of the decedent that she was in good health, because her application was accompanied by a statement of the agent that she was sick at the time. He recommended the revival of the policies, not on the ground that the risk was good, but that such action by the company would be a good advertisement.

No intimation of any intention to revive was conveyed to the decedent in her lifetime. There is nothing in the stipulations in the policy or in the rules of the company, so far as they have been brought to our attention, which requires action on the application for a revival within a stipulated period.

We quite agree with the court below, therefore, that “ thé mere lapse of two weeks ” in passing upon the question of revival “ would not in itself warrant a presumption of acceptance.” The determination as to the revival involved a broad question of policy which the .executive officers of the company might well have hesitated about adopting, even if they had any authority to revive on any other basis than that of good health, of which there is no evidence whatever, and, inasmuch as the question was undetermined at the death of the decedent, it can scarcely be expected that the company either could or would assent to the revival thereafter, even as an advertisement.

This case is, in no sense, similar to White v. Metropolitan Life Ins. Co., 22 Pa. Superior Ct. 501. In that case, without any representation or proof as to the condition of health of the defendant, money sufficient to pay the premiums in arrear, and also future premiums to a date beyond the death of the insured, having been paid, and the company having retained the same, without requesting any proof as to the soundness of the health of the applicant, we held it was not error for the court to submit to the jury whether the company had reasonable time within which to determine what its action would be, and whether the retention of the money did not indicate a determination to revive the policy.

The money was returned from the home office of the company to the agent, and offered to be returned to the present plaintiff before letters of administration upon the decedent’s estate had been issued to her. Whether her refusal to accept was based upon the fact that she had no legal right to do so need not now be considered. The defendant did all that was in its power in relation to the return, and cannot be held responsible for the acts or delays of the plaintiff.

The nonsuit having, in our opinion, been properly entered, the court cannot be convicted of error in refusing to remove it.

Judgment affirmed.


author: Hendekson, J.,

text:
    Wickham, Appellant, v. Sutton.

      Adverse possession — Title—Evidence—Trespass q. c. f.

    . A claim of title by adverse possession to a tract of unimproved woodland adjoining a tract of land on which the claimant resides and to which he has title by deed, cannot be sustained by evidence merely that he cut firewood from time to timé, took some timber from the land, and made a road thereon to enable him to remove the timber.
    Argued Feb. 26, 1907.
    Appeal, No. 36, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1905, No. 160, on verdict for defendant in case of Charles L. Wick-ham v. Leo A. Sutton and William H. Freeman.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass quare clausum fregit. Before Staples, P. J., specially presiding.
    The court charged in part as follows :
    This is an action of trespass brought by the plaintiff in this case against the defendants, primarily to recover damages for an alleged injury done to the land which the plaintiff claims he owned or had the title to, and, as you can easily understand, the real contention in this case is the question of title.
    [The plaintiff, being the actor or having brought this suit, it devolves upon him to show a title and the right of possession to the land over which this contention arises, and unless he establishes that, or has established that by clear and positive evidence, his claim must fail.] [2]
    [He has alleged that he obtained title to this land in two ways. One by a paper which was offered in evidence which, as the court remembers, was admitted for what it is worth, and which is a kind of a statement or agreement with reference to a tract of land, the paper having, as the court remembers it, no date. Nor was the time of the execution of the instrument shown ; and, unexplained by other testimony, there is nothing in the paper itself which would show title to this land. The court holds that that paper in itself is insufficient to show title or right of possession and ownership to this tract of land in contention between the plaintiff and the defendants. The plaintiff, however, relies upon another kind of ownership, that of ad verse possession. He claims that he had had the full and exclusive possession of this tract of land for more than twenty-one years at the time the trespass was committed. If he has sustained that contention by clear and positive evidence, then the defendants in this case would have been trespassers, and the plaintiff would be entitled to recover.] [3]
    The evidence, as the court remembers it, was to the effect that this piece or tract of land in dispute was unimproved, wild land up on the mountain side ; that it adjoined a piece of land for which the plaintiff had a deed from the owner of both tracts of land, Furman Taylor. [In order that a person may sustain the right to ownership by adverse possession, it must be open, notorious, visible, hostile, peaceable, continuous and exclusive. Has the plaintiff in this case shown any such possession? Under the ruling of our Supreme Court, where a piece of land is unseated, unimproved, wild or timber land, this adverse possession must either be by residence without cultivation, or residence and cultivation, or cultivation without residence. As the court remembers the testimony, there was no residence by the plaintiff upon this tract of land, there was no cultivation of it, nor was there cultivation and residence'. It was not fencéd, nor was there such an exercise of actual possession as would bring it within either one of the definitions just given to you as to the cultivation or residence. The plaintiff has testified that he had this property in possession, the acts of possession being that he cut firewood or wood a number of times upon the tract, that he cut timber for his house and, as the court remembers it, cut some railroad sills, and hauled them off. You will remember, probably, better than the court, all the details of this testimony, and, if the court -has made any misstatements, you will correct them in your own minds, but that is the way the court remembers the testimony, and we say to you that, in itself, is insufficient to sustain this,claim to adverse possession for a period of twenty-one years. There is some testimony that a road was put through this land. If that road was made simply for the purpose of occasionally going upon the tract and hauling away timber or firewood or wood, that, of itself, would not be such fact as would give possession. It must be upon the lines as laid down to you by the court. Therefore, in order that you should find a verdict in favor of the plaintiff, it would be necessary that you should find, by clear and positive evidence, that he had adverse possession of this tract of land for a period of twenty-one years previous to the trespass, and that it had been continuous ; not that he had occasionally gone upon the land and taken off wood, or occasionally gone upon the land and taken off timber, but that he had used this piece of land all along down through these years, continuously, and that he had used it exclusively, and unless you find those facts from the evidence you cannot find a verdict in favor of the plaintiff.] [4]
    Upon the part of the defendants, they have offered testimony to the effect that this piece of land was purchased of the same person from whom the plaintiff claims — Furman Taylor— and they have produced before you the partition proceedings of the heirs of Furman Taylor, which resulted in a sale to the defendants, and also the deed. We say to you in this connection that if you believe the evidence as offered with regard to the defendants’ title, that the mere fact that they did not have the deed in their possession until March 24, this trespass having taken place on March 2, would not entitle the plaintiff to a verdict in this case unless he established adverse possession as stated to jmu by the court. As the court remembers the testimony, there is no such evidence of possession in this case as would warrant a verdict at your hands upon the ground that the defendants in this ease were wrongdoers. They had paid a part of the purchase money upon this piece of land, and there was no evidence offered that the persons who were concerned in the partition proceedings had objected to their entering upon the land, and we say to you that unless the plaintiff’s testimony comes up-to the rule as laid down.by the court, with regard to adverse possession, the fact that these defendants came upon this land or entered upon it before they received their deed, would not entitle the plaintiff in this case to a verdict, simply upon the ground that they were wrongdoers. [The defendants have also called a number of witnesses for the purpose of showing what they alleged to be a concurrent possession. Even if it should be admitted for the sake of argument that timber had been cut upon this piece of land, and ties cut and taken away and wood taken away hy Wickham, yet, if the defendants should show concurrent possession by either Furman Taylor or his heirs, during this same period of time, that would be sufficient to defeat the claim of the plaintiff of adverse possession for a period of twenty-one years. Concurrent possession is where the person who claims the right to the property hy adverse possession exercises rights of ownership over the tract and during the same period of time — that is, during the same period of years — the actual owner of the title to the land also exercises rights of ownership over it. In other words, as an example, if the plaintiff cut timber upon the land, and if Furman Taylor, the owner of the land, or his heirs, cut timber on the land during the same period of years, that would be exercise of concurrent possession, and if there is concurrent possession — if you believe the testimony of the defendants upon that point — that of itself would be sufficient to defeat the rights of the plaintiff, and he cannot recover.] [5]
    Verdict and judgment for defendants. Plaintiff appealed.

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

      A. Ricketts, with him Alex. Ricketts, for appellant,
    cited:, Ament v. Wolf, 33 Pa. 331; Hastings v. Wagner, 7 W. & S. 215 ; Carter v. Tinicum Fishing Co., 77 Pa. 810 ; Hasson v. Klee, 181 Pa. 117; Jenkins v. McMichael, 21 Pa. Superior Ct. 161: McReynolds v. Longenberger, 57 Pa. 13 ; Douglas v. Irvine, 126 Pa. 643.

      R. Laura Cannon, for appellee,
    cited: McArthur v. Kitchen, 77 Pa. 62 ; Miller v. Shaw, 7 S. & R. 129; Royer v. Benlow, 10 S. & R. 303; Robb v. Mann, 11 Pa. 300 ; Whitney v. Backus, 149 Pa. 29; Wolf v. Wolf, 158 Pa. 621; Enterprise Transit Co. v. Oil Co., 20 Pa. Superior Ct. 127 ; Wilkinson v. Connell, 158 Pa. 126; Olewine v. Messmore, 128 Pa. 470; Hole v. Rittenhouse, 37 Pa. 116 ; Ewing v. Alcorn, 40 Pa. 492; Irwin v. Patchen, 164 Pa. 51,

      April 15, 1907:
   Opinion by

Hendekson, J.,

The plaintiff acquired title to twenty-seven acres and ninety-four and one-half perches of land, part of a tract belonging to the grantors, by deed from Thomas Taylor and others in 1872. Part of this land was improved and part wooded. The trespass complained of was on a piece of uninclosed and unimproved land adjoining the twenty-seven acres and ninety-four and one-half perches. The plaintiff claimed to have bought this additional land from one F. V. Taylor and a paper was offered in evidence in support of the claim, purporting to have been signed by F. Y. Taylor. The paper was in the following form: “ This is to show that I agree to allow the tract of land sold to Charles L. Wickham to extend parallel with the east and west lines running north and south across the Robert Gray tract, that is, my right and title ofisuch lands. F. Y. Taylor.” When objection was made to the admission of this evidence the plaintiff’s counsel stated: “We do not offer this as evidence of the land, but simply as corroborative evidence of Mr. Wickham’s title.” The paper was not dated, no consideration was recited and there, was not sufficient evidence of its execution. It is without words of conveyance and contains an obscure description of the land to which it refers. F. Y. Taylor was dead at the time of the trial. The paper was admitted in evidence by the trial judge apparently upon the theory that it was in corroboration of the plaintiff’s claim of title by .adverse possession. It was evidently not relied upon by the plaintiff as a grant of land, for his attorney when offering it said it was simply corroborative evidence of the plaintiff’s title. It was necessary, therefore, to resort to the claim of title by adverse possession, for, although the learned counsel for the plaintiff insists in his argument that the plaintiff claims by purchase, there is an entire absence of evidence to show any title acquired in that way. An attempt was made to show such occupancy as would give title by adverse possession. The evidence on that subject-was that the plaintiff cut firewood from time to time, took some timber from the land and that he made a road thereon to enable him to remove the timber. Fences were not built, the land was not cultivated, nor were any permanent improvements made. There was neither possession by residence nor by cultivation. The place of the trespass was not within the boundaries of the twenty-seven acres and ninety-four and one-half perches bought by the plaintiff, and actual possession was necessary within the lines of the additional land claimed by the plaintiff in order to acquire title thereto. Residence by the plaintiff on the twenty-seven acre lot did not draw to it possession of land not part of that tract and would not be notice that the plaintiff claimed beyond the boundary of what he had bought: Miller v. Shaw, 7 S. & R. 129; McArthur v. Kitchen, 77 Pa. 62. The evidence was not sufficient to sustain the plaintiff’s claim and the court might have so instructed the jury. It is not important, therefore, whether the record of the partition proceeding offered by the defendants was admissible or not. It did show, however, that the defendants were on the land under a claim of right, they having bought it at a partition sale of the real estate of F. Y. Taylor. It is true the deed had not been delivered to them, but the sale was confirmed and part of the purchase money paid -nearly a month .before the trespass was committed. The defendants were on the premises, therefore, under a claim of title.

The judgment is affirmed.


author: Per Curiam,

text:
    Murray, Appellant, v. Wilkes-Barre Township School District.

      School law — Teachers—Employment—Terms—Act of June 25, 1885, P. L. 175.
    Where school directors have elected a teacher, holding a state normal school diploma, for one term, they cannot during the current school year extend his contract for two additional terms. In making the original contract they have exhausted their powers under the Act of June 25, 1885, P. L. 175, and in attempting to extend it, they are trenching on the powers of the succeeding board.
    Argued Feb. 27, 1907.
    Appeal, No. 18, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1904, No. 555, for defendant non obstante veredicto in case of Martin C. Murray v. School District of Wilkes-Barre Township.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit for salary as teacher.
    Ferris, J., filed the following opinion:
    The board of directors of the school district of the township of Wilkes-Barre, having duly organized for the school year beginning on the first Monday of June, 1901, met at an adjourned meeting on Jul}- 8, and elected the teachers and janitors for that school year, fixing the term as one of ten months, beginning September 2, 1901. One of the teachers so chosen was the plaintiff, who was employed for one year. The teachers and janitors so elected entered upon the performance of their duties and continued to perform them until the end of the term. At the February election of 1902, two of the directors, Brogan and McAndrew, were defeated for re-election and Smith and Burke were chosen in their stead. The term of office of the latter began on the first Monday of June, 1902. On May 27, 1902, five days before the beginning of the new school year, the old board of directors, by a majority to which the votes of the retiring members Brogan and McAndrew were necessary, assumed to fix the term of the new year as one of nine months to begin on September 1,1902, and to elect a full corps of teachers and janitors, for periods varying from one to two terms. The plaintiff was so elected for a period of two terms, to begin in September, 1902.
    Upon organization of the new board they declined to be bound by this action of their predecessors in office, and themselves elected teachers and janitors, including Owen Johnson as teacher of the school for which the plaintiff had been elected by the outgoing board. Mr. Johnson taught the school for the term beginning in September, 1902. Mr. Murray, the plaintiff, went to the school for the purpose of teaching, but, finding Johnson in possession, retired from the field. It seems from the evidence that the plaintiff held himself in readiness to teach this school during the term of 1902-3, but for the term of 1903-4, accepted other employment. He brings this suit to recover for the first of the two terms for which he was employed by the outgoing board in May, 1902.
    The material facts being undisputed, the case turns upon the question whether the board of directors had the right at the end of the school year and under the circumstances of this case, to employ the plaintiff for a period to commence after the end of the school year in which the contract was made.
    Under the Act of June 25, 1885, P. L. 175, the school board would have the right to hire the plaintiff (he having a normal school diploma) for two or for three successive terms instead of one if they had chosen to' do so when they elected him in July, 1901: Burke v. School District, 28 Pa. Superior Ct. 16. But they did not choose to do so. It is argued by the plaintiff’s counsel that the board, having the right at the beginning of the school year to elect the plaintiff for three successive terms, retained that right throughout the year, that their power was not exhausted by its first exercise in July, 1901; but that they might, tentatively, elect for one year if they chose, and then, if the teacher proved his worth, at a later date extend the period of his employment for two additional terms. But they did not choose to do this. The first election of the plaintiff in July, 1901, was not tentative. There is nothing to show that the board had in contemplation an extension of his term of employment if he did good work; and his second election in May, 1902, did not purport to be such an extension. It was a new election for a new period to begin in a subsequent school year and had no reference to his former employment. So far as the evidence shows, it was in no way distinguishable as a legal or illegal exercise of authority from an election of a perfect stranger. Unless warranted by the act of 1885, it was quite as open to objection as an invasion and usurpation of the power of the incoming board as was the act of the directors for the school year of 1901-2 in assuming'to fix the beginning and duration of the school term of 1902-3.
    Running through the entire body of statutory law relating to the common school system we find the school year adopted as a unit of duration. Three of those units make up the term of office of the school director. The people are to pass upon the personnel of the board and may by electing two new members change it for each school year. The board is to be organized anew at the beginning of each school year, as a distinct and separate administrative body from that of any preceding or succeeding year. Funds are to be provided by taxation annually. The state appropriation is distributable annually. Reports are to be made annually — at the end of the school year, giving a history of past operations — -and at its beginning (before the opening of the schools and immediately after “ the annual appointment of teachers ”), giving the names of the teachers so chosen and designating the schools to which they have been respectively assigned, with a statement of the date of the beginning and the duration of the ensuing term. A minimum annual school “ term ” is fixed by law. An annual meeting of directors with the .tax collector is provided for. The act of 1854 (sec. 25) provided that “ immediately after the annual election of teachers ” in each school year “ and before the opening of the schools for the ensuing term,” a joint meeting of directors and teachers should be held relative to the adoption of school books. So also; many other provisions of the law might be cited, all tending to show that in the legislative mind the school year was regarded as a fixed administrative period within which, as a general rule, the board of directors for that year should, and beyond which they should not, exercise a control over school affairs. While it is true that in certain cases a school board is authorized to enter into contracts not to be fully performed during the school year in which the contract was made, yet these cases are exceptional, and we have been unable to discover in any of them any grant of power to a school board to bind the district and tie the hands of their successors in office by a contract relating to the running of the schools, the performance of which could not by its very nature be entered upon until after another school year had begun and another school board had organized and .assumed the duties and responsibilities of their office.
    It is difficult to avoid the conclusion (1) that the statutes establishing and regulating our common school system disclose a general legislative intent to limit the power of a school board to control the operations of the schools, to such matters as relate either wholly or partially to the administration of school affairs during the particular school year, and within the particular district in and for which the particular board was organized ; and (2) that án act of assembly should be construed in accordance with this general intent unless by its express terms, or by necessary inference from the language employed, a different specific intent appears.
    Before the passage of the Act of June 25, 1885, P. L. 175, while there is no express mandate to that effect, it was assumed in the acts of 1854 and 1862, and the general practice was that all teachers were to be elected (or re-elected) annually, by each successive school board after its organization, and before the opening of the schools for the next ensuing term. The act of 1885 made an exception to that general rule as follows : “ Local school boards of the various townships may elect principals and assistant teachers holding the grade of ‘ professional certificates,’ for two successive school terms, and those holding the grade of ‘ permanent certificates,’ or diplomas, issued by state normal schools of this commonwealth for three successive terms.” Nothing is said, and, therefore, the law left unchanged, as to when the election shall take place, or when the period of the teacher’s employment shall begin. Conceding that the requirement of the act of 1862 that a report shall be sent by the secretary of the board to the county superintendent “'immediately after the annual appointment of teachers, giving their names and the date when ‘ the ensuing term ’ of school will commence,” etc. (carrying, as it does, the necessary inference that the teachers are to be elected before the “ ensuing term ” begins) — conceding that this is a directory rather than a mandatory provision, and that a later election of teachers and report thereof would not be illegal, nevertheless the question still remains whether a school board is empowered by the act of 1885 to elect a teacher (whether at the beginning or at any time within the school year), for a period of two or three successive terms to begin in a subsequent school year. There is nothing in the act conferring this power, and, if the conclusion above expressed is correct, the general intent of the lawmakers as drawn from the entire body of our school legislation is that the board have no such authority. If they have the power to choose a teacher for a period to begin in the next succeeding year, they might with equal propriety appoint for a period beginning in any subsequent year. They would have the right, therefore, to employ a full corps of teachers (having the requisite qualifications) for successive periods of two or three terms, indefinitely, at any salary within reason that they saw fit to contract for, and thus bind the district and deprive their successors in office of the power to discharge the duties which the law imposes upon them. This they had no power to do before the passage of the act of 1885 (Conley v. School Directors, 32 Pa. 194, 198), and it is not to be thought for a moment that by this enactment the legislature could have intended, without express words to that effect, to confer a power so directly at variance with the policy of the law on this subject.
    April 15, 1907:
    We must, therefore, conclude that the Wilkes-Barre township school board of 1901-2 had no authority to bind the district by a contract to employ the plaintiff as a teacher for a period beginning in a subsequent school year, and that the plaintiff is not entitled to recover in this action.
    The rule is accordingly made absolute, and judgment non obstante veredicto upon the whole record is directed to be entered for the defendant.

      Error assigned was the judgment of the court.

      James L. Lenahan, with him 'William Walsh, for appellant.

      James II. Shea, with him Richard B. Sheridan, for appellee.
   Per Curiam,

The judgment is affirmed upon the opinion of the learned judge of the court below.


text:
    Shrewsbury Township Poor District, Appellant, v. Penn Township Poor District.

      Poor laws — Appeals■—Points of evidence and law — Assignments of error — Exceptions—Decree.
    In proceedings under the poor laws for an order of removal, a point which requests the court to find that a pauper has a settlement in a particular district, covers the entire case and is a mixed question of law and fact, and therefore not such a specific point of law and fact as is contemplated by the Act of March 16, 1868, P. L. 46.
    In such proceedings a general exception to the opinion of the court below is not an exception to any point of evidence or of law, within the meaning of the act.

      Poor law — Settlement—Lease—Evidence.
    Where a woman takes in good faith a lease of a dwelling and pays the whole year’s rent in advance, and continues to reside in the dwelling for eighteen months, she acquires a settlement under the poor laws, and such settlement is not defeated by the fact that the whole rent was immediately returned by the landlord for future board, which board was furnished him.
    April 15, 1907:
    Argued March 6, 1907.
    Appeal, No. 7, Feb. T., 1906, by-plaintiff, from order of Q. S. Eycoming Co., March T., 1906, No. 73, removing a pauper in case of Overseers of the Poor of the Poor District of Shrewsbury Township, Lycoming County, v. Overseers of the Poor District of Penn Township, Lycoming County.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Petition for order of removal.
    The opinion of the Superior Court states the case.

      Errors assigned are set forth in full in the opinion of the Superior Court.

      W. E. Crawford and J. F'. Strieby, for appellant.

      W. C. Gilmore, with him F. F. Hill, for appellee.
   Opinion by

Beaver, J.,

The contest here between two several poor districts involves the settlement of Lavina Worthington.

The court below found the following facts:

“4. Lavina Worthington, the mother of William H. Worthington, moved into the dwelling house of William Fullmer, situated in Shrewsbury township, on or about October 12,1899, and continued to reside therein for a period of about eighteen months, under a bona fide lease in writing, made and executed October 10, 1899, between said Lavina Worthington and William Fullmer, at a rental of ten dollars for the year beginning October 12, 1899.

“ 5. Lavina Worthington paid to William Fullmer ten dollars rental for one year’s rent, beginning with October 12, 1899, for the dwelling house and lot leased her by William Fullmer, situated in Shrewsbury township, and in which she resided for one whole year, and that her son, William H. Worthington, resided with her in said dwelling house during said time.”

These findings are not specifically excepted to, nor are they assigned for error. They would seem, therefore, to be absolutely conclusive of the case.

There are two assignments of error, namely:

“ 1. The court below having affirmed plaintiff’s second point, which point is as follows: ‘ The rent money credited on the lease between William Fullmer and Lavina Worthington for the first Fullmer hoirse, as having been paid by Mrs. Worthington to Fullmer, was returned to her by Fullmer as soon as it was paid, or immediately thereafter:

“ The court erred in not affirming plaintiff’s third point, which point is as follows : ‘ The receipt for the payment of rent entered upon the lease under such circumstances is no evidence of payment of rent, unless it be shown that subsequently the lessor became indebted to the lessee to the extent of the receipted payment; and that this money was credited or applied to such indebtedness.”

“ 2. The court erred in not affirming plaintiff’s tenth point, which point is as follows: ‘ The last place of legal settlement of William Worthington, the pauper in this case, is in the poor district of Penn township, Lycoming county, Pennsylvania.” Both assignments are faulty, in that they do not specifically state what the ruling of the court was in reference to the points referred to. If they were refused, the assignments should so state.

The paper-book of the appellant is printed in such a way that it is with great, difficulty that the paper-book proper and the appendix can be separated; for example, page 6 of the opinion of the court is followed by page 85 of the appendix. Then come pages 8 and 9, and, following them, page 38 of the appendix. Turning to the appendix, page 7 of the opinion follows page 34 of the appendix. Page 10 follows page 37 and is followed by page 39 of the appendix. In order to find the continuation of the assignments of error, we must turn back to page 11 of the book which follows page 38 of the appendix. We have, however, with some difficulty rearranged the pages, so as to follow the regular order in the paper-book and refer to the matter now only for the purpose of urging care in this regard, which greatly facilitates the work of this court.

The court, having affirmed the request for the finding of fact, as to the payment of rent and its return, could, under the facts of this case, as they are referred to in the discussion by the court, under the findings of fact, well have affirmed the third point, except for the form in which the point was put, without in any way impairing the integrit3r of the findings of fact, to which there is only a general exception, and which are not assigned for error.

In the discussion of the facts, the court, referring to the testimony of Lavina Worthington quotes her as saying she paid the $10.00 to William Fullmer, but that he immediately gave it .back to her “ for board or anything else,” and that William Fullmer boarded with her for a considerable time thereafter. The court evidently accepted this fact as proved. If so, this payment was a payment in advance for board which was subsequently furnished. The court could not say, therefore, in strictness, that Fullmer subsequently became indebted for that for which he had paid in advance. Whether that was the reason for refusing or failing to affirm the plaintiff’s third point we know not, but we cannot see that, even if the point had been affirmed, it would in any way interfere with the actual findings of fact of the court as to the settlement of Lavina Worthington, for such a finding would not have been contradictory to, or inconsistent with, the testimony of Lavina Worthington, assuming that the reference to “ subsequent indebtedness ” meant subsequent receipt for value of the amount of the rent returned by Fullmer to Mrs. Worthington.

As to the second assignment of error, it covers the entire case, and is a mixed question of law and fact. It is not such a specific point of law or fact as is contemplated by the Act of March 16, 1868, P. L. 46, and, even if it was, is not specifically excepted to as required. The only exception upon the record is: “ Same day counsel for overseers of poor of the poor district of Shrewsbury township except and, at their request, bill of exceptions sealed.” The general exception to the opinion of the court below is not an exception to any point of evidence or of law:” Lower Augusta v. Selinsgrove, 64 Pa. 166. See Wayne Twp. v. Jersey Shore, 81* Pa. 264; Laporte Borough v. Hillsgrove Twp., 95 Pa. 269; Elderton Borough v. Plum Creek Twp., 2 Pa. Superior Ct. 397 ; Liberty Twp. v. Castanea Twp., 4 Pa. Superior Ct. 411; East Franklin Twp. v. Rayburn Twp., 23 Pa. Superior Ct. 522.

Waiving the defects in the exceptions, the irregularities in the assignments of error and the imperfections in the appellant’s paper-book, we think the conclusion of the court below was justified by the facts, as found, and that the findings of fact are based upon, and sustained by, the evidence.

The order of the court below is affirmed and the appeal dismissed, at the costs of the appellant.


text:
    Philadelphia v. Masonic Home of Pennsylvania, Appellant.

      Taxation — Charity—Exemption—Masonic Home.

    Where an institution has been adjudged in 1894 as not a purely public charity exempt from taxation, a change in the by-laws made in 1899, will not relieve it from the judgment of taxes assessed against it for the year 1894.
    Argued March 12, 1907.
    Appeal, No. 219, Oct. T., 1906, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1895, No. 1,454, M. L. D., on verdict for plaintiff in case of City of Philadelphia v. Masonic Home of Pennsylvania.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver,- JJ.
    Affirmed.
    Scire facias sur tax lien. Before McMickeal, J. See 160 Pa. 572.
    At the trial it appeared the taxes in question were for the year 1894. In 1899 the by-laws of the home relating to admission were changed so as to read as follows :
    “Sec.-l. The Masonic Home shall have for its object, to provide and maintain a home for indigent, afflicted or aged free masons, and for the destitute widows and orphans of free masons in the state of Pennsylvania, and for such others as may be placed under its charge.
    “ Sec. 44. . . . Admission shall always be made in the following order:
    “ 1. Members of Masonic bodies represented in the corporation, and nominated at their instance. “ 2. Persons nominated by a representative of one Masonic body, where the nominee is a member of some other Masonic body, which is also represented.
    April 15, 1907:
    “ 3. Master Masons nominated by individual members, and belonging to Masonic bodies within the commonwealth of Pennsylvania, but not represented in this corporation.
    “ 4. And any other destitute or afflicted persons in indigent circumstances who may be approved by the board of managers.”
    The court directed a verdict for plaintiff.
    Verdict and judgment for plaintiff for 1487.11. Defendant appealed.'

      Error assigned was the charge of the court.

      Robert H. Hinckley, for appellant.

      Mayne R. Longstreth, with him James Alcorn, assistant city solicitor, and John L. Kinsey, city solicitor, for appellee.
   Per Curiam,

An examination of the evidence fails to show that the pertinent facts, as they existed in 1894 when the taxes in question were levied, distinguish the case from Philadelphia v. Masonic Home, 160 Pa. 572. According to the report of that case sec. 2 of the charter and sec. 1 of the by-laws were then in force. The former reads : “ The object of said institution shall be to provide and sustain in the state of Pennsylvania one or more houses for the destitute widows and orphans of deceased Free Masons in the state of Pennsylvania, and an infirmary or infirmaries for the reception and care of sick and afflicted Free Masons in indigent circumstances,and all such as maybe placed under its charge by its managers.” The latter reads : “ The Masonic Home shall have for its object: to provide and maintain a home for indigent, afflicted or aged Free Masons, and for the destitute widows and orphans of Free Masons in the state of Pennsylvania and for such others as may be placed under its charge.” These provisions of the charter and by-laws were quoted in the dissenting opinion of Justice Williams, and, of course, were directly under consideration when the court decided that the institution was not exempt from taxation. Since that time— in 1899 — clause 4 of sec. 44 of the by-laws has been added, but it is not shown that this can affect in any way the question of liability for the taxes' of 1894. The court could not have done otherwise than hold that the case was ruled by the case cited. What effect the new by-law, and the manner of conducting the institution under it, may have upon its liability to taxation since its adoption is a question upon which we are not called upon to pass.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Commonwealth v. Isaacman, Appellant.
    April 15, 1907 :

      Husband, and wife — Desertion—Nonsupport—Appeals—■Evidence— Fact of marriage.

    An appeal from an order of support in a desertion case is in the nature of certiorari only, and does not take up the evidence. The appellate court cannot therefore review a finding of fact by the court below that the parties were in fact husband and wife.
    Argued Feb. 25, 1907.
    Appeal, No. 367, Oct. T., 1906, by defendant, from order of Q. S. Phila. Co., Oct. T., 1906, No. 9,822, for support in case of Commonwealth v. Isaac Isaac-man.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Warrant for nonsupport. Before Carr, J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      John Monaghan, with him Maurice J. Speiser and Jacob Weinstein, dor appellant.

      William T. Connor, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
   Opinion by

Rice, P. J.,

The defendant was charged under the Act of April 3,1867, P. L. 78, with neglect to maintain his wife and one child, and after hearing before the magistrate who issued the warrant was held to bail for his appearance in the quarter sessions to answer the charge. After hearing, the court ordered that he pay a certain sum per month “ for the support of his wife Dora Isaacman ” and give security for the faithful performance of the order, and pay the costs. It is not claimed that there was any irregularity in the proceedings or lack of jurisdiction in the court. Necessarily, therefore, the order implies a finding by the court from the evidence adduced at the hearing that Dora Isaacman was the wife of the defendant, and that, without reasonable cause, he had neglected to maintain her. After this order was made, a paper signed by the counsel for defendant, by counsel for Dora Isaacman, and by the assistant city solicitor was filed, in which certain facts bearing upon the question of the validity of the marriage were agreed to. After reargument, the court made this order: “ Order reaffirmed as of October 3, 1906,” and the following day filed a written opinion in support of its conclusion. Thereupon the defendant, by allowance of the court, filed exceptions to the order and the reaffirmance thereof, “ because,” as stated in the exceptions, “ said order and reaffirmance of said order is against the law,” and then took this appeal.

The first question to be considered is, whether the finding of the court that Dora Isaacman is the lawful wife of the defendant and was so at the institution of the proceeding — which finding is necessarily implied in the orders complained of — is the subject of review upon appeal. We do not regard this as an open question. It is true in Commonwealth v. Haylow, 17 Pa. Superior Ct. 541, we did consider the question of the validity of the marriage arising upon the evidence sent up with the record, but we affirmed the order, and speaking of the appellate jurisdiction we said: “ The decision of the questions of fact by the quarter sessions is as conclusive as the verdict of a jury, and in no view which may be taken of our appellate jurisdiction are we authorized to go further than to ascertain whether there was evidence, which, if believed, would sustain the finding. It may well be questioned whether we are required to go that far in a desertion case, even though an exception was taken to the ruling of the court below and the transcript of the evidence was approved by the presiding judge and directed tó be filed. We, however, will not stop to consider that question in this opinion.” This case cannot be regarded as authority for the proposition that the finding of the court from the evidence can be reviewed upon a statement of facts agreed to by counsel after the order was made. In Commonwealth v. Richards, 131 Pa. 209, where the merits of the case were considered, Mr., Justice Clark was careful to state that no question was raised as to the power of the appellate court to go into them. But in the later case of Commonwealth v. James, 142 Pa. 32, the court said: “No appeal lies from the quarter sessions in desertion cases. This case comes up by writ of certiorari, and we can only examine the regularity of the proceedings. We learn from the record that the plaintiff was charged with desertion upon the oath of his wife ; was convicted thereof by the court below, and an appropriate sentence imposed. All this was regular, and we cannot review the case upon its merits.” This case was followed in the very recent case of Commonwealth v. Smith, 200 Pa. 363, where the Supreme Court defined the limits of the jurisdiction of the appellate courts in desertion proceedings in terms which leave no room for doubt. Mr. Justice Brown who delivered the opinion of the court said: “No appeal lies from the final order of the court of quarter- sessions made on the hearing of a desertion case under this act (1867), for the purpose of allowing us to review the exercise of the court below making it. An appeal from such an order under the Act of May 9,1889, P. L. 158, is sfiill only a common-law certiorari, and on it we can pass upon nothing but the regularity of the proceedings below. If the record shows that the husband was charged with desertion upon the oath of his wife, a hearing, conviction and appropriate sentence, there is nothing for us to do but to affirm the judgment. This has been so distinctly announced in Commonwealth v. James, 142 Pa. 32, and other cases, that it ought to be understood.” Speaking of Commonwealth v. Richards and the manner of its disposition Justice Brown further said: “It is doubtful whether, even if no question was raised as to the disposition of that case on its merits, it should have been so disposed of on certiorari; for, in In re Carlson’s License, 127 Pa. 330, which was a certiorari to the order of the court of quarter sessions revoking a license to sell liquors, under section 7 of the Act of May 13, 1887, P. L. 108, decided but a few months before, it was held that neither the testimony nor the opinion of the court below form any part of the record which might be considered, and that the agreement of counsel, that the testimony might be omitted from the paper-book, and the finding of facts as contained in the opinion of the court below should be considered in lieu of it, was nugatory. But the question is here raised, and we can review this record no further than to ascertain whether the court below had jurisdiction and the proceedings were regular.” Unquestionably the court below had jurisdiction to determine from the evidence whether Dora Isaacman was the lawful wife of the defendant. To say that the court did not correctly decide the question upon the evidence before it is not to question its jurisdiction. And it is impossible to see how the decision of the court of such a question can be reviewed unless the evidence is brought up with the record, and we know of no authority for holding that an exception to the order brings the evidence upon the record. Clearly the filing of the agreement of facts after the order was made in the present case was no more effective to bring those facts upon the record for purpose of review than the agreement referred to in the case just quoted. In Commonwealth v. Mills, 26 Pa. Superior Ct. 549, the question was whether there was a valid marriage, and it was sought to obtain a review of the court’s conclusion upon that question; we, however, followed the ruling in Commonwealth v. Smith and held that the conclusion of the court below upon this question was not reviewable. We called attention to Commonwealth v. White, 22 Pa.. Superior Ct. 67, and stated that that case is not to be regarded as authority for a different view, because so far as the record showed the question of the revisory jurisdiction of this court upon the merits was not raised. We know of no authoritative decision establishing a different rule than that laid down in the cases above cited, and there are others which we have not referred to, which enunciate the same doctrine. Therefore' the question stated at the outset of this discussion must he answered in the negative. In putting our decision upon this narrow ground we are not to be understood as intimating an opinion that the marriage which took place between these parties was void; that question does not arise-upon this appeal, as we have shown, and we will not discuss it.

The order is affirmed, costs to be paid by the appellant.