source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    Martin Dixon v. The Township of Butler, Appellant.

      Negligence — Township liability for defective roads — Degree of care.

    As a general rule township supervisors are in no wise responsible for the condition of land outside the limits of the road. They are only bound by conditions which create a danger so manifest that it is negligence not to employ the obvious means of guarding against it; and this must be done so effectually that even skittish animals may pass with safety. Where no danger may be anticipated from a cause existing beyond the limits of the roadway no duty in respect to such cause devolves upon the supervisors. They are not bound to anticipate danger to which a frightened horse may expose the driver.

      Negligence — Highways—Township liability — Proximate cause.

    If a defect in the'highway be merely coincident with a distinct and unrelated cause, for which the township is not responsible, and without which the injury would not have happened, the latter is to be regarded as the proximate and the former as the remote cause.

      Practice, O. P. — Negligence—Allegata and probata — Variance.
    It is error to leave-a question of negligence to a jury where there was nothing in the pleadings to give notice that such a question would be contended for on the part of the plaintiff, and that a failure to perform it would be set up as the negligence complained of.

      Highway — Danger—Degree of care — Province of court and jury.

    The liability of a township for its roads is based upon negligence and not danger. All grade crossings are dangerous and it is error to leave to the jury the question of negligence based upon the assumption that a particular crossing was dangerous, and that the township was by law required to provide means of wholly avoiding the danger.
    Argued Dec. 7, 1896.
    Appeal, No. 59, Nov. T., 1895, by defendant, from judgment of C. P. Schuylkill Co., May T., 1885, No. 223, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for personal injuries. Before Green, J.
    The facts sufficiently appear in the opinion of the Court.
    Verdict and judgment for plaintiff for $983.81. Defendant appealed.

      Errors assigned among others were (7) in refusing to charge as requested by the defendant in the eighth point, which point and answer are as follows:

      “ 8. As the evidence is undisputed that the horses were frightened by the locomotive or the approaching train, in consequence of which they ran with the carriage into the moving train then crossing the public road, and as the evidence is undisputed that the horses were not frightened and did not run into the moving train by reason of anything in or connected with the public road, the condition of the public road was not therefore the proximate cause of the accident, and the verdict of the jury should be for the defendant. Answer: This point we decline to affirm, but we reserve for future consideration the question whether the failure to provide an overhead crossing was the cause of the damage to the plaintiff, and whether such failure was any evidence of negligence on the part of the defendant.”
    (9) In not entering judgment for the defendant non obstante veredicto on the question of law reserved, viz:
    Charge of court: The question is one both of law and of fact. We submit the question of fact to you for the purpose of determination; 'vye will reserve the question of law, as to whether the township authorities would be compelled, under such circumstances, to build an overhead bridge.

      S. H. Kaereher and W. A. Marr, for appellant.
    — -There were two questions raised by the evidence in these cases which the court below submitted to the jury. First, Was Martin Dixon, the plaintiff in one case, who controlled the management and direction of the horses and the carriage occupied by his wife and Mary Cuff (for whose death Patrick Cuff, the plaintiff in the other case, claims damages) guilty of such contributory negligence as to defeat a recovery? Second, Was the appellant guilty of negligence in not constructing an overhead bridge at the point where the railroad crossed the public road ?
    A road that is in suitable condition for ordinary travel, conducted in the ordinary manner, does not become defective because some extraordinary condition not foreseen arises, in consequence of which it is, for the moment, too rough or too narrow to meet all the exigencies of the situation: Herr v. Lebanon, 149 Pa. 222.
    The frightening of a horse is a thing that cannot be anticipated, and is governed by no known rules: Worrilow v. Upper Chichester Township, 149 Pa. 40; Chartiers Twp. v. Phillips, 122 Pa. 601.

      April 12, 1897:
    In Herr v. Lebanon, 149 Pa. 222, Mr. Justice Williams said: “ The duty of road officers is to provide roads suitable for ordinary travel, conducted in the ordinary manner, and to provide such safeguards' as may be needed to meet the risks of such travel: Hey v. Phila., 81 Pa. 44 ; Jackson Twp. v. Wagner, 127 Pa. 184. This is the extent of their liability in this state. The same rule is held in many other states: Warner v. Holyoke, 112 Mass. 362; Chapman v. Cook, 10 R. I. 304; Keyes v. Marcellus, 50 Mich. 439; Davis v. Hill, 41 N. H. 329.
    It is not the duty of the township supervisors to take the initiative and institute proceedings to lay out a highway or vacate or change the site of a public road already laid out. The only duty imposed on township supervisors being to make the township road safe for ordinary travel: Hancock v. Wyoming Borough, 148 Pa. 635; Wagner v. Salzburg Township, 132 Pa. 647.
    The township supervisors cannot control the discretion of railroad companies as to how they should build a railroad, nor can they compel them to build an overhead bridge to avoid a grade crossing: South Waverly Borough’s Appeal, 20 W. N. C. 209; North Manheim Township’s Appeal, 22 W. N. C. 149; Traction Co. v. Canal Co., 1 Pa. Superior Ct. 409.

      James B. Reilly, with him M. M. Burke and J. W. Ryon, for appellee.
    — The degree of care which is required of road supervisors has no exact legal standard. . . . They are required to do what is practicable to be done and to preserve a reasonable condition of safety with reference to the kind of road, its peculiar location, its adjacency to places of peril and the amount and kind of travel it accommodates. It may be said generally that they are bound for reasonable and ordinary care according to circumstances: Plymouth Twp. v. Graver, 125 Pa. 24; Hey v. Philadelphia, 81 Pa. 44.
    The question of defendant’s negligence in this case was for the jury: Wellman v. Borough, 167 Pa. 239.
   Opinion by

Smith, J.,

This is an action against a township for negligence in the maintenance of a public highway, by reason whereof Sarah Dixon, the plaintiff’s wife, was killed. The declaration sets forth, as the negligence in the case, that the defendant “ wrongfully, negligently and unjustly failed to maintain and keep the said common and public highway in good order and condition, or open for public travel to the legal width, or to keep the same free from obstructions, and did then and there wrongfully, negligently and unjustly permit large quantities of coal, dirt, stones, slate and rubbish to be deposited, put and placed in said public highway, and wrongfully and unjustly then and there permitted the same to be and remain in the said common and public highway, and did then and there -wrongfully and unjustly neglect and fail to keep up a guard or rail along said common and public highway, so as to protect citizens lawfully travelling in and along said common and public highway; by means of which said negligence and improper conduct of the said defendant in that respect a- certain carriage with the said Sarah Dixon therein, going and passing along and over said common and public highway was thereby overturned,' by means whereof the said Sarah Dixon was greatly injured and wounded, insomuch that she the said Sarah Dixon then and there of said injuries and wounds died.”

The undisputed facts were these: A railroad, at a point where it ran nearly east and west, was crossed obliquely, from southwest to northeast, at grade, by the highway mentioned in the declaration. For several hundred feet -west of the crossing* the railroad and highway were nearly parallel, and from ten to twenty-five feet apart. There was no fence'between them. At the roadside one hundred and twenty feet from the crossing was a “caution board” for the warning of travelers. The railroad track was from two to five feet lower than the highway, and the latter descended by a light grade to the crossing. Except near the crossing, the view eastward, from the highway west of the crossing, was obstructed for some distance by a large culm bank immediately south of the railroad, and extending to the side of the highway. To prevent this culm from reaching the railroad, a cribbing sixty-three feet long was erected, terminating, at its western end, twenty-three feet from the highway. It was from four to six feet from the southernmost rail, and not more than two to four feet from the sides of passing coal cars. About fifty feet east of the crossing, the railroad and highway were crossed by a railway on a high trestle, on which the culm was transported to the bank from a neighboring colliery. From the highway east of the crossing there was an unobstructed view of the railroad, on both sides, for a considerable distance. On August 8, 1884, a train of coal cars, pushed by a locomotive, approached the crossing from the west, at a moderate speed, with signal whistles that were heard by several persons east of the crossing. At the same time, the plaintiff, with his wife, and six other persons, in a closed carriage, drawn by two horses, moving at a walk, approached the crossing on the highway from the same direction. The plaintiff was on the outer seat in front, at the left of the driver. He had for some fifteen years been familiar with the road. For a distance of three hundred and fifty feet west of the crossing, he could, by turning his head, have seen the approaching cars. But, paying no attention, he neither saw nor heard them, nor noticed the signal whistles. “ I did not see the train,” he says, “ until it was right along side of the carriage.” When fifty or sixty feet from the crossing his attention was drawn to the train by some boys on the trestle. OnPhe witness stand he thus described what followed :

“We were driving along, never thought of anything, and we saw some boys on the trestling there, and they went like that, and beckoned, making motions (illustrating); of course the thought struck us that there was a train coming; I thought the train was coming up from Mahanoy Plane round by the' Junction. In place of that the train was coming in the opposite direction, and was right behind us before we noticed the train, and the horses began to rear. The driver jumped out and I caught hold of the reins. I kept my position, kept hold of the reins, and they got down a little distance from us in the fright in rearing, and at a certain point there we tried to turn the carriage round. We had them kind of half turned, but we could not complete the turn on account of the carriage going over against the cars that were running at the time. Some of the parties in the carriage hollered, and we let the horses pull out, and in pulling out the bank was right in front of them. They made a little start then, right for the crossing, and they saw the train on the crossing. The horses would naturally turn themselves away from the cars, but they had no room there on account of the dirt bank. We turned the horses towards the dirt bank in trying to turn round. They hadn’t the room; the back of the carriage was backing against the cars. Then we straightened them up, and that turned them toward the crossing. When they got right to the crossing there the cars struck the carriage, knocked it up on the bank; it rolled over and was dragged right in between the cribbing — rolled right in between the cribbing and the cars. When I saw the carriage was about being struck by the train I left go of the reins and jumped just in time to save myself.” The driver, meantime, had let go of the horses. The other members of the party, unable to escape from the carriage, were crushed to death between the cribbing and the cars. The plaintiff’s description embraces all the material facts, arid is corroborated, to the extent of their observation, by the other witnesses who testified in relation to the accident.

We have presented thus fully the averments in the pleading respecting the specific negligence complained of, the situation as described by the witnesses, and the plairitiff’s version of the accident, that it majr distinctly appear how far the allegata and the probata agree. Except as to the existence of the highway, and the death of the plaintiff’s wife, there is absolutely no correspondence between them. There is no evidence that the road was of less than legal width, or that anything in its condition, including the absence of a guard rail, contributed to the accident. The actual cause of the death of the plaintiff’s wife, and the circumstances directly leading to it, as disclosed by the evidence, are not even hinted at in the declaration. The trial judge, indeed, eliminated from the issue every aspect of the defendant’s negligence set forth in the declaration, and ruled the case on a view of the defendant’s obligation and default neither presented in the pleading nor legitimately arising from the evidence, but apparently suggested by the circumstance that, several years before the accident, a township road official estimated the cost of an overhead crossing, and another made some ineffectual efforts to prevail on the railroad company to construct one. It being unquestionable that, with such a crossing, the accident would not have happened, the trial judge thus, in substance, submitted the case to the jury: “ If, under the circumstances of this case, there were no precautions that could have been taken for the purpose of preventing such an accident as this occurring, except by the building of an overhead bridge, then the question arises as to whether it became the duty of the supervisors to build an overhead bridge. That is a question of fact for you to determine, which we propose to submit to you for the present, but reserving the question of law in the case as to whether the supervisors were bound to build a bridge of this kind. But the jury must understand that it must only be where there are extraordinary risks, and where there are no other reasonable means that could be taken for the purpose of rendering public travel safe.”

The accident in this case was due entirely to the ungovernable movements of the frightened horses. The liability of the defendant, therefore, depends on the duty of the township to provide against the consequences of such fright. This duty is not measured by any specific rule; it is embraced in the general principle that due provision must be made against all dangers that may reasonably be foreseen or anticipated as likely to occur. Thus, in addition to freedom from defect in the roadbed, a highway must be guarded by suitable barriers where it passes a declivity or precipitous descent: Hey v. Philadelphia, 81 Pa. 44; Pittston v. Hart, 89 Pa. 389; Burrell v. Uncapher, 117 Pa. 353; or an excavation: Lower Macungie v. Merkhoffer, 71 Pa. 276; or over a stream: Newlin v. Davis, 77 Pa. 317; Scott v. Montgomery, 95 Pa. 444; Yoders v. Amwell, 172 Pa. 447; Bitting v. Maxatawny, 177 Pa. 213. Such conditions create a danger so manifest that it is negligence not to employ the obvious means of guarding against it; and this must be done so effectually that even skittish animals may pass with safety: Lower Macungie v. Merkhoffer, supra. But “ as a general rule, the supervisors are in no way responsible for the condition of the surface of the land outside the limits of the road: ” Plymouth v. Graver, 125 Pa. 24; and “ Where no danger may be anticipated from a cause existing beyond the limits of the roadway, no duty in respect to such cause has ever been held to devolve upon the supervisors : ” Worrilow v. Upper Chichester, 149 Pa. 40. With respect to the fright of a horse as a source of danger, it was said by Mr. Justice Mitchell, in Horstick v. Dunkle, 145 Pa. 220: “ The precise limits of liability where the element of an unruly or frightened horse enters into the causes of an accident on a public highway, have been the subject of some controversy and some difficulty. It is conceded that our cases hold the township authorities to a more exacting rule than obtains in some other states, but none of them go so far as to say that they must make roads safe for runaway horses. The subject was carefully considered in the recent case of Jackson Township v. Wagner, 127 Pa. 184.” In the latter case, the governing principles were thus laid down by Mr. Justice Williams : “ Township officers are bound to anticipate and provide against the ordinary needs of travel conducted in the ordinary manner, and to remove obstructions and defects which would naturally or probably cause .injury to the traveler along the highways; but the township is not an insurer against all possible accidents, nor is it bound to anticipate the danger to which a broken wagon or a frightened horse may expose the driver. Such a burden would be too heavy for any township to bear, and the law does not impose it. The general rule is well stated in Hey v. Philadelphia, 81 Pa. 44, to-be that “roads and bridges are made for ordinary travel; if they fulfill such purpose they are sufficient, and those in charge of them are not responsible for extraordinary accidents occurring on them.” In Scranton v. Dean, 2 W. N. C. 467, referring to Hey v. Philadelphia, the Supreme Court said : “ The ground of our decision in that case was the peculiarly dangerous character of the locus of the accident, by reason of the presence of the railroads, and we did not intend to, nor did we decide, that highways must be kept in such a condition that unmanageable or runaway horses will suffer no injury.”

The negligence of the township, moreover, must be the proximate cause of the injury. If a defect in the highway be merely coincident with a distinct and unrelated cause, for which the township is not responsible, and without which the injuiy would not have happened, the latter is to be regarded as the proximate and the former the remote cause: Chartiers v. Phillips, 122 Pa. 601; Jackson v. Wagner, 127 Pa. 184; Herr v. Lebanon, 149 Pa. 222; Schaeffer v. Jackson, 150 Pa. 145. In the case last named, a horse took fright at some donkeys in the road, and suddenly turned around, breaking down a wheel of the carriage. The driver losing control of the animal, he ran; dragging the end of the axle on the ground, until opposite a stone pile by the roadside. At this point the end of the axle dropped into a hole in the road, and the plaintiff was thrown out on the stone pile. It was held that the township was not liable ; the fright of the horse being deemed the proximate cause of the injury and the defect in the highway the remote cause. Mr. Justice Heydrick, reviewing the authorities in this and other states, said: “ When, from extraordinary causes, for the existence of which the supervisors are not responsible, and of which they cannot be presumed to have had notice, a driver loses control of his horses, and they come in contact with a defect in the highway, there is no more reason for holding the township answerable for a resultant injury than there is for holding any other party responsible for the result of the concurrence of something which he could not foresee, with his negligence.” In such cases, the operating causes cannot be regarded as concurring causes, for the consequences of which the party responsible for either might be held liable. The distinction between them is lucidly defined by Mr. Justice Williams, in Herr v. Lebanon, supra: “If two distinct causes are operating at the same time to produce a given result, which might be produced by either, they are concurrent causes. They run together, as the word signifies, to the same end. But if two distinct causes are successive and unrelated in their operation, they cannot be concurrent. One of them must then be the proximate and the other the remote cause. When they stand in this relation to each other and the result to be considered, the law regards the proximate as the efficient and responsible cause, and disregards the remote.” In the case before us, two independent and unrelated factors contributed to the result: (1) The fright of the horses; (2) The culm pile and cribbing at the side of the railroad. For neither of these was the township responsible. As in Schaeffer v. Jackson, and Worrilow v. Upper Chichester, supra, the proximate and efficient cause was the fright of the ■ horses, arising from a source over which the township had no control. And here the township had also no control over nor responsibility for the culm pile and cribbing that' formed the remote cause. These, like the stone pile on which the plaintiff whs thrown in Schaeffer v. Jackson and the tree struck by the plaintiff’s carriage in Worrilow v. Upper Chichester, did not cause the accident, but only tended to make its consequences more serious. Furthermore, to create a liability, the result' must be a consequence so probable that it ought to have been foreseen and guarded against. The supervisors might indeed foresee that horses on the highway were liable to be frightened by moving trains; and had the animals in this instance run into a train by the roadside, as in Plymouth v. Graver, 125 Pa. 24, the question of negligence on the part of the township might have arisen. But supervisors cannot be required to anticipate the possible or probable movements of a frightened horse, except where there is an obvious source of danger, such as a declivity or excavation by the roadside, or a bridge not properly guarded. In the case before us, they could not have reasonably foreseen that horses, frightened by a moving train, would take such a-course as to bring them between the cars and the cribbing; on the contrary, this would appear highly improbable. The township cannot be held guilty of negligence for failure to anticipate and provide against a result of fright which could only be suggested as a remote possibility. Such a provision cannot be regarded as “ an ordinary need of travel, conducted in the ordinary manner,” for which, as was said in Jackson v. Wagner, supra, the township is bound to provide.

The vice of the ruling below lies in its assumption that, the crossing being a dangerous one, the township was by law required to provide means of wholly avoiding the danger. All grade crossings are dangerous, and in this respect the difference in them is only in degree. The liability of the township, however, is not based on danger but on negligence. And so far as the element of danger is involved, we must take into account, for the purposes of this case, only the dangers to which the plaintiff’s wife was actually subjected; not those to which she might have been exposed under different circumstances. In approaching the crossing from the east, the danger was not greater than at other grade crossings, as the railroad track was in full view in both directions, for a distance permitting the timely discovery of an approaching train. In approaching from the west, with a train coming from the east, the danger was greater, by reason of the obstructions to the view from the highway in that direction; but as no train, in the present case, was coming from the east, this danger was not encountered. In approaching from the west, as the plaintiff’s wife did, with a train coming from the same direction, there was no danger that could not readily be discovered at a sufficient distance from the crossing to be avoided by a timely halt. Travel in the ordinary manner implies ordinary care on the part of the traveler. With the evidence as to the dangerous character of the crossing, there is evidence that it was dangerous, when a train was approaching, to stop within fifty or sixty feet of it with horses liable to take fright at the cars. Under the circumstances, the peril to which the plaintiff’s wife was actually exposed, at the crossing, was by no means of such an extraordinary character as to require the bridging of the railroad as a means of escape. On the contrary, with timely attention and reasonable care, there was no difficulty in avoiding it, except so far as it might arise from fright on the part of the horses; and the surrounding conditions were not of such a character that the supervisors were bound to foresee and provide for this element of danger. The township was not required to insure against accidents, nor to construct a bridge in order to make the crossing absolutely safe. The Act of April 12, 1855, P. L. 220, extending the statutory provisions respecting bridges over watercourses to the erection of bridges over railroads, has never been construed as requiring all railroad crossings to be bridged; its evident purpose is to give such bridges, when required for the ordinary needs of travel, the status of other bridges with respect to liability for the cost of construction — this being borne, in some cases, by one or more townships, and in others by one or more counties.

It was assumed by the court below that the erection of an overhead crossing was reasonably within the means of the township. There was no evidence on this point. But even assuming that the burden was on the township to show lack of means, in relief of its supposed obligation tc bridge the railroad, there was nothing in the pleading to give notice that such an obligation would be contended for on the part of the plaintiff, and that a failure by the defendant to perform it would be set up as the negligence complained of. When an obligation so exti aordinary is alleged as the basis of the action, some intimation of it should be given in the pleading, in order to throw on the defendant the burden oi meeting the allegation.

It is unnecessary to consider the assignments of error in detail. It is sufficient to say that the 7th and 9th are sustained, and the judgment is reversed.


author: Orlady, J.,

text:
    Joseph Hendler, Appellant, v. J. C. Perkins and Hannah D. Jones, Administratrix of the Estate of William Jones, deceased.

      Replevin for lost chattels — Defenses—Question for jury.

    Where the evidence, although conflicting, tends to show that the owner of lost property had told the finders to care for the same until he called and paid them a sum demanded for rescuing said property from a flood, the consideration, being past services and future care to be performed until the property was removed and settlement made, is sufficient to sustain a contractual lien and the alleged contract-being denied the question was for the jury. The defendant’s story being believed constituted a defense to an action of replevin brought by the owner.

      Lien — Lost property — Finder has no lien for labor or expenses.

    The finder of lost property is not entitled to alien where no reward is offered, and it is doubtful whether a finder of lost property can recover for expenses and labor voluntarily bestowed upon the thing found.
    Argued Jan. 21, 1897.
    Appeal, No. 26, Jan. T., 1897, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1890, No. 325, on verdict for defendants.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Replevin. Before Woodward, J.
    . The plaintiff, a contractor engaged in the erection of a bridge across the Susquehanna river at Wilkes-Barre, had in use a new derrick or hoisting apparatus which were carried away by a freshet on July 26th -, following the stream on the 27th he found them stopped at a dam lower down. The water being high he fastened the ropes to a railroad tie intending to raise the machinery when the water fell. On the same day defendants found the things and voluntarily set to work to remove and take possession of the same.
    The plaintiff alleged that defendants demanded $100 for their service which he refused, offering $25.00.
    The defendants testified that on ‘being notified- plaintiff expressed satisfaction at the find and at defendants’ conduct, and requested them to secure and keep safe the property until he would call upon them, saying that he Nould pay them $30.00 for their work, but that without further notice or demand he subsequently began his action of replevin.
    The trial judge submitted the case to the jury upon the question of appellees’ right to retain the property under the evidence of agreement in the nature of a contract for lien.
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned among others was (3) answer to plaintiff’s first point. (Said point and answer are fully, set out in the opinion of the Superior Court.)

      John McGahren and Gustav %Hahn, for appellant.
    — The finder ot lost property is not entitled to a lien where no reward is offered. Such a lien would rarely be valuable except as a means of oppression and extortion and therefore the law will never infer its existence either from the agreement of the parties or in furtherance of public convenience or policy: Wilson v. Guyton, 8 Gill (Md.), 213; Nicholson v. Chapman, 2 H. Blackstone, 254.
    In Etter v. Edwards, 4 Watts, 63, it is considered still an unsettled question whether the finder of lost property can recover a compensation for the labor and expense voluntarily bestowed upon lost property found.
    It would be hard indeed to hold that those engaged in building bridges, upon being temporarily deprived of their machinery and appliances in the manner disclosed by the circumstances of this case, could be held responsible to a predatory band for expenses gratuitously incurred by them.in seizing the property with a mercenary design and seeking to extort a sum equal to nearly half its value: Etter v. Edwards, 4 Watts, 63.

      Edward A. Lynch, with him James T. Lenahan and James L. Lenahan, for appellees.
    — -The evidence made the appellees bailees for hire and gave them a right to retain the property for the amount of their compensation, and they were not bound to restore it until the compensation was paid or tendered: Story on Bailments, sec. 440.
    The right to create a lien by contract, where none existed by law is unquestionable: Baker v. Hoag, 7 Barb.; s. c., R. N. Y., 113; Cummings v. Gann, 52 Pa. 484; Fitzwater v. Roberts & Co.. 166 Pa. 454.

      April 12, 1897:
    The right is analogous to that exercised bj' wharfingers or warehousemen for storage charges, established, as we consider in this case by agreement, or by such a state of facts from which the jury had a right to infer an agreement on appellant’s part to detain the property until tender or payment of the charges : Steinman v. Wilkins, 7 W. & S. 466: Hoover v. Epler, 52 Pa. 522.
   Opinion by

Orlady, J.,

In July 1887, Joseph Hendler, a contractor, was engaged in building an iron bridge across the Susquehanna river at Wilkes-Barre, and as part of his construction equipment had a derrick or hoisting machine for raising and lowering heavy stone and other material to be used in the work. The apparatus was fitted with blocks, ropes, chains, etc., the whole being of the value of $250.

On July 26th, a sudden freshet raised the waters in the river eleven feet in three hours, and swept the derrick and appliances down the course of the stream to the dam at Nanticoke, several miles west of Wilkes-Barre, where they sunk to the bottom.

Near this place H. C. Perkins and William Jones were engaged at work, and on the following day were informed that some large body of great weight was in the dam covered by about ten feet of water, and with a number of their employees, after considerable effort, succeeded in getting on the bank, the hoisting apparatus and some rope, and secured them by fastenings and a lock.

They soon after were informed that Mr. Hendler was the owner and notified him of their finding of the property.

This action of replevin was brought to recover the found property from their possession.

On the trial the plaintiff submitted points, the material one being the first, which was divided by the court, affirmed in part and refused in part.

The first: — “The law gives the defendants no lien on the derrick or hoisting machine of the plaintiffs, for their labor on account of taking the same out of the river and placing it on the bank, for the reason that there is no contract relation between the parties and the owner of the property ” was affirmed. The remainder of the point“ and under all the evidence in the case, the plaintiff is entitled, to a verdict for the fair market value of the property appropriated by the defendants, with interest from the time of conversion in July, 1887, to the present time ” was refused as stated by the court, “ because as we have already said it raises a question of fact, which the jury is to decide from the evidence in regard to the contract alleged by the defendant.”

The theory on which the case was tried by the defendants was, that assenting to the contention of plaintiff, that the finding by the defendants was a species of deposit, which as it does not arise ex contractu may be called a quasi deposit, and is governed by the same general rules as common deposits: Schouler on Bailm. 4, 33; that the finder is not entitled to a lien where no reward is offered, and it was admitted that in this case none had been offered; that it is doubtful if a finder of lost property can recover for expense and labor voluntarily bestowed upon the thing found: Etter v.Edwards, 4 Watts, 63; but under the evidence, there was sufficient to warrant the jury in finding, that after the property had been rescued from the flood and secured upon the bank by the defendants, it still required care and attention to preserve and protect it for the owner; that after all the facts were known to the plaintiff he directed them to take good care of it “ I want that machine and I will be down in a few days and settle with you for it; ” asked, “ How much do you want for taking it out ?” We said, “ Thirty dollars.” He said all right, and several days later when the parties were in presence of the property and devising means for returning it to its original location the plaintiff further stated, “ Take care of it until I get it away from here, until I settle with you.” The defendants had the right to retain the property until paid for its care.

William Jones died soon after and before suit was brought, his widow as his administratrix was joined in the action of replevin, and with Perkins gave bond to the sheriff, when the writ was served on August 12th following. Without the alleged contract the right of the plaintiff was complete, but with it— and there was sufficient evidence to warrant the jury in finding in the defendant’s favor — the question assumed an entirely different phase. /

If defendants’ testimony is to be believed the amount was fixed at thirty dollars ; the consideration, was past services and future care to be performed until the property was removed and settlement made. These facts were denied by the plaintiff, but the jury was the tribunal to determine that part of the controversy: Fitzwater v. Roberts Co., 166 Pa. 454.

We do not discover any error in this record to warrant a reversal, and the judgment is affirmed.


text:
    Charles G. Walter v. Carl Erdman, Appellant.

      Actions — Slander—Abatement of — Death of plaintiff — Motion to quash— Substitution of administrator.

    A judgment in an action of slander was entered before the death of the plaintiff and application duly made and allowed to substitute the administrators of the plaintiff who had died pending an appeal to the Superior Court. In the Superior Court a motion in abatement of the suit to quash the original writ was made by the appellant, and a petition for leave to suggest death of appellee and substitute his administrator was made at the same time by the appellee. Held, that the motion to quash must be refused on authority of Wood v. Boyle, 177 Pa. 620, and that any irregularity in entering judgment in favor of a plaintiff who is dead when the judgment is pronounced is cured by Act 17, Charles II, Chap. 8, in force in Pennsylvania, and that therefore, the administrator may be substituted.

      Practice, G. P. — Answer to points.

    Tlie refusal specifically to affirm points is not error when the questions were fully disposed of in the general charge in a way which met the propositions raised in the points, and reference is made to the charge.

      Slander — Pleading—Province of the innuendo — Province of jury.

    The province of an innuendo is not to introduce new matter or enlarge the material meaning of words, or put upon them a construction they will not bear. Its office is to define the defamatory meaning which the plaintiff sets upon the words; to show how they came to have that meaning and how they relate to the plaintiff. If they are capable of the meaning he ascribed to them, it is for the jury to say whether they are used in that sense.

      Slander — Actionable words — Evidence— Question for jury.

    The words “ thief” and “defaulter,” used with the meaning to charge, that the plaintiff had been and was guilty of the crimes of larceny, fraud and embezzlement; “ came of a disreputable and dishonest family; ” and was “a person unworthy of trust, confidence and respect, ” are actionable per se; the law implies that their use is wilful and malicious and that they import damages. All the words spoken at the time, even if not actionable per se, may properly be stated and given in evidence, for they explain and show the animus of the principal charge.
    The evidence being conflicting as to whether actionable words were used, the question is properly for the jury and a verdict will not be disturbed when the plaintiff’s evidence is sufficient, if believed, to sustain the charge.
    Argued March 9, 1897.
    Appeal, No. 41, March T., 1897, by defendant, from judgment of C. P. York Co., Aug. T., 1896, No. 20, on verdict for plaintiff. '
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder and Orlady, JJ.
    Affirmed.
    Trespass sur slander. Before Stewart, J.
    The facts sufficiently appear in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $250. Defendant appealed.

      JSrrors assigned were (1) in refusing the defendant’s first point, said point and the court’s answer thereto, being as follows : — “ 1. Only such words are actionable per se, as charge an offense that would, if true, subject the party so charged, to an indictment for a crime involving moral turpitude, or subjecting him to an infamous punishment. In this case the only one of the slanderous words laid in the plaintiff’s statement, (viz: ‘thieves,’ ‘liars,’ ‘rascals’ and ‘defaulters,’) which is actionable in itself, and for the use of which defendant can be held liable in damages, without proof of special damages, is the word ‘ thieves; ’ and the jury before they can find for the plaintiff, must find from the evidence that said slanderous word was actually applied to the plaintiff by the defendant. Answer: Refused.”
    (2) In refusing the defendant’s second point, said point and the court’s answer thereto, being as follows: — “ 2. The words ‘liars,’ ‘rascals’ and ‘defaulters,’ as laid in plaintiff’s statement, and as therein alleged to have been used by the defendant against the plaintiff are not actionable, per se, and the plaintiff having proven no special damages in the case, the jury cannot legally award any damages in favor of the plaintiff, or against defendant for the alleged use of said words, or any of them, as laid in plaintiff’s statement. Answer: Refused.”
    (3) In refusing the defendant’s fourth point, said point and tbe court’s answer thereto, being as follows: — “ 4. The jury cannot assess punitive damages in this case for the use of any of the alleged slanderous words by the defendant, which were not actionable per se; and if they find from the evidence that such words as were actionable per se, were used by the defendant, upon provocation by plaintiff in the heat of a controversy, without actual malice on the part of the defendant in their use ; or if they were used in the argument of his case to the arbitrators and were merely intended as comments on the evidence in the case, without malice, or a special intent to injure plaintiff, the jury cannot award punitive or exemplary damages. Answer: Refused.”
    (4) .In charging the jury as follows: — “Now, then, the question is did he utter the other words? Did he say of the Walter family, and did he say to Charles Walter that they were 4 thieves ’ and 4 defaulters ? ’ These words are actionable per se. That is, if the plaintiff proves to your satisfaction that the defendant did use those words in reference to him, then he is entitled to recover a verdict at your hands; and he does not need to show either that tbe defendant uttered them maliciously, nor that he sustained any damages by reason of his utterance of them. The law implies both, if he did utter them, — not only that they were wilful and malicious, but that they import damages. That was such an infraction of his character as entitles him to compensation, if you believe he uttered them. And if you believe that he uttered them, then you may consider in connection with them the other abusive words, ‘liar’ and ‘rascal’ used in connection. But you can only consider them in case you find that he did utter either the word ‘ thieves ’ or ‘ defaulters.’ If you find from the evidence that be used either the words ‘ thieves,’ or the words ‘ defaulters,’ and used it or them in reference to this plaintiff, then he is entitled to your verdict.”
    (5) In charging the jury as follows: “ In order to find a verdict, you must be satisfied from the weight of the evidence that these words were spoken, that the words ‘ thieves and defaulters ’ were spoken, or either ‘thieves ’ or ‘defaulters ’ because, as I said to you in the beginning, if you find that Mr. Erdman used either the word ‘ thief ’ or ‘ thieves,’ or the word ‘ defaulter ’ or ‘ defaulters ’ in reference to this plaintiff, then he is entitled to your verdict.”

      (6) In charging the jury as follows: “You can go one step further than that. .You can assess the damages against the defendant to such an extent as to punish him for having used this kind of language toward the plaintiff, if you find that he did use it, so as to deter others from the use of like language, as well as to deter him. Compensation is the general and usual rule; whatever sum of money you think would be a proper compensation to the plaintiff for the injury he has sustained, if he has sustained any, that is, in the publication of the slander, if the defendant has used either of these words about him, under the circumstances testified to. But I say you have it in your power to go further than that, and give damages to vindicate him, and to punish the defendant, if you see proper.”

      Nevin M. Wanner, with him <7. JS. Hhrhart, for appellant.—
    The word “ defaulter ” may or may not impute a criminal offense, according to the circumstances under which it is uttered. It does not ex vi termini describe an offender against the criminal code of Pennsylvania, or one subject to indictment at the common law. For this reason, an innuendo was necessary in the statement to. show that a criminal default, viz: an embezzlement, was charged by the defendant: 13 Am. & Eng. Ency. of Law, 353.
    Without it a declaration would have been demurrable, Odgers on Libel and Slander, 98, but an innuendo is only a device of pleading. It is not evidence. It might enlarge or extend the natural and ordinary sense and meaning of a word, or perform the function of testimony: Odgers on Libel and Slander, 101.
    It was error, therefore, for the court to say to the jury that the word “ defaulter ” was actionable per se.
    The words “ liars,” “ rascals ” and “ defaulters ” are not actionable per se under the Pennsylvania authorities: Davis v. Carey, 141 Pa. 314; Klumph v. Dunn, 66 Pa. 141; Beck v. Stitzel, 21 Pa. 522; Odgers on Libel and Slander, sec. 121; 13 Am. & Eng. Ency. of Law, 349, 365.
    Where words are capable of several constructions, the sense in which they are used is a question for the jury, to be determined from the impression they were calculated to make on the minds of the hearers, under all the facts and circumstances: Hays v. Brierly, 4 Watts, 392; Herst v. Borbridge, 57 Pa. 62.

      April 12, 1897:

      Henry O. Niles, with Mm George E. Neff, for appellee.
    — When the words are capable of the meaning ascribed to them in the innuendo, it is for the jury to say whether they were used in that sense: Price v. Conway, 134 Pa. 340; Com. v. Keenan, 67 Pa. 203.
    Where words may be taken in a double sense the innuendo is used in order to attach such meaning to them as plaintiff claims was intended: Stitzell v. Reynolds, 59 Pa. 488.
    All the words spoken at the time may properly be stated and given in evidence, for they explain and show the animus of the principal charge: Klumph v. Dunn, 66 Pa. 141.
    The amount of damages and whether exemplary is entirely for the jury: Barr v. Moore, 87 Pa. 385.
    After verdict for plaintiff, the conclusion of law is that the words were spoken maliciously: Andres v. Koppenheafer, 3 S. & R. 355.
   Opinion by

Orlady, J.,

This action in trespass sur slander was instituted April 29, 1896, and proceeded in to judgment on a verdict January 8, 1897.

An appeal to this court by the defendant was perfected January 18, 1897.

On February 7,1897, Charles D. Walter, the plaintiff in the action, died.

On February 23, 1897, letters of administration on the estate of Charles D. Walter were granted by the register of wills of York county to the Security Title and Trust Company of York, Pa. and on argument of this cause, when called March 8, 1897, the administrator presented its petition, setting forth the above facts, and prayed that the death of the plaintiff be suggested, that it, as administrator' be substituted as appellee, and be permitted 'to enter the plea to the assignments of error by the appellant of “ in nullo est erratum.”

At the same time the appellant by counsel presented affidavits, setting forth the death of Charles D. Walter after taking out the appeal, and before assignments of error therein in this court; and • moved the court hr abatement of the suit, to quash the original writ, the statement and declaration filed at the costs of appellee, etc.

These motions were first argued, and in disposing of, what may be considered in some states, a disputed question, we have recent authority from our own Supreme Court in resolving it in favor of the appellee.

In Wood v. Boyle, 177 Pa. 620, the action was trespass for libel; after verdict and before judgment was entered thereon, the plaintiff died. A rule was taken to show cause why the judgment should not be arrested. Two terms had not elapsed since the verdict was rendered, the rule was discharged and a judgment entered by order of the court. The defendant appealed to the Supreme Court, and made the refusal of the court to arrest the judgment the subject of an assignment of error.

On the authority of Chase v. Hodges, 2 Pa. 48, and Murray v. Cooper, 6 S. & R. 126, the judgment was sustained.

In the case before us judgment was entered before the death of the plaintiff, an application was made to substitute the administrators on the first day after in a court having authority to amend the record. Any error or irregularity in entering judgment in favor of the plaintiff who is dead when the judgment is pronounced, is cured by the Act of 17 Charles II. chap. 8, which is reported by the judges as in force in Pennsylvania: Robert’s Digest, 377.

This statute provides that “ in all actions, real, personal or mixed, the death of either party between the verdict and the judgment shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdicts ” and its binding force in Pennsylvania is recognized in Griffith v. Ogle, 1 Binn. 172; Murray v. Cooper, 6 S. & R. 126; Chase v. Hodges, 2 Pa. 48.

At common law, personal actions did not survive to heirs or personal representatives, and had the plaintiff died before trial .the action could not have been prosecuted by this appellee, nor would it be saved by section 28, Act of February 24,1834, P. L. 73, as “actions for slander, for libels and for wrongs done to the person ” are expressly excepted from its provisions.

The administrator is substituted and the motion to quash the appeal is overruled.

The defendant at an arbitration at which he was his own counsel, was charged with saying of the plaintiff in that action in the presence of a number of his relations: “ that the whole Walter family were thieves, liars, rascals and defaulters ” and soon after, when approached by Charles D. Walter and asked if he knew him, replied that he did not and did not want to, and when informed that he was of the Walter family, was then asked: “How came you to say that all the Walter family are liars, thieves, rascals and defaulters,” the defendant replied: “You are no better than the rest, you are a liar, a thief, a rascal and a defaulter, and ought to be driven out of Hanover.” The innuendo in plaintiff’s statement, in giving the explanation and meaning of the words used was “meaning thereby then and there, to charge that plaintiff had been and was guilty of the crimes of larceny, fraud, and embezzlement; came of a disreputable and dishonest family; and was a person unworthy of trust, confidence and respect.”

The defendant’s 1st, 2d and 4th points covered by the first, second and third assignments of error were refused, the questions were fully disposed of in the general charge in a way which met the propositions raised in the points, and the jury were plainly told, “In order to find a verdict, you must be satisfied from the weight of the evidence that these words were spoken, that the words ‘ thieves ’ and ‘ defaulters ’ were spoken or either ‘ thieves ’ or ‘ defaulters ’ because as I said to you in the beginning, if you find that Mr. Erdman used either the word ‘ thief ’ or ‘ thieves ’ or the word ‘ defaulter’ or ‘ defaulters ’ in reference to this plaintiff, then he is entitled to your verdict.” (Fifth assignment.) And again: “Now, then, the question is did he utter the other words ? Did he say the Walter family, and did he say to Charles Walter that they were ‘thieves ’ and ‘ defaulters ? ’ ” These words are actionable per se. That is, if the plaintiff proves to your satisfaction that the defendant did use those words in reference to him, then he is entitled to recover a verdict at your hands; and he does not need to show either that the defendant uttered them maliciously, nor that he sustained any damage by reason of his utterance of them. The law implies both, if he did utter them, — not only that they were wilful and malicious, but that they import damages. That was such an infraction of his character as entitles him to compensation, if you believe he uttered them.”

Taken in connection with the concluding paragraph of the charge, viz: “Webster defines the word ‘defaulter’ to be one who makes default; who fails to perform a public duty; who fails to account for public money intrusted to his care ; a delinquent.” “ One of the words used in this statement is the word “defaulter.” The plaintiff alleges in the statement that the word “ defaulter,” as used by the defendant, means an embezzler ; that he had been guilty of fraud or embezzlement. The word “ defaulter ” may be used either to charge a criminal offense, or an offense not criminal. Therefore the plaintiff in his statement alleges that the meaning that Carl Erdman intended by the word “ defaulter,” was to charge him with having committed, or being guilty of, an embezzlement, or of commuting a fraud. Before you can find a verdict based upon that word “ defaulter,” you must find that Carl Erdman, when he made the charge, intended to impute to the plaintiff that he had been guilty of embezzlement; such an one as he would be indictable for at law, and for which he could be punished criminally,” the question was properly submitted.

The defendant denied using the words “ liar ” and “ defaulter ” or that he knew the meaning of the latter.

The evidence was conflicting but there was sufficient to justify the verdict.

An innuendo cannot introduce new matter or enlarge the material meaning of words, or put upon them a construction they will not bear. The office is to define the defamatory meaning which the plaintiff sets upon the words ; to show how they come to have that meaning, and how they relate to the plaintiff. If they are capable of the meaning he ascribes to them, it is for the jury to say whether they are used in that sense: Price v. Conway, 134 Pa. 340, and Wallace v. Jameson, 179 Pa. 98.

To aid in interpreting the meaning of the words “ thieves,” “liars,” “rascals” and “defaulters” as applied to the plaintiff the jury had the testimony of the defendant, “I said to John Walters you are a set of liars, rogues, and you ought to have been drove out of Hanover and over to Maryland, the same you was at Oxford of Adams county.”

All the words spoken at the time may properly be stated and given in evidence; for they explain and show the animus of the principal charge: Klumph v. Dunn, 66 Pa. 141.

The several assignments of error are overruled and the judgment is affirmed.


text:
    Commonwealth of Pennsylvania, Appellant, v. William C. Curry.

      Statutes — Construction of — Constitutional inhibition.

    Acts of assembly are to be construed liberally in respect to constitutional inhibitions rather than to embarrass by a construction of a strictness unnecessary to the accomplishment of the beneficial purposes for which such inhibition is imposed.

      Constitutional law — Title of act of June 26, 1895, sufficient.

    The Act of June 26, 1895, P. L. 817, known as the Pure Food Act is constitutional. The title to this act fairly gives notice of the provisions of the act so as reasonably to lead to an inquiry into the bill; it invites examination by the very words used.

      Statutes — The legislature may define terms raised by it.

    A construction put upon an act of the legislature itself, by means of a provision embodied in the same, that it shall or shall not be construed in a certain designated manner, is binding upon the courts although the latter without such a direction would have understood the language to mean something different.

      Criminal law — Adulteration of food — Act of 1895.
    The selling of “ cotton seed oil” in packages labeled and marked “olive oil” is adulteration within the meaning of the Act of June 26, 1895, P. L. 317, as defined by clause 4, of section 3 of said act.
    Argued March 17, 1897.
    Appeal, No. 22, Oct. T., 1897, by plaintiff, from judgment of Q. S. Chester Co., Oct. Sess., 1896, - — , setting aside verdict for defendant.
    Before Bice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Indictment for violation of the pure food law. Before Hemp-hill, J.
    The defendant kept a grocery in the borough of West Chester and was indicted in the quarter sessions for violation of the Act of June 26, 1895, P. L. 317, and upon trial was convicted upon two counts of the indictment. A motion was filed for a new trial and among other reasons therefor, the defendant .contended that the act of assembly under which the indictment was framed is unconstitutional with respect to the offenses for which he was convicted. The court below in an opinion by Hemphill, J., reported in 6 Dist. Rep. 143, decided the title to tbe act was defective and offended against sec. 3, art. 3 of tbe constitution of Pennsylvania.
    The counts upon which defendant was convicted were, first, charging him with selling a certain adulterated article and compound as and for and in imitation of and under the name of olive oil, and second, selling a certain adulterated article and compound, being an inferior or cheaper substance and compound substituted for olive oil, as olive oil. The uncontroverted testimony was that the article sold was pure cotton seed oil and contained no olive oil whatever.
    Verdict of guilty, which was set aside on motion for a new trial, and defendant discharged. Plaintiff appealed.

      Errors assigned were (1) in holding the Act of June 26, 1895, P. L. 317, to be unconstitutional; (2) in discharging defendant.

      Wilmer W. MacElree, district attorney, and John P. Elkin, deputy attorney general, with them Joseph B. Shoemaker, for appellant.
    — -The constitutional provision that no bill except genera] appropriation bills shall be passed containing more than one subject, which shall be expressed in its title, should be and is liberally construed by the courts: Cooley’s Constitutional Limitations, 5th ed. p. 173; Pim v. Nicholson, 6 Ohio, 176; Pierpont v. Crouch, 10 Cal. 315; Sedgwick on Construction of Statutory and Constitutional Law, 2d ed. p. 40. The title to an act of assembly need not be a complete index to its contents; if it fairly gives notice of tbe subject of the act so as reasonably to lead to an inquiry into the body of the bill itself, it is all that is necessary: Com. v. Green, 58 Pa. 226; Yeager v. Weaver, 64 Pa. 425; Allegheny County Home’s Appeal, 77 Pa. 77; Mauch Chunk v. Magee, 81 Pa. 433. The pure food law of 1895 defines what adulteration is within the meaning of the act, and provides for the punishment of persons who offend against its provisions. The legislature had the unquestioned authority to provide a legal definition of what adulteration of food meant within the meaning of the law: Smith v. State, 28 Ind. 321; Herold v. State, 21 Neb. 50; People v. Clepperly, 101 N. Y. 634; Com. v. Dean, 80 Mass. 99. The legislative definition of the adulteration of food, as contained in the act of June 26, 1895, does not introduce any new or additional subject not clearly expressed in the title. The whole act treats of the adulteration of food and provides punishment for violation of its provisions. The learned judge of the court below misconceived the point decided in the case of Shivers v. Newton, 45 N. J. 469, which was particularly relied upon by him in his opinion. The question under consideration in the case at bar was not before the court in that case at all: Phillips v. Bridge Co., 2 Metcalf (Ky.), 219. If the court construes the constitutional provision raised in this ease strictly, and reverses the rule to construe it liberally, many of the titles to acts of assenbly muse be held to be defective.
    April 19, 1897:

      J. Frank F. Fause, with him Thomas W. Pierce, for appellee.
    — The title does not fairly give notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill: Allegheny County Home’s Appeal, 77 Pa. 77; Com. v. Samuels, 163 Pa. 283. The precise question here involved was ruled by the Supreme Court of New Jersey in the case of Shivers v. Newton, 45 N. J. Law Rep. 469.
   Opinion by

Orlady, J.,

The defendant was convicted on an indictment framed under the Act of June 26, 1895, P. L. 317, in which it was charged that he “ unlawfully then and there did sell and offer for sale, as and for, and in imitation of, and under the name of olive oil, used for food by man, a large quantity .... of a certain adulterated article and compound, the name and components of the said adulterated article and compound being to this grand inquest as yet unknown; ” and in a second count “ unlawfully did then and there sell and offer for sale, as and for olive oil, used for food by man, a large quantity .... of a certain adulterated article and compound, then and there being an inferior and cheaper substance and compound substituted for olive oil, the name and components of said adulterated, inferior and cheaper substance and compound being to this grand inquest as yet unknown.”

The verdict was set aside and the defendant discharged by the court below; the reason given in an opinion filed was “ As there was no evidence of the sale of an adulterated article of food, but, at most an imposition or deception, the sale of one article under the name of another, and as the prohibition contained in clauses 2 and 4 of the 3d section are clearly not within the act as expressed in its title, and therefore unconstitutional, the verdict must be set aside and the defendant discharged.”

The defendant sold “ cotton seed oil ” in packages labeled and marked “ olive oil,” and defends his conduct as lawful because the act of June 26, 1895, known as the pure food law, is misleading in that the title does not invite an examination of the body of the bill, in which, the offense charged is defined as an adulteration.

The learned judge in the opinion filed, says: “ While the meaning of words depends upon popular usage, the legislature has the right to prescribe legal definitions .of its own language. But admitting this right, do not the legislative definitions quoted introduce into the body of the act entirely new and additional subjects, not clearly or at all expressed in its title, and thus violate the 3d section of article III. of the constitution ? Both, it is true, relate to food, but the title of the act is not to regulate the manufacture and sale of food, but is restricted to food of a certain character, namely, adulterated food which the article sold in this ease was not.” The last part of this statement begs the whole question, as by the act, it and all similar articles (“2d, if any inferior or cheaper substance or substances have been substituted wholly or in part for it.” 4th, “ if it is an imitation of or is sold under the name of another article ”), are declared and defined to be adulterations within the meaning of the act.

It is conceded that the legislature has the right to prescribe the legal definitions of its own language. A construction put upon an act of the legislature itself, by means of a provision embodied in the same, that it shall or shall not be construed in a certain designated manner, is binding upon the courts although the latter, without such a direction, would have understood the language to mean something different: Endlicli on Statutes, section 365.

It is legislative language we are to construe, and it must be received, not necessarily according to its etymological meaning, but according to its popular acceptation, and especially in the sense in which the legislature is accustomed to use the same words: Phila. & Erie R. R. Co. v. Catawissa R. R. Co., 53 Pa. 20. The sense given to particular words by our great lexicographers is always entitled to weight, yet when a word is used in an act of assembly regard must be had to the circumstances surrounding its use: Penna. R. R. Co. v. Price, 96 Pa. 256.

It is contended that the term “ adulteration ” is given a special definition by the act, by which a new and additional subject is introduced, not clearly or at all expressed in the title, in contravention of the third section of art. III. of the constitution; “No bill except general appropriation bills, shall be passed, containing more than one subject, which shall be clearly expressed in its title.”

We are not required to resort to the technical meaning and derivations of words as given in dictionaries to determine the legislative meaning, when the words are defined by statute, and in this case it is not inconsistent with the common acceptation.

The definition given to the word “ adulteration ” in this statute is so intimate and natural a connection, so evident an adjunct of the subject; and is so closely associated with the word to which it refers that it cannot be held an independent or separate subject, but fairly gives notice of the legislative purpose through the title.

The term adulteration is derived from the Latin adultero, which in its various inflections signifies to defile, to debase, to corrupt, to sophisticate, to falsify, to counterfeit, etc. The objects of adulteration are fourfold, namely, to increase the bulk or weight of the article; to improve its appearance; to give it a false strength; or to rob it of its most valuable constituents. All these adulterations are manifestly of a designedly fraudulent character, and therefore properly the subject of judicial inquiry: 1 Enc. Brit., Am. reprint (9th ed.), p. 152, title, Adulteration.

It was held, in Commonwealth v. Moore, 2 Pa. Superior Ct. 162, an act, the title to which was, “ An act for the protection of livery stable keepers,” was constitutional because the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the provisions of the bill; which has repeatedly been held to be sufficient, as the title thus inducing examination accomplishes all that a more elaborate statement would give notice of: Millvale Borough v. Evergreen Ry. Co., 131 Pa. 1; Kelley v. Mayberry Township, 154 Pa. 440, and Commonwealth v. Lloyd, 2 Pa. Superior Ct. 6, in which case “ An act relating to the county commissioners of Cambria County ” was sustained, though the second section fixed the salary of each commissioner, and the third section authorized them to employ a clerk at a fixed salary; and on appeal to the Supreme Court, 178 Pa. 308, the judgment of the Superior Court was affirmed for the reasons given.

In Commonwealth v. Robert Muir, 1 Pa. Superior Ct. 578, an act entitled “ An act to regulate and license public lodging houses in the different cities of this Commonwealth ” in which a “public lodging house ” was specially defined in limitation of the common meaning of the words, was held valid and constitutional, and on appeal to the Supreme Court, 180 Pa. 47, that tribunal says, “We have considered the provisions of the act and are all of the opinion that the Superior Court was clearly right in holding that it is constitutional,” though it contained subjects not technically covered by the title.

The title to this act “ To provide against the adulteration of food, and providing for the enforcement thereof,” would naturally invite inspection by any one engaged in the manufacture or sale of food, and desirous of knowing what was to be avoided in the making and trafficing in the multiform food products of this day.

The attempt to defraud the public in selling cotton seed oil under the guise of a higher priced article of an entirely different name is one of the many similar acts which necessitated the Pure Food law, and useful and honest legislation should not be defeated by too rigid an adherence to the letter of the constitution, or pretexts be caught at to avoid legislation when it can be fairly reconciled within constitutional limits. It is a cardinal rule that all statutes are to be so construed as to sustain rather than ignore them; to give them operation if the language will permit, instead of treating them as meaningless and invalid: Mauch Chunk v. McGee, 81 Pa. 433.

The title does not tend to mislead, as it invites examination by the very words used. “ To provide against adulteration of food, and providing for the enforcement thereof; ” which reasonably embraces every food product; the different classes, kinds, modes of manufacture, and as it was a proper subject for legislative action, all persons whether manufacturers or dealers are attracted by tbe words of the title, to a critical examination into the provisions of the bill.

There has been a general disposition to construe the constitutional provision’ liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted: Cooley’s Const. Lim., 175.

In addition to the reasons herein given we refer to Commonwealth v. Daniel D. Jones, post, 362, and Commonwealth v. Hufnal, ante, 301, filed at this term, in which cases the same subject is discussed.

We do not agree with the reasoning of the learned judge below, and think the title to this act fairly gives notice of the provisions of the act, so as reasonably to lead to an inquiry into the bill.

The assignments of error are sustained. The decree of the court below is reversed, and record remitted for further proceedings thereon.


text:
    Commonwealth of Pennsylvania, Appellant, v. Daniel D. Jones.

      Mines and mining — Constitutional law — Bituminous Goal act.

    The power of the legislature to define and classify coal mines as it has done, and to legislate for each class separately must be regarded as settled on the authority of Durkin v. Kingston Coal Co., 171 Pa. 193. The Bituminous Coal Act of May 15, 1893, P. L. 53, does not offend the constitution in being either local or special legislation, nor in containing more than one subject.

      Statutes — Constitutional enactments as to sufficiency of title — Act o/1893.
    The unity of a subject of a statute is to be determined by its paramount purpose rather than by the details through which that purpose is to be accomplished. The subject may have but one object, while the measures necessary for the attainment of that object may necessarily embrace many subordinate subjects, differing in their nature and particular effect, yet all contributing to it, and comprised within the principal subject. Everything which the nature of the subject of a title reasonably suggests as necessary or appropriate for the accomplishment of its expressed purpose, is sufficiently indicated by such title.

      Mines and mining — Sufficiency of title of bituminous coal act.

    The title of the Act of May 15, 1893, P. L. 52, meets all the constitution demands as to sufficiency. The objections to its sufficiency are without foundation. It is not necessary that the title should refer specifically to matters legitimately implied from its purpose as indicated by the title. The essential parts of a statute are the declaratory, the directory, the remedial and the vindicatory; and if the title clearly expresses the subject to which the statute is to apply, it is sufficient without expressing in detail the character of the several parts.
    A penalty is implied in the expression of a purpose to which it is a necessary adjunct.

      Constitutional prohibition of local legislation — Query as to the effect of police power.
    It would seem necessary in considering the constitutional prohibition of “ any local or special law” upon the subjects enumerated in art. III. sec. 7, of the constitution, to take into account the provision of art. XVL, sec. 3, that “the exercise of the police power of the state shall never be abridged.
    It is difficult to regard the latter provision as merely aimed at legislative abridgment of the police power of the state. The broad and unqualified terms of the section relating to the police power would seem to imply that no abridgment in any manner was intended.
    It is not necessary however, to invoke this construction to preserve the constitutionality of the act in the present case. Smith, J.
    Argued Feb. 10, 1897.
    Appeal No. 35, Feb. T., 1897, by-plaintiff, from order of ,Q. S. Clearfield Co., Sept. Sess., 1896, No. 40, granting motion to quash indictment.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Motion to quash indictment framed under the provisions of the Act of May 15, 1893, P. L. 52. Before Gordon, P. J.
    The motion to quash the indictment was made for the following reasons:
    The indictment in tins case is framed under the provisions of the Act of May 15, 1893, which is clearly unconstitutional, as it offends against the third section of article III. of the constitution.
    1. The Act of May 15, 1893, P. L. 52, contains more than one subject.
    2. The act is special legislation and includes only a portion of the bituminous coal mines of the state.
    3. The subjects contained in act of May 15, 1893, are not clearly expressed in the title.
    The above motion was granted in an opinion by Gordon, P. J., holding that the act of assembly of May 15, 1893, under which this indictment was framed is unconstitutional.

      Error assigned was in sustaining defendant’s motion to quash the indictment.

      A. H. Woodward, district attorney, and David L. Krebs, with them William Paterson and Greorge W. Zeigler, for appellant.
    —An act of assembly cannot be declared void unless it violates the constitution clearly, palpably, plainly, in such manner as to leave no doubt or hesitation: Sharpless v. Mayor of Phila., 21 Pa. 147, 164; Com. v. Smith, 4 Binn. 116; Eakin v. Raub, 12 S. & R. 330; Fletcher v. Peek, 6 Cranch. (U. S.) 87; Craig v. Church, 88 Pa. 42.
    The constitution of a state is entitled to receive a liberal construction: Com. v. Hartman, 17 Pa. 118; Mauch Chunk v. McGee, 81 Pa. 433; Navigation Co. v. Coons, 6 W. & S. 101.
    Laws which are of general application, affecting a large mass of the community are entitled to more liberal construction than laws affecting individuals or small portions of the community : Ervin’s Appeal, 16 Pa. 256.
    The subject-matter of the act is bituminous coal mines. Under this subject the legislature has undertaken to provide a comprehensive and beneficent system for the operation of such mines, embracing and requiring all the precautions and appliances which experience has shown to be necessary.
    In Road in Phoenixville, 109 Pa. 444, Sterrett, J., in reference to the constitutional requirement of unity of subject, said: “ In determining the unity of the subject, regard must of course be had to the ultimate object to be attained. Details leading to the accomplishment of that object are cognate to the subject of legislation, and therefore form a part thereof:” Blood v. Mercelliott, 53 Pa. 391; Thomasson v. State, 15 Ind. 455.
    There are many acts of assembly, some of great importance, containing penal clauses not expressly referred to in the title. A notable instance of this is found in the Act of May 13, 1887, P. L. 108, which act is construed in Com. v. Sellers, 130 Pa. 32.
    The act regulating the holding of primary elections approved June 29, 1881, P. L. 128, is in point. So, also, the Corporation Act of 1874 and its supplements of April 30,1879, P. L. 36, and more especially the Act of June 2, 1891, P. L. 176, known as the Anthracite Coal Act.
    The Supreme Court in construing the constitutional amendment of 1864, in which the language was practically the same as the provision of the present constitution, Sharswood, J., says in Com. v. Green, 58 Pa. 226, 234: “ The intention of the constitutional amendment was to require that the real purpose of a bill should not be disguised or covered by the general words and for other purposes which was formerly so common, but should be fairly stated.” See also Yeager v. Weaver, 64 Pa. 425.
    As to the sufficiency of the title see Com. v. Lloyd, 2 Pa. Superior Ct. 6, affirmed in 178 Pa. 308.
    It is not necessary that the title of the act should be a complete index of its contents: Road in Phœnixville, 109 Pa. 44; Com. v. Lloyd, supra.
    If the title fairly gives notice of the subject of the act so as reasonably to lead into the body of the bill, it is all that is necessary: Washington Borough v. McGeorge, 146 Pa. 248; Com. v. Lloyd, supra.
    The act of assembly of May 15, 1893, here under discussion, is held by the learned court below to violate section 7 of art. III. of the constitution.
    The legislation on the subject of regulating the mining of coal is really a classification of the subject-matter. And it has the advantage of classification that is natural and not artificial. It is not judicial classification but classification in recognition of nature herself. The courts have recognized the classification of cities: Wheeler v. Philadelphia, 77 Pa. 338; Kilgore v. Magee, 85 Pa. 401; Ayar’s App., 122 Pa. 266.
    And also the classification of counties: Lloyd v. Smith, 176 Pa. 213.
    Manifestly there exists a necessity for the classification made in these acts of assembly, such as ought to be recognized by the courts: Ayar’s App., 122 Pa. 266.

      W. Irwin Shaw with him Oscar Mitchell, for appellee.
    — The Act of May 15,1893, P. L. 52, is unconstitutional for the reason that it is in direct violation of section 3, article III. of the constitution of 1874, which provides that, “no bill, except general appropriation, bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.” This act contains more than one subject as — (a) It provides for the operation and regulation of all coal mines in the state, not now included in the anthracite boundaries. (5) The act by sections 1 and 2 of article XXI., and by section 1 of article XXII. makes certain acts as well as omission to perform certain acts in reference to any mine, or shaft in the state, a misdemeanor. The acts and omissions mentioned in article XXI. and in the definitions of “coal mine,” “excavation,” “shaft,” “slope,” “operator,” and “superintendent,” contained in section 1, article XXII., apply to all “coal mines,” “shafts,” “excavations,” “slopes,” “operators” and “superintendents,” and to all persons violating any of the provisions of said sections in any part of the state of Pennsylvania, (c) This first section of article XXI. creates a new offense, (d) The act furnishes an entirely new and arbitrary definition of the term “bituminous coal mine.”
    April 12, 1897:
    The act is also unconstitutional for the reason that the subject-matter thereof is not clearly expressed in the title. There is no hint in the title of this act of any criminal liability: Road in Phœnixville, 109 Pa. 44; Sewickley Borough v. Sholes, 118 Pa. 165; Dorsey’s Appeal, 72 Pa. 192.
    The act is also unconstitutional as being a local act regulating labor, trade, mining or manufacturing. All our recent decisions- are to the effect that if local results either are or may be produced by a piece of legislation it offends against this provision of the constitution, and is void: Frost v. Cherry, 122 Pa. 417.
    If it apply to the whole state,"it is general; if to a part, it is local: Scranton School Dist. Appeal, 113 Pa. 176.
    The exclusion of a single county from an act makes it local: Davis v. Clark, 15 W. N. C. 209.
    The act of May 15, 1893, is special and local in that it limits its operations to geographical boundaries. It cannot be said to be general.
   Opinion by

Smith, J.,

David D. Jones, a coal mine operator, was indicted under the second section of the twenty-first article of the act of May 15, 1893, charged with having violated the provisions of the first and second sections of tbe second article. Tbe indictment was quashed on the ground that the act of assembly under which it was framed is unconstitutional, whereupon the commonwealth appealed.

It is of common knowledge that coal mining is among the chief industries of the commonwealth, in which thousands of persons are employed and millions of capital invested. We have both anthracite and bituminous coal, in separate deposits, divided by intervening lands where neither is found. These geological divisions, commonly known as the “ anthracite coal field ” and the “bituminous coal field,” are, in a general way, as well understood by the people as are the geographical and municipal subdivisions of the state. There is also a difference in the strata of the two fields, and in their subterraneous conditions, which make necessary different methods and appliances in mining.

During the early development and extension of mining operations in Pennsylvania there was a corresponding increase of casualties, with but little methodical effort to prevent them. The appalling disaster at Avondale, in 1869, demonstrated the urgent necessity of more effective measures for the protection of mine workers, and led to the passage of the general act of March 3, 1870, entitled, “An act providing for the health and safety of persons employed in coal mines.” This act extended*to all anthracite mines in the commonwealth, and was followed by other enactments relating to anthracite and bituminous coal mining. In 1885 the legislation on this subject was collated, revised, and embodied in two separate statutes, each providing an elaborate system of coal mining, one of which applied to the anthracite and the other to the bituminous mines. The subsequent statutes observe this distinction and relate to but one or the other of these divisions, and in all the legislation on the subject, the differing needs of each coal field have been observed and provided for separately.

The act of May 15,1893, is entitled, “ An act relating to bituminous coal mines and providing for the lives, health, safety and welfare of persons employed therein,” and is an exact copy of the title to the act of June 30,1885, which it supersedes and supplies. Its punitive provisions are to be found, substantially, in all tlje general laws On the subject of coal mining, as well as in tlie local laws relating to Schuylkill and Mercer counties. The titles of all of these statutes will, in like manner, be found to be substantially the same. In none is there any reference to a penalty for violation of the act.

The title of the act of 1893 indicates that, while it relates to bituminous coal mines, its specific purpose is to protect the “ lives, health, safety and welfare of persons employed therein,” and an examination of its 129 subdivisions shows that the contents of the act are designed for that purpose, by providing against the manifold dangers incident to mining. There is nothing in the statute that does not relate solely to its main subject, to wit: —“ providing for the lives, health, safety and welfare of persons employed” in bituminous coal mines. Considered in view of its manifest object, as expressed in the title, it is difficult to perceive upon what ground it can be said that the act contains more than one subject. Clearly the terms, “lives,” “health,” “safety” and “welfare ” all have reference to the one purpose and subject of the act — the protection of those employed in the mines ; while the remainder of the title designates where this protection is to be furnished.

The unity of the subject of a statute is to be determined by its paramount purpose rather than by the details through which that purpose is to be accomplished. The subject may have but one object, while the measures necessary for the attainment of that object may necessarily embrace many subordinate subjects, differing in their nature and particular effect, yet all contributing to it, and comprised within the principal subject. Everything which the nature of the subject of a title reasonably suggests, as necessary or appropriate for the accomplishment of its expressed purpose, is sufficiently indicated by such title.

The legislation of 1885 in relation to the anthracite coal mines was supplemented by the Act of June 2,1891, P. L. 176. That act applies to all anthracite coal mines employing more than ten persons, and enumerates the counties to be affected by it. The legislation of 1885 in relation to bituminous coal mines was supplemented by the Act of May 15, 1893, P. L. 52. It is with the latter act that we have to deal. It includes “ all coal mines in the state not now included in the anthracite boundaries,” except those “ employing less than ten persons in any one period of twenty-four hours.” Whether, as suggested in the appellee’s argument, there may be other varieties of coal than bituminous in the territory described in this act, in the mining of which ten or more persons are daily employed, is not now material. Should there be such, the question whether they are properly described in the title of the act, and therefore fall within its provisions, may well be considered when it arises. Their existence cannot affect the operation of the act on the class of mines to which its language expressly applies.

The question to be determined here is whether this act is unconstitutional, (1) in being local or special legislation; (2) in containing more than one subject; (3) in containing provisions not indicated by its title. The first and second of these views may be considered together.

The power of the legislature to define and classify coal mines as it has done, and to legislate for each class separately, must, on the authority of Durkin v. Kingston Coal Co., 171 Pa. 193, be regarded as beyond question. In that case, though holding one provision of the act of 1891 unconstitutional, the Supreme Court said: “We are not prepared to hold the act of 1891 unconstitutional as a whole. It relates to all anthracite coal mines, and defines what shall be regarded as such mines. Coal may be taken out of the ground by farm owners for their own use, or it may be taken in such small quantities and for such local purposes as to make the application of the mining laws to the operations so conducted not only unnecessary but burdensome to the extent of absolute prohibition. Such limited or incipient operations are not within the mischief to remedy which the mining laws were devised. They are ordinarily conducted for purposes of exploration or for family supply, and ought not to be classed with operations conducted for the supply of the public. The business of coal mining, like that of insurance or banking, may be defined by the legislature. The definition found in the act of 1891 seems reasonable, to be within the fair limits of a legislative definition, and to exclude only such operations as are too small to make the general regulations provided by the act applicable to them. The ground on which we place our judgment is not, therefore, that the act is local: ” WILLIAMS, J.

With respect to mining operations and the safety of persons engaged therein, the acts of 1891 and 1893 follow similar lines, the differences in their provisions being due chiefly to the difference between the two classes of mines, in physical conditions and methods of operation. The language of the Supreme Court respecting the act of 1891, in relation to anthracite mines, has like application to the act of 1893 in relation to bituminous mines. Nothing can well be added to its exposition of the grounds on which the constitutionality of the act of 1891 rests ; and the act of 1893 unquestionably stands on the same grounds. The “ anthracite boundaries ” mentioned in the act of 1893, evidently refer to the anthracite region where that class of coal is found and to which the provisions of the act of 1891 exclusively apply. The practical scope and application of both acts are necessarily limited to their respective fields, in recognition of fixed physical conditions and special requirements.

The ground of unconstitutionality especially urged in the present case is that the title gives no intimation of a penalty, or that any act previously lawful is to be declared criminal. This objection is without foundation. It is not necessary that the title should refer specifically to matters legitimately implied from its purpose as indicated by the title. The essential parts of a statute are the declaratory, the directory, the remedial, and the vindicatory; and if its title clearly express the subject to which the statute is to apply, it is sufficient, without expressing in detail the character of the several parts. It is apparent that the present statute is necessary only because the lives, health, safety and welfare of persons employed in bituminous coal mines are not adequately secured by voluntary action. They can be provided for only through regulations adapted to that end, and such regulations can be effectively enforced only by affixing a penalty to their violation. Such a penalty is implied in the expression of a purpose to which it is a necessary adjunct. This principle has been recognized in several instances. The Act of May 13,1887, P. L. 108, entitled “An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof,” contains penal provisions, without which its declaratory and directory provisions would be ineffective; and its title was held sufficient to embrace the penal provisions: Com. v. Sellers, 130 Pa. 32. In Com. v. Muir, 1 Pa. Superior Court, 578, we held that the title of the Act of July 2,1895, P. L. 428: “ An act to regulate and license public lodging houses in the different cities in this commonwealth,” sufficiently expressed the provision of a penalty for a violation of the act; and the Supreme Court, 180 Pa. 47, pronounced the act “ so obviously constitutional and valid that discussion of the subject is unnecessary.” In Com. v. Moore, 2 Pa. Superior Court, 162, in an opinion by our Brother Oblady, we upheld the constitutionality of a penal provision in the Act of March 22,1887, P. L. 8, entitled, “An act for the protection of livery stable keepers.” No decisions are to be found in this state inconsistent with these. In Hatfield v. Com., 120 Pa. 395, and Com. v. Frantz, 135 Pa. 389, the titles distinctly limited the scope of the acts; the one being “ An act to prohibit the issuing of licenses within two miles of the normal school at Mansfield, Tioga county, Pennsylvania,” and the other, “ An act to prohibit the issuing of licenses to sell spirituous, vinous, malt or brewed liquors in the boroughs of Conneautville and Springs in the county of Crawford.” The purpose of these acts, as set forth in their titles, being only to forbid the issue of licenses, penalties for unlicensed sales were held to form no part of the subjects thus expressed; unlawful sales were subject to the penalties prescribed by the general laws. The titles of these statutes indicate limitations on the power of the courts in granting licenses, without reference to the liquor traffic. They in no way pretend to affect any other person or subject, while the purpose expressed could relate only to the courts of those counties. The subject of each title is single and, in its nature, indivisible.

Speaking for myself, I regard it important, in considering the constitutional prohibition of “ any local or special law ” upon the subjects enumerated in article III., section 7, to take into account the provision of article XVI., section 3, that “ the exercise of the police power of the state shall never be abridged.”

It is difficult to regard the latter provision as merely aimed at a legislative abridgment of the police power of the state. The legislature may forbear or neglect to exercise the police power, but no legislative enactment on the subject can abridge the power of. a subsequent legislature in the premises, and, as this principle exists independent of the constitutional provision, it was unnecessary as a limitation on the power of the legislature.

These prohibitive provisions are to be so construed that both shall stand, if possible. If the prohibition of local or special legislation includes the exercise of the police power in relation to local or special subjects, it is a serious abridgment of that power. The broad and unqualified terms of the section relating to the police power would seem to imply that no abridgment in any manner was intended. Full effect may be given to this section by regarding it as a qualification of the prohibition of local or special legislation, in the nature of a proviso, excepting from that prohibition the exercise of the police power of the state on the subjects embraced in it. Such a construction would harmonize the two constitutional prohibitions, and permit an unabridged exercise of the police power on all matters within its scope, whether general, or local and special, leaving to judicial construction, as heretofore, the character and limitations of that power.

In this view, the act of 1893, even if local or special in its application, may be sustained as an exercise of the police power of the state, for the protection of life, health and property in the mining operations to which it relates. But it is unnecessary to rule the present case on this construction of these con stitutional provisions.

For the reasons given on behalf of the court the specification of error is sustained, the order of the court below quashing the indictment is reversed, the indictment is reinstated, and a procedendo awarded.