author: Wickersham, J.,

text:
    Hamilton v. Pinchot et al.

      W. S. Bailey and Frank S. Busser, for plaintiff.

      William A. Schnader, Attorney General, for defendants.
    June 23, 1931.
   Wickersham, J.,

It is to be noted that the plaintiff, in her bill of complaint, names as one of the defendants Gifford Pinchot, Governor of the Commonwealth of Pennsylvania. She alleges that she has been a notary public for many years; that she filed her application for renewal of her commission on or about March 3, 1931, and that in her said application she erased the words and refused to subscribe to the following language included therein, to wit, “and loyally support the policies of the people of the Commonwealth in the election of 1930.” She alleges that the Governor refused to renew her commission and reappoint her because she refused to subscribe to this statement, and that the printing and distribution of said blanks, including said political pledge, involves an additional expense to the Commonwealth of Pennsylvania and an unlawful expenditure of state funds and should be enjoined. She prays for equitable relief as follows: “That defendant, Gifford Pinchot, be enjoined preliminarily until hearing, and perpetually thereafter, from directing and insisting upon the inclusion of said political pledge as a condition precedent to appointees for office.”

To the bill of complaint of the plaintiff the Attorney General filed a petition, raising questions of jurisdiction under the Act of March 5, 1925, P. L. 23, in which it is contended that the court is without jurisdiction to enjoin the Governor; that the bill seeks to control the manner of the Governor’s appointments, and there is no authority, statutory or otherwise, which gives the court jurisdiction in this proceeding. Upon presentation of the petition of the Attorney General, the court granted a rule on the plaintiff to show cause why the bill of complaint in the said case should not be dismissed as to the Honorable Gifford Pinchot for want of jurisdiction of the court to entertain it, to which rule the plaintiff filed an answer.

It clearly appears that the Governor is the principal subject of the plaintiff’s attack. His refusal to appoint plaintiff a notary public is the gravamen of the whole complaint.

The authority of the Governor to appoint notaries public is first conferred by the Act of March 5, 1791, 3 Sm. Laws, 6, section 2, 57 P. S. § 1, which provides:

“After the first day of September next, the governor shall appoint and commission a competent number of persons, of known good character, integrity and abilities, as notaries public, for the commonwealth of Pennsylvania, to reside within such place or places, within this state, as the governor shall in and by the respective commissions direct; ... no person shall be commissioned as a notary, who shall not have resided within this commonwealth two years next previous to his appointment.”

Section one of the Act of February 19, 1873, P. L. 36, 57 P. S. § 2, provides as follows:

“The governor is hereby authorized to appoint as many notaries public as in his judgment the interests of the public may require: Provided, That before any commission shall be issued under this act, a receipt from the state treasurer shall first be produced, showing the payment of twenty-five dollars into the state treasury, for the use of the commonwealth.”

Under these acts the Governor’s discretion in the appointment of notaries is without limit. He is the judge not only of the persons to be appointed, but of the number also. He could refuse to appoint any particular person for any reason he might have, or for no reason at all. The same broad discretion applies to reappointments.

We think the courts have no authority to command the Governor to appoint any particular person or to appoint any notary public; much less may the courts dictate the reasons the Governor may give for refusing to appoint. Fundamentally, the Governor, whenever engaged in any duty of his office, is exempt from any process of the courts.

Let us assume, for the sake of illustration, that we were to enjoin the Governor as prayed for in the bill of complaint. What would happen if he refused to obey the injunction? How could we enforce it? The only way we could enforce our decree would be by attachment for contempt of court. The Governor, having proper regard for the dignity and welfare of the people of this Commonwealth, is not likely to submit himself to imprisonment on the decree of this court or to permit his officers and coadjutors to be thus imprisoned. Were we, then, to permit the attempt to enforce this attachment, an unseemly conflict must result between the executive and judicial departments of the government. We need not say that prudence would dictate the avoidance of a catastrophe such as here indicated: Thompson v. German Valley R. R. Co., 22 N. J. Eq. 111; per Gordon, J., in Appeal of Hartranft et al., 85 Pa. 433, 446. Commenting upon the New Jersey decision heretofore referred to, it was said by Mr. Justice Gordon, page 447:

"... We are inclined to think the conclusion thus reached is wise and discreet; and it is supported by the best text writers of our times.”

If the court could shut the Governor up in prison for refusing to obey its mandate, why may it not convict him for a breach of the peace? We again quote from the decision of Mr. Justice Gordon in the Hartranft case, page 445, wherein he says:

“We had better at the outstart recognise the fact, that the executive department is a co-ordinate branch of the government, with power to judge what should or should not be done, within its own department, and what of its own doings and communications should or should not be kept secret, and that with it, in the exercise of these constitutional powers, the courts have no more right to interfere, than has the executive, under like.conditions, to interfere with the courts. In the case of Oliver v. Warmoth, 22 La. Ann. 1, it was held (per Taliaferro, J.), that, under the division of powers, as laid down in the federal and state constitutions, the judiciary department has no jurisdiction over or right to interfere with, the independent action of the chief executive, in the functions of his office, even though the act he is required to perform be purely ministerial.”

Commenting upon this statement, Mr. Justice Gordon says, at page 445:

“This is putting the matter on very high grounds, for, in such case, no other officer would be exempt from the mandatory power of the judiciary. No case could more forcibly exhibit the extreme reluctance of courts to interfere with the functions of the supreme executive, for the hypothesis put is the refusal of the Governor to perform a duty, cast upon him by law, of a character strictly ministerial. We think, however, that the ground upon which this decision stands, is substantial; for, as the learned justice well argues, the difficulty arises in the attempt to establish a distinction between ministerial and discretionary acts as applied to the Governor, and then to conclude that the former may be enforced by judicial decree; it is objected, however, that the doctrine is unsound in this, that it gives to the judiciary the large discretion of determining the character of all acts to be performed by the chief executive; that this would infringe his right to use his own discretion in determining the very same question; that he must, necessarily, have the unconditional power of deciding what acts his duties require him to perform, otherwise, his functions are trammelled and the executive branch of the government is made subservient to the judiciary.”

The general principle is stated by Mr. Justice Gordon on page 444 of the Hartranft case as follows:

“The general principle is, that whenever the law vests any person with the power to do an act, at the same time constituting him a judge of the evidence on which the act may be done, and contemplating the employment of agents through whom the act is to be accomplished, such person is clothed with discretionary powers, and is quoad hoo a judge. His mandates to his legal agents, on his declaring the event to have happened, will be a protection to those agents: Vanderheyden v. Young, 11 Johns. 158.”

The immediate question in the Hartranft case was as to the power of the court to compel the Governor to testify before a grand jury. The court ruled in favor of the Governor. Chief Justice Agnew filed a dissenting opinion, but even in this dissenting opinion (page 455) the Chief Justice conceded that “the judiciary cannot control or interfere with the discretion of the Governor in the exercise of an executive function.” (Italics are those of the Chief Justice.)

We conclude, therefore, as to the choice of persons whom the Governor will appoint to office, his discretion is of the broadest kind; and as to the persons whom he will not appoint, it is unlimited. We are of opinion that by reason of the Governor’s position in the state government he is not subject to the jurisdiction of this court in a case of this character, and the bill is dismissed.

It is contended that the Governor, and not the Attorney General, should, have raised the preliminary question of law. We cannot agree with this contention. If our process cannot reach the Governor, he is not bound to obey it. On the other hand, the Attorney General is the chief law officer of the Commonwealth authorized to appear for the Governor and all other state officers in matters of law; and this authority certainly carries with it the power to raise preliminary questions of law in a case of this character.

As to defendant Stahlneeker, the plaintiff makes three averments, that he is private secretary to the Governor, that he sent to the plaintiff the application blank containing the pledge of which she complains, and that the action of this defendant in distributing and insisting upon said political pledge is wholly illegal. The prayer of the bill as to this defendant is that he be enjoined “from distributing and insisting upon said political pledge as a condition precedent to appointees for office.”

We think there is no averment on which to base the relief prayed for. There is no allegation that Stahlneeker insisted on the so-called political pledge “as a condition precedent to appointees for office;” nor is there any attempt to show that the defendant could insist on any pledge. All appointments here concerned are made by the Governor. He alone can prescribe conditions for appointments. Mr. Stahlneeker has no appointing power; whatever acts he does must be regarded as the acts of the Governor whom he serves. The Governor appoints; therefore, any conditions imposed on prospective appointees can be regarded only as the Governor’s. An injunction against the Governor’s secretary to control official acts of the Governor would be futile.

For the reasons found in Appeal of Hartranft, swpra, from which we have quoted at length, we think the lack of jurisdiction as to the Governor carries with it the lack of jurisdiction as to the acts of his secretary.

We think the same reasoning applies to the defendants, Edward Martin, State Treasurer, and James F. Malone, Secretary of Property and Supplies. The bill proposes to enjoin the State Treasurer from paying for the printing of said political pledge and to enjoin the Secretary of Property and Supplies from directing the printing of said political pledge. Of these two defendants it need only be said that the defendant Malone is an appointee of the Govemor, and in directing the printing of said pledge on the application of the plaintiff he was acting under instructions from the Governor. If we cannot restrain the Governor, and we have held this cannot he done, how can we restrain his appointee acting under his instructions? We think to state this question is to answer it.

It is the duty of the State Treasurer to pay bills when presented to him properly approved. We think he has no discretion in the matter, and the bill as to him should also be dismissed.

The further objection to the bill that it raises a political question may also be fatal: 6 Words and Phrases (first edition), 5445; Putnam v. Norblad, 293 Pac. 940 (Supreme Court of Oregon). However, in view of the conclusion which we have above expressed, it is not necessary to determine this contention.

For the reasons above stated, the bill is dismissed at the cost of the plaintiff- Prom Homer L. Kreider, Harrisburg, Pa.


source: Caselaw Access Project

author: Baird, P. J.,

license: Public Domain

text:
    Loganton Borough Poor District et al. v. Clinton County et al.

      Ellis L. Orvis and Abraham H. Lipez, for plaintiffs.

      F. C. Gross, county solicitor, and Henry Hippie, for defendants.

      May 27, 1931.
   Baird, P. J.,

The bill in this case prays, inter alia, that the defendants, J. L. Rachau, Jacob F. Wise and M. C. Coleman, as Commissioners of Clinton County, and in each and every other capacity they have assumed to act, be restrained and enjoined from accepting any contracts, either general or special, involving the proposed erection and construction of a county home (for the poor) at Hyner Bridge, and be restrained and enjoined from spending any money belonging to Clinton County for materials and supplies for the purpose of maintaining and constructing said county home.

When the bill was presented, we fixed a time for a hearing to determine whether a preliminary injunction should be granted.

At the time appointed testimony was taken and arguments of counsel heard.

The plaintiffs contend that the Act of April 7, 1927, P. L. 148, entitled “An act to amend section 300 of the act approved the fourteenth day of May, 1925 (Pamphlet Laws seven hundred and sixty-two), entitled ‘An Act concerning poor relief and the creation and government of poor districts and the administration of the same in all counties of the Commonwealth, except in counties of the first and second class; and revising, amending, consolidating and changing the law relating thereto,’ constituting the county commissioners in certain districts as directors of the poor,” and the Act of April 11, 1929, P. L. 508, amending sections 200 and 202 of said Act of May 14, 1925, P. L. 762, as amended, “by removing the exemption of the County of Clinton,” etc., “thereby creating a county poor district administered by county commissioners,” under which they assume the county commissioners are acting in the premises, are ■unconstitutional because local or special in their nature and, therefore, forbidden by article three, section seven, of the Constitution of Pennsylvania. For the purposes of this opinion, we shall assume that said amendatory Acts of 1927 and 1929 are local or special in their nature.

The plaintiffs also contend that the Act of May 24, 1921, P. L. 1081, entitled “An Act providing for county poor districts in counties of the seventh class [to which class the County of Clinton belongs]; providing for their management, direction, and control by the county commissioners; defining their powers and duties; imposing certain duties upon the county treasurer and county controller or county auditors; abolishing the present poor districts, and transferring their property,” was repealed by the said Act of May 14, 1925, supra. Under said Act of 1921, an election was held in November, 1928, to determine whether the commissioners of the county should establish a county poor district, and the election resulted in favor of the proposition, but owing to certain alleged procedural omissions, it is contended by the plaintiffs that the project failed of consummation, even though the act under which the election was held had not been repealed. If we were not so sure that the Acts of 1927 and 1929, supra, are not prohibited legislation, the .questions relating to the Act of 1921 would deserve careful consideration, but as •it is, we do not deem it necessary to discuss them.

Another contention of the plaintiffs is that the site selected by the county commissioners for a county poor home is not suitable for the purpose, and that in selecting it the commissioners abused their discretion. This and the question of the constitutionality of the Acts of 1927 and 1929 we shall proceed to consider, giving first place to the latter.

First, however, it is to be noted that the constitutionality of the Act of 1925, parent of the two amendatory Acts of 1927 and 1929, is not questioned i'n this proceeding, and that it has been held to be constitutional in Com. v. Reese, 293 Pa. 398.

Straub v. Pittsburgh et al., 138 Pa. 356, so much relied upon by counsel for plaintiffs as authority for the proposition, that, notwithstanding the omission therefrom of poor districts, the seventh section of article three of the Constitution does prohibit local or special legislation relating to such districts, was a bill to enjoin the City of Pittsburgh, the Mayor and the Chief of the Department of Charities from making a contemplated conveyance of a tract of land known as the city poor farm, the legal title to which was vested in the Guardians for the Relief and Employment of the Poor of the City of Pittsburgh, a corporation created by the Act of March 6, 1847, P. L. 233. The decision involved the applicability of an act approved April 28, 1887, P. L. 75, entitled “An Act to authorize the courts of common pleas to decree the sale of real estate, held for poor purposes, in the several counties, boroughs, townships and poor districts in this Commonwealth, and the reinvestment of the proceeds thereof,” by the first section of which it is provided that “The courts of common pleas of the several counties of this Commonwealth shall have jurisdiction and are hereby authorized to decree a public or private sale of any poor house property, or real estate held for the relief and employment of the poor in any county, city, borough, township or poor district, at such times and in such parts or parcels and upon such terms as, in the opinion of any such court, may be considered most advantageous.” The second section provides for the petition of the overseers, directors or managers, and that the sale shall only be ordered “after a full and careful investigation by the court,” and provides for the investment of the proceeds by direction of the court. The third section of the act repeals all acts inconsistent therewith. Following a reference to this Act of April 28, 1887, the lower court (Judge Ewing) propounds the question: “Does this act become a part of the law governing the sale and purchase of property for poor purposes belonging to the city of Pittsburgh, i. e., cities of the second class?” and then goes on to say: “This and the question of the constitutionality of the Acts of May 25, 1887 [P. L. 263], and June 14, 1887 [P. L. 395], in our opinion, raise the only doubtful questions in the ease.”

The Act of May 25, 1887, P. L. 263, is entitled “An Act relating to the acquisition, purchase and sale of real estate by the boards of guardians for the relief and employment of the poor in cities of the second class,” and provides in its first section that such boards are authorized and empowered, in the names of such cities, to sell and convey farms or sites, or any part or parts of the same, then owned or occupied for poor farm purposes, and to make, execute and deliver a deed or deeds of conveyance to the party or parties purchasing the same, vesting title in such purchasers. The second, third and fourth sections of this act confer other powers on the guardians.

Section five provides that the acts authorized by the preceding sections shall be submitted to and approved by councils, and section six repeals all laws or parts of laws conflicting therewith.

The Act of June 14, 1887, supra, is entitled “An Act in relation to the government of cities of the second class,” and by its fourth section provides that “There shall be the following executive departments, the heads of which shall be chosen by city councils: . . . III. Department of Charities;” by its twelfth section, that the councils thereof “Shall have full power and authority to provide, by ordinance, for the relief and employment of the poor of said cities, and for that purpose shall have power and authority to sell and purchase real estate and improvements, and erect such improvements as may be deemed necessary for the proper care and maintenance of said poor;” by its seventeenth section, that “to the department of charities shall be confided the care, management, administration and supervision of the charities, almshouses and hospitals, and all similar institutions, the expenses of which are paid out of the city treasury;” and by its last section, all laws or parts of law supplied by or inconsistent therewith are repealed.

As stated by Judge Ev/ing, “By Act of March 22,1S77, P. L. 16, it [the Board of Guardians for the Relief and Employment of the Poor of the City of Pittsburgh] was declared to be a department of the city government,” and he adds: “It was so without such a legislative declaration,” and upon the latter proposition he builds his argument that although not mentioned in the seventh section of the third article of the Constitution, local legislation for poor districts is prohibited thereby, saying (page 361) : “It is true that the seventh section of the third article of the constitution does not in precise words prohibit local legislation for poor districts, as it does for school districts, and for this very good reason: the care of the poor has always been considered a municipal function and ‘affairs of counties, cities, townships, wards and boroughs,’ for which local laws are prohibited in the second paragraph of § 7, while the uniform rule has been to treat schools and school districts as something separate and independent of the ordinary municipal governments.”

In this case of Straub v. Pittsburgh, an ordinance had been passed by city councils and approved by the mayor directing the sale of the “city farms.” The plaintiff alleging that the legal title to said farm was vested in the Guardians for the Relief and Employment of the Poor of the City of Pittsburgh, and that the City of Pittsburgh, illegally, and without authority of law, claiming to be the owner thereof, had by ordinance ordained and enacted that the same should be sold and conveyed; that the Chief of the Department of Charities had advertised said real estate for sale, and after opening bids, had entered into a written contract on behalf of the said city to sell and convey the same to one Milton I. Baird, and that the defendants were about to execute and deliver a deed in fee simple for the said lands, to him or to the Carnegie-Phipps Company, Limited, his assignee, prayed, inter alia, for an injunction restraining said contemplated conveyance.

It is apparent that the city was proceeding under the Act of June 14, 1887, supra, by the twelfth section of which its councils were given full power to provide, by ordinance, for the relief and employment of the poor of the city, and for that purpose to sell and purchase real estate and improvements, etc., as under the prior Acts of April 28, 1887, and May 25, 1887, supra, other inconsistent provisions were made for the sale of poor property, the Act of April 28, 1887, authorizing such sale under decree o"f the court of common pleas upon petition of the overseers, or poor directors, or managers for the employment and relief of .the poor of any county, city, borough, township, or poor district, and the Act of May 25, 1887, authorizing the boards of guardians for the relief and employment of the poor in cities of the second class to sell and convey farms or sites then owned or occupied for poor farm purposes, subject to the approval of city councils.

If the Act of June 14, 1887, which, as before stated, is entitled “An Act in relation to the government of cities of the second class,” is constitutional, it superseded the prior acts of that year making other provisions for the sale of poor property. Judge Ewing held that it is constitutional on the ground of the legislative power to classify cities (and to enact appropriate laws for the government of each class) and by formal decree denied the relief prayed for. For this reason and because the care of the poor had been made a function of cities of the second class (albeit contrary to the general course of poor legislation) by the Act of March 22, 1877, there was no occasion for him to decide whether or not poor districts are included in article three, section seven of the Constitution, forbidding legislation, “regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” This question was -not adjudicated by him because not involved, and when the Supreme Court, in a per curiam opinion, without any discussion whatever, affirmed “the decree of the court below” it did no more than subscribe to that decree of which the remarks of Judge Ewing, relative to the question of local or special legislation for poor districts, formed no part. This legislation — the Act of June 14, 1887 — related “to the government of cities of the second class,” of which the care of the poor had been made an incident by the Act of 1877, and not to poor districts. No poor district, as such, in the state was affected thereby.

Another case in which the application of section seven, article three of the Constitution was discussed, but not decided, is Jenks Township Poor District v. Sheffield Township Poor District, 135 Pa. 400. However, .in that case Mr. Justice Clark, who, as Judge Ewing says, was a distinguished member of the constitutional convention, said (page 409): “Moreover, it would appear that the limitations upon the powers of the legislature as to local or special legislation do not extend to the regulation of affairs of poor districts. The affairs of townships do not of necessity include the affairs of either the ¡school or poor districts embraced within the same boundaries. The provision of the constitution, Article III, § 7, is that ‘the general assembly shall not pass any local or special law,’ etc., ‘regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.’ It is a very significant fact that, whilst school districts are expressly included within the restriction, poor districts are plainly omitted. . . . The convention, being conversant with the manifold forms in which the public charity was dispensed, — in county poor houses and in district poor houses organized under both general and special laws, in hospitals and homes supported by contributions both public and private, and through the ordinary agency of the overseers or directors of the poor — may have deemed it unwise to interrupt the course of legislation on this subject, or to restrict the relief and employment of the poor to any one uniform or general system for the whole state, preferring rather that the hand of charity might be freely extended in any form which the legislature from time to time might provide.”

Although this be dictum, it is nevertheless entitled to the greatest respect because of its source, and, apart from its source, because of its rational appeal. See, also, opinion of Judge Linn in Com. v. Woodward, 95 Pa. Superior Ct. 423, 429, where he asserts that poor districts are not subject to the prohibition against local or special legislation, and cites Jenks Township Poor District v. Sheffield Township Poor District, supra.

If by “municipal functions” or “affairs” Judge Ewing meant that the care of the poor had always been the function or affairs of counties, cities, townships, wards and boroughs, as such, he was mistaken, as is clearly shown by Judge Koch in Tosh v. Schlottman, 2 D. & C. 256. In an historical review of poor legislation in this Commonwealth, he shows that ever since the passage of the Act of January 12, 1705, chapter 154, 2 Statutes at Large of Pennsylvania, 251, we have had poor districts and overseers of the poor; that by the second section of “An Act for amending the laws relating to the Poor,” passed August 19, 1749, 5 Statutes at Large of Pennsylvania, 79, it was provided: “That the said overseers of the poor for the several townships, city and boroughs aforesaid for the ‘time being respectively shall forever, hereafter in name and in fact be and they are hereby declared to be bodies politic and corporate in law to all intents and purposes, and shall have perpetual succession, and by the name of overseers of the poor of the said respective townships, city or boroughs may sue and be sued and plead or be impleaded in all courts of judicature within this province, and by that name shall and may purchase, take or receive any lands, tenements or hereditaments, not exceeding the yearly value of five hundred pounds, and also any goods or chattels whatsoever, to and for the use and benefit of the poor of each of said townships, city or boroughs respectively of the gift, alienation or devise of any person or persons whomsoever, to hold to them the said overseers and their successors in the said trust for the use of the said poor respectively forever;” and that other acts were passed until March 9, 1771, when the General Assembly passed a general act of great length, entitled “An Act for the relief of the Poor,” 1 Sm. Laws, 332. (By the sixteenth section of the latter act, the provisions of the Act of August 19, 1749, above quoted, were substantially reenacted). Judge Koch also shows that in the course of time special legislation was passed enlarging poor districts by making whole counties into single districts (citing instances); that by a special act approved March 25, 1862, P. L. 178, parts of two counties (Luzerne and Carbon) were taken and erected into one district, by the name of the Middle Coal Field Poor District; that since the passage of that act the Borough of Hazleton has become a city, but still remains a part of the Middle Coal Field Poor District, which has been enlarged so as to include other municipal divisions in Luzerne and Carbon Counties; and that this district has been the subject of special legislation since 1874, the last act relating thereto being that of May 25, 1917, P. L. 305.

Continuing his review of the poor laws, Judge Koch refers to the Act of June 4, 1879, P. L. 78, which he styles the most general legislation since the adoption of the Constitution of 1874, and after referring to some of its provisions, goes on to say: “Hence, it is seen that poor districts were of great number and variety all over this State at the time when the constitutional convention framed the so-called Constitution of 1874, and the Act of 1879 added to the variety. Of course, all the members of that intelligent convention knew that the State was filled with a great variety of ‘poor districts,’ and when they framed article III (Legislation), they did it with such intelligent care and circumspection as not to prevent the people in the various localities of the State from caring for the poor as they had always cared for them in the past or might wish to care for them in the future. It is, therefore, my belief and opinion that the constitutional convention studiously and designedly omitted from the inhibitory clauses against local or special legislation any reference whatever to poor districts.”

In the light of the history of “poor” laws and “poor” districts in Pennsylvania, it is difficult to understand how anyone can say that the care of the poor had always been an affair “of counties, cities, boroughs, townships, wards and boroughs,” while the uniform rule had been to treat schools and school districts as something separate and independent of the ordinary municipal governments. As stated by Mr. Justice Schaffer in Com. v. Reese, supra, at the time of the passage of the Act of 1925 there were 583 poor districts in the state, and forty-four of them were county unit districts. Surely poor districts at the time of the adoption of the Constitution were as well established in the laws of the state as were school districts.

To say that the care of the poor is a municipal function is without point. A poor district is as much a municipality as is a county or township. None of them is a municipality in a strict technical sense: Chester County v. Brower, 117 Pa. 647, 655; Bucher v. Northumberland County, 209 Pa. 618; Union Township v. Gibboney & Nelson, 94 Pa. 534, 537; St. David’s Church v. Sayen, 244 Pa. 300; Trevorton Water Supply Co. v. Zerbe Township, 259 Pa. 31; Melvin v. Summerville, 210 Pa. 41. All of them are what are known as quasi-corporations or quasi-municipal corporations. They (counties and county poor districts) are each regarded as separate entities, with separate powers and duties fixed by statute: Tucker’s Appeal, 271 Pa. 462, 463. See, also, Com. v. Bowditch, 217 Pa. 527.

Stress is laid by counsel for plaintiffs on the word “affairs” in the prohibitory clause of the Constitution under consideration, but however broad its significance, it cannot be made to cover anything pertaining to poor districts, which are not mentioned in the clause, without substantially adding thereto, and this is not a judicial privilege. “In construing . . . the Constitution we are not at liberty ... to supply words omitted, in order to work out a thought which the people themselves had the opportunity to give expression to had they so desired:” Com. v. McAfee, 232 Pa. 36, 49; Com. v. Samuel, 238 Pa. 155, 157-158.

We have carefully examined the Indiana and New Mexico cases cited by plaintiffs’ counsel (Board of Commissioners of Newton County v. State, 161 Ind. 616, 69 N. E. 442, and Territory v. Gutierrez, 12 N. M. 254, 78 Pac. 139), and do not find anything therein bearing on the proper construction of that clause of our Constitution which prohibits local or special legislation regulating the affairs of» counties, etc. The Indiana case has to do entirely with the erection of a county courthouse, and any reference made to the care of the poor is merely incidental. Enough appears by the report of that case, however, to show that in Indiana there are no poor districts; that the state is divided into “counties, townships, cities and towns as governmental agencies,” and that each subdivision has conferred upon it certain powers, rights and duties of a local character, among which is the care of the poor. Clearly, under such a scheme or frame of government no question could arise about the care of the poor being the business or affair of the particular agency to which it had been delegated. We do not have access to the New Mexico case, but the excerpt therefrom to which our attention has been ealled is merely a discussion of the word “business” as contrasted with the word “affairs.” We have already considered the word “affairs” in connection with its use in section seven, article three, of the Constitution of Pennsylvania.

In any discussion of the constitutionality of an act of assembly, it must be kept in mind that all of the presumptions are in its favor. “It comes to us with the seal of approval of two of the coordinate departments of the government. To doubt is to decide in favor of its constitutionality. It is only in a clear case that we are justified in declaring an act to be unconstitutional:” Craig v. First Presbyterian Church, 88 Pa. 42, 46. An act cannot be declared unconstitutional unless its violation of the Constitution is so manifest as to leave no reasonable doubt: Hilbish v. Catherman, 64 Pa. 154. Nothing but a clear usurpation of a power prohibited will justify pronouncing an act of the legislature void: Penna. R. R. Co. v. Riblet, 66 Pa. 164; Busser v. Snyder, 282 Pa. 440, 449. The burden is on him who alleges the invalidity of an act to show it. He must show a clear, palpable and plain violation of the Constitution so plainly as to leave no doubt: Mayer v. Franklin County, 85 Pa. Superior Ct. 463, 467.

And now as to the site of the building proposed to be erected by the county commissioners for the purpose of taking care of the poor of the county; the 216th section of the Act of May 14, 1925, supra, authorizes the directors of the poor (county commissioners ex officio) to purchase or acquire by eminent domain and take title in the name of the district such lands as to them may appear most eligible and suitable for the purpose of the erection thereon of proper, adequate and suitable buildings for the employment and support of the poor in the district, and provides that any such purchase or acquisition shall be only with the approval of the court of common pleas. Such approval had been obtained by the county commissioners before there was any public agitation concerning the site or any other question involved in this case. Every reasonable objection to the site selected by the county commissioners has been met and overcome by a preponderance of the testimony. The village of Hyner, with a church and two general stores, is within a mile or a mile and a half of the proposed site. Hyner is a station on the Pennsylvania Railroad, which furnishes transportation facilities, both freight and passenger, for the community. The site is located on an improved highway between Lock Haven and Renovo, the two principal towns in the county — about seven or eight miles east of Renovo and about eighteen miles west of Lock Haven. In addition to railroad facilities, there is bus service between Renovo and Hyner and prospective bus service covering the entire distance between Renovo and Lock Haven. Trucks or wagons from Renovo, North Bend and Lock Haven, delivering bread, meat and vegetables, pass the proposed site daily. There is plenty of good water on the premises. The soil is not poor, but is river-bottom land, a sand loam, which in the past has produced good crops and may be made to produce good crops in the future. The Renovo Light, Heat and Power Company has already extended its electric lines to a point within half a mile or so of the site selected and is willing to extend them the remainder of the way whenever its service may be required. The objections that there are no physicians nearer the selected site than Renovo, and that the county commissioners, by reason of the distance of their office (eighteen miles) therefrom, would be prevented from giving necessary personal attention and oversight to the conduct and administration of the county home, are of little weight in view of the quick and easy transportation afforded by good roads and automobiles. If these latter objections were tenable, we know of no county home to which they would not apply with greater or less force. It seems to be the universal practice to locate such institutions in country districts, away from the county seat and other densely populated centers.

Considered in its aspect most favorable to the contention of the plaintiffs, the most that can be claimed for the testimony relative to the site selected by the county commissioners is that it proves their action in this regard to have been unwise. With such claim, however, we cannot agree.

To the county commissioners was committed in the first instance the authority to purchase lands for the purpose of erecting thereon suitable buildings for the employment and support of the poor. The selection of such lands necessarily involved the exercise of their discretion, and it is a well-established principle of law that where a body is clothed with deliberative or discretionary powers, and has exercised those powers according to its discretion, the courts are powerless to interfere, except where the discretion has not been exercised in good faith or has been abused. No abuse of discretion has been shown, and no attack has been made on the good faith of the commissioners. When the contention is that the proposed action is unwise, no matter by what concensus of opinion it is shown, the law will refer it to mistaken judgment, over which it has no supervision: Lamb v. Redding, 234 Pa. 481, 484; Gemmell v. Fox, 241 Pa. 146, 150. Under such circumstances, it is not sufficient to show that the proposed action is unwise. It must appear that it is not discretion that is being exercised, but arbitrary will and caprice; otherwise the courts will refer the action complained of to a mistaken judgment, and will refuse to interfere with it: Robb v. Stone, 296 Pa. 482. Executive officers are clothed with the responsibility of originating and executing plans for the public good; the presumption is that their acts are on such consideration and their discretion reached in a legal way after an investigation. When their actions are challenged, the burden of showing to the contrary rests on those asserting it, and it is a heavy burden; courts can and will interfere only when it is made apparent this discretion has been abused: Wilson v. New Castle City, 301 Pa. 358, 365. Even though we must share with the county commissioners the responsibility for the site selected, there is nothing in either the evidence or the law to cause us to withdraw our approval heretofore given.

Now, May 27, 1931, preliminary injunction refused.

Prom W. E. ShafEer, Lock Haven, Pa.


author: Fleming, P. J.,

text:
    In re Road in College Township.

      John G. Love, for petitioner; N. B. Spangler, for respondents.
    July 22, 1930.
   Fleming, P. J.,

This matter is before the court upon the petition of sundry citizens of College Township, praying that a decree made July 23, 1929, approving nunc pro tunc a change of location of a road in said township and vacating certain existing parts of a former road declared to have become useless by reason of such change, be vacated.

The origin of the controversy is the attempt of the Supervisors of College Township to avail themselves of the provisions of sections 685 and 686 of the Township Code approved July 14, 1917, P. L. 840, 911, which provides as follows:

“Section 685. Whenever the commissioners or supervisors of any township of the first or second class deem it advisable to construct, change, or alter any part of any public road under their supervision, within this Commonwealth, and can agree with the property owners affected by such change as to damages, they may, upon payment of damages agreed upon, change or alter such part of such public road, as contemplated in such agreement, without the formality of a view.
“Section 686. No such change or alteration of any part of any public road shall be made the costs and expenses of which, including damages, shall exceed three hundred dollars. A petition setting forth the facts, accompanied by a map or draft of such proposed change, shall be presented to the court of quarter sessions for approval before such actual change is made; whereupon the new location, approved by the court, shall be taken to be the public road and the old location shall be vacated.”

The petition of the supervisors upon which the decree complained of was based gave no indication that the change of location would in any way inconvenience or prejudice any of the inhabitants of College Township. On the contrary, it averred “that it is advisable and to the interest of the inhabitants of said township” that such change be had. A contrary showing appeared, however, upon presentation of the petition now under consideration, and a hearing upon the rule granted on such petition confirms this. Further, our personal inspection of the proposed change of route and the part of the old road to be vacated clearly shows that a larger number of citizens would be seriously handicapped and inconvenienced were our decree to stand.

It is our opinion that sections 685 and 686 of the Township Code were not intended to abolish the established mode of opening new roads and vacating old ones by view and public hearing, but were intended to provide a way for supervisors to make minor changes in the course of a road, where landowners adjoining were in accord and damages were agreed upon, thus elminating the expense of a formal and unnecessary view. But when considerable lengths of new road are to be built, routes wholly changed in other than the established general directions, and roads vacated which will leave property owners with no, or at least greatly diminished, opportunity of ingress, egress and regress to their lands from the state highway, such sections do not apply and the provisions of the general road law must be followed. See section 640.

Further, the provisions of sections 685 and 686 are mandatory and not merely directory. Compliance with the terms of section 686 is made a condition precedent to the validity or legality of the opening of the road as changed and the vacation of the old location. When a statute confers a right, privilege or immunity, the regulations, forms or conditions which it prescribes for its acquisition are imperative, in the sense that nonobservance of any of them is fatal, upon the principle, applicable alike to contracts and statutes, that a party cannot claim the benefits conferred and at the same time repudiate the obligations imposed by such: Endlich, Interpretation of Statutes, § 434, page 613. Where the fair interpretation of a statute directing acts or proceedings in a certain way shows a legislative intent that compliance with such provision shall be essential to the validity of the proceedings, or where some antecedent and prerequisite condition must exist before exercise of a power conferred, the statute must be regarded as mandatory: Com. ex rel. Heisey v. Risser, 3 Pa. Superior Ct. 196; Norwegian Street, 81 Pa. 349. Statutory provisions, on compliance with which certain rights are given, must be construed as mandatory and not merely directory, as the question is one of power or jurisdiction: Pittsburg v. Walter, 69 Pa. 365; Erie v. Moody, 176 Pa. 478.

Therefore, even though the opening and vacating, in the instant case, was such as to confer power upon the supervisors, under sections 685 and 686, the acts of such officers were invalid, inasmuch as they did not present their petition and draft for approval before such actual change was made. We were clearly in error in making such a decree as we did, nunc pro tunc. The act is mandatory, and unless such petition and draft is presented before making the change, the act of the supervisors is invalid and cannot be cured by a decree nunc pro tunc.

We fail to find, from the testimony, that the cost of the road did not exceed $300. We are convinced that if $300 has already been expended the road cannot be completed within the statutory limit. We have been over it'and find it a mere path opened through the lands taken for the purpose. There is poor drainage and the stone stated to have been placed thereon is very sparsely scattered and wholly absent in a number of places. The grades at some places appear extremely difficult, if not insurmountable, with medium-weight loads.

All in all, we are of the opinion that the supervisors were without power to open the new roadway and to vacate the old location in the manner followed by them. Sections 685 and 686 do not confer power for such an extensive change. This is shown by the limitation to an expenditure of $300, which amount must be exceeded in the instant case, to make a proper roadway under the supervisors’ plan. By their failure to comply with section 686, their act was ultra vires.

And now, July 22, 1930, the rule granted to show cause why the decree of July 23, 1929, opening the road described in the petition of the Supervisors of College Township and vacating the portion therein sought to be vacated, should not be vacated and set aside is made absolute, and our former decree of July 23, 1929, in this proceeding is vacated and set aside.

Prom S. D. Gettig, Bellefonte, Pa.


author: Broomall, J.,

text:
    Com., ex rel. MacCarter, v. Mount Lawn Cemetery et al.

      William C. Alexander, for plaintiff; Samuel A. Montgomery, for defendant.
    August 22, 1930.
   Broomall, J.,

On March .7, 1930, the district attorney of this county filed a suggestion setting up, inter alia, that the Mount Lawn Cemetery was a corporation of the first class duly chartered by the court of common pleas of this county; that it had failed to set aside a sum equal to at least one-tenth of the gross amount of the funds arising from the sale of lots in its burial ground as provided by its charter; that it was selling lots to undertakers and other middlemen at prices below the resale by such purchasers ; that its real estate was encumbered by two mortgages; and that by reason of these facts the charter of the corporation had become null and void and its corporate rights, privileges and franchises forfeited; and prayed the court for a writ of quo warranto to show by what authority the defendants exercised the liberties and franchises of a cemetery company, and why they should not be ousted therefrom and the said charter declared null and void. On the same day the court allowed a writ of quo warranto, returnable May 1, 1930. To this writ the respondents filed a demurrer, setting out that the court was without jurisdiction; that the person at whose suggestion the writ was issued was not qualified to pray for such writ, having an adequate remedy at law; that the District Attorney of Delaware County had no authority in law to file the suggestion; that the relief in the nature prayed could be only sought by .the Commonwealth of Pennsylvania through the Attorney General; and that the facts set forth in the suggestion were not sufficient to justify the granting of the relief prayed for. The matter comes before us on this demurrer.

Stress is laid chiefly on the third reason advanced, to wit, that any proceeding of this nature should be at the instance of the Attorney General of the Commonwealth and not at the instance of the district attorney of this county. We think this objection to the proceeding is well taken. It is true that the exact question raised here has not, so far as we have been'able to ascertain, been definitely passed upon by the appellate courts, but the industry of the able and learned counsel for the relator has failed to produce any case in which a proceeding of this kind, instituted at the instance of the district attorney of the county, has been sustained; and while no cases directly passing upon this point have been cited by the respondents, yet in a number of instances the lower courts and the appellate courts have clearly expressed the view that it is only at the instance of the Attorney General that proceedings having for their purpose the forfeiture of the charter of a regularly organized and chartered corporation can be sustained. In the case of Consolidated Stock Exchange of Philadelphia, 31 Pa. C. C. 226, Attorney General Carson expressed the opinion that: “The rights of district-attorneys appear to be confined to cases instituted to test the title to county or township offices and officers not commissioned by the governor.” In the case of Christ’s Church Charter, 8 Pa. C. C. 28, and in Travaglini v. Societa Italiane, 5 Dist. R. 441, the lower court held that: “An attack on a charter regularly granted may be set up only by quo warranto at the suit of the attorney-general.” And the Supreme Court has said: “But even if the objections to the validity of the organization were sustained, these parties have no standing to raise the question of the validity of the organization. We have many times decided that such questions can only be raised by proceedings at the instance of the attorney-general in the nature of a quo warranto to forfeit the charter:” Hooven Mercantile Co. v. Evans Mining Co., 193 Pa. 28, 33.

“The company being at least a de facto corporation, the validity of its for- ■ mation can be attacked only through the attorney-general:” Mount Sharon Cemetery Charter, 277 Pa. 79, 80.

Even though the questions determined in the last two cases cited were not identical with that before us, yet, in view of this clear expression of the Supreme Court as to the proper procedure, we feel that we would not be justified in sustaining the present proceeding; and as the matter may come before us again in another shape, we deem it inadvisable at this time to express any opinion on the merits of the case apart from the question of procedure.

And now, August 22, 1930, the demurrer is sustained, and the writ of quo warranto heretofore granted is discharged, at the costs of Margaret M. Walton, the person at whose instance the district attorney filed his.suggestion and affidavit.

From William It. Toal, Media, Fa.


author: Gest, J.,

text:
    Bumm’s Estate.

      Raymond M. Remide, for exceptants; George J. Edwards, Jr., contra.
    March 20, 1931.
   Gest, J.,

The testatrix made her will in 1893 and bequeathed all of her estate in trust for her husband during his life, and at his death bequeathed the same to her two nephews, Charles and Harold, and her niece, Florence, who were the children of her deceased sister. Then follows the portion of the will which gave rise to the present dispute:

“If my husband should die before me, I give, bequeath and devise all of my property and estate to the said Charles Jacob Naylor, Florence Belle Naylor and Harold Steelman Naylor, share and share alike; and if either of them should die either before me or before the death of my husband, I give, bequeath and devise the share and portion of my property and estate herein given to such person to the survivor or survivors of them.”

Harold predeceased the testatrix, leaving issue; Florence, who also left issue, survived the testatrix, but predeceased the husband, who lived until 1930; and Charles, who is living, claimed the entire estate, which the Auditing Judge awarded to him on the ground that he, as the survivor, was entitled under the final paragraph of the will.

These exceptions are based on the theory that the gift to the survivor or survivors of Charles, Florence and Harold was entirely conditioned on the decease of the husband of the testatrix before her, and, as Florence survived the testatrix, her interest was vested and passed to her executor, and the devise to Harold, who predeceased the testatrix, was saved from lapse by the Act of May 6, 1844, P. L. 565, section 2, in force when the will was written, the devise being to the children of a deceased sister, and by the Act of July 12, 1897, P. L. 256, which was enacted prior to the codicil of April 16, 1912, confirming the prior will.

At first impression it might seem, in view of the usual and natural desire of a testator, that a legacy such as this should be saved from lapse if the legatee left issue; but, as the will is written, the paragraph above mentioned begins with the words that are relied on, “If my husband should die before me,” etc.; on the other hand, however, it certainly seems strange that the testatrix should intend the substitution of the issue of the legatees to depend on the extraneous fact of her husband surviving her or of his dying before her. The sequence of testamentary intent is not logical. The case of the exceptants would be much stronger if the testatrix had said in the beginning, “If my husband survives me I devise my estate in trust for him for life and after his death to Charles, Florence and Harold,” and then followed it with the paragraph in question, “If my husband should die before me I devise my estate to the said Charles, Florence and Harold,” with the provision for survivor-ship in question. This might seem to divide the will into two distinct parts, each independent of the other. But, as we read the will, all of it should be read as one connected whole. The testatrix devised her estate in trust for her husband for life with remainder to Charles, Florence and Harold, and then, realizing the possibility of the deaths of any or some of them, added what should happen, first, in the event of the death of her husband before her, and, second, in the event of the death of any of Charles, Florence and Harold, either before her or before her husband, indicating that only the survivor or survivors of them should take.

This is not a case of interpretation of the language used, for the words of the will are clear. It is a question of construction, that is, of arriving at the dominant testamentary intent by a consideration of the successive sentences of the will.

All the parts of the will are to be construed in relation to each other and so as to form one connected whole. We are not asked to transpose the paragraphs of the will or to alter them in the slightest degree, even regarding their punctuation. That the estate of the testatrix is expressed in separate paragraphs has little weight in arriving at her meaning. We need only read them consecutively to ascertain her intention.

The cases cited at the argument have little application, though Wettengel’s Estate, 278 Pa. 571, is somewhat similar, and reference may also be made to Orphans’ Home v. Women’s Pennsylvania Society, 279 Pa. 433, and Hollinshead’s Estate, 273 Pa. 573, in support of the principles of testamentary construction above stated.

As we are, therefore, of opinion that the Auditing Judge correctly construed the will, the exceptions are dismissed and the adjudication is confirmed absolutely.


author: Ferguson, P. J.,

text:
    Victory Realty Co. v. Cosmos Building and Loan Association.

      Abraham L. Freedman and Morris Wolf, of Wolf, Block Schorr & Solis-Cohen, for plaintiff.

      David Bortin, for defendant.
    May 20, 1931.
   Ferguson, P. J.,

Plaintiff is the owner of premises at the northwest corner of Tenth and Chestnut Streets, Philadelphia, and on January 15, 1929, executed a bond and mortgage in the sum of $100,000 to defendant, secured upon the real estate mentioned.

'The bond and mortgage were in the usual building association form, providing for the payment of the sum of $100,000 at 6 per cent, interest, payable monthly, and a premium of $150 and $500 as a contribution on 5Ó0 shares of the capital stock of the defendant, also payable monthly. The stock was assigned to defendant as collateral security. The mortgage, by its terms, conveyed the real estate to defendant for the better securing of the payment of the mortgage debt with interest and fines and premium and the monthly contribution on the shares of stock.

Payments were made of dues on the stock, with interest and premium as required by the mortgage, up to and including September, 1930, the total amount paid in dues amounting to $10,500. Plaintiff thereupon gave notice to defendant of its intention to have the payments made on the stock immediately applied in reduction of the loan of $100,000, and demanded the right to pay thereafter the dues of $500 per month and interest only on the balance of principal of the mortgage, after deducting the $10,500, and also reducing the monthly premium, and, further, demanded the right to have the interest on the mortgage reduced monthly as the monthly payments of dues are made.

For the purpose of having its rights declared this petition was presented.

The corporation being solvent, as shown by the petition, it may be conceded that plaintiff has a right to have the payments on the stock appropriated to the loan, but the most that plaintiff may obtain as a result of such appropriation is that the stock shall be free from claims of attaching creditors of plaintiff, and, in the event of insolvency of defendant, the plaintiff will be entitled to have the payments made on the stock credited to the amount of the loan at that time. We have read many decisions on the subject and we find none that holds that payments on the stock, which has been appropriated toward the loan, shall be regarded as immediately appropriated and the loan reduced as the payments are made. In Orient B. & L. Ass’n v. Freud, 298 Pa. 431, it was held that ordinarily payments on the stock are not ipso facto credits on the loan, but a borrower has the right, if the association is solvent, to require them to be so applied, in which event the payment is an indirect payment and not a direct one. The same principle is stated in Freemansburg B. & L. Ass’n v. Watts, 199 Pa. 221.

The whole plan under which building associations are conducted contemplates that all the stock of the borrower shall be regarded as additional security for the mortgage loan, and whether the stock be assigned as collateral security or is appropriated towards the payment of the debt, it remains in existence until it matures, at which time the loan is canceled. It is not contemplated that the appropriation shall be made piecemeal. As stated in Freemansburg B. & L. Ass’n v. Watts, supra: “It is not intended that a stockholder who borrows of the association will discharge the debt he incurs by direct payments on account of it.” What the plaintiff in this case asks is that it be allowed to make appropriation monthly of the instalments on 500 shares of stock toward the payment of the debt, and at the same time keep the stock alive. In other words, plaintiff contends that it may take the value of the stock away from it and apply it to the loan while the stock itself, which the parties contemplated should become a progressively more valuable security for the loan, is made worthless. Were we to declare this within the power of plaintiff, it would be to say that while the stock remains in existence, with the obligation to pay the monthly instalments, a withdrawal shall be allowed of the amount paid in dues in order that the same may be immediately appropriated to the loan. We cannot so declare. Plaintiff obligated itself by the bond and mortgage to pay $500 a month in dues. So long as the loan continues it is beyond the power of plaintiff to withdraw the value of the stock. It has the right to pay the loan off in full at any time, and if desired, when such payment is made, the value of the stock may be credited to the loan. It may not elect to regard the monthly payments as direct payments on the mortgage debt and thereby secure a reduction in interest and premium.

Decree.

And now, May 20, 1931, it is ordered and decreed: First, that plaintiff may at any time during the solvency of the defendant association direct the defendant to appropriate the payments on the stock to the mortgage loan; and, second, plaintiff is not entitled to have the interest and premium reduced by reason of the payments made on account of the stock, but stands obligated until the loan is paid in full to pay the full amount of interest and premium, which in the mortgage it agreed to pay.


author: Kun, J.,

text:
    Wasserman v. Steinman et al.

      Walter D. Stewart, for plaintiff; Levick & Wexler, for defendants.
    March 20, 1931.
   Kun, J.,

Plaintiff filed suit to recover from the defendants the sum of $5500. An affidavit of defense in lieu of demurrer was filed by the defendants and sustained, and judgment was entered in their favor. Plaintiff having taken an appeal, it is now necessary to set forth the reasons for our action.

Plaintiff based his claim on the alleged breach of contract between the parties, copy of which is attached to plaintiff’s statement of claim as Exhibit “A.” This contract was entered into on December 13,1928. Under its terms defendants agreed to convey to the plaintiff a certain piece of real estate, in exchange for which plaintiff agreed to convey to the defendants a certain other piece of real estate, and, in addition, plaintiff agreed to pay to the defendants the sum of $50,000 in cash, of which $5000 was required by the agreement to be paid at the execution of the agreement.

The following provisions appear in the agreement: “Settlement is to be made within ninety days from the date hereof, said time to be the essence of this agreement, unless extended by mutual consent in writing endorsed thereon,” also, “said party of the second part [the plaintiff] shall have the privilege if he so desires of one extension of the time for settlement under this agreement for an additional thirty days upon payment of $500.00, and of a second extension' of thirty days upon payment of $500.00, which payments are in lieu of adjusting the carrying charges on the property at 47th and Walnut Streets, Philadelphia, Pa., as of the date of original expiration of this agreement.”

The plaintiff set forth in his amended statement of claim that, following the execution of the agreement, he paid the deposit of $5000 in accordance with its terms, and, further, the sum of $500 “for an oral extension thereof, which was mutually agreed to by the parties.” How or when that further sum was paid or what the “oral extension” was, is not pleaded. Under the plain terms of the agreement there could be no extension of the time for settlement to be made thereunder “unless extended by mutual consent in writing endorsed thereon.” As to a further allegation that “the time of settlement as provided for in the agreement was extended from time to time by mutual consent of the parties,” etc., likewise, there is no allegation as to when, how or for what consideration such alleged extensions were agreed upon and to what times, and, moreover, nothing was pleaded to amount to a waiver of the plain terms of the written agreement as to the limitation of time when settlement was to be made thereunder, which said time was expressly agreed to be the essence of the agreement, and was not to be extended unless by mutual consent in writing endorsed thereon. It was also alleged that on April 20, 1929, the defendants, through their attorney, “elected to continue in force and effect” the agreement referred to, serving notice thereof on the plaintiff. The foregoing is made the basis of the plaintiff’s claim to recover his deposit money in a suit filed July 21, 1930, fifteen months after the expiration of the agreement, without any allegation of a tender of the balance of the purchase money due by the plaintiff to the defendants under the agreement or any other offer to perform his part of the agreement at any time.

The plaintiff has clearly failed to set forth a cause of action. Giving effect even to the insufficient allegation of the payment by the plaintiff to the defendants of the further sum of $500 as a payment for an extension, the agreement by such payment could not be extended for more than thirty days from March 13, 1930, which would make the expiration date of the agreement April 13, 19'30. So far as can be gathered from the pleadings, nothing was done by the plaintiff on the last mentioned date or thereafter to carry out his part of the agreement to pay the balance of some $45,000 to the defendants. The plaintiff was plainly in default and was in default fifteen months thereafter when he filed this suit. The plaintiff makes a rather nebulous contention in the case. Because the defendants gave notice to the plaintiff following his default that they would hold him liable for the full balance of the purchase money, plaintiff now claims the right to recover his deposit, without any tender of the balance due by him and while he is in default. Though defendants had given such a notice to the plaintiff, yet they could not have recovered the balance of the purchase price under the agreement from the plaintiff had they not first tendered performance of the agreement on their part. The fact that they gave such a notice, not acted upon by either party, did not amount to an election of remedies so as to bind the defendants and preclude them from pursuing a different course: 34 C. J. 33, § 24. Even had the defendants commenced legal proceedings against the plaintiff to recover the balance of the purchase price, they could have discontinued such proceedings and followed any other course allowed to them by the law: Holt v. McWilliams, 21 Pa. Superior Ct. 137. After giving the notice to the plaintiff that they would hold plaintiff for the balance of the purchase price, it appears defendants took no action against the plaintiff. Instead, the plaintiff having defaulted, defendants sold their property to another. The date of this sale is not mentioned in the statement of claim.

It is plain to the court that plaintiff has not set forth a good cause of action. As stated, the most favorable construction which can be placed upon plaintiff’s pleading is that his time for settlement was extended to April 13, 1930. There is no allegation of any tender or offer of performance on plaintiff’s part on that date or at any time thereafter, or of any waiver of such requirements.

Where time of settlement is agreed to be the essence of an agreement unless extended by mutual consent in writing endorsed thereon, the extension of time for settlement procured by such additional deposits as required does not destroy the provision that time is the essence of the agreement. The time is extended, but it is still the essence of the agreement: Mansfield v. Redding, 269 Pa. 357.

In Doughty v. Cooney, 266 Pa. 337, which went up from this court, there was a bill by the purchaser for specific performance of an agreement for the sale of real estate. The answer filed set up the fact that the plaintiff had not offered to perform within the time fixed for performance, which time was the essence of the agreements by their terms. There was no allegation in the bill that the defendants waived the time in which the agreements were to be performed. The ease was disposed of on bill and answer. The bill was dismissed and the action of the court was affirmed, the Supreme Court saying: “When parties have deliberately by their agreements or covenants fixed a time for the performance of an act, a court of equity will be very cautious how it interferes in disregard of it, and thus in effect change the contract which the parties have made.”

Plaintiff having defaulted in' the performance of his contract with the defendants, time being the essence of the contract, plaintiff was in no position to assert any right thereunder while in default, and if thereafter the defendants sold their property to another, the plaintiff cannot now recover his original deposit: Dluge v. Whiteson, 292 Pa. 334; Shilanski v. Farrell, 57 Pa. Superior Ct. 137; Sanders v. Brock, 230 Pa. 609.

The case of Romm v. Lobosco et ux., 95 Pa. Superior Ct. 373, upon which plaintiff seems to rely so much, really supports the contention of the defendants, being in harmony with all the legal principles on the subject which have been referred to. The purchaser in that ease having defaulted, vendor having a judgment note for $1000, entered judgment on it. The right of the vendor to do so was sustained, although there was a question of waiver involved in that case.

There is no question of a waiver presented in the case before the court. The case is a plain and simple one. When the time came for the performance of the agreement between the parties under which the plaintiff was required to pay the balance of $45,000 in cash, he did nothing then or thereafter. The plaintiff having defaulted, the defendants sold their property to another. In these circumstances, the plaintiff has no right to recover his original deposit.

The affidavit of defense in lieu of demurrer was properly sustained.


author: Stewart, P. J.,

text:
    Hahn v. Efkovich et ux.

      Herbert F. Laub, for plaintiff; Victor J. Abel, for defendants.
    July 21, 1930.
   Stewart, P. J.,

The following is a summary of the facts:

The plaintiff owns two tracts of land, containing 108 acres, in the Township of Lower Nazareth, upon which he resides. The defendant, Annie Efkovich, is the owner of a tract of unenclosed woodland, containing 1.95 acres of land, which adjoins plaintiff’s land. On this unenclosed woodland there is a lane or driveway about nine or ten feet wide, extending from the public road southwardly 368.48 feet to plaintiff’s lane. This lane or driveway has existed for more than twenty-one years prior to the filing of the bill and has been used, whenever they wished to use it, by plaintiff, his family, his employees, his predecessors in title, their tenants and the public generally. The defendants barricaded said lane or driveway and have interfered with plaintiff’s use of the same.

We granted a preliminary injunction in this case. When it came to the hearing, by agreement entered upon the record, the parties agreed that the hearing should be a final one. The case is in a very narrow compass. The testimony leaves no doubt in our mind but what the plaintiff would have a perfect right to this lane or driveway if it were laid out over arable land. He produced upon the witness-stand neighbors and prior owners and tenants of his property, who testified as to the use of the lane or driveway for more than twenty-one years by themselves, by their tenants and by others. Plaintiff testified that he knew of its use personally for over twenty-three years last past, and one of his witnesses said that it was in the same condition that it now is for forty-five years. Even one of the defendants’ own witnesses testified that he had used it for thirty-six years. Eight witnesses testified as to their personal knowledge of the use of the lane for over twenty-one years, and that use was by the owners, the tenants and anyone who had occasion to go in and out from the farm now owned by the plaintiff. Under the authorities, the mere fact that one of the plaintiff’s witnesses testified that he had asked the then owner of defendants’ property to use the lane and that he replied he could use it as long as he owned it would not defeat the present claim. At the most, it would merely east the burden on the plaintiff, the present owner, to rebut the presumption of grant. Under the decisions, their testimony was ample with respect to use and length of time. It is unnecessary to cite many authorities. In Garrett v. Jackson, 20 Pa. 331, Mr. Chief Justice Black said: “A passage by one man over the land of another, with the special permission of the owner on every occasion of its use, will not raise the presumption of a grant, no matter how often it may occur, nor how long continued. So a license to use the road for a certain defined period, and the enjoyment of it under such license, will give no right after the expiration of the time. But where one uses an easement whenever he sees fit, without asking leave, and without objection, it is adverse, and an uninterrupted adverse enjoyment for twenty-one years is a title which cannot be afterwards disputed. Such enjoyment, without evidence to explain how it began, is presumed to have been in pursuance of a full and unqualified grant. The owner of the land has the burden of proving that the use of the easement was under some license, indulgence, or special contract inconsistent with a claim of right by the other party.” To the same effect, see Pierce v. Cloud, 42 Pa. 102; Hudson v. Watson, 11 Pa. Superior Ct. 266. However, those decisions do not apply to unenclosed woodland like the land in suit. On April 26, 1850, a law was passed, the twenty-first section of which provides: “That no right of way shall hereafter be acquired by user, where such way passes through unenclosed woodland; but, on clearing such woodland, the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing or enclosure.” That act first came before the Supreme Court in the case of Brake v. Crider, 107 Pa. 210. That case decided that one cannot acquire a right of way over unenclosed woodland unless the evidence shows that the right of way has been acquired twenty-one years prior to September 25, 1850. In Kurtz v. Hoke, 172 Pa. 165, practically the same situation, with respect to the location of the properties and their character, was pi'esented as in this case. The syllabus of the case is: “Prior to the act of April 25, 1850, sec. 21, P. L. 572, which declared that no prescriptive right to a road through uninclosed woodland should thereafter be acquired, a person could acquire by continuous use for twenty-one years a right to a way through uninclosed woodland, and mere immaterial changes in the roadbed caused by washing of rains and time did not interrupt the continuity of the use, if the road substantially remained the same road.

“Since the act of April 25, 1850, declaring that no prescriptive right to a road through uninclosed woodland should thereafter be acquired, a right by continuous use for twenty-one years of a way over arable land does not draw with it a right of way over uninclosed woodland belonging to the owner of the arable land and adjoining such land.”

We have not considered defendants’ contention that the plaintiff is not entitled to the present right of way because he had other means of access to his farm. There is nothing in such a contention. A man may have many means of access to his farm, and he cannot be deprived of the right to use any of them by a simple command, “Use your other rights of way, because they are enough, and leave mine alone.” If he has a right to use another man's land for a passage over it, that ends the matter. In the present case, the plaintiff is only deprived of his right by reason of the fact that the defendant’s property is unenclosed woodland.

And now, July 21, 1930, this cause came on to be heard at this term upon final hearing, and upon consideration thereof, it is ordered, adjudged and decreed that the relief prayed for in the bill be denied and that the bill of the plaintiff be dismissed, at the costs of the plaintiff. The prothonotary will enter this decree nisi and give notice of same to parties or their counsel, and if no exceptions are filed within ten days, this decree shall be entered by him as a final decree. , From Henry D. Maxwell, Easton, Pa.


author: Smith, P. J.,

text:
    Lanin v. Salford Building and Loan Association.

      Isaac S. Grossman, for plaintiff; William, Kendall, for defendant.
    June 25, 1931.
   Smith, P. J.,

The plaintiff filed a bill in equity, saying that he is the owner of ten shares of stock in the Glad Hand Building and Loan Association upon which he had paid $600 up to and including January 1, 1931; that on January 14, 1931, the Glad Hand Building and Loan Association merged with two other building and loan associations, the merged corporation being now known as the Salford Building and Loan Association; that the plaintiff did not consent to this merger, and on February 17, 1931, in this bill in equity has demanded payment of his stock as of January 14, 1931, the date that the merger became effective, averring that the defendant has failed to pay the same; that on the date of the merger the value of the plaintiff’s stock was in excess of the amount of dues paid in by him; and plaintiff asks for relief, that the merger of the building and loan associations be declared illegal or that the Salford Building and Loan Association pay to the plaintiff the full value of his stock as of the date the merger became effective.

To this bill in equity the defendant filed preliminary objections, to the effect that the averments in the bill were tantamount to conclusions which are questions for the law side of the court; that the averments are vague and irrelevant, in that the plaintiff has failed to aver that he was present at the stockholders’ meeting and voted against the merger; that the plaintiff failed to set forth the specific value of the stock and how the valuation of the stock was determined; that the plaintiff failed to institute his action within thirty days after the merger, as required by law; that there is an adequate remedy at law; and prays that the matter be certified to the law side of the court under the Act of June 7, 1907, P. L. 440, and Rule 49 of the Rules of Equity Practice, so that the issue may be there determined.

The merger of the Glad Hand Building and Loan Association with the other two building and loan associations was approved by the Governor of the Commonwealth on December 12, 1930, and is regular on its face.

The plaintiff did not appear at the meeting of the stockholders of the Glad Hand Building and Loan Association, called for the purpose by proper advertisement, and did not agree to the merger.

A consideration of the Act of May 29, 1901, P. L. 349, shows that it can be invoked only by those stockholders of a corporation who were present and voted against the merger. In the case at bar, the plaintiff was not present at the meeting of stockholders called for the purpose of voting on the proposed merger, and no proxy had been given to anyone to register his dissatisfaction. The Act of May 3, 1909, P. L. 408, section 5, contains the same provisions as the Act of 1901 for the stockholder who was present and voted against the merger. Neither of these acts contemplates the rights of a stockholder who failed to note his dissatisfaction with the merger. Therefore, the plaintiff is not bound by the provisions of these acts. In the case of Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42, Lowrie, J., said (page 48):

“The contract of consolidation is an act of dissolution in form and substance of the Lebanon company, and the corporation cannot, in the act of dissolution, dispose of the rights of its members. The act of dissolution, like the act of association, is not a corporate act, but an act of the members of the corporation. They may commit to their officers the business of effecting it in all its details, but they are not required to do so by the terms of their association, and in effecting such a purpose the officers would be rather trustees of the members than corporate functionaries. Then it follows, quite obviously, that no corporate act can settle the terms of dissolution, or distribute the effects among the members, and that this company cannot decide what the plaintiff shall take for his interest.
“The act of dissolution works a change in the form of the interests of its members, by destroying the stock, and substituting the thing which the stock represented, that is, a legal interest in the property, and leaves the members to such a division of this. But this property is indivisible, and therefore we see no objection to the act of the legislature so far as it allows the majority to dispose of it in the way proposed, except that, under the constitution, they cannot be allowed to divest or embarrass the plaintiff’s interest therein without first giving security therefor. The act of transfer and dissolution is one. If carried into effect, it destroys his stock.”

In Pottsville Bank v. Minersville Water Co., 211 Pa. 566, Mr. Justice Elkin said (page 571) :

“These authorities indicate that the rules of law applied by the courts to acts done by directors or officers of corporations relating to the dissolution thereof are the equitable principles governing trustees or others acting in a fiduciary capacity. Our courts have long recognized this principle in dealing with partners.”

The rights of the plaintiff not being controlled by the Acts of 1901 and 1909, he is not compelled to abide by the restrictions of procedure therein contained. There is apparent no objection to the merger or consolidation of the various building and loan associations, but the plaintiff has not lost his right as a stockholders of the association of which he was a member to have the actual value of his stock fixed at the time of the merger to which he has not assented. A consideration of a building and loan association as a legal entity shows that it has the rights, powers and limitations of a corporation, but that the shareholders thereof in their relationship each to the other are bound by the ties of a partnership.

The merger or consolidation of the building and loan association, therefore, as to this plaintiff, amounts to a dissolution of the association that has lost its legal title by merging with another association under a different name. With such dissolution, the rights of non-assenting stockholders of a corporation become fixed as to the corporation itself, and also to some degree as to the shareholders of the Salford Building and Loan Association with which it became merged.

By the merger, all the rights and obligations of the merging corporation, with the resolutions of its stockholders, became the property and obligations of those shareholders of the Salford Building and Loan Association who had been partners in the Glad Hand Building and Loan Association, and the Sal-ford Building and Loan Association in so far as it is financially affected by the contribution of the Glad Hand Building and Loan Association to the merger.

The real problem here is what may be his right for the payment of the value of his stock with regard to the rights of his former partners of the dissolved association?

Vol. 8 Thompson on Corporation, third edition, § 5970, says, that while under a reorganization agreement and arrangement, the property, assets and franchises of the old corporation, as well as its rights and liabilities, may be transferred to the new organization, yet the old for certain purposes may continue to have a legal existence.

The Act of April 29, 1874, P. L. 73, makes provision for a withdrawing stockholder from a building and loan association. The dissolution of the association by a merger obviates the necessity for the notice of withdrawal contemplated by the act. It must be manifest that in equity it would be unfair to permit this plaintiff to be paid what he claims is the value of his stock, as against the other stockholders who went with the merger, without first having had determined what was the financial status of the Glad Hand Building and Loan Association before the merger, and the value of his stock in that association at that time. If the building and loan association were a corporation with none of the attributes of a partnership relation between the shareholders, the problem would not be difficult. But the partnership relation between the shareholders cannot be ignored. The partner who stands idly by with notice of a proposed merger cannot, as against his fellow shareholders, claim any higher rights than a stockholder who makes a proper demand for the withdrawal value of his stock from his building and loan association. Under the provisions of the Act of 1874, this right to withdraw at the time of the merger becomes fixed and determined, but he is bound to a procedure against the Sal-ford Building and Loan Association, the holder of the property of the Glad Hand Building and Loan Association, in which the plaintiff had an interest at the time of merger, for collection of his withdrawal value, the same as any withdrawing shareholder of a building and loan association.

Decree nisi.

And now, to wit, June 25, 1931, the preliminary objections to the bill in equity, in so far as they object to the right of the plaintiff to proceed in equity for the withdrawal value of his stock in the Glad Hand Building and Loan Association, are sustained and the matter is certified to the law side of the court so that the plaintiff may there institute such action.

Costs to be paid by the plaintiff.


author: O’Hara, Deputy Attorney General,

text:
    Salaries of County Superintendents of Schools.
    January 30, 1931.
   O’Hara, Deputy Attorney General,

We have your request under date of January 28, 1931, to be advised whether the minimum salaries prescribed by the Act of May 18, 1911, P. L. 309, section 1210 (8), for county superintendents of schools are affected where there has been an increase in population in any county of this Commonwealth, as evidenced by the last decennial census, and if affected thereby, the date when such change became effective.

In our view of the law, it is not necessary for the determination of the question submitted to decide when any such change in population became effective. In view, however, of the necessity of determining this question in many instances in the administration of the school law by your department, you are advised that it is not the mere existence of the fact of population which will govern its application, but its legal and official ascertainment. A county once having its status as to population settled retains it until it is legally and officially ascertained to have been changed. Such change in population of any county of this Commonwealth became effective on December 13, 1930, the day on which the Census Bureau of the United States Department of Commerce officially promulgated the 1930 census figures for Pennsylvania: Lewis v. Lackawanna County, 200 Pa. 590, reversing Lewis v. Lackawanna County, 17 Pa. Superior Ct. 25; Com. ex rel. v. Walter, 274 Pa. 553, 556.

County superintendents of schools were elected pursuant to the Act of May 18, 1911, P. L. 309, as amended, on the second Tuesday of April, 1930, to serve from the first Monday of July, 1930, for a term of four years from that date. Their duties are fixed by statute. After qualifying by subscribing to or taking a prescribed oath or affirmation, they may not be removed from office, except in the manner therein set forth and for statutory cause.

Under the principles stated by the Supreme Court in Com. ex rel. v. Moore, 266 Pa. 100, they are public officers within the meaning of article three, section thirteen, of the Constitution of Pennsylvania, which provides that:

“No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.”

The salary of a public officer is fixed as of the date of his election, and if the change in a classification affecting his office postdates his election, an increase in salary cannot be allowed. This has been flatly determined by the Supreme Court in a number of cases, among which are Com. ex rel. v. Walter, supra, and Com. ex rel. v. Moore, supra.

Therefore, no increase may be allowed in the salary of any county superintendent of schools who was elected or appointed to office prior to December 13, 1930.

From C. P. Addams, Harrisburg, Pa.


text:
    Assistant County Superintendents of Schools.
    February 20, 1931.
   O’Hara, Deputy Attorney General,

We have your request to be advised whether an assistant county- superintendent of schools holds office during the entire term for which the county superintendent who appointed him was elected, or whether the term of the assistant superintendent expires if and when the county superintendent resigns during the term for which he was elected.

Assistant county superintendents are appointed under section 1127 of the School Code (Act of May 18, 1911, P. L. 309), which provides that they shall he nominated by the county superintendents, and that the nominations, when confirmed as therein provided by the officers of the county school directors’ association, shall be appointments “until the end of the county superintendent’s term of office.”

Section 1129 of the School Code deals with the removal of assistant superintendents. It provides that:

“Upon the written charges and recommendation of the county superintendent, or of the majority of the members of each of three boards of school directors whose schools are under the jurisdiction of the county superintendent, assistant county superintendents of any county may, after a hearing, be removed by the Superintendent of Public Instruction, for the same cause and in like manner as a county superintendent is removed.”

The removal of county superintendents is governed by section 1119 of the School Code, which is as follows:

“Any county superintendent may be removed by the Superintendent of Public Instruction, at any time, for neglect of duty, ineompetency, intemperance, immorality, or other improper conduct as well as for the violation of any of the provisions of this act: Provided, That before any county superintendent shall be removed, he shall be given a hearing, of which he shall have reasonable notice, together with a statement of the charges preferred against him.”

Does the language of section 1127 mean that the appointment of the assistant county superintendent ends with the incumbency of the county superintendent making the appointment, or does it mean that the assistant’s term is that for which the appointing county superintendent was elected as provided by section 1105 of the School Code, as amended by the Act of April 23, 1923, P. L. 349?

While the office of assistant county superintendent is filled by conditional appointment by the county superintendent, nevertheless, the power vested in the county superintendent to appoint, in this instance, does not imply the power to remove such assistant county superintendent. Such removal must be in accord with the provisions of section 1129, above quoted. That is to say, after appointment by the county superintendent, confirmation by the officers of the school directors’ association, and issuance of his commission by the Superintendent of Public Instruction, an assistant county superintendent may be removed only by the quasi-judicial method provided by section 1129, and for due cause shown.

There is reasoned authority for holding that an appointment during the term of the appointing officer ends with the incumbency of the appointing power: See State, ex inf. Major, v. McKay, 249 Mo. 249, 155 S. W. 396, where an official court stenographer was appointed to “hold his office during the term of the judge appointing him,” and it was held, by a divided court, that “the official term of the stenographer for such judge is the term of actual service of the appointing judge.”

However, that case differs from the situation we are discussing, for in this instance the statute creating the office, providing the manner of filling it, and the term of office, also provides that the appointee may be removed only for certain specified causes, upon information and recommendation of the county superintendent or of the majority of each of three school boards of the county, and after hearing, by the Superintendent of Public Instruction.

In addition, the assistant county superintendent owes a trifold duty under sections 1131 and 1132 of the School Code: (1) To the county superintendent, to supervise and direct the work of the schools; (2) to the boards of directors to inspect school property, grade the schools, and secure uniformity in courses of study; (3) to the Superintendent of Public Instruction to direct or conduct examinations, etc., when required.

His duties are prescribed by law: He is subject to direction or request of officers other than the county superintendent, and his responsibility is not single and personal to the county superintendent.

Accordingly, we advise you that the term of an assistant county superintendent of schools does not end automatically with the resignation of his county superintendent; he is entitled to serve until the end of the term for which the county superintendent was elected, unless sooner removed under the provisions of section 1129 of the School Code.

Prom C. P. Addama, Harrisburg, Fa..


author: Patterson, P. J.,

text:
    McKnight v. Kling.

      John J. Haberstroh, for plaintiff; Robert A. Henderson, for defendant.
    July 17, 1930.
   Patterson, P. J.,

This is a rule to show cause why a judgment to No. 163, January Term, 1929, in the Court of Common Pleas of Blair County, wherein C. C. McKnight is plaintiff and William Kling, Sr., is defendant, should not be opened and defendant allowed to put in his defense.

On January 20, 1928, the parties plaintiff and defendant entered into a written lease agreement for certain premises known as Cross Keys Inn, situate in the Township of Allegheny, County of Blair and State of Pennsylvania, for a term of one year at a rental of $780, payable at the rate of $65 per month. The defendant occupied the premises until some time early in the following year, 1929, when he was prosecuted for violating the liquor law and committed other acts which the plaintiff alleges were contrary to the terms of the lease and in effect a forfeiture of the same. On February 6, A929, plaintiff, through his counsel, confessed judgment to the above stated number and term for rent in the sum of $477, being the amount due for the full term of the lease from October 20, 1928, to the end thereof, averring that this amount is due as a result of the breach of contract on the part of defendant. Defendant, however, contends that he owed rent amounting to $152 on January 21, 1929. On January 19th he received a notice from plaintiff to vacate and remove from said premises within ten days thereafter, and on the following day and pursuant to said notice he withdrew from said premises and was, therefore, relieved from the payment of rent on and after that date. ■

The testimony on the part of the plaintiff is to the effect that defendant had removed his goods and vacated the premises with the exceptions of several items of personal property on January 17th, or two days before receiving the notice from plaintiff. The plaintiff testifies that he did not get possession until June 20, 1929, and that judgment was entered for the amount due to that date.

The lessor will not be permitted to terminate a lease and collect rent for the full term. Neither can a tenant by his unlawful acts work a forfeiture and escape liability for the rent for the full term. It is an undisputed fact that this lease was terminated, either by defendant or plaintiff or by both parties. The judgment should be opened and defendant allowed to put in his defense and the questions at issue between the parties shall be:

(1) Did the lessee, by his unlawful acts, forfeit his right to the premises and make himself liable for the rent for the unexpired term of the lease?

(2) Did the lessor, by serving notice on lessee on January 19, 1929, terminate the lease as of that date and thereby bar his right to recover rent after January 21, 1929, or did he have a right to serve the notice to quit and collect the amount of rent due for the unexpired term of the lease?

(3) Did both parties to this lease terminate the same, and if so, what day was such termination effective?

(4) ' What rent is now due and unpaid, if any?

Rule to open judgment is hereby made absolute, and defendant allowed to put in his defense in accordance with the prayer of the petition. No other pleadings to be filed, and the cause to be tried upon the petition and answer as though a statement of claim and affidavit of defense had been filed.

Prom Robert W. Smith, Hollidaysburg, Pa. '