author: Reed, P. J.,

text:
    Commonwealth v. Graser.

      Harry Felix, for Commonwealth; Isadore Stem, for defendant.
   Reed, P. J.,

O. C., 47th judicial district, specially presiding, Jan. 8, 1931.— On Oct. 24, 1930, Ferdinand H. Graser having pled guilty on indictments Nos. 532 and 533 of May Sessions, 1930, of embezzlement by trustee, in order that the court might determine what would be a just and conscionable sentence for the defendant, we permitted several witnesses to be called, who testified in his behalf.

At the close of the offer on behalf of the defendant, the court deemed it proper to defer sentence until after the evidence had been transcribed and fully analyzed and considered, and it was then announced that after that had been done the court would write an opinion and fix the time for the defendant to appear for sentence.

The defendant called no less than fourteen eminent and reputable citizens of the City of Philadelphia, all of whom testified that, prior to the time he misappropriated the funds entrusted to his care, he bore an enviable reputation; that, so far as they knew during the many years they had associated with him, he had conducted himself in such a manner as to give him a sterling character and a reputation for honesty that had never been questioned.

The evidence also discloses the fact that the defendant had been a member of one of the leading churches in the City of Philadelphia; that he had occupied the highest position that could be conferred upon him in this church, and frequently took charge of and conducted services in said church.

The defendant is most fortunate in having such an array of reputable and outstanding men who were willing to take up his cause for the purpose of having the court suspend sentence and place him on parole, and we wish to say that the court does not have the slightest doubt as to the good intentions and the sincerity of each and every one of the witnesses who appeared before it and gave their reasons why the defendant should not receive a prison sentence; but in the final analysis, evidence of this kind should only go by way of mitigation of sentence and not to the extent of permitting a defendant to go unpunished if the crime or misdemeanor which he committed deserves punishment at the hands of the court.

The uncontradicted evidence is that on Dec. 5, 1924, Ferdinand H. Graser was appointed trustee for Laura D. Stroud Ladd under the will of William C. Stroud, deceased, in place of George Burnham, Jr., deceased, security to be entered by the said trustee in the sum of $150,000. The powers to be exercised over the fund for which he was made trustee were as follows:

“To invest, re-invest, alter, vary and change investments and re-investments, without being obliged to confine investments or re-investments to what are technically known as ‘legal securities,’ it being my will that my trustees shall have the power to invest in any form of security, other than in shares of corporate stock, which they shall deem wise.”

It will be noted that the power over the investments on the part of the trustee prohibited the investment in “shares of corporate stock,” but the defendant, utterly disregarding this inhibition or restraint placed upon his powers, took the securities which he held in trust and hypothecated them in order to raise money to purchase stock, in his own name, of a corporation in which he was one of the principal officers, the amount of the value of these securities misappropriated in this particular ease being of the sum of upwards of $150,000, and in another instance being of the sum of $70,000; and as there is nothing before the court which would warrant it in finding that if the venture had been successful the defendant intended to give the cestui que trust the advantage of the gain which would have been reaped from the enterprise in which he invested the money realized from the hypothecation of this stock, therefore, it appears that there was a willful violation of the Act of March 81, 1860 [P. L. 382, § 113], which reads as follows: “If any person, being a trustee of any property for the benefit, either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same, or any part thereof, to or for his own use or purpose, or the use or benefit of any other person, or shall, with intent aforesaid, otherwise dispose of or déstroy such property, or any part thereof, he shall be guilty of a misdemeanor.”

It is admitted that the defendant enjoyed a high degree of intelligence and evidently had considerable business experience, and his social standing was such that he must have known (although ignorance of the law excuses no one) that he was abusing the trust conferred upon him and violating the law when for his own gain he appropriated the securities belonging to the cestui que trust to obtain money to buy stock in a corporation in which he was interested.

Of course, the plea of guilt warrants the court in holding that he is guilty of embezzlement, and the only things for it to consider are the extenuating circumstances, if any, that should cause a mitigation of sentence. The most unpleasant duty a court has to perform is the imposing of a sentence. I assume that it is not pleasant for any judge to send a defendant to prison, yet the court would be derelict in his duty if, when the occasion arises that a defendant should be punished for a crime or misdemeanor, he failed to mete out such punishment as he deems proper to protect society and vindicate the laws. I believe that a study of the history of punishment, as far as criminal jurisprudence is concerned, will establish beyond a doubt that there are two major reasons for the infliction of punishment upon the criminal. The one specific purpose is to prevent a repetition of the crime, and in this particular instance we do not hesitate to say, from the appearance of the defendant and the testimony of his witnesses, that there will be no cause to inflict punishment for the purpose of preventing the repetition of a crime by him. The other specific purpose is to deter others from committing like offenses, and in a case like this, where a defendant has misappropriated securities to the value of $226,000, we are afraid that if he were to be placed on parole or the sentence suspended it would only be an invitation to others who are placed in similar positions of trust to likewise convert or appropriate trust funds to their own use.

At the time of the hearing, the .court asked a number of the witnesses the question: “Do you think we should be more lenient to him [the defendant] because he is a man of high standing in his community?” The answers were pretty generally, “No question he got the money, as I understand it, and put it in the business.” However, the witnesses tried to impress the court with the fact that due to the defendant’s social position and standing in the community in which he resided he has suffered sufficiently, mentally, for his misdemeanor, and that because he has so suffered he should not receive a prison sentence. Against probity, honesty, trustiness and faithfulness there is no law, and, hence, there is no punishment; but as against dishonesty and unfaithfulness there are laws, the purpose of which is to mete out proper punishment to those who violate them, and it becomes the unpleasant duty of the court to impose proper sentences in order to protect society and punish the wrongdoer. Of course, in the event that the court errs in its judgment and inflicts a sentence that is too severe, the defendant always has his remedy by taking an appeal to the Pardon Board. This court does not see why it should discriminate between a man of low degree and high degree; in other words, we should not have one code of laws for the poor man, or the man of low degree, and another code for the rich man, or the man of high degree, and we. should not permit social standing to cause us to discriminate in the meting out of justice; if we were to differentiate in any manner, it should be in favor of the man who has lacked- an opportunity to discern the difference between right and wrong instead of in favor of the man who has had every opportunity to know what is right.

It is needless to discuss this matter further, and we are not writing this opinion in an apologetic mood, but we thought it due to the defendant and his friends that the court express its convictions as to why it cannot accede to their requests that the defendant be paroled.

Therefore, after reading and fully considering all of the evidence submitted on behalf of the defendant to be placed on parole or to have sentence suspended, we deny the application and order the defendant to appear for sentence on Jan. 8, 1931.


source: Caselaw Access Project

author: Alessandroni, J.,

license: Public Domain

text:
    Bittner v. Ellick.

      L. E. Weiss, for plaintiff; A. A. Feldman, for defendant.
    Oct. 18, 1930.
   Alessandroni, J.,

Judgment was entered of record in an

amicable action upon a copy of a judgment note in the sum of $1300, the said judgment note acompanying a contract. An affidavit was filed at the same time, stating that the original contract and judgment note had been stolen, lost or destroyed and that the copy filed is a true and correct copy of the original. This affidavit was sworn to by the plaintiff. An attorney entered his appearance for the defendant and confessed judgment against her.

The motion to strike off judgment alleges several reasons. It is first averred that the prothonotary had no authority to enter judgment on a copy of an instrument without the production of the original. .It is sufficient to state here that this judgment was not confessed by the prothonotary under the Act of 1806, but was confessed by an attorney for the defendant in an amicable action in accordance with the warrant contained in the judgment note.

It is also objected that neither the attorney for the plaintiff nor for the defendant has a warrant of attorney in his possession. This really raises the question as to the right of a plaintiff to confess judgment on a copy of a warrant contained in a judgment note where the original has been lost, destroyed or stolen. In Mahoney v. Coliman, 293 Pa. 478, this question was discussed and the right upheld, the court stating: “As stated in Snyder v. Wolfley, supra [8 S. & R. 328], ‘there never was a time when recovery might not be had in a court of common law, on an unsealed security which was proved to be destroyed.’ , . . If, then, one may sue at law on a lost instrument, there is no reason why he should not avail himself of every part of that instrument, and, if a warrant of attorney to confess judgment is part of the note, judgment may be confessed and entered on the lost warrant. Such practice does not deprive the debtor of any defense; he may, on petition and for cause shown, have the judgment opened, and in this way every defense that would have been- open to defendant in a suit at law becomes presently available. He may challenge every essential element that goes to make up the original note. In point of fact, the case resolves itself into one of practice in the commencement of an action, the result in both proceedings being the same. As a matter of practice, the confession should be accompanied by an affidavit showing that the original was lost, destroyed or stolen, and that the attached copy is a true copy, and this affidavit should be by one knowing the circumstances. In some counties the rules of court require the original note to be filed with the amicable action and confession. These rules, carrying out the suggestion of this court in an early case, apply where the note is in existence; and where it is not, the next best evidence is the copy on which judgment may be entered as here indicated.”

It is also averred that the judgment should be stricken off because of noncompliance with Rule 137 of the Common Pleas Court, in that plaintiff has not filed “a statement of the cause of action signed and sworn to by the parties or their attorneys.” Defendant has overlooked the exception which is contained in this rule which states “but this rule shall not apply to judgr ments on warrants of attorney filed.” Under the decision in Mahoney v. Coliman this exception would also apply to the case before us.

Rule 139 of the Common Pleas Court states: “Where the warrant of attorney constitutes an integral part of a lease or other original contract, it shall be sufficient to file a copy of the lease or contract.” The contract to which the warrant contained in the judgment note is attached stated that the “judgment note shall become part of this agreement.” The mere fact that a perforated line appeared between the contract and the judgment note cannot, as contended by the defendant, overcome this express incorporation of the note in the contract.

For the foregoing reasons, the motion to strike off judgment is dismissed.

And now, to wit, Oct. 18, 1930, the motion to strike off judgment is dismissed.


author: Martin, P. J.,

text:
    Batten, Assignee, v. Jurist et ux.

      Buckman & Buckman, for exceptant.

      Wolf, Block, Schorr & Solis-Gohen, contra.
    Nov. 28, 1930.
   Martin, P. J.,

Nine exceptions have been filed to the auditor’s report, and one exception to his supplemental report distributing a balance realized upon a sheriff’s sale and paid into court. The exceptions to the auditor’s report raise two questions: First, the soundness of the auditor’s findings respecting advances claimed to have been made by the mortgagee, and the present status of those advances; and, secondly, the conclusions of the auditor giving priority of lien to the advances over a subsequent lien creditor.

On June 4, 1917, Louise S. Jurist, joined by her husband, executed a mortgage for $13,000, secured upon No. 1308 North Broad Street, in the City of Philadelphia, to Henry G. Freeman, Jr. The mortgage was foreclosed and the premises were sold by the sheriff.

On June 7, 1917, Louise S. Jurist, joined by her husband, executed a mortgage on the premises to Florentine S. Sutro, to secure a debt of $5000, evidenced by a note, and “all further advances that may hereafter be made to the said Louise S. Jurist.” This mortgage was recorded on Aug. 20,1918.

From Sept. 14, 1917, until May 21, 1920, Florentine S. Sutro advanced to Louise S. Jurist ten additional sums, aggregating $15,000, evidenced by promissory notes, which are unpaid.

On June 7, 1917, Louise S. Jurist was indebted to the Northwestern National Bank and Trust Company in the sum of $1470. This indebtedness was increased, and reduced to judgment on Sept. 25, 1929.

The exceptant contends that the auditor should not have found that the ten additional loans, aggregating $15,000, were made by Florentine S. Sutro to Louise S. Jurist, and that these loans are unpaid. The notes evidencing the loans are in the possession of Mrs. Sutro, or her husband, and Mr. Sutro, who managed the business affairs of Mrs. Sutro, testified that the loans were made and are unpaid. The exceptant depended in large measure upon written representations by Mrs. Jurist given in July, 1922, in which the mortgage indebtedness on the premises was stated to be $18,000, which included the $13,000 first mortgage.

The auditor’s finding is based upon ample evidence. The written statement made by Mrs. Jurist in 1922 was hearsay so far as concerns Florentine S. Sutro. Mrs. Sutro was not a party to it and had no knowledge of the statement.

The second question raised by the exceptions is whether or not the auditor rightly distributed the balance to the Florentine S. Sutro mortgage.

The mortgage provided for future advances. The last advance was made on May 21, 1920. The lien of the exceptant dates from Sept. 25, 1929.

The auditor concluded that the balance of the fund was payable to the Florentine S. Sutro mortgage in preference to the lien of the exceptant. His conclusion is supported by reason and authority.

In Lyle v. Ducomb, 5 Binney, 585, a mortgage for future advances was held to take priority over a lien for work and materials furnished in the erection of a building, even though some of the advances were subsequent to the commencement of the building, under the then existing law, which provided that a lien for work and materials dated back to the commencement of the work.

In Moroney’s Appeal, 24 Pa. 372, a mortgage to secure future advances, dependent upon a collateral agreement not specified in the mortgage, was held good.

In Taylor v. Cornelius, 60 Pa. 187, it was held that where there is no personal assumption of liability on the part of the mortgagee to make the future advances, they would date from the time when actually made, and be postponed to a lien prior in date to the time of making the advances. The rule laid down in this last decision has been followed in Land Title & Trust Co. v. Shoemaker, 257 Pa. 213, and Moats v. Thompson, 283 Pa. 313, 320, 321.

The auditor was right in reaching his conclusions and directing payment of the fund to the Florentine S. Sutro mortgage.

The only exception to the supplemental report of the auditor is to the conclusion recommending the dismissal of the exceptions to his report. It follows that this exception must be dismissed.

And now, Nov. 28, 1930, the nine exceptions filed to the report of the auditor, distributing the balance paid into court in the above proceeding, are overruled and dismissed, and the exception to the supplemental report of the auditor is overruled and dismissed. The report of the auditor is confirmed absolutely, and the fund of $16,339.76 decreed to be paid to Florentine S. Sutro, the claimant, subject to payment! of the auditor’s fee of $500 and the costs of the suit.


author: Per Curiam,

text:
    Lucas’s Estate.

      R. M. Remick and John S. Sinclair, for exceptants.

      J. C. Murtagh and Franklin S. Edmonds, contra.

      Dec. 19, 1930.
   Per Curiam,

The thorough consideration given by the Auditing Judge, manifested by his comprehensive adjudication, in our judgment, leaves nothing more to be said with reference to the questions raised by the exceptions, which exceptions are all dismissed and the adjudication is hereby confirmed absolutely.

Lamorelle, P. J., did not sit.


author: Gest, J.,

text:
    Dunmore’s Estate.

      Sadie T. M. Alexander, for exceptant; G. A. Swayze, contra.
    Nov. 28, 1930.
   Gest, J.,

The exceptant in this case complains that the Auditing Judge did not allow him an adequate counsel fee. In Scattergood’s Estate, 2 Phila. 158, the Supreme .Court said: “We trust the judgment of an auditor, in matters like this, as we trust a jury in the assessment of damages, never disregarding the decision of either, unless in cases where the error is perfectly glarihg.” This case and many others that followed it were cited in Bergdoll’s Estate, 25 Dist. R. 102, and subsequently in Kujack’s Estate, 4 D. & C. 414. Glaring, or, at least, manifest error must be shown, and no such error appears here.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Wickersham, J.,

text:
    Vogler v. Pennsylvania Securities Commission.

      Roland U. Douglass, D. D. Storey and Hause, Evans & Baker, for plaintiff.

      Michael E. Stroup, for defendant.
    July 7, 1930.
   Wickersham, J.,

This appeal comes before the court on petition, answer and a certified copy of the record of the defendant commission.

It appears that the plaintiff was a registered salesman of Detweiler & Co., Inc.; that he was notified by the commission that, “under authority of section 17 of the Securities Act, your registration as a salesman for Detweiler & Co. is hereby suspended, and that you are notified to appear before the commission ... to show cause why your registration should not be permanently revoked.” The plaintiff appeared before the commission, testimony was taken, and on April 11, 1930, the plaintiff was notified “that at a meeting of the Pennsylvania Securities Commission held this day, your registration as an agent or salesman for Detweiler & Co., Inc., was revoked because of your violation of the Securities Act.” No formal opinion was filed by the commission, nor was the order of revocation accompanied by findings of fact and conclusions of law.

We gather from the answer filed by the commission to the plaintiff’s petition for reversal that the registration of the plaintiff was revoked because he sold class .B shares of National Water Works Corporation, of which he was the owner, which the commission maintains was in violation of the Securities Act. Upon this contention we express no opinion at this time.

It appears, however, from the record that the commission reached the conclusion that the plaintiff was selling the said stock as a dealer and not as a salesman; while counsel for the plaintiff reaches a very different conclusion. Counsel for plaintiff contends that the commission, in revoking plaintiff’s license, has not complied with the Securities Act of [April 13] 1927, P. L. 273, section 18 of which act provides (page 281) that:

“All decisions of the commission shall be in writing, signed by the chairman thereof, and shall fully state the grounds therefor.”

Counsel for plaintiff contends, and justly, we think, that the short order of the commission, dated April 11, 1930, does not “fully state the grounds therefor.”

Section 19 of the said Securities Act, relating to the practice to be followed upon appeal, provides, inter alia, as follows:

“Upon service of a summons upon the commission, returnable within ten days from its date, the commission shall, on or before the return day, file an answer, in which it shall allege, by way of defense, the grounds for its decision.”

With this requirement the commission has complied. It is further provided in said section:

“It shall also, on or before the return day of such summons, certify to the Court of Common Pleas of Dauphin County the record of the proceedings to which the petition refers. Such record shall include the testimony taken therein, the findings of fact, if any, of the commission, based upon such testimony, a copy of all orders made by the commission in the proceedings, and a copy of the action or decision of the commission which the petition calls upon the court to reverse.”

With this provision of the act the commission has not complied; it has not found the fact or facts upon which it bases its conclusion. Under the Act of 1927, the commission is the fact-finding body: Insuranshares Corp. v. Pennsylvania Securities Comm., 32 Dauphin Co. Repr. 318, affirmed by the Supreme Court of Pennsylvania, 298 Pa. 263.

As we have stated above, counsel for the petitioner reaches a different conclusion from the learned Deputy Attorney-General respecting the inferences to be drawn from the facts proven. The commission had the witnesses before it, heard their testimony, observed their manner of testifying, and is the best judge of their credibility. We think, therefore, the commission should find the facts before the court can pass intelligent judgment upon the conclusion reached in the instant case. The burden of finding the facts from the evidence should not be shifted to the Court of Common Pleas of Dauphin County. This court has not heard the evidence, has not seen the witnesses or observed their manner of testifying, and is not, therefore, as competent to pass upon the credibility of the witnesses and the weight of their evidence as is the commission.

For these reasons, the entire proceedings are referred back to the Pennsylvania Securities Commission in order that it may comply with the Securities Act of Pennsylvania (a) by finding the facts from the evidence, and (b) -that it shall fully state the grounds upon which its decision is based.

From Homer L. Kreider, Harrisburg, Pa.


author: O’Hara, Dep. Att’y-Gen.,

text:
    Advertisements for Bids by School Board.
    July 11, 1930.
   O’Hara, Dep. Att’y-Gen.,

— We have your request to be advised as to what constitutes “due notice,” under the provisions of section 617 of the School Code of May 18, 1911, P. L. 309.

This section, as amended by the Acts of July 10, 1919, P. L. 889, and May 7, 1929, P. L. 1625, provides:

“All construction, reconstruction, repairs, or work of any nature, including the introduction of heating, ventilating, or lighting systems, upon any school building or upon any school property, made by any school district in this Commonwealth, where the entire cost, value, or amount of such construction, reconstruction, repairs, or work, including labor and material, shall exceed three hundred dollars ($300) shall be done under contract or contracts to be entered into by such school district with the lowest responsible bidder, upon proper terms, after due public notice has been given asking for competitive bids: Provided, That if due to an emergency, a school plant or any part of the same becomes unusable during the school term, competitive bids for repairs or replacement may be solicited from at least three responsible bidders, and, upon the approval of any of these bids by the State Superintendent of Public Instruction, the board of school directors may proceed at once to make the necessary repairs or replacements in accordance with the terms of said approved bid or bids.”

Neither the School Code nor any general act prescribes the time and mode of giving such “due public notice” asking for competitive bids.

Under a statute requiring “due notice” of taking depositions out of the state, and not under a commission, it was held that due notice was that notice which would reasonably enable the adverse party to be present at the taking, dependent on the circumstances of each case, and must be settled by the sound discretion of the presiding judge: Harris v. Brown, 63 Maine, 51, 53.

“Due public notice” must be assumed to mean compliance with law, that is, whatever notice the law requires: Copelan et al. v. Kimbrough et al. (Ga.), 102 S. E. Repr. 162, 164.

Under the by-law of a trade union which provided for fining and otherwise punishing any member violating the law of the association, etc., and providing for a trial with “due notice,” it was held that “due notice” means notice that the accused is to be put upon trial at a specified time upon specified charges, and the notice must be given in season to afford him reasonable opportunity to make preparation to meet the charges by summoning witness in his behalf: Brennan v. United Hatters, 73 N. J. L. 729, 65 Atl. Repr. 165, 168, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cases 698.

It has been held that a notice in a newspaper is at the best but an uncertain method of communicating the knowledge of a fact, since the party to be affected may never see the paper, or if he does, may not read all the advertisements; but still it is sometimes the only practicable mode, and is, therefore, either allowed by the principles of the common law, or directed by act of assembly in particular instances: Watkinson and Another v. The Bank of Pennsylvania, 4 Wharton, 482.

Section 708 of the School Code provides that the school districts shall purchase supplies of the second class:

“. . . only after public notice has been given by advertisement, published once each week for three weeks in not less than two newspapers of general circulation: Provided, That in any district where no newspaper is published, said notice may, in lieu of such publication be posted in at least five public places. Such advertisement or notice shall give all necessary information, or give notice of convenient access thereto, in such manner that bidders can intelligently make bids for such contracts.”

The end to be accomplished by advertisement under the provisions of section 708 of the School Code is the same as that sought to be accomplished under the provisions of section 617 of the School Code, to wit, to assure competitive bids by informing interested dealers in the one case and building contractors in the other case of the proposed letting of a contract by the school district, and, in the absence of statutory provision for the time and mode of the notice required by section 617 of the School Code, the school district is justified in adopting the time and mode provided by section 708 of the School Code, unless the size and scope of the building project suggests the necessity of permitting a greater period of time for the necessary examination of the site, the plans and specifications, and preparation of the necessary data and bids, to the end that the school district may be assured of competitive bids.

In this connection, you are advised that “publication once in each week for three weeks” has been interpreted to mean an advertisement in each of three successive weeks, although the advertisements may not have been all on the same day of the week, and there may not have been twenty-one full days between the first day and the last day of such advertisements (Hollister, to use, v. Vanderlin, 165 Pa. 248; McKee v. Kerr, 192 Pa. 164) ; but the date for opening the bids may not be fixed during any day in the last calendar week during which the advertisement appears: Currens v. Blocher, 21 Pa. Superior Ct. 30.

Where a bond issue has been authorized for the purpose of financing the proposed building project, and where the public interests of the district suggest the early completion of the building, we know of no rule of law which forbids the advertisement for building bids at the same time as the advertisement for bond bids, provided the advertisement for building bids contains appropriate language reserving the right to award the contract only if the bonds are sold at a price satisfactory to the board of directors, or to reject all bids in event of failure to dispose of the bonds. The board of school directors must be the judge of the necessity and wisdom of such concurrent advertisement, and when the board’s judgment is determined by public consideration alone, it will not be reviewed by the court: Robb et al. v. Stone et al., 296 Pa. 482.

From C. P. Addams, Harrisburg, Pa.


author: Rossiter, P. J.,

text:
    Goldstein v. Marriott.

      Charles A. Mertens, Charles A. Mertens, Jr., and Benjamin Kastner, for plaintiff.

      Marsh & Eaton, de bene esse, for defendant.
    May 28, 1930.
   Rossiter, P. J.,

There are three motions here for the court’s consideration, viz., a motion on the part of the defendant to quash the writ of summons, and a motion to strike off plaintiff’s statement, and a motion by the plaintiff for leave to file an amended praecipe. The facts, briefly stated, are these: On Jan. 4, 1929, a praecipe, addressed to the clerk (prothonotary), directed the issuance of a summons. The praecipe was signed by Benjamin Kastner, who is not a member of the local bar, and who on the same date filed, in place of plaintiff’s statement, what he entitles a petition for money only. On Jan. 21st, Marsh & Eaton, members of the local bar, moved the court for leave to appear specially for the defendant for the purpose of quashing the writ and to strike off plaintiff’s statement, and later filed a motion to strike off plaintiff’s statement.

While we are convinced that the proceedings in a suit instituted and conducted by a person not entitled to practice are a nullity, and if proper steps are taken in time the suit will be dismissed, yet we are also convinced that if, in addition to defendant’s plea to the jurisdiction, he takes any other steps, he submits himself to the jurisdiction of the court: Byers v. Byers, 208 Pa. 23. When there is more than a denial that the defendant is subject to the jurisdiction or judgment of the court under an appearance de bene esse, it will be treated as a general appearance: Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33. If a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection. In the instant case the writ was issued in the name of the Commonwealth against the defendant for damages in trespass and was served in due time on the defendant by the proper officer, viz., the sheriff. Hence, under the Act of March 21, 1806, § 6, 4 Sm. Laws, 326, the suit should not be set aside, but the plaintiff should be permitted to amend. A prjecipe is amendable: Lockhart Street, 22 Pa. C. C. Reps. 363; 4 Troubat & Haly’s Practice (6th ed.), 3252. An amendment should be liberally allowed: Joynes, to use, v. Railroad Co., 234 Pa. 321, 327. Statutes of amendment are liberally construed: Wright v. Eureka Tempered Copper Co., 206 Pa. 274.

Entertaining these views, now, May 28, 1930, the rule granted April 10, 1930, to show cause why the plaintiff should not be allowed to amend the praecipe is made absolute; the rule granted Jan. 21, 1929, to show cause why the plaintiff’s statement should not be stricken off is also made absolute, and the plaintiff is given fifteen days within which to file a proper statement of claim; and the rule to show cause why the writ should not be quashed, granted Jan. 21, 1929, is discharged.

From Otto Herbst, Erie, Pa.


author: Hirt, P. J.,

text:
    Warren Library Ass’n et al. v. Miller, Collector of Taxes, et al.

      E. S. Lindsey and J. H. Alexander, for plaintiffs.

      P. E. Nelson, for defendants Miller and Warren County.

      S. D. Blackman, for defendant Warren Borough.

      John Siggins, Jr., for defendant Warren Borough School District.
   Hirt, P. J.,

6th judicial district, specially presiding, Peb. 7, 1931. — This is an action in equity before the court on final hearing, on bill, answer and testimony, in which plaintiffs seek to restrain the County of Warren, the Burgess and Town Council of the Borough of Warren and the School District of Warren Borough from assessment and collection of certain taxes. Prom the averments of the bill admitted by the answer, and from the testimony, we find the following facts:

Findings of fact.

1. Warren Library Association, a corporation of the first class, for many years has occupied, and still occupies, certain land and buildings in Warren Borough, known as Struthers Library Building, the second floor of which is, and for many years has been, used, occupied and maintained as a free public library.

2. The title to said land is in the President Judge of the Court of Common Pleas of Warren County and his successors in office, in trust- for the use, benefit and behoof of said Warren Library Association; the control and management of the same is vested in a board of seven trustees.

3. Prior to May 1, 1919, the first floor of said Struthers Library Building had been leased to tenants for occupancy and operation as a theatre and storerooms, and on or about that date the trustees of Struthers Library Building determined upon extensive reconstruction, adapting said building to the uses of a modern, well equipped theatre and for improved storerooms. In the course of construction, to comply with the requirements of the laws of Pennsylvania, it became necessary to provide a fire escape and exits from said theatre on the west to public thoroughfares. These exits are not essential to the use of a part of the building as a library.

4. For this purpose, the trustees negotiated the purchase of land having a frontage on Third Avenue of approximately 39 feet 3 inches and a uniform depth of 175 feet, adjoining the Struthers Library Building on the west; title to said land was taken in the name of the President Judge of the Court of Common Pleas of Warren County and his successors in office, in trust, for the Warren Library Association in the same manner title to the original land was taken.

5. On the land in question so purchased there is erected a three-story brick building and a garage for rent or now leased to tenants for uses not related to the condtíet of a public library, and no part of the additional land is used as a public library nor is it appurtenant to it.

6. The net receipts from rentals of the Struthers Library Building have been used for the maintenance and reconstruction of the building, the purchase of the additional land above referred to and for the payment of interest and the reduction of mortgages against both parcels of land, increasing the equities of plaintiffs therein.

7. The Warren Library Association derives its support mainly from the School District of Warren Borough and from Warren Borough, from school and borough taxes, said school district and borough having heretofore appropriated the funds necessary for such support over and above receipts of the Warren Library Association from other sources.

8. The County of Warren, the Borough and Town Council of the Borough of Warren and the School District of Warren Borough have assessed taxes upon the land referred to in paragraph 4 for the year 1929, aggregating the sum of $285, and have issued their respective warrants to the duly authorized officer for the collection thereof, and payment thereof has been demanded from the Warren Library Association.

Discussion.

These trustees have brought to the administration of their trust a high quality of service, and, therefore, in disposing of this case, one is inclined to a liberal construction of the act of assembly in question and so to approve a plan which ultimately should provide the necessary funds for the maintenance of a public library without aid from taxation. Will the record support such conclusion?

The Act of July 20,1917, P. L. 1143, section 27, in part, provides as follows: “Any building which shall be owned and occupied by a free, public nonsectarian library, and the land on which it stands and that which is immediately and necessarily appurtenant thereto, shall be exempt from all county, city, borough, town, school, bounty, poor or road taxes, notwithstanding the fact that some portion or portions of said building or lands appurtenant may be yielding rentals to the corporation or association managing such library: Provided, That the net receipts of said corporation or association from rentals shall be used solely for the purpose of maintaining the said library."

Feb. 7, 1931,

The taxing power of the Commonwealth, an attribute of sovereignty, is vested in the legislature, not absolutely but within the limits of the Constitution. Therefore, the act of assembly above quoted must be read in the light of article ix, section 1, of the Constitution, and if it attempts to enlarge the exempted classes enumerated in the Constitution, to that extent the act is inoperative. The Constitution exempts nothing, but enumerates the kind of property that may be exempted from taxation and this by implication necessarily excludes all other taxable property: Christley v. Butler County, 37 Pa. Superior Ct. 32. A free public library as such is an “institution of purely public charity” (Donohugh’s Appeal, 86 Pa. 306) and is exempt from taxation, but its buildings and lands are exempt only when they, with the library, may be regarded as a purely public charity. No matter what the legislative language, the exemption cannot extend to any property not a purely public charity: White v. Smith, 189 Pa. 222.

We are of the opinion that the land in question is taxable for the following reasons:

(1) The net receipts from rentals of the land in question are not used for the purpose of maintaining the library, but, in so far as they are applied to the reduction of a purchase money mortgage, in reality are being"used for the purchase of land not appurtenant to the library nor necessary to its operation; and (2) the land in question with the library proper together do not constitute a purely public charity. Where property is used directly for the purposes and in the operation of the charity, though it is managed at the same time so as to produce some return and thus keep down expenses, it is not taxable: Pennsylvania Hospital v. Delaware County, 169 Pa. 305; but those portions of the property owned and occupied by lessees paying the rent are not exempt from taxation: Mercantile Library Co. v. City of Philadelphia, 161 Pa. 155. “Property which is not used directly for the purposes and in the operation of the charity, but for profit, is not exempt, and the devotion of the profit to the support of the charity will not alter the result of this class of cases: American Sunday School Union v. Philadelphia et al., 161 Pa. 307:” Christian Ass’n of the U. of P. v. City of Philadelphia, 75 Pa. Superior Ct. 516. We believe these authorities, inasmuch as they define the constitutional limits of legislation under the exemption clauses, are applicable and controlling here.

Conclusions of law.

1. The Act of July 20, 1917, P. L. 1143, is inoperative; in so far as it transcends article IX, section 1, of the Constitution, in enlarging the classes of property which may be exempted from taxation.

2. The land in question is not appurtenant to a free, public, nonsectarian library, and, with the original library buildings, does not constitute a purely public charity.

3. Plaintiffs’ bill should be dismissed, at their costs.

Order.

And now, to wit, the prothonotary is directed to enter a decree nisi in accordance with this opinion, to become absolute unless exceptions are filed thereto sec. leg.

Prom Joseph H. Goldstein, Warren, Pa.


author: Newcomb, P. J.,

text:
    Ide v. Reddington.

      G. W. Ellis, for plaintiff; R. E. & G. G. Dolphin, for defendant.
    June 16, 1930.
   Newcomb, P. J.,

Plaintiff declares “on a book account for merchandise, consisting principally of furniture, and commission therein sold and delivered by the plaintiff to and on behalf of defendant, the defendant pursuant to verbal orders received from the defendant.”

The plaintiff may understand what this means, but to the court it is very ambiguous and obscure. Its meaning is not clarified by reference to an exhibit attached as a copy of “plaintiff’s book of original entries.” On the whole pleading it is impossible to say whether the claim is for the price of merchandise sold to defendant, or a commission oh sales made in the execution of an agency by him, or both.

The pleading will have to be recast, and we suggest that “verbal orders” may be either oral or in writing. If not in writing, they should be described as oral.

The exceptions are sustained and plaintiff is ordered to file a more specific statement within fifteen days.

From William A. Wilcox, Scranton, Pa.


author: Geoff, J.,

text:
    Automobile Banking Corporation v. Mentzer.

      Guy K. Bard and Paul A. Mueller, for rule; Charles W. Eaby, contra.
    July 5, 1930.
   Geoff, J.,

This is an action of replevin brought by the plaintiff to recover eight second-hand automobiles found by the said plaintiff to be in the possession of one Harvey Mentzer. The said Harvey Mentzer was the owner of a public garage located at Murrell, near Ephrata, in this county. The plaintiff filed its bond. Mentzer gave no counter-bond, and possession of the machines was delivered to the plaintiff.

On May 1, 1930, the plaintiff filed its declaration, in which it avers, in paragraph 3, that, prior to the institution of this suit, it became the owner of the automobiles enumerated in the said declaration. In paragraph 4 plaintiff says that during the summer of 1929 it placed these used automobiles in the possession of one George Buchhalter and made an oral agreement with the said Buchhalter wherein he agreed to sell the said automobiles for a stipulated commission.

To this statement the defendant filed his affidavit of defense. He makes no claim of ownership to the machines, but says that in October, 1929', he “entered into an oral lease with George Buchhalter [the party in whose possession plaintiff had placed the machines] by which he leased to the said George Buchhalter a certain garage in Murrell for the storage of automobiles at the rate of $15 per month for the months of October, November and December, 1929, and $1 per day per car during the month of January, 1930;” that the rent was not paid for the months of December and January; and that he refused to deliver the possession of the machines when it was demanded by the plaintiff because he had a lien on said machines for rent amounting to $280.

In Hollander Brothers Drug Co. v. American Surety Co., 47 Pa. Superior Ct. 403, 408, Judge Orlady, speaking of the affidavit of defense, says:

“If the plaintiff’s title be clearly and fully set forth with averments of the wrongful dispossession, the defendant must meet this prima, facie showing by setting forth in his affidavit of defense facts sufficient to justify his retention of the property.

“. . . It must state frankly and fairly the facts that support the claim of defense, not legal conclusions or mere inferences drawn by the affiant. If the claim made be one of absolute ownership, while the supporting facts show, at most, but a plea of qualified ownership or right of possession, such as would arise from a pledge or other form of bailment, for instance, without additional facts necessary to determine the nature, extent and duration of such special right, such affidavit would be plainly insufficient.”

We think, in this case, that the defendant has set forth such additional facts as were necessary to determine the nature, extent and duration of his special right.

In Mitchell et al. v. Standard Repair Co., 275 Pa. 328, it was said, in the syllabus, that:

“1. In replevin, nothing can be tried but the right of possession to the property'in controversy; a mere claim for compensation, such as for storage, gives no such right unless it creates a lien.”

Paragraph 5 of the same syllabus reads:

“5. Although ordinarily set-off cannot be pleaded or allowed in replevin, the nature and extent of a claim in replevin is warranted to be raised by the right to a lien, or, by section 6 of the Act of April 19, 1901, P. L. 88, 90, permitting conditional verdicts to enforce liens in replevin.”

On page 330 of the opinion, in the same case, we find Mr. Chief Justice Moschzisker saying:

“If defendant had a lien, it was entitled to retain possession of plaintiff’s cars until its claim was discharged; and either that right or the provision in section 6 of the Replevin Act of April 19, 1901, P. L. 88, 90, permitting conditional verdicts for the purpose of enforcing liens, gives sufficient warrant for raising in the present action questions concerning the nature and extent of defendant’s claim, albeit ordinarily no set-off can be pleaded or allowed in replevin.”

The claim of set-off in the affidavit of defense in this case is a claim contracted for by the admitted agent of the defendant and would, if properly proven on the trial of the case, create a lien and entitle the defendant to a conditional verdict for so much as is due thereon.

The real point is — Did the defendant have a lien? That should be determined on a trial of the facts before a jury. We, therefore, discharge the rule for judgment for want of a sufficient affidavit of defense. Rule discharged.

From George Ross Eshleman, Lancaster, Pa.


author: MacNeille, J.,

text:
    Wilson v. Hornstine, Executor.

      Joseph Gross, for plaintiff; Blumberg & Sork, for defendant.
    Feb. 24, 1931.
   MacNeille, J.,

This is a suit for breach of promise, brought by Lizzie Wilson against Willard N. Hornstine, executor of the estate of Nathan Hornstine, deceased.

A statement of claim was filed, and against that an affidavit of defense raising questions of law, which may be stated as follows:

1. Does an action for breach of promise to marry survive so that it may be brought against the estate of the defendant?

2. Must a suit fall because defendant was married at the time he made his promise to the plaintiff, which was accepted by her?

3. Should the Act of May 2, 1925, P. L. 442, apply, which allows one year after death of a decedent in which certain suits may be brought against his estate where not already barred by the statute of limitations at the time of the death?

The facts as averred in the statement of claim are briefly: That the plaintiff and defendant met prior to Aug. 1, 1923, at which time he represented himself as a single man, although in fact married; that plaintiff remained ignorant of decedent’s marriage, and while in that state of ignorance, on July 1, 1924, accepted his proposal to marry within a reasonable time thereafter. Although he lived until Sept. 17, 1929, he neglected and failed to keep his promise.

The summons in assumpsit in this case was issued on June 3, 1930 — Homstine having died Sept. 17, 1929 — so that from the time of his death to the issue of the summons there elapsed seven months. The promise to marry was made on July 1, 1924, so that six years had not expired at the time of decedent’s death.

It is clear then that if the promise, and the breach of it, took place either as of July 1,1924, or any later date, the summons was issued within six years of his promise, although issued seven months after his death — there was really a grace of one month. However, even if the statute of limitations had only one or two days to run after his death, it would appear that the Act of 1925 allows one more year in which to bring the suit.

That the action for breach of promise is properly brought in assumpsit, and that the statute is six years, there can be little doubt.

Action for breach of promise to marry is brought properly in assumpsit and not trespass. This question was carefully considered by Allison, J., in In re Craig, 2 Phila. 391 (1857), in which he said the action is an action on the case, although sounding in tort.

This was followed in Donovan v. Foley, 5 Dist. R. 91 (1895), which was -decided by Swartz, P. J., and again followed in Hushour v. Nye, 4 Dauphin Co. Repr. 109 (1901), in which Weiss, J., decided that the statute of limitations is six years from the date of the breach.

It makes no difference in this case that the defendant was a married man at the time of making his promise to the plaintiff, because the plaintiff has averred that she was ignorant of his existing marriage at the time the promise was made. This was held by Elcock, J., in Stevenson v. Pettis, 12 Phila. 468, in which he reviewed a line of English decisions on the subject. This principle has been followed in other states, excepting in New York, where the matter seems to be governed by statute.

It is true that in Millward v. Littlewood, 5 Exch. 775, it was said there could be no suit for breach of promise where the promisor was without capacity to perform due to his marriage at the time of the promise, but this decision was followed in no English case. Beginning with Wild v. Harris, on down, there was accepted the principle that the defendant cannot set up any fraudulent concealment of his marriage to discharge himself from responsibility attaching to his own promise when the plaintiff has executed a consideration on her part by waiting a reasonable time.

The American decisions are in line, as shown in Kelly v. Riley, 106 Mass. 339; Prescott v. Guyler, 32 Ill. 312, and the Pennsylvania cases, supra. According to these cases, the concealment on the part of the defendant of the fact of his marriage was deceit of which he cannot take advantage. Yet this deceit did not lay a different cause or form of action. The action is still breach of promise to marry with all its attendant consequences.

It is true that in some of our states breach of promise has been discussed as an injury to the person and not to the property of the party. It concerns one’s state of mind rather than one’s property: Flint v. Gilpin, 29 W. Va. 740. The same thought is expressed in Webber v. St. Paul City Ry. Co., 97 Fed. Repr. 140, 145. Nevertheless, in Pennsylvania, breach of promise has been considered uniformly as properly brought in assumpsit, with six years as the statute of limitations of actions.

In Barton v. Saylor, 278 Pa. 149, Justice (now Chief Justice) Frazer, in passing upon the question as to when the statute begins to run, said: “The only important question raised relates to the time the statute of limitations began to run. The rule in such case is that it begins, not at the time the promise is made but at the time of the breach.” While no question was raised as to whether the statute is six years or two years, it is significant that the paper books upon both sides treated the statute as six years, and that while this particular question was not decided, the .fact remains that it was considered. It is to be assumed that if it were the opinion of the Supreme Court that the six years’ statute of limitations did not apply, some pronouncement would have been made thereon, yet nothing was said about it.

We then have numerous cases in the lower courts and this case in the Supreme Court in which the six years’ statute of limitations has been acquiesced in as applying to breach of promise, and we have no case in which the two-year statute has been considered as applying.

We should now consider the Act of May 2, 1925, P. L. 442, section 1, which is as follows:

“Executors or administrators shall have power, either alone or jointly with other plaintiffs, to commence and prosecute all actions for mesne profits or for trespass to real property, and all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander and for libels; and they shall be liable to be sued, either alone or jointly with other defendants in any such action, except as aforesaid, which might have been maintained against such decedent if he had lived.”

This same section further provides:

“All such rights of action which were not barred by the statutes of limitations at the time of the death of decedent may be brought against his executors or administrators at any time within one year after the death of the decedent, notwithstanding the provisions of any statutes of limitations whereby they would have been sooner barred.”

It is difficult to see how the question is at all affected by the averment in the plaintiff’s statement that a child was born Aug. 8, 1924, which was one month after the alleged promise to marry, and it is obvious that such child was conceived eight months before the promise to marry.

We feel that the Act of 1925, supra, permits this suit to be brought when as in this case it is within one year after the death of the deceased, and the six years’ limitation had not expired at the time of death. We are of the opinion that the statement of claim makes out a good cause of action, and we dismiss the objections raised as questions of law and allow to the defendant fifteen days in which to file an affidavit of defense to the merits.


author: Smith, J.,

text:
    Pennsylvania Co. for Ins. on Lives, etc., Trustee, v. Ash et al.

      D. P. Hibberd, for plaintiff; J. C. Levi, for defendants.
    Oct. 8, 1930.
   Smith, J.,

In this case the plaintiff has taken a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense.

One Jacob Ash, on June 9,1926, was the owner of No. 4701 Woodland Avenue in the City of Philadelphia. On that day he executed and delivered a mortgage on this property to Philip Hanopolsky as security for the payment of $70,000, with interest. The mortgage contained the usual provisions as to default and foreclosure. The mortgage was recorded and later assigned to The Pennsylvania Company for Insurances on Lives and Granting Annuities. The assignment of mortgage was properly recorded June 30, 1927.

Jacob Ash died on Dec. 9, 1928. His executors and trustees are Isaac Ash, Rachel Ash and Alexander Ash, and the real owners are the said executors and trustees, and Isaac Ash, Rachel Ash, Alexander Ash, Benjamin Ash, Ray Ash and Florence Ash, individually, are the present and real owners.

On Dec. 9, 1929, there was a default in the payment of interest on said mortgage and in the production of tax receipts for the year of 1929, which default continued for more than thirty days. An averment of default was filed March 14, 1930, and also an affidavit as to the real owners and a scire facias exit returnable the third Monday in March, 1930. Return was made N. H. as to Jacob Ash and service accepted and appearance entered by an attorney for defendants.

On April 11, 1930, an affidavit of defense was filed on behalf of defendants, in which the right of action of the plaintiff was admitted but the right of plaintiff to obtain a personal judgment against defendants was denied, as they were not parties to the mortgage. The rule for judgment was then filed and a copy served upon the attorney for the defendants.

The Act of Jan. 12, 1705, § 6, 1 Sm. Laws, 57, makes it proper for a mortgagee to sue forth a sdre facias in case of defaults of this nature. The scire facias proceedings are in rem: Wilson v. McCullough, 19 Pa. 77. The only writ that can issue is to sell the land, and the judgment entered thereunder is for the sale of the land or so much thereof as is needed to satisfy the judgment.

These proceedings do not in any manner make the individuals liable for the personal debt of the mortgagor.

There must be a judgment to support a levari facias. The affidavit of defense is not sufficient. The rule for judgment for want of a sufficient affidavit of defense is made absolute.


text:
    O’Connell v. The Connecticut Mutual Life Insurance Co.

      John F. Corcoran, for plaintiff; Joseph S. Conwell, for defendant.
    Nov. 15, 1930.
   Alessandroni, J.,

The statement of claim set forth that the plaintiff is the beneficiary under an insurance policy in the defendant company, the policy being issued on the life of her son, Kenneth J. O’Connell, who is alleged to have died on May 5, 1928. It is averred that the policy was in full force on May 5,1928, and that the defendant refused to make payment.

The affidavit of defense sets forth that the policy lapsed at midnight of May 5, 1928, and that the said Kenneth J. O’Connell died on May 6, 1928, wherefore, no liability ever accrued under the policy. Under new matter the affidavit of defense sets forth the terms of the policy and the particular facts upon which the defendant bases its conclusion that the policy ceased and determined at 12 o’clock midnight May 5, 1928.

The plaintiff has taken this rule to show cause why the affidavit of defense should not be stricken off on the theory that it is not brief or concise as required by the Practice Act; that the affidavit of defense attempts to plead evidence; and that the allegations under new matter consist only of evidence in support of the allegations set forth in the affidavit of defense.

Under section 5 of the Practice Act of 1915, every pleading must contain a statement in concise and summary form of the material facts on which the party pleading relies for his claim or defense, but not the evidence by which they are to be proved. The defendant has set forth in his affidavit of defense evidence by which it intends to prove that the insured died on May 6, 1928. This evidence is stated in detail and includes physician's affidavit, undertaker’s affidavit, certificate of death and copy of the coroner’s inquest. This is a clear violation of section 5 of the Practice Act.

Section 12 of the Practice Act also requires that the affidavit shall be as brief as the nature of the case admits. The averments set forth under new matter are really averments of the evidence by which the defendant intends to prove that the policy was not in force on May 6, 1928, but had expired at midnight of May 5, 1928. This also violated the aforementioned provisions of the Practice Act, and, therefore, the rule to strike off the affidavit of defense should be made absolute.

And now, to wit, Nov. 15, 1930, the rule to strike off affidavit of defense is made absolute, with leave to the defendant to file an amended affidavit of defense within ten days of the receipt of notice of this order.


author: Van Dusen, J.,

text:
    Ludescher’s Estate.

      Keller H, Gilbert, for exceptions; Joseph Moss and Emanuel Moss, contra.
    Nov. 28, 1930.
   Van Dusen, J.,

Testatrix directed that her estate be converted into money by her executor, and then said: “I further direct that the funds so derived shall be deposited by him in a savings institution of the City of Philadelphia, and from said funds he shall pay on the first day of each and every month, the sum of twenty-five dollars ($25.00) to my daughter, Mrs. Lena Reinert, until all the funds shall become exhausted. (5) In the event that my daughter, Mrs. Lena Reinert shall die before the above mentioned trust fund has become exhausted, I then give, bequeath and devise the said trust fund to the children of Mrs. Lena Reinert, share and share alike.”

The Auditing Judge held that the annuity was primarily chargeable to income from the fund, with which we agree. The reference to possible exhaustion of the “fund” seems superfluous, in view of the amount of principal which remained at the death of the testatrix, but we cannot say that she expected to leave so much when she made her will some years before. The language is not enough to exclude income and confine the payments to principal, as contended by the exceptant; and as between the two, income is to be used first. Testatrix directed that the fund be put “in a savings institution,” and there it would necessarily produce income, which then becomes part of the fund; and the disposition thereof must include.income as well as principal, in the absence of language referring to principal alone. In Griffith’s Estate, 147 Pa. 274, cited by exceptant, the expenses of maintaining a lunatic were first charged against income, and it was held that, under the language of the deed of trust,principal also might be used; and this would seem to be the ease here.

As the fund earns twice as much as is necessary to pay the annuity, there is surplus income. If the surplus was smaller and it was reasonably necessary to retain it to secure the annuity, that might be done. But it is so much more than is necessary, and the annuity is so amply protected by the principal, and the power of that principal to earn “in a savings institution of the City of Philadelphia” income in the future, that the retention of income and ultimate distribution thereof under paragraph 5 of the will would be an illegal accumulation. The direction to accumulate the income falls: Maris’s Estate, 301 Pa. 20; but not the gift of the income, if there is one. The only gift in the will is in paragraph 5, which is to take effect only at the death of the annuitant; and there is no disposition of the surplus income during the life of the annuitant. It must, therefore, go under the intestate law as awarded by the Auditing Judge.

Exception No. 4 was withdrawn at the bar of the court. The other exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.


author: Lamorelle, P. J.,

text:
    McCandless’s Estate.

      W. B. Heidinger, for petition; G. B. Taylor and Franklin E. Barr, contra.
    Jan. 9, 1931.
   Lamorelle, P. J.,

A review may not be had where the only reason urged is that the petitioners, notwithstanding that they all had notice of the filing of the account, failed to attend the audit, failed to present the claim they now make and failed to ask for a rehearing before the account was confirmed absolutely. The petition was filed upwards of a year after such confirmation. The error of law complained of is that the Auditing Judge awarded the trustee a sum in excess of that reasonably required to pay the one surviving child of testator her $15 per month. This is not an error of law; it is an exercise of discretion, and considering the present condition of matters financial, it might be unwise to disturb his ruling; in fact, it is extremely doubtful if, in the event of a review being granted, the fund so set aside would or should be presently depleted.

Those who now seek a share of the principal are in receipt of pro rata income, and the award which they seek to set aside is without prejudice “to any further and ultimate claim for any excess principal.”

The prayer of the petition is refused and the petition dismissed, without prejudice to the rights of any of the parties interested in the estate.


author: Shull, P. J.,

text:
    Commonwealth v. Henry.

      Ira A. La Bar, for Commonwealth; R. L. Mervine, for defendant.
    Dec. 30, 1930.
   Shull, P. J.,

On Aug. 12, 1930, an information was lodged before Ralph J. Booth, justice of the peace in the Borough of East Stroudsburg, Pa., charging Mrs. Austin Henry, the defendant, with operating a motor vehicle in the Township of Ross, County of Monroe and State of Pennsylvania, without a license as operator or a learner’s permit, contrary to section 601 of article VI, Act of May 1, 1929, P. L. 905.

In pursuance of the information, a warrant issued, was served and defendant appeared before the justice of the peace and waived summary hearing, entering into bail to appear before the Court of Quarter Sessions of the Peace of Monroe County at September Term, 1930. In pursuance of bail, the defendant appeared and, before entering into hearing, defendant moved to quash the prosecution for the reason that the information had not been laid before the nearest available magistrate, as provided by section 1201 of the Act of 1929, P. L. 905, it being conceded that Ralph J. Booth, the justice of the peace before whom this information was lodged, was not the nearest available justice of the peace.

It was urged by the district attorney that section 1201 of said act is unconstitutional in that it offends against article in, section 3, of the Constitution of Pennsylvania.

Article in, section 3, of the Constitution of Pennsylvania provides as follows, to wit: “No bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title.”

It is contended by the district attorney that section 1201 of this act offends against article ill, section 3, of the Constitution in that no notice of the subject-matter of this section is given in the title to the act. The title to the Act of May 1, 1929, P. L. 905, is as follows, to wit:

“For the protection of the public safety; regulating the use of highways and the operation of vehicles, tractors, street cars, trackless trolley omnibuses, bicycles, pedestrians and the riding of animals upon the highways of this Commonwealth; providing for the titling, including liens, encumbrances, and legal claims; registration of certain vehicles and licensing the operators thereof, upon payment of prescribed fees; prescribing and limiting the powers of local authorities to deal with the subject-matter of this act; conferring powers and imposing duties upon the Department of Revenue, the Department of Highways, peace officers, mayors, burgesses, magistrates, aider-men, justices of the peace, the courts and the clerks thereof, owners of vehicles and garage keepers, providing that records are admissible as evidence; imposing upon owners, counties, cities, boroughs, incorporated towns, townships, within the Commonwealth, liability for damages caused by the negligent operation of their motor vehicles; imposing penalties; imposing certain costs upon counties; providing for the disposition of fines, forfeitures, fees and miscellaneous receipts; making an appropriation and providing for refunds.”

In support of this contention as to the constitutionality of section 1201, the district attorney cites and principally relies upon the case of Com. v. Marter, 13 D. & C. 688. In the case cited the court, in its opinion, says:

“ ‘In the absence of statutory regulation, a justice of the peace would undoubtedly have criminal jurisdiction throughout the county, an alderman throughout the city, in which they hold their respective offices.’

“See, also, 1 Stephen’s History of Criminal Law, 190, 191; Sadler’s Criminal Procedure, 117.

“It, therefore, appears that every alderman of the city and every justice of the peace of the county has jurisdiction of an offense occurring respectively in the city or county, and the effect of section 1201 is to oust every justice of the peace or alderman but one in the city or county of his jurisdiction. The inquiry, then, is whether the title of the act gives notice of such provision. The title provides for ‘prescribing and limiting the powers of local authorities to deal with the subject-matter of this act.’ This would be sufficient notice if it were not for the fact that ‘local authorities’ are defined in the act to be ‘every county, municipal and other local board or body having authority to adopt local police regulations under the Constitution and laws of this Commonwealth.’ This definition excludes magistrates. There is no other suggestion in the title limiting the authority of magistrates, aldermen or justices of the peace. As to them, the title says that the act is ‘conferring powers and imposing duties upon’ them. Section 1201 is far from either conferring powers or imposing duties upon magistrates, It is taking away the powers which the aldermen and justices of the peace already have.”

With the conclusion of the court in that case, to the effect that the title of this act of assembly, standing by itself, is sufficient, we fully agree, but we are not in accord with the conclusion that this title, which is sufficient to clearly express the subject of section 1201 of the act, can become insufficient by reason of a definition contained in one of the sections of the act or a phrase which limits and restricts the meaning of such phrase in its application to the construction of the act. In determining the sufficiency of the title as applied to a particular section of an act of assembly, the test is whether the subject of the section is clearly expressed in the title. Whether or not it be so expressed is determined from the section in question and the title to the act and nothing else. If the legislature has seen fit to limit and restrict the accepted and common meaning of words and phrases as they relate to the operation or enforcement of the act, it may, of course, do so and the operation or enforcement of the act thereby becomes so limited, but such limitation or restriction of the meaning of the word or phrase in no wise affects or bears on the question of whether the title be sufficient to give notice of the subject of a particular section in the act. If such definition should be held to limit the common and accepted meaning of words or phrases used in the title to the act of assembly, it would be equally true, should the legislature see fit to enlarge or place enlarged meaning or construction on words or phrases as applied to the construction or application of an act of assembly through definitions placed in the act, that thereby a title to an act of assembly would fail to clearly express the subject-matter — would still be within the provisions of the Constitution — and would no longer serve the purpose for which titles are intended, because it would become necessary to peruse the entire act of assembly to ascertain if, by reason of a definition in the act, the common meaning of any word or phrase in the title had been limited or extended, or, for that matter, perverted or distorted as to the application of the act to the subject-matter. This the legislature may do as to their application to the act, but as to the title to an act of assembly, which is intended for notice to the world, they have not the power to do so, because by indirection they would be doing that which, under the Constitution, they may not do; and, further, even though it should be necessary to consider definitions in an act of assembly contained, together with the title to any section of the act of assembly under question as to its constitutionality.

We find in this act of assembly that section 102 is the section giving definitions. It gives the definition above quoted in the case of Com. v. Marter, but the first paragraph of section 102 provides as follows:

“Section 102. Definitions — The following words and phrases, when used in this act, shall, for the purpose of this act, have the meanings respectively ascribed to them in this section, except in those instances where the context clearly indicates a different meaning.”

The exception in this paragraph contained is just as much operative as the definition itself, and both must be considered if either has any application to the question here involved. While we are of the opinion that neither has any bearing, still, should we be in error in that conclusion, we feel that, under the exceptions, the title to this act is sufficient and that section 1201 is constitutional. Under this section, not one of the definitions in this act of assembly contained is a hard and fast definition — an exclusive one — and, considering the question from this angle, the first question is, What is context? Webster’s New International Dictionary defines context: “The part or parts of a discourse preceding or following a text or passage or a word or so intimately associated with it as to throw light upon its meaning.” The Standard Dictionary defines context: “1. The portions of a discourse that precede or follow and are connected with a passage quoted. 2. The whole text of a work.”

What is the context in the matter before us? Though section 1201 does not use the words “local authorities,” it uses the word and deals with “magistrates.” Magistrates are among those commonly understood to be local authorities, and the context here includes the title to the act. Section 102 of the act, which gives the definition and exception, together with the parts of section 1201 preceding and following the use of the word magistrate, are the context. Clearly the context here indicates the local authority to be one who would come under the exceptions and not under the definition itself as a local authority. To our mind, this title, when considered from this angle, is sufficient. The title, inter alia, sets forth the purpose of “prescribing and limiting the powers of local authorities to deal with the subject-matter of this act;” a magistrate is a local authority in the common and every-day understanding of those words. Section 1201 limits the jurisdiction of magistrates in certain offenses by providing that the offender must be taken to the nearest available magistrate rather than before any magistrate within the county, and of this the title is sufficient to give notice. The context, to our mind, makes irresistible the conclusion that the local authorities in this instance, whose powers were to be prescribed and limited, if this act does limit the powers of such authorities, were magistrates, and the exception to the definition is here operative.

This act of assembly provides that “informations charging violations of any of the provisions of this act . . . shall be brought before the nearest available magistrate.” The offenses to be so prosecuted are created by this statute, and are not offenses which would be within the jurisdiction of a magistrate, alderman or justice of the peace for trial, unless só provided by the statute. Whenever a statute creates an offense and provides a punishment, the statutory provisions must be followed strictly and expressly; but if the statute specify no other mode of procedure, they are punishable by indictment: Com. v. Richter, 13 W. N. C. 142; Zeigler v. Gram, 13 S. & R. 102; Com. v. Kurz et al., 14 Dist. R. 741; Com. v. Grau, 16 Dist. R. 806; Wilson v. Com., 10 S. & R. 373; Gearhart v. Dixon, 1 Barr, 224.

Prior to the passing of the Act of April 26, 1929, P. L. 824, magistrates, justices of the peace and aldermen had no jurisdiction over the offenses which are made the subject of summary conviction by section 1201, and the Act of 1929, P. L. 824, provides that their jurisdiction attach in the event the statute does not provide otherwise; consequently, section 1201 does not limit, restrict or reduce the jurisdiction of such offenses, and, as we view it, the title clearly discloses the subject of section 1201 in that portion of the title which reads: “Conferring powers and imposing duties upon the Department of Revenue, the Department of Highways, peace officers, mayors, burgesses, magistrates, aldermen, justices of the peace, the courts and the clerks thereof,” etc., and from the view that this act of assembly creates new offenses over which such officers have not theretofore had jurisdiction, it does not limit their jurisdiction. It can take nothing from their jurisdiction, but, on the contrary, confers powers and imposes duties on them which heretofore they have not had, i. e., summary proceedings as provided by the act. This the legislature has power to do, and this the title to the act clearly expresses.

We, therefore, hold the title to this act is within the provisions of article ill, section 3, of the Constitution of Pennsylvania, and that section 1201 of said act is constitutional.

And now, Dec. 20, 1930, in the case of Com. v. Henry, No. 58, September Sessions, 1930, prosecution dismissed and defendant discharged.

Prom C. C. Shull, Stroudsburg, Pa.


text:
    Commonwealth ex rel. Baldrige v. Order of Brotherly Love.

      Thomas J. Baldrige, Attorney-General, for plaintiff.

      Porter, Foulkrod & McCullagh and Graham C. Woodward, for defendant.
    June 18, 1930.
   Wickersham, J.,

The Attorney-General suggests that the Order of Brotherly Love is a corporation organized and existing under the laws of the State of New Jersey, incorporated on or about Nov. 4, 1926, and having its principal office at No. 104 Market Street, Camden, N. J. The said order is a corporation without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries and not for profit; it has a lodge system with ritualistic form of work and a representative form of government. That it has organized and is now maintaining and operating one lodge in the State of New Jersey and twelve lodges in the Commonwealth of Pennsylvania. That the said order was organized as a fraternal benefit society; has been since its incorporation and is now a fraternal benefit society operating as such in the State of New Jersey and in the Commonwealth of Pennsylvania, as. defined by the general act of assembly of the Commonwealth of Pennsylvania, approved May 20, 1921, P. L. 916, and within the meaning and subject to the provisions of said act. That the said order has not been incorporated in the Commonwealth of Pennsylvania and has not been licensed to do business in this Commonwealth in accordance with the provisions of said Act of 1921, or any other act or statute of this Commonwealth. That it is transacting business and operating in this Commonwealth unlawfully and in violation of the Act of 1921.

The Attorney-General suggests that a writ of quo warranto be issued by this court against the said Order of Brotherly Love to show by what authority it claims to have and use in this Commonwealth the powers, rights, privileges and franchises of a corporation, or any other powers, rights, privileges and franchises, and why it should not be ousted from the use and exercise of any and all powers, rights, privileges and franchises of the Commonwealth of Pennsylvania. Upon presentation of the said suggestion, this court, on Oct. 4, 1927, allowed the “writ as prayed.”

To the suggestion of the Attorney-General the defendant filed an answer, admitting the allegations in the first three paragraphs of the suggestion and a part of the fourth paragraph. The answer denies that the order is now exercising its charter powers, but has held the operation of said proposed benefit plan in suspension pending the approval of the same by the lawful authorities of the State of Pennsylvania. It also denies that the said order as at present operated is a fraternal benefit society as defined by the Act of 1921, or that it is within the meaning or subject to the provisions of said act. It admits, however, that it is the desire of the incorporators to conform the character of said order so as to bring the same within the provisions of said act as soon as the approval thereof can be obtained from the proper authorities of the State of Pennsylvania. It admits it is not incorporated in the Commonwealth of Pennsylvania, but denies that it is transacting any business in this Commonwealth in violation of the Act of 1921.

To the answer of the defendant the Commonwealth filed a replication.

It was agreed that trial by jury be dispensed with in this case, and that the same be submitted to the decision of the court, to be heard and determined under the provisions of the Act of 1874. Because of the illness of Deputy Attorney-General Paul C. Wagner and the substitution of Deputy Attorney-General Harold D. Saylor, the case was not heard by the court in banc until April 8, 1930.

On June 20, 1928, a stipulation of facts, so far as they may be relevant to a disposition of this controversy, signed by Deputy Attorney-General Wagner and by counsel for the defendant, was filed, from which stipulation we find the following

Facts.

1. The Order of Brotherly Love, incorporated on Nov. 4,1926, is a corporation organized and existing under an act of the State of New Jersey, entitled “An act to incorporate associations not for pecuniary profit.” Its principal office is at No. 104 Market Street, Camden, N. J.

2. The said corporation consists of an executive body known as the Grand Council and certain local lodges. It was organized in February, 1927, and has maintained since that time and was maintaining at the time of the filing of the suggestion in the above entitled cause, and now is maintaining, one lodge in the State of New Jersey, and thirteen lodges in the Commonwealth of Pennsylvania, the names of which are set forth in the stipulation of facts.

3. The said corporation at the time of its organization in February, 1927, took over as local lodges of said corporation and has ever since maintained as lodges of said corporation seven lodges which were then in existence as local lodges of an unincorporated organization known as the Order of Brotherly Love, which unincorporated organization was started in September, 1925, although no local lodges were actually organized until January, 1926. The names of the lodges are given in the stipulation of facts.

4. The names of the officers of the corporation and reference to the constitution and by-laws thereof are set forth in paragraphs 4 and 5 of the stipulation.

5. No certificate of membership in said corporation Has ever been authorized or issued and there are no membership certificates or benefit certificates either issued or outstanding. A proposed form of benefit certificate has been adopted by the Grand Council for use, if and when it receives the approval of the Insurance Department of the Commonwealth of Pennsylvania. The entrance fees of any person seeking membership are fully set forth in paragraph 6 of the stipulation.

6. The local lodges issue books containing the by-laws of the local lodge and appropriate pages for the payment of the monthly dues.

7. No death benefits have ever been paid by the Grand Council or any other agency of the corporation, and by action of the Grand Council, ratified by the several camps, no member is entitled to the payment of death benefits until the plan of death benefits shall be declared in force by the Grand Council, after such plan receives the sanction of the Insurance Commissioner of the Commonwealth of Pennsylvania; after which it is intended that all death benefits shall be paid by the Grand Council out of the death benefit fund so created and maintained by it. The amount of death benefits to be paid is $450. The amount of the death benefit fund in the hands of the Grand Council at the time the suggestion was filed was approximately $2000.

8. The payment of any sick and disability benefits is optional with the local lodges.

9. The Grand Council meets twice a month. The last meeting was held at No. 2112 Dickinson Street, Philadelphia, Pa., on Jan. 15, 1928, The local lodges hold meetings each month. A convention meets annually, the last meeting having been held on or about Jan. 15, 1927.

10. On July 14,1926, before the incorporation of said defendant, counsel for the society wrote the Insurance Commissioner advising him of the intended organization of a corporation to be known as Order of Brotherly Love. The defendant was informed that it could not be chartered under the laws of Pennsylvania, and thereafter was incorporated in New Jersey. In February, 1927, the defendant applied for registration under the insurance laws of Pennsylvania, which registration was refused by the Insurance Commissioner of this Commonwealth for reasons set forth in a letter from the Insurance Commissioner to the attorneys for said corporation, dated Nov. 10, 1927, a copy of which is attached to the stipulation of facts.

11. Said corporation has a ritualistic form of work and a representative form of government. The total number of members in the corporation is approximately one thousand.

12. The purposes of this order are: To accumulate a fund by means of initiation fees and periodical contributions paid by the members for the purpose of paying sick benefits, old age pensions and death benefits.

Discussion.

In the answer to the suggestion of the Commonwealth the defendant denies “that said Order of Brotherly Love, as at present operated, is a fraternal benefit society as defined in the Act of General Assembly of the Commonwealth of Pennsylvania, approved May 20, 1921, P. L. 916, or is within the meaning or subject to the provisions of said act.” This contention is inconsistent with and contradictory to the admitted facts contained in the stipulation, which, in the first paragraph, provides, inter alia,:

“The Order of Brotherly Love is a corporation organized and existing under an act of the State of New Jersey, being chapter 181 of the Laws of 1898, approved April 21, 1898, and entitled ‘An act to incorporate associations not for pecuniary profit,’ and the various supplements and amendments thereto, . . . said corporation was incorporated on Nov. 4, 1926, a copy of the certificate of incorporation being attached hereto and made a part hereof, marked Exhibit B. . .

Referring to said certificate of incorporation, being Exhibit B of the stipulation of facts, the sixth paragraph thereof provides as follows:

“This corporation is a fraternal beneficiary association organized and to be carried on for the sole benefit of its members and their beneficiaries and not for profit, having a lodge system with a ritualistic form of work and a representative form of government and making provision for the payment of benefits in the case of sickness, disability or death of its members, subject to their compliance with the constitution and by-laws of the corporation.”

It is further provided in paragraph two of the stipulation of facts that the said corporation consists of an executive body, known as the Grand Council, and seven local lodges; and that said corporation was organized in February, 1927. In the tenth paragraph of the stipulation of facts it is provided:

“The Grand Council meets twice a month. . . . The local lodges hold meetings each month. A convention meets annually. . . .”

In the thirteenth paragraph of the stipulation of facts it is provided said corporation has a ritualistic form of work and a representative form of government.

Article ill, paragraph (a), of the constitution, being Exhibit C of the stipulation, provides:

“The purposes of this order are-: To accumulate a fund by means of initiation fees and periodical contributions paid by the members for the purpose of paying sick benefits, old age pensions and death benefits.”

And in article VI of the said constitution it is provided:

“This order shall be governed by a convention, held at such times and places as the by-laws shall prescribe, which shall be composed of representatives from the subordinate camps or local lodges chosen from time to time as shall be provided by the by-laws, and a Grand Council, which shall act during the intervals between the meetings of the convention. . . .”

In the by-laws of the defendant corporation, being Exhibit D of the stipulation of facts, article II, section 1, it is provided:

“The Grand Council shall be chosen by the Grand Master. There shall be not less than twelve nor more than fifteen Trustees or Grand Councillors. They shall hold office for the term of the Grand Master who appoints them and until their successors are chosen.”

We do not find that the articles of the constitution and by-laws of defendant corporation, to which we have referred, are in any manner changed or altered by the proposed amendments to the by-laws which have been submitted to the Insurance Department of the Commonwealth of Pennsylvania for approval.

We are of the opinion that the articles of its incorporation and the articles and sections of the constitution and by-laws of the defendant corporation bring it within the definition of a fraternal benefit society as defined by the Act of May 20, 1921, P. L. 916, section 1 of which provides as follows:

“That any corporation, society, order, or voluntary association, without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries and not for profit, having a lodge system with ritualistic form of work and a representative form of government, and which makes provisions for the payment of benefits in accordance with the provisions of this act, is hereby declared to be a fraternal benefit society.

“Any society having a supreme governing or legislative body and subordinate lodges or branches, by whatever name known, into which members shall be elected, initiated and admitted in accordance with its constitution, laws, rules, regulations, and prescribing ritualistic ceremonies, and which shall provide in its said constitution and laws for regular or stated meetings of its subordinate lodges or branches, shall be depmed to be operating on the lodge system.

“Any such society shall be deemed to have a representative form of government when it shall provide, in its constitution and laws, for a supreme legislative or governing body composed of members elected either by the membership at large or by delegates elected, directly or indirectly, by the membership, together with such other members as may be prescribed by its constitution and laws.”

We think there can be no question, therefore, that the allegations in the answer of the defendant corporation to the suggestion of the Attorney-General, to which we have referred and which we have just discussed, are not sustained by the stipulation of facts and exhibits attached thereto and made a part thereof. The defendant is, therefore, clearly a fraternal benefit society as defined in said Act of 1921.

It is denied in the answer that the defendant “is now exercising said charter powers.” It is further contended that, “on the contrary, the said order has held the operation of said benefit plan in suspension pending the approval of the same by the lawful authorities of the State of Pennsylvania, having agreed to refund any contributions received for such purpose from its members in the event that the said beneficial plan shall not become operative.” The defendant further denies that it is “transacting any business in the said Commonwealth in violation of the provisions of said Act of May 20, 1921, or any other act or statute of the Commonwealth,” or that it is “transacting business and operating in said Commonwealth unlawfully and in violation of” said Act of 1921. We will proceed to examine these contentions.

It appears from the record that the suggestion for quo warranto on the part of the Commonwealth was filed Oct. 4, 1927, and the answer to the suggestion was filed by the defendant Oct. 24, 1927. It will be observed that the answer of the defendant states that it is not now violating any law of this Commonwealth. This allegation is not supported by the facts as stipulated.

The stipulation for trial without a jury and agreed statement of facts was filed June 20, 1928. In paragraph two of said stipulation it is agreed that the said corporation “consists of an executive body, known as the Grand Council, and seven local lodges. The said corporation was organized in February, 1927. It has maintained since that time, or since the respective dates of their organization (if subsequent thereto), and was maintaining at the time of the filing of the suggestion in the above entitled case, and is now maintaining, one lodge in the State of New Jersey and thirteen lodges in the Commonwealth of Pennsylvania.” It must not be overlooked that the stipulation was filed some eight months after the answer, and in said stipulation it is agreed that the corporation “is now maintaining one lodge in the State of New Jersey and thirteen lodges in the Commonwealth of Pennsylvania.” “Now” in the stipulation must be construed to mean at the time the stipulation of facts was signed and filed, which was, as we have stated, June 20, 1928.

In paragraph ten of the said stipulation of facts it appears that “the Grand Council meets twice a month. The last meeting was held at No. 2112 Dickinson Street, Philadelphia, Pa., on Jan. 15, 1928. The local lodges hold meetings each month.” It thus appears that, some months after the suggestion and answer were filed in this case, the Grand Council was meeting once a month.

It further appears from the stipulation of facts that, prior to the filing of the suggestion by the Attorney-General in this case, the defendant was doing business in Pennsylvania in violation of law.~ It organized and operated thirteen lodges in the State of Pennsylvania; it collected at least $2000 from its members; it functioned through officers of its Grand Council as well as through officers of its local lodges. It published by-laws and issued copies thereof to its members. It has not paid death benefits, but its local lodges may have paid sick and disability benefits.

It clearly appears, therefore, that the defendant has been doing business in this Commonwealth. That it has not paid benefits or exercised all of the powers which a fraternal benefit society of this nature might have performed in no way wéakens the position of the Commonwealth that this society has transacted business within the confines of Pennsylvania in violation of law.

The defendant corporation was incorporated under the laws of New Jersey, and, so far as Pennsylvania is concerned, is a foreign corporation, and must abide by the laws of this Commonwealth, whether or not its members or a portion of them desire likewise to incorporate in this state. This is the only issue we are trying; any other issue suggested in the brief for the defendant corporation is not pertinent.

It does not appear that the defendant, being a corporation of the State of New Jersey, comes under the supervision of the Insurance Commissioner of that state; therefore, it cannot possibly be registered in the Commonwealth of Pennsylvania, as it cannot comply with section 17 of the Act of May 20, 1921, P. L. 916, as amended by the Act of April 22, 1927, P. L. 343, which provides as follows:

“No foreign society shall transact any business in this Commonwealth without a license from the Insurance Commissioner. Any such society may be licensed upon filing with the commissioner: . . .

“(d) A statement of its business, under oath of its president and secretary or corresponding officers, in the form required by the commissioner, and duly verified by an examination made by the supervising insurance official of its home state or other state, satisfactory to the Insurance Commissioner of this Commonwealth.

“(e) A certificate from the proper officer in its home state, province or country, that the society is legally organized.”

As this society does not come under the supervision of the Insurance Commissioner of the State of New Jersey, it could not comply with either requirement (d) or (e) of the amended section 17 of the said Act of 1921.

We think the defendant corporation is illegally operating in the State of Pennsylvania, and, therefore, reach the following

Conclusions of law.

1. The defendant corporation is a fraternal benefit society as defined by section 1 of the Act of May 20, 1921, P. L. 916.

2. The organization and maintenance of lodges in Pennsylvania by the defendant corporation was and is in violation of said Act of May 20, 1921, P. L. 916.

“3. Holding meetings of the Grand Council and the convention of the defendant corporation was in violation of the laws of the Commonwealth of Pennsylvania.

4. Holding regular monthly meetings of the local lodges of the defendant corporation in the Commonwealth of Pennsylvania is in violation of the insurance laws of this Commonwealth.

5. The costs of these proceedings are to be paid by the defendant corporation.

Judgment.

We adjudge the defendant corporation guilty of usurping, intruding into and unlawfully holding or exercising the franchises, privileges and powers mentioned in the writ of quo warranto issued in this case. We, therefore, give judgment that such defendant be ousted and altogether excluded from such franchises, privileges and powers, and that the Commonwealth recover costs from the defendant.

From Homer L. Kreider, Harrisburg, Pa.