author: Berger, J.,

text:
    Miehle’s Case.

      Contempt of court — Communications to grand jury.

    1. No one can communicate with the grand jury, or any of its members, in relation to matters which are, or may be, proper for their inquiry, either on questions of law or fact.
    2. The grand jury are officers of the court under its legal direction, receive their instructions from it only, and are entitled to the protection of the court from all attempts to control, influence or bias them.
    3. Attempts to influence the grand jury are criminal in the eye of the law, a contempt of court and an obstruction to the administration of justice.
    4. Communications to the grand jury irregularly made are not excusable, because of a misguided zeal in the supposed furtherance of the public good.
    Proceedings for contempt of court. Q. S. Schuylkill Co., Misc. Docket, No. 343.

      A. L. Shay and M. A. Kilker, amicus curiie.

      M. M. Burke and J. L. N. Channell, for respondent.
    Dec. 31, 1927.
   Berger, J.,

At the January Sessions of our Court of Quarter Sessions, the grand jury was directed to return for a sitting during the second week of the term and were charged by Bechtel, P. J., to investigate and report relative to matters pertaining to petitions filed for registration in the first precinct of the Second Ward of the City of Pottsville for the primary election held on May 18, 1926, and also respecting the loss of a petition for the registration of one Howard Butz, in the same precinct, which had been produced in a hearing pertaining to registrations before Koch, J., and which either disappeared or was lost after the hearing. The grand jury found no fraud or criminality, either in connection with the petitions for registration or in the disappearance or loss of the petition for the registration of Howard Butz, and reported Jan. 12, 1927, through its foreman, C. E. Knopp, inter alia, as follows: “In the course of this investigation pending before the Grand Jury, a letter was received by the foreman of the Grand Jury, Rev. C. E. Knapp (Knopp), signed ‘Edith Miehle.’ The foreman produced this letter and the Grand Jury fully and completely exonerates the foreman, Rev. C. E. Knapp (Knopp) from any suspicion or collusion between him and Miss Miehle in his action or conduct as a member of this Grand Jury. Wé submit herewith a copy of the letter received by the Rev. C. E. Knapp (Knopp) to your Honorable Court as a part of this report. Respectfully submitted. C. E. Knopp, Foreman.”

The letter attached to the report reads as follows:

“My dear Rev. Knopp: This morning I met several people who know something of the Second Ward affair.
“Mrs. Conrad Foley & Miss Helen Foley — wife & daughter of Conrad Foley — who is one sued by Cy Palmer — libel suit. They will both tell the truth if permitted to do so, by proper questions put to them. The O’Connors, 429 E. Norwegian St lived there 2 weeks — and signed some paper to this effect. When paper was seen again, weeks had been erased and months substituted. These people had a story framed up for any investigator — but the son of Conrad Foley, since this registration has married a daughter of O’Con-nor — and he had made them see their duty.
“The Foleys and Conrads have been subpoenaed. Will freely and honestly answer questions.
“A Miss Lewis, home Atlantic City, visiting at the time at relatives’ home. John W. Noble, who now lives 400 E. Adams Street. She registered through Mrs. Ira Hasler, 508 Fairview Street — Phone 1114W. Mrs. H. is sister-in-law of John Noble.
“Wm. D. Williams 403 E. Adams St. a brother-in-law of Noble — as well as Noble is perfectly willing to help by telling all they know — would welcome the opportunity.
“May be able to find some more citizens able and willing to shed light on the situation. Several people tell me, and I believe it to be true that the Snyder faction, Florence Hamilton acting under their orders, have done as much and even worse in other campaigns. They are pushing this because they have caught the Houck-Lieb faction. Who, We, who are interested hope that citizens, independent of either faction will bring out the truth to he made a matter of record. This case will have influence on the whole County.
“Sincerely yours,
“Edith Miehle.”

Thereupon the court, upon its own motion, by a preamble reciting the facts and an order made Jan. 17, 1927, which were served'upon the respondent, Edith Miehle, directed a rule to issue against her, returnable Jan. 31, 1927, to show cause why she should not be adjudged guilty of contempt. She made answer to this rule Jan. 31, 1927, saying, in part, as follows: “I did not intend, in writing said letter, to cast any reflection whatever on the dignity of the court, nor does said letter, so far as I am able to see, tend in any respect to do so. I disclaim and deny that said letter is in any way contemptuous, but since the Court has so adjudged it, I respectfully apologize to the Court for writing it. I regarded as highly proper the action of the Court in referring the matter to the Grand Jury for investigation. As a citizen of the County, I welcomed this action, and it was my hope and purpose in writing the letter that I might be able to assist the proceeding and certainly not to embarrass the administration of justice. . . . That the letter in question was written in response to a request by Rev. C. E. Knopp, foreman of the Grand Jury, that I give him the names of witnesses who might be able to give evidence bearing on the matters before the Grand Jury for investigation. I had previously informed him that I knew of some such witnesses, and asked if I should submit them. I have been secretary of the Schuylkill County Law Enforcement League since its organization some years ago and Rev. Knopp has been a member thereof for some years. I felt that I could properly, in furtherance of the work of said league, submit to Rev. Knopp the names of important witnesses who could offer valuable testimony in substantiation of the charges referred by the Court to the Grand Jury for investigation. I sought in this way to lay before the Grand Jury only that which would disclose the truth and further the ends of justice and add to the dignity and strength of the Court.” Subsequently, or on March 14, 1927, the respondent filed a petition, praying (1) for leave to file a substituted answer, withdrawing the language in the original answer, imputing to the court, inadvertently, perhaps, a prejudgment of her cause; and (2) for an order striking the original answer off. This petition was directed to be filed, but no further order on it has been made.

At the hearing upon the rule to show cause, it developed that Rev. Knopp had received a letter from Miss Miehle, the respondent, on Saturday, Jan. 8, 1927, in which she volunteered to give him information relative to the proposed investigation. Pursuant thereto, he called her on the phone at the home of Mr. Channell, her brother-in-law and one of her present counsel, and arranged to meet her on Monday morning, Jan. 10, 1927, at the public library in Pottsville, before the court convened. At that meeting she gave him the names of three persons, Lydia Jackson, Mrs. Alexander and A. Huntzinger, whom he called before the grand jury. The purpose of this meeting was developed by the cross-examination of Miss Miehle, which, in part, is as follows:

“Q. Did you talk to the foreman of the grand jury in reference to the merits of the question that was under investigation? A. The only conversation I had was Monday morning. Q. What did you say to the foreman of the grand jury with reference to the merits of the question that was under investigation on Monday morning? ... A. I was speaking to him as one member of an organization to another, which is organized to help better conditions in this county.”
By Mr. Burke: “Q. What did you say? A. I told him, as far as I recall, that we in the Second Ward were greatly interested in it and I did hope that the affair would be cleared up and it would stop this bad feeling that existed in that ward; and that it was only through questioning as many citizens as possible that it would be brought out, citizens on both sides. That is about the gist of what I told him, I think, as far as I recall; and, as I stated in the letter, I tried to find some more names Monday morning, and it was agreed that he should call me up on Monday afternoon before he left town and I would let him know what I had. Monday morning before noon, before he went up home, I wrote this letter and left it at the library so that I could send him for it Monday afternoon after he was through here.”
By Mr. Kilker: “Q. Did you not tell him that criminal practices were being indulged in by the political factions in that ward and that you would supply witnesses who would make proof of that fact? A. I told him that was what the charges were and the people were saying if they got a chance to get up there they would tell what was going on. Personally, I knew nothing; it was what these people said they would tell. I did not really know what they would tell, but they said they would if they would get a chance to tell. Q. Did you personally talk to those people whose names you furnished to Rev. Knopp in the letter? A. No, not in the letter.”
By Judge Berger: “Q. Did you to the other three? A. Only two. Q. To the other two? A. Yes. Q. The first two you gave him you had spoken to personally? A. Yes. Q. The others you had not? (Not answered.)”

As the outcome of the meeting at the public library, the letter hereinabove quoted was written. The question for determination, therefore, is whether these acts of Miss Miehle constitute a contempt of court. Individuals have no right to be heard by grand jurors unless they appear before them in response to a subpoena issued by the court, for the grand jury is without power to compel the appearance of a witness. No one has any right to send letters to members of the grand jury relative to subjects which are or may come before them. No one can communicate with the grand jury, or any of its members, in relation to matters which are or may be proper for their inquiry, either on questions of law or fact. The grand jury are officers of the court under its legal direction, receive their instructions from it only, and are entitled to its protection from all attempts to control, influence or bias them. Attempts of this kind to influence the jury are criminal in the eye of the law, a contempt of court and an obstruction of the administration of justice: Com. v. Crans, 2 Clark, 172.

Criminal proceedings in Pennsylvania are divided, in respect of their origin, into ordinary and' extraordinary. The first consist of those regularly instituted by a warrant of arrest founded upon an information in writing, supported by oath or affirmation, lodged with the proper officer. The second are those which are commenced (1) by direction of the court to the grand jury to investigate matters of so grave and general public import as to justify such intervention; (2) by the preferment of an indictment to the grand jury by the district attorney, with leave of the court; and (3) by presentment of a grand jury: Case of Lloyd and Carpenter, 3 Clark, 188. The duties of the grand jury, irrespective of the manner in which proceedings are brought before them, having indictment of a person or persons for the end, are essentially alike in all cases and are fully defined in the oath administered to them: Com. v. Dietrich, 7 Pa. Superior Ct. 515, 520. We make mention of this only because the respondent freely admitted that she knew that it was unlawful to communicate with the grand jury during ’the first week of its sitting while passing on bills of indictment regularly submitted to it, but both she and her counsel seem to labor under the erroneous impression that because its proceedings of the second week were of an extraordinary nature, it somehow became her duty to try to assist and influence the grand jury in its deliberations. This is dangerous doctrine, but not so uncommon as it may at first seem to be, for assaults on the administration of justice are often made under pretext of its vindication, or, as may be the case here, by a misguided zeal in the supposed furtherance of the public good. One who attempts to influence or prejudice a juror — grand, petit or traverse — in the discharge of his duty incurs a threefold liability, namely, (1) summary punishment by the court; (2) indictment for contempt or embracery; and (3) by an action for damages. Our duty in the instant case is clear and well defined in the words of Yerkes, P. J., in Doan’s Case, 5 Dist. R. 211, 213, as follows: “It has been held to be the duty of the judge to enforce the proceedings (contempt) either by summary punishment or by binding the offender over to answer an indictment, even where the misbehavior lis toward himself, and though personally he should be disposed to ignore it, for, said Holroyd, J., in Rex v. Davison, 4 B. & Ald. 329: ‘It is not on his own account that he commits; that is a consideration which should never enter his mind. But though he may despise the insult, it is a duty which he owes to the station to which he belongs not to suffer those things to pass which will make him despicable in the eyes of others. It is his duty to support’the dignity of his station and uphold the law so that, in his presence at least, it shall not be infringed.’ ”

We have been impelled to discharge like duties in the cases against John Connor (apparently not reported), Joulwan’s Case, 2 D. & C. 188, and Guarantee Trust and Safe Deposit Co. v. Heidenreich et al., 5 D. & C. 184, 186.

This opinion is filed pursuant to the reservation made in the order handed down Dec. 19, 1927, adjudging Miss Miehle guilty of contempt of court.


source: Caselaw Access Project

author: Stock, J.

license: Public Domain

text:
    Road in Spring Garden and North Codorus Townships.

      Road law — Re-reviewers — Time of appointment — Petition filed within term — Discretion of court to appoint re-reviewers.

    1. Re-reviewers of a proposed road may be appointed after the report of the reviewers has been finally confirmed, on a petition filed within the time the report of the reviewers was open for exception.
    2. Where the original viewers and the reviewers report in favor of the opening of a road, the court, using its discretion, may appoint re-reviewers on the petition of the board of township commissioners averring that the, proposed road is adjacent to a creek which frequently overflows its banks and maintenance thereof would be extremely expensive.
    Petition for appointment of re-reviewers of a proposed road in Spring Garden and North Codorus Townships. Q. S. York Co., April Sess., 1927, No. 8.

      M. S. Niles, for petition; C. W. A. Roehow, contra.
   Stock, J.

This matter involves an adjudication of the right and the discretion of the court to appoint re-reviewers.

The proceedings in this road case pertinent to a decision of the questions raised are as follows: On Aug. 24, 1926, a petition for a review was filed to No. 2, August Term, 1926, and the order to review granted, returnable to October Term, 1926. On Oct. 25, 1926, the time for filing the report was continued until the January Term, 1927. Jan. 5, 1927, the report of the reviewers was. filed and confirmed nisi. No exceptions were filed to this report, and on April 11, 1927, during the January Term, a petition for the appointment of re-reviewers was presented and filed.

The first question raised is: That this petition was filed before the time had expired within which exceptions may be filed to the report of the reviewers, and before their report was confirmed absolutely. That’this is irregular, and that no appointment can be made on said petition.

Where exceptions were filed to a report of re-reviewers, and at the same time a petition was presented for a re-re-review, it was held that it was not error to direct this petition to be filed to await the disposition, of the exceptions: Greenwood Township Road, 27 Pa. Superior Ct. 549-551. This is in effect what was done in the instant case, where the time for filing exceptions has been allowed to expire before action is taken on the petition for re-reviewers. This is not inconsistent with the ruling of this court, where it. was held irregular to appoint re-reviewers before the’ exceptions to the previous proceeding had been disposed of: Seiple’s Private Road, 8 D. & C. 303; 40 York Leg. Record, 5.

The second question raised is: That the court should refuse to appoint, re-reviewers in the exercise of its discretion. Section 5 of the Act of Feb. 17, 1860, P. L. 61, provides: “That it shall be the duty of the court, upon sufficient cause being shown by any person or persons affected by such report, . . . to appoint reviewers or re-reviewers.”

In the instant case, both previous reports favored the laying out of the road. Ordinarily, that would be persuasive proof that a third hearing is unnecessary. However, in this case the petition for review is made by the Township of Spring Garden, acting in its corporate capacity through its board of township commissioners, pursuant to resolution adopted at a regular meet-' ing of said board. The reason for their action is the allegation that the road “is adjacent to the Codorus Creek, which frequently overflows its banks, and makes the maintenance of the road, if adopted, burdensome and extremely expensive.”

It would, therefore, appear proper to allow the prayer of this petition in the interest of the public and of the taxpayers of Spring Garden Township.

And now, to wit, July 11, 1927, the petition for appointment of re-reviewers is received, and Herbert D. Smyser, Harry P. Peeling and E. E. Allen are appointed re-reviewers.

From Richard E. Cochran, York, Ra.


author: Hassler, J.,

text:
    Hinden v. McClain, Executor.

      Husband and wife — Joint ownership and survivorship.

      1. A. bond and mortgage given to a husband and wife jointly is held by entire-ties, and on the death of one the other becomes sole owner and is entitled to possession of the bond and mortgage by right of survivorship.
    2. In an action of replevin by a surviving husband to. recover such bond and mortgage, the allegation in the affidavit of defense that it was mutually agreed that the husband and wife should each own half of the mortgage is insufficient and does not change their interests, as it is an attempt to change a written contract by parol.
    Replevin. Rule for judgment for want of a sufficient affidavit of defense. C. P. Lancaster Co., April T., 1927, No. 12.

      John E. Malone, for rule; Harold G. Ripple, contra.
    July 2, 1927.
   Hassler, J.,

This is a rule for judgment for want of a sufficient affidavit of defense. The action is replevin. That a judgment can be entered in actions of replevin for want of a sufficient affidavit of defense is well settled: John Deere Plow Co. v. Hershey, 287 Pa. 92.

This writ of replevin was issued to obtain possession of a bond and mortgage. The statement sets forth the following facts upon which the plaintiff relies to recover: On Nov. 9, 1925, the plaintiff was the owner of a house and lot located at No. 602 North Queen Street, this city. On that day, he and his wife, Caroline Hinden, conveyed it to Clarence B. Hinden and Lottie M. Hinden, his wife. In order to secure part of the purchase money, Clarence B. Hinden and Lottie M. Hinden, his wife, executed and delivered to the plaintiff, Frank X. Hinden, and Caroline Hinden, his wife, a bond and mortgage on the said house and lot for $9500, with interest to be paid annually at 4 per cent. Caroline Hinden, wife of the plaintiff, died Dee. 24, 1926.

The plaintiff claims he is entitled to the said bond and mortgage by right of survivorship. In order to obtain possession of them, he issued this writ of replevin. The sheriff delivered them to him.

The defendant in his affidavit of defense admits these facts, but denies that the plaintiff is entitled to possession of the bond and mortgage as survivor of Caroline Hinden, his wife, for the reason that when it was executed and delivered, it was mutually agreed and understood by the parties that F. X. Hinden and Caroline Hinden “should each own one-half of said mortgage in their own right.”

This allegation of a mutual agreement and understanding between the parties really does not change the interest of the mortgagors as it appears on the face of the bond and mortgage. In so far as it attempts to or is intended to change that interest by depriving the survivor of his right to the ownership of the whole amount called for in them, it is an attempt to change or vary the terms of the written contract, viz., the bond and mortgage, by parol, and as it is not alleged that such mutual agreement was omitted from them by fraud, accident or mistake, it is not a good defense.

The only question for our consideration, then, is whether the plaintiff is entitled to the bond and mortgage as the survivor of his wife?

In Sloan’s Estate, 254 Pa. 346, William Sloan deposited money in bank on certificates of deposit, some payable to himself or wife and some to himself and wife.' At his death his wife claimed them. In allowing her claim, Justice Walling, delivering the opinion of the Supreme Court, said: “The rule that the title to property held jointly by a husband and wife vests in the survivor applies to personal as well as real property: Bramberry’s Estate, 156 Pa. 628; Parry’s Estate, 188 Pa. 33; Klenke’s Estate (No. 1), 210 Pa. 572. It is a joint deposit with right of survivorship where the certificates are payable to husband or wife, as well as where payable to husband and wife. In either case it is held by entireties: Klenke’s Estate (No. 1), 210 Pa. 572.”

In Klenke’s Estate (No. 1), 210 Pa. 572, it is decided that a tenancy by entireties arises wherever an estate in personalty or realty, in choses in actions as well as choses in possession, vests in two persons, who are at the time when it vests husband and wife.

In Bramberry’s Estate, 156 Pa. 628, Justice McCollum said: “A tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and wife. It may exist in personal as well as real property, in a chose in action as well as in a chose in possession: Freeman on co-Tenancy and Partition, §§ 63 and 68; Gillan’s Exec’rs v. Dixon, 65 Pa. 395. The common law rule is that the words which in a conveyance to unmarried persons constitute a joint-tenancy will create, if the grantees are husband and wife, a tenancy by entireties. The tenancy established by a conveyance to husband and wife is not destroyed or affected by the Act of March 31, 1812, 5 Sm. Laws, 395, which abolished survivorship among joint-tenants, nor does the rule referred to yield to an express provision in the deed that the grantees shall hold the estate granted as tenants in common: Stuckey v. Keefe’s Executors, 26 Pa. 397. It has been contended, and in some jurisdictions held, that the legislation which secures to the wife the enjoyment of her separate estate is destructive of the legal unity of husband and wife on which tenancies by entireties depend. But the better view is that such tenancies are not destroyed or impaired by it: 9 Am. & Eng. Ency. of Law, 851, and cases cited.”

Under these authorities, this bond and mortgage having vested in the plaintiff and his wife, they were tenants by entireties, and upon the death of one, the survivor (the plaintiff) became the sole owner of the bond and mortgage and all that was due upon it, including the interest.

Being of the opinion that no defense sufficient to prevent judgment is contained in the affidavit of defense, we make absolute the rule for judgment for want of a sufficient affidavit of defense and enter judgment for the plaintiff.

From George Ross Eshleman, Lancaster, Pa.


author: Martin, P. J.,

text:
    City of Philadelphia, to use, v. Woodside.

      Plaintiff’s sale — Real estate — Redemption—Trusts and trustees — Act of June U, 1901.

    1. Under the Municipal Claim Law of June 4, 1901, P. L. 376, the purchaser at the sheriff’s sale, on a lien for water-pipe, is not invested with any title to the land, and the owner’s title is not divested by the sale.
    2. In such case, the purchaser takes only an inchoate title which requires the lapse of a year from the date of the sheriff’s sale to ripen into an absolute title.
    3. If, before the expiration of the year, the owner seeks to redeem the property, the purchaser, upon payment of the amount which the sheriff received, must release his claim of title.
    4. A testamentary trustee in whom title to one-half of the land is vested is an owner within the meaning of the Act of June 4, 1901, P. L. 364, 376, who may redeem the land.
    0. If the amount of the purchase money is paid to redeem the land, the release or quit-claim deed should be made to the trustee and the heirs of testator as co-tenants as their interests may appear.
    Rule to show cause why purchaser at sheriff’s sale should not reconvey upon payment of redemption money. C. P. No. 5, Phila. Co., June T., 1903, Nos. 630 and 631.

      Gable, Vaughan & Gaul, for use-plaintiff.

      Orr, Hall & Williams, for Penna. Co. for Ins. on Lives, etc.
    March 27, 1928.
   Martin, P. J.,

A claim for $29 for water pipe was filed Sept. 5, 1903, against property on the west side of Edgewood Street, 46 feet south of Lansdowne Avenue, in the 34th Ward of the City of Philadelphia; containing in front 29 feet and in depth 83 feet 11 inches. On Sept. 25, 1917, judgment for want of an affidavit of defense was entered and damages assessed at $54.29. A lev. fa. was issued and the property was sold to Samuel C. J. Roth on Aug. 1, 1927, for $50, and a sheriff’s deed was delivered to him on Aug. 9, 1927. On Jan. 18, 1928, upon the filing of a petition, a rule was granted to show cause why the Pennsylvania Company for Insurances on Lives and Granting Annuities, trustee under the will of Robert Woodside, deceased, for itself and its co-tenants, should not redeem the premises from sheriff’s sale.

The petition for the rule averred that petitioner was appointed trustee under the will of Robert Woodside, deceased; that John Woodside, now deceased, was the owner of the premises in fee simple, and, being seized thereof, died Dec. 7, 1876; and by the terms of his will, John Woodside devised the premises to his two surviving brothers, Robert Woodside and William Woodside; that Robert Woodside, being seized of a one-half share in the premises, died Aug. 15, 1889, and by his will devised the premises to his trustee, and that petitioner was duly appointed trustee under the will of Robert Woodside; that William Woodside being seized of the other undivided half interest died and his share in said property became vested in his heirs.

An answer was filed in which the averments of the petition were not denied, but alleging that the petitioner was not authorized to represent the heirs of Robert Woodside.

The Act of June 4, 1901, § 33, P. L. 376, provides that “the owner of any property sold under a tax or municipal claim . . . may redeem the same at any time within one year from the date of the acknowledgment of the sheriff’s deed therefor, on payment of the amount paid at said sale.”

The petitioner, as trustee under the will of Robert Woodside, is an owner of the property, entitled to a one-half interest, in common with the heirs of William Woodside.

The purchaser at sheriff’s sale is not invested with any title to the land, and the owners’ title was not divested by the sale. The purchaser takes only an inchoate title which requires the lapse of a year from the date of the sheriff’s sale to ripen into an absolute title; but if before the expiration of the time the petitioner, as owner, seeks to redeem the property, the purchaser, upon payment of the amount which the sheriff received, should release his claim of title.

The question was raised by the purchaser as to whom he shall make conveyance. The owners’ title has not been divested; therefore, the release or quit-claim deed to be signed by the purchaser should be made to the petitioner and the heirs of William Woodside as their interests may appear.

And now, to wit, March 27, 1928, it is ordered and decreed that the rule granted in the above entitled cause be made absolute; and that Samuel G. J. Roth be directed to execute and deliver a deed for the premises purchased by him at sheriff’s sale to the Pennsylvania Company for Insurances on Lives and Granting Annuities, trustee under the will of Robert Woodside, deceased, and its co-tenants, the heirs of William Woodside, as their interests may appear.


author: Brown, Jr., J.,

text:
    Commonwealth v. Seventeen Half Barrels of Beer, &c.

      Liquor law — Seizure of beer — Claim of return — Jury trial — Time—Words and phrases — Hearing—Act of March 27, 1923.

    1. Under the Act of March 27, 1923, section 11 (P) (vii), P. L. 34, 43, which relates to the seizure of liquor and which provides that “unless either the Commonwealth or the claimant shall demand a jury trial within five days' after the conclusion of the hearing, the right to such jury trial shall be deemed to have been waived,” the time begins to run from the decree on the hearing.
    2. In such case, the word “hearing” has a different meaning from the word “trial” and includes not only the talcing of testimony and argument of counsel, but also the court’s consideration and action thereon.
    3. The use of the words “conclusion of the hearing” emphasizes the thought that the proceeding must be ended, which may be only by a decision of the court.
    Proceedings for condemnation and forfeiture of intoxicating liquor. Rule to show cause why demand for jury trial under the Prohibition Enforcement Act of March 27,1923, P. L. 34, should not be stricken from the record. Q. S. Phila. Co., June Sess., 1926, No. 273, Misc. Division.

      John A. Boyle, Assistant District Attorney, for Commonwealth.

      William A. Carr, for claimant.
    May 31, 1928.
   Brown, Jr., J.,

Testimony was taken on various dates from July 16, 1926, to Dec. 16, 1926, following which, on Dec. 23, 1926, a decree, ordering the beer returned, was entered, to which, on Dec. 30, 1926, the Commonwealth excepted and appealed to the Superior Court.

On March 2, 1928, the Superior Court reversed the decree and ordered the beer destroyed. Then, on March 10, 1928, a petition for an appeal to the Supreme Court was filed by the Berger & Engel Brewing Company, but, on April 18, 1928, this appeal was refused.

On April 20, 1928, a decree was signed by this court in accordance with the order of the Superior Court of March 2, 1928, ordering the beer destroyed.

On April 24, 1928, a petition for jury trial was filed by the Berger & Engel Brewing Company, and, on the following day, the Commonwealth filed this petition and rule to show cause why the demand for jury trial should not be stricken from the record. Argument was had on the latter petition on May 4, 1928.

The Commonwealth urges that the claimant should have demanded a jury trial within five days after the conclusion of the taking of testimony on Dec. 16, 1926, and not having done so, it is barred therefrom now. However, the demand therefor was made within five days after the decree of this court condemning the beer was entered on April 20, 1928.

Section 11 (D) (vii) of the Act of March 27, 1923, P. L. 34, provides as follows (P. L. 43): “Unless either the Commonwealth or the claimant shall demand a jury trial within five (5) days after the conclusion of the hearing, the right to such jury trial shall be deemed to have been waived.”

If “trial” had been used instead of “hearing,” there would be no question that a jury trial must be demanded within five days after “trial,” irrespective of whether the court entered a decree or not, but “hearing” has a different significance, and includes not only the taking of testimony and argument of counsel, but also the court’s consideration and action thereon.

“Hearing” includes not only the listening to the examination of the witnesses, but the entire judicial examination of the issues, both of law and of fact. It embraces the listening to the arguments of counsel, if oral arguments are made, and the reading of the arguments, if written or printed arguments are presented, or both, as the case may be; also, the consideration of these arguments in respect to both points of law and of fact following presentation to the court. See West Chicago Park Comm’rs v. Riddle, 151 Ill. App. 487, 505, 506 (1909).

Furthermore, “conclusion” is coupled with “hearing” in the above-quoted section. The idea involved is a complete ending. While the word “hearing” includes all that is part of the idea conveyed by that word, and while, perhaps, “conclusion of the hearing” does not, strictly speaking, mean anything more, yet the use of the word “conclusion” emphasizes the thought that the proceeding must be ended, which may be only by a decision of the court. Even after the taking of testimony and argument and when the court has the issues before it for determination, further testimony may be taken or additional arguments made; hence, there is no “conclusion” until the court enters a decree.

Although not necessary to the decision, this question was referred to in Com. v. One Ford Truck, 5 D. & C. 167 (1924), and the view there expressed (page 168) that the foregoing provision was intended to give the claimant the opportunity to make his demand for a jury trial before judgment is actually entered; that to give practical effect to the enactment it is necessary for the court to stay its hand until five days have expired, and then, if no demand is made, enter a decree; if demand is made, no action should be taken on the petition until after the jury trial is had. The theory of this is that to hold otherwise — to permit the parties to have five days after the decree in which to demand a jury trial — would make the demand, in effect, an appeal from the judgment of the court to the same court with a jury, to the end that a second judgment may be obtained, which second judgment might be wholly inconsistent with the first; that, therefore, it was the intention of the legislature to give the claimant the opportunity to make his demand for a jury trial before judgment is actually entered.

But was that the legislative intent? The phraseology used does not forbid the court from entering a decree within five days after the matter has been presented, and if it so desires, after the expiration of five days, even if a jury trial has been demanded. This being so, and a jury trial being had, the result might he a decree of condemnation by the court and a verdict of the jury to the contrary — an anomalous situation.

The Superior Court has referred to this section of the Act of 1923, though in cases where the precise point here was not involved. First, when Com. v. One Ford Truck, supra, was appealed, it said (85 Pa. Superior Ct. 43, 46): “We agree with the learned judge of the court below that the act contemplates that the claimant shall have the opportunity to make his demand for a jury trial before any judgment is actually entered and that the court should not enter its decree until the five days for making the demand have expired.” Later, however, in Com. v. Reo Speed Wagon, 87 Pa. Superior Ct. 38 (1925), it modified this, saying (page 41): “The determination of the judge, therefore, after the hearing, is not conclusive, and either party has a right to demand a jury trial, or, if a jury trial is not desired, to cause the determination of the court to be reviewed upon appeal.”

This indicates that a jury trial may be demanded even after determination by the court; that this is the more exact meaning of the provision is indicated by the use of the word “hearing,” as pointed out above. This includes not only the taking of testimony and argument by counsel, but also the action of the court thereon: the entering of a decree, which is the “conclusion” contemplated by the act.

The Commonwealth’s petition is, therefore, dismissed.

NOTE.—See 8 Adv. Reps. 109; s. c., 93 Pa. Superior Ct. 84.


author: Morrow, J.,

text:
    Commonwealth v. Weeks.

      Criminal law — Murder—Twice in jeopardy.

    1. The murder of two persons by two separate blows at the same time, or, under some authorities, even by the same act, constitutes two offences, for each of which a separate prosecution will lie, and a conviction or acquittal in one case does not bar a prosecution in the other.
    2. In such case, a verdict of guilty with penalty of life imprisonment in the first prosecution is not inconsistent with a verdict of guilty with penalty of death in the second.
    3. In this case, a verdict of guilty of murder of the first degree was held not to be against the weight of the evidence or against the law.
    Motion for arrest of judgment. O. and T. Fayette Co., March T., 1927, No. 57/273.
    Before Hudson, P. J.; Henderson and Morrow, JJ.

      Charles L. Davidson and T. Watt Henderson, for motion.

      E. D. Brown, District Attorney, Wade 'K. Newell, First Assistant District Attorney, and E. J. McDaniel, contra.
    Sept. 6, 1927.
   Morrow, J.,

The jury found the defendant guilty of murder in the first degree, with penalty of death according to law, on an indictment charging him with killing Eugene Williams on Jan. 13, 1927. At an earlier trial on an indictment charging the same defendant with killing Marie Williams on the same date, he was found guilty of murder in the first degree, with penalty of life imprisonment. A new trial was not asked in that case. No sentence has been pronounced. Two indictments are still pending, the one charging him with the murder of Ida May Williams, and the other with the murder of James Williams, Jr., on the same date. Marie Williams, twenty-six years old, was the mother of Eugene, aged about five years, Ida May, about three, and James, Jr., a little less than two years old. On the morning of Jan. 13, 1927, their home at Lambert was discovered to be on fire. When the fire was put out, the dead bodies of Mrs. Williams, Eugene and James were found in a bed, partly burned, in the upstairs rear room. Ida May was found dead on the floor at the head of the stairs, her death being due to suffocation caused by the smolte. The left side of the mother’s skull was crushed. There was a fracture at the base of her skull, and other parts of her head and face also gave evidence of having been struck by some blunt instrument. The cause of death of the boy, Eugene, was a crushed skull. The entire right side of his skull was bruised and crushed. There were several distinct marks where struck by some blunt instrument. The death of the youngest child, James, Jr., was due to burns and to suffocation from smoke. It was evident that the mother and the older boy, Eugene, had first been killed by numerous separate blows on the head of each, then the bed set on fire, resulting in the death of the two younger children.

Prior to the arraignment of the defendant on the indictment for the murder of Eugene Williams, his counsel interposed an objection to the effect that he could not be tried on this indictment without being placed twice in jeopardy for the same offence, having previously been tried and convicted, as above mentioned, on the charge of murdering the mother. It was contended that the two killings, being at the same time, constituted but one transaction and one offence. This contention was not sustained, exception was allowed the defendant and the trial proceeded, resulting in the verdict aforesaid. Counsel for the defendant filed a motion in arrest of judgment, based on the ruling and exception just mentioned, and this motion is now before us for disposition.

The offence of killing the boy was separate and distinct from that of killing the mother. Under the evidence, the two deaths resulted from separate blows. .Consequently, it is clear that there was no double jeopardy: Com. v. Valotta, 279 Pa. 84 (88). It is not necessary to consider whether there would still be no double jeopardy had the same blow caused both deaths, but authority may be found in support of the proposition that the murder of two persons, even by the same act, constitutes two offences, for each of which a separate prosecution will lie, and that a conviction or acquittal in one case does not bar a prosecution in the other: People v. Majors, 65 Cal. 138; Com. v. Browning, 146 Ky. 770. The motion to arrest judgment cannot be sustained.

A motion for a new trial was also filed, but it was not pressed at the argument, counsel for the defendant conceding that there was no error in the trial or other reason to be advanced warranting a new trial. The only reasons set forth in the motion are that the verdict was against the weight of the evidence and that it was against the law. We'assume that the latter reason was meant to embrace the same proposition urged in support of the motion to arrest judgment considered above. The question whether the verdict was against the weight of the evidence is answered by a brief review of the testimony. The defendant did not testify in this ease and offered no evidence in his own defence. The Commonwealth proved the corpus delicti, as above recited, and introduced evidence that the defendant was seen near the house where the crime was committed about the time of its commission, he then going in the direction of his own home; that a revolver had been under one of the pillows of the bed where the boy and his mother were killed; that the butt of this revolver fitted into a depression in the boy’s skull, made by one of the blows causing his death; that this revolver was subsequently found concealed in the defendant’s bedroom, and, when found, was covered with fresh human blood; that the shoes found under the defendant’s bed and worn by him at times had human blood-stains on the lining of each, and that a pair of socks, like other socks found in the possession of the defendant, were taken from the vault of the outhouse at the defendant’s home and had on them blood-stains corresponding in location to the stains in the shoes; that the defendant’s home was only about 800 feet from the scene of the crime; that the defendant and his brother occupied the same bedroom; that the morning of the crime the brother went into the mine to work some two hours prior to the commission of the crime; that the defendant did not go to work, stating to his brother that he was not feeling well; that at the time the fire alarm was turned in and the crime discovered, the defendant was at home in bed, and on being advised of what had happened manifested little interest or concern and did not go to the scene of the crime, although Marie Williams, the deceased woman, was his wife’s sister; that the husband of the deceased was in the mine, having gone to work some considerable time before the commission of the crime; and there was evidence to the effect that the defendant, some months before, had been haying illicit relations with said Marie Williams at times when her husband was at work, and that this had led to a quarrel between the husband and the defendant, the latter being ordered to stay away. This, with other corroborating evidence, was given in detail, and, standing unexplained and uncontradicted, it is not clear how any other verdict than that rendered could have been expected. Two juries have found . that the defendant did the killing. The suggestion that the two verdicts, the first with penalty of life imprisonment and the second with penalty of death, are inconsistent is without merit. The first might well have carried the extreme penalty, but it is easily conceivable how it might be concluded that the killing of an innocent little boy was more brutal and fiendish than the killing of a woman with whom the defendant may have been having secret illicit relations. If any murder merits the death penalty, this is manifestly one of that class. We see no reason why the verdict of the jury should not stand and why the sentence fixed by it should not be imposed.

Order.

And now, Sept. 6, 1927, for the reasons stated in the foregoing opinion, the motion to arrest judgment and the motion for a new trial are refused.

Prom Luke H. Prasher, Uniontown, Pa.


author: Baldrige, Att’y-Gen.,

text:
    Public Supply of Water by Coal Companies.

      Water supply — Bituminous coal companies — Permit from Secretary of Health — Acts of April 22,1905, and June 7,1923.

    Where corporations organized to mine bituminous coal construct water-works and supply water for domestic purposes to the inhabitants of mining villages living in houses owned by such companies, they are supplying water to the public Within the meaning of section 3 of the Act of April 22, 1905, P. L. 260, and the Act of June 7, 1923, P. L. 498, and should obtain a written permit from the Secretary of Health so to do.
    Department of Justice. Opinion to Hon. Theodore B. Appel, Secretary of Health.
    Dec. 5, 1927.
   Baldrige, Att’y-Gen.,

This department is in receipt of your letter of recent date, asking to be advised whether certain bituminous coal companies are supplying water to the “public” within the meaning of section 3 of the Act of April 22, 1905, P. L. 260, which reads as follows: “No . . . private corporation, company or individual shall construct water-works for the supply of water to the public . . . without a written permit, to be obtained from the Commissioner of Health. . . .”

The circumstances under which this water is supplied you describe as follows :

“In the bituminous coal regions of Pennsylvania, it is believed to be a common practice for a coal company to select a spring, well or surface stream as a source of water, or to make a contract for a supply of water with a nearby water company or municipality, and convey such water, by means of a system of pipes, to the village wherein the coal company’s employees dwell.
“Sometimes the water is supplied to the inhabitants of the village by means of hydrants in the streets or on the premises; sometimes the water is piped within the houses; sometimes, apparently, no charge whatever is made for the water; sometimes it is understood that the rent of the houses includes furnishing the water, and sometimes water rent is specifically mentioned in the lease for the house and constitutes a charge separate from the rent of the house.”
“Water-works” has been defined as “a term that includes streams, springs, wells, pumps, engines and all machinery, lands, buildings and things for supplying, or used for supplying, water:” 40 Cyc., 846. See, also, Randall v. Smith, 51 So. Repr. 917; 8 Words and Phrases, 7417.

It may properly be assumed that the coal companies referred to have constructed water-works and are furnishing water for human consumption. The more difficult question for determination is, are these coal companies engaged in the “supply of water to the public” as contemplated by the Act of 19057 If so, they should obtain written permits from the Secretary of Health.

The word “public” does not have a fixed or definite meaning. It is variously used, and a reference to the cases will show that it has widely different meanings as used in acts of assembly whose objects are dissimilar. As stated in Huston Township Poor District v. Benezette Township Poor District, 135 Pa. 393, 398: “The word ‘public’ is a convertible term, and when used in an act of assembly, may refer to the whole body politic; that is to say, to all the inhabitants of the State, or to the inhabitants of a particular place only; it may be properly applied to the affairs of the State or of a county or of a community. . . .”

In the case of State v. Luce, 32 Atl. Repr. (Del.) 1076, the court said: “When, with reference to an alleged nuisance, the people or citizens of a neighborhood, or the public, are mentioned, it does not mean all the people, or all the public, but only such considerable number of them as to show that more than a few merely are meant. . . . The term ‘public’ does not mean all the people, nor most of the people, nor very many of the people of the place, but so many of them as contradistinguishes them from a few. . . .”

On the other hand, there are many definitions of the word “public” which, if considered alone, might seem to indicate that the coal companies here in question are not supplying water to the “public.” These latter definitions, however, do not involve the word “public,” as used in a statute which has been enacted as a police regulation, “for the protection of public health.”

The Supreme Court, in the case of Com. v. Emmers, 221 Pa. 298, in discussing the Act of 1905, said: “. . . The statute was passed in the exercise of the police power of the State. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace and safety of society. All sorts of restrictions and burdens are imposed under this power, and when these are not in conflict with any constitutional prohibition or fundamental principle, they cannot be successfully assailed in a judicial tribunal. That the preservation of the waters of the State from pollution, involving danger to health, is a proper subject for the exercise of the police power cannot be seriously questioned.”

The purpose of the legislature in enacting the statute is shown quite clearly in the language found on page 312 of the above opinion: “. . . This statute required every individual, corporation or municipality supplying the public with water to file in the ofliee of the Health Department of the State a statement of its source of supply. It requires every municipality which, at the time of the adoption of the statute, was maintaining a system of sewerage to file in that department a plan thereof. These provisions necessarily result in making a matter of public record, in the office of the Commissioner of Health, the sources from which the public water supply of every community in the State is taken, and a like record of every opening of a public sewer system into the waters of the State. Should an epidemic develop in any community, the health authorities immediately have accurate information as to the source from which the public water supply of that community is derived and whether any public sewer system is discharged into the water. The State legislation requiring physicians in municipalities to make reports to the health authorities of all cases of diseases will place at the disposal of the Commissioner of Health information as to the health conditions existing in the municipalities using the various public sewer systems. The Commissioner of Health and officers under his control will thus constantly have a large part of the information necessary to deal with the health conditions of any community.”

Thus the purpose of this legislation as above defined would seem to embrace as well the case of a supply of water to the inhabitants of a mining village living in “company” houses, which water is supplied by such company to its own tenants and none other, as to the case of the supply of water to all the people requiring such service in an entire “town, borough, city or district” by a company incorporated, under paragraph 9 of section 2 of the General Corporation Act of 1874, for “the supply of water to the public.” Whether the people served live in “company” houses and receive their supply of water from the company for which they work or whether they receive it, along with other members of the community in which they live, from an incorporated water company would not seem to be a fair test of whether or not they are comprehended within the meaning of the word “public” as used in this statute, which has to do with the important problem of the protection of “public” health. The public complexion of the group served and the general public injury that might follow from serving impure water to such a group of people should not be permitted to be obscured by a reference to the powers, purposes and obligations of the corporation serving.

In support and explanation of the foregoing, the following text excerpts, well fortified by authority, may be cited:

“It is well settled that, in construing any statute, all the language shall be considered, and such interpretation placed upon any word or phrase appearing therein as was within the manifest intent of the body which enacted the law. The proper course in all cases is to adopt that sense of the words which best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature. . . :” 25 Ruling Case Law, 988.
“Among the statutes which have been declared to be remedial in their nature and consequently entitled to liberal construction are those seeking the correction of recognized errors and abuses by introducing some new regulation for the advancement of the public welfare; . . . laws and regulations necessary for the protection of health, morals and safety of society. . . 25 Ruling Case Law, 1079.

The fact that we are dealing with a statute designed to protect the public health should, therefore, be given paramount consideration in its interpretation and construction. That the companies supplying this water have not condemned and dedicated to the public use certain sources of water supply, or that they do not possess the power so to do, so that undeniably they are “private use” as distinguished from “public use” corporations does not mean that they cannot supply water to the “public” within the meaning of this act. An interesting parallel is found in the case of Com. v. Kennedy, 240 Pa. 214, where the defendant contended that, since only the riparian owners and not the public generally have an interest in a private stream, the pollution of such a stream could result only in a private injury and not in a public injury. In repudiating this contention, the court said, page 220: “The act (same act here under consideration) defines ‘waters of the State’ to mean ‘all streams and springs and all bodies of surface and ground-water, whether natural or artificial, within the boundaries of the State.’ This does not make all such streams public streams, but it does subject them to police control, because, while not public streams, they are susceptible of being turned into public nuisances. . . . We simply repeat that it is not necessary to constitute a public nuisance in running water that the stream should be a public stream.”

Thus, it is not necessary that a company should hold itself out to supply water generally to all of the public of a given locality in order to endanger the public health from an impure water supply; the public health may as readily be endangered by the supply of impure water for domestic purposes to people living exclusively in the “company” houses of a mining village as by a similar supply to all the people of a certain “town.”

In other words, even though the purpose, the powers and the obligations of a corporation are not such as to make it, technically speaking, a “public use” corporation, the recipients of the water may still be enjoying a service which is charged with “public” attributes, within the meaning of a health protection act.

In addition, the Administrative Code of June 7, 1923, § 1802, P. L. 498, practically re-enacts section 8 of the Act of April 27, 1905, P. L. 312, by providing as follows: “The Department of Health shall have the power, and its duty shall be: (a) To protect the health of the people of this Commonwealth and to determine and employ the most efficient and practical means for the prevention and suppression of disease.”

This shows a deliberate effort on the part of the legislative body to give to the Health Department a general blanket authority to employ the most efficient and practical means, in each and every case arising, for the prevention and suppression of disease, to the end that the health of the “people of this Commonwealth” may be protected.

We believe that the word “public,” as used in section 3 of the said Act of April 22, 1905, was intended to have much the same meaning as “people of this Commonwealth,” as used in section 1802 above, and we find further evidence of this in the title of the Act of April 22, 1905, where reference is made to the “public health.” See Dixon v. Sheffer, 46 Pa. Superior Ct. 452.

We are accordingly of the opinion, and so advise you, that where bituminous coal companies construct water-works and supply water for domestic purposes to the inhabitants of a mining village, they are supplying water to the public within the meaning of section 3 of the Act of April 22, 1905, P. L. 260, and the Administrative Code of June 7, 1923, P. L. 498, and should obtain a written permit from the Secretary of Health so to do.

Prom C. P. Addams, Harrisburg, Pa.


text:
    Haughey v. Clush.

      Damages to automobile — Evidence—Bill for repairs.

    In an action to recover damages for injuries to the plaintiff’s automobile caused by the defendant’s negligence, there is no sufficient proof of the plaintiff’s damages ■where the plaintiff testified that he had a bill for the amount claimed for repairs and the repairs charged for in the bill were made necessary by the accident, without offering further proof of the reasonable value of the repairs, their necessity nor that the time consumed in making them was reasonable.
    Rule for a new trial. C. P. Lanaster Co., Sept. T., 1925, No. 48.

      George T. Hambright and John E. Malone, for defendant and rule.

      Paul A. Mueller and John M. Groff, contra.
    April 16, 1927.
   Hassler, J.,

It was shown at the trial of this case that the plaintiff sustained injuries to himself and his automobile by reason of a collision with an automobile operated by the defendant. The plaintiff claimed, and the jury found, that the collision was due to the negligence of the defendant. The only reason for a new trial that requires consideration is that there was no competent testimony to show what damages the plaintiff sustained by reason of the injury to his automobile, so that there was nothing before the jury to justify their finding what the damages to the plaintiff’s automobile were.

The only testimony of what the damages to the plaintiff’s automobile amounted to was his own testimony and a bill which he received and paid for repairs to it. There was no competent testimony to show that the repairs charged for in the bill and paid by the defendant were neessary because of the collision in question, nor that the materials charged for in it were used, nor that the time charged for work in making the repairs is proper, nor that the prices charged for labor and materials were reasonable and the ordinary market prices prevailing at that time.

The plaintiff first testified that the repairs charged for in the bill were made necessary by the accident. Then, that the party who repaired the car sent a bill and that was all he knew about it. He said he did not know how many hours the workmen were engaged in making the repairs or what materials were used. In Berry on Automobiles (5th ed.), § 1141, it is stated that a receipted bill for repairs to an automobile is not competent evidence of damages. It neither proves the reasonable value of the repairs, their necessity, nor that the time consumed in making them was reasonable. In McLaughlin Brothers v. J. E. Baker Co., 39 Lanc. Law Rev. 393, we granted a new trial for the reason there was no proof that the materials and labor charged for in the bill, which was produced at the trial and which was paid by the plaintiff for repairs to his truck, were necessary because of the accident. In our opinion, we said: “Where damages are susceptible of being proven, the amount must be established with certainty: Forrest v. Buchanan, 203 Pa. 454; Byrne v. Railroad Co., 219 Pa. 217; Atlantic Co. v. Ice Cream Co., 3 Erie Co. L. J. 266. In Great Bear Spring Co. v. Fischman, 82 Pa. Superior Ct. 502, it is said that to properly admit a bill for the costs of repairs in evidence, it should be shown that the repairs were necessary because of the accident, that the materials charged for were used, and the time charged for workmen engaged on the repairs is proper, and also that the prices charged for labor and materials were reasonable and the ordinary market prices prevailing at that time. See, also, Jones v. Philadelphia Rapid Transit Co., 4 D. & C. 120.” We followed this in Campbell v. Frey, 40 Lanc. Law Rev. 70.

We are of the opinion that it was error to have admitted the bill and submitted the question of the damages to plaintiff’s automobile, as there was no evidence upon which they could base a finding of the amount of damages to the automobile.

The jury found a verdict for the plaintiff for $445.50. The amount of the bill for repairs produced at the trial was $237.50. There was sufficient testimony to justify $208 of the verdict. If the plaintiff, within ten days of the filing of this opinion, remits all of the verdict in excess of $208, the rule for a new trial is discharged. Otherwise, it is made absolute.

From George Ross Eshleman, Lancaster, Pa.


author: Hare, P. J.,

text:
    Fidelity and Casualty Company of New York v. Brua.

      Practice, C. P. — Affidavit of defense offered as- evidence — FaÁlure to limit its effect.

    1. Where a plaintiff, without qualification, limitation or restriction, offers in evidence the affidavit of defense filed by defendant and offers no testimony in contradiction thereof, the averments of fact in the affidavit of defense must be accepted as proved.

      Contracts — Bond—Execution in blank.

    2. It seems that the rule that when a bond is executed in blank, the obligor constitutes the obligee his agent to fill in the blanks and is bound by his doing so has no application where the obligee in fact did not fill in the blanks.
    Rule for judgment in defendant’s favor n. o. v. C. P. Blair Co., Jan. T., 1927, No. 106.

      John M. Snyder, for plaintiff; Robert W. Smith, for defendant and rule.
    Dec. 20, 1927.
   Hare, P. J.,

This action is based upon a contract alleged to be incomplete because of the failure to fill in the blank spaces and thus express the definite terms of the contract capable of supporting the action.

Counsel for plaintiff insists upon the application of the rule of law that when an obligation is executed in blank, the obligor constitutes the obligee his agent to fill in the blanks and is bound by his doing so. This is the rule of law applicable to negotiable instruments, and in some cases has been applied to other contracts. A discussion of that question would not serve any useful purpose here, because, as a fact, the obligee did not fill in the blank spaces.

We do not think that it is necessary to determine now whether the instrument in its present form is complete and sufficient to sustain an action. The defendant in his affidavit of defense avers that, although he signed said instrument,' it does not constitute the contract between the parties. He declares that he procured the bond through a solicitor for the surety company, and that the solicitor who procured the bond for him represented to him and agreed with him that the defendant would not be required to pay any amount in excess of the initial payment for or on account of said contract.

At the trial, the plaintiff, without qualification, limitation or restriction, offered in evidence the paragraphs of the affidavit of defense averring this contract, which placed the statements therein set forth upon the record as part of the evidence. There was no offer to limit the use of the affidavit in connection with the plaintiff’s statement to establish only facts admitted. The plaintiff did not offer any testimony in contradiction; hence, the averment of fact in the affidavit of defense must be accepted as proven: Kull v. Mastbaum & Fleisher, 269 Pa. 202. Having proven the contract as averred by defendant, and the discharge of that contract by payment, recovery is barred.

The first and second points submitted by the plaintiff should have been denied. The first and fifth points submitted by the defendant should have been affirmed.

Now, Dec. 20, 1927, the rule for judgment for defendant n. o. v. is made absolute and judgment is directed to be entered in favor of the defendant n. o. v.


author: Reno, P. J.,

text:
    St. John’s Church Charter.

      Corporations — Charter — Church — Holding corporation not in fact a church — Name.
    X. The court will not approve articles of incorporation in the name of a church when it is not intended by it to exercise the essential functions of a church.
    2. Where the proposed corporation professes no creed and is not to engage in public worship, but is merely to act as a holding corporation of the property of two unincorporated congregations, a charter will be refused.
    3. Such an association may be incorporated under an appropriate name, but not as a holding corporation to be called a church.
    Petition for charter. C. P. Lehigh Co., June T., 1927, No. 154.

      Oliver W. Frey, for petitioner.
    Oct. 24, 1927.
   Reno, P. J.,

The petition is signed by the pastors and church councils of the Lutheran and Reformed congregations at Fullerton and prays for a charter incorporating the members of both congregations in one body or corporation, to be known as “St. John’s Church of the Lutheran and Reformed Congregations of Fullerton, Pa.” The purpose is “for receiving and holding property, real, personal and mixed, of the aforesaid unincorporated religious organization, known as St. John’s Church of the Lutheran and Reformed Congregations of Fullerton, Pa., to erect and improve buildings and keep them in proper repair, to keep the ground surrounding same and belonging thereto in orderly condition, and to receive all moneys that may be bequeathed, donated, loaned or given for the purpose of erecting, improving and repairing the buildings and all other Church property.”

The real purpose is, of course, to perpetuate an existing union congregation. Whether or not this is wise is a question not before us, and we shall not discuss it. The substantial objection to the petition is the circumstance that, although the corporation calls itself a church, it will not exercise the essential functions of a church. Passing the many definitions propounded by theologians, we think all men will agree that a church is, at the least, a body of Christians professing a creed and engaging in a form of worship. Stripped of all other qualities, these factors are essential. But nowhere does it appear that this proposed corporation professes a creed or is to engage in public worship. It is, at best, merely a holding corporation. It is to receive, invest and hold the property of the two separate congregations, which, by the way, remain unincorporated associations, and erect, repair and improve the buildings thereof. There can be no valid objection to the incorporation of this holding concern under an appropriate name, but we cannot allow a holding corporation to be called a church.

Now, Oct. 24, 1927, the petition for a charter is refused.

From Edwin L. Kohler, Allentown, Pa.


author: Parker, P. J.,

text:
    Additional Law Judge, 53rd Judicial District.

      Declaratory Judgments Act — Practice, C. P. — Pleading — Jurisdiction— Necessary parties — Standing of petitioner — Judicial notice — Act of June 18, 1928 — Courts—Judges.
    1. The same precision and formalities should be observed in asking for a declaratory judgment as in the pleadings in any other case.
    2. In order for the court to render a declaratory judgment, the court must have jurisdiction of the subject-matter, independent of the Declaratory Judgments Act of June 18, 1923, P. L. 840.
    3. The petitioner must be one that would have standing to be a party if the action were in one of the usual forms.
    4. The court will not render a declaratory judgment unless all parties that are sought to be bound by it are in court.
    5. The Court of Common Pleas has no jurisdiction by declaratory judgment to determine the right of any one to hold the office of judge of the Court of Common Pleas. The remedy is by quo warranto in the Supreme Court.
    6. The court will take judicial notice of the action of the Governor in appointing a judge of the same court.
    The Declaratory Judgments Act discussed and construed.
    Rule for declaratory judgment. C. P. Lawrence Co., Dec. T., 1927, Misc. Docket No. 4.
    S. P. Emery, for petitioner.

      John P. Lockhart, County Solicitor, for county commissioners.

      William McElwee, Jr., for intervening petitioners.

      C. H. Aikens, amicus carite, made argument for petition.
    Oct. 6, 1927.
   Parker, P. J.,

28th judicial district, specially presiding,

On Sept. 7, 1927, there was presented to this court by William E. Marquis a petition asking for a declaratory judgment. On that same date an order was made by the President Judge, directing that the petition be entertained, that Sept. 21, 1927, be fixed as a time for hearing, and that a copy of the petition and order be served on the Attorney-General of the Commonwealth of Pennsylvania and the Commissioners of Lawrence County. At the time fixed for hearing, this matter was referred to William M. Parker, President Judge of the 28th Judicial District, who was specially presiding in this court, and arguments were heard.

Prior to the hearing, the county commissioners presented a petition, asking that the original petition be dismissed for the reason that the petitioner was not entitled to a declaratory judgment. On Sept. 12, 1927, David S. Pyle, Harry K. Gregory and S. E. Irvine, alleging that they were citizens and taxpayers of the 53rd judicial district, asked permission to intervene and'file a petition to dismiss the original petition. Various reasons were given in support of their position. The petitioners were permitted to intervene, and a rule to show cause why thé petition should not be dismissed was granted, returnable at the time fixed for hearing. Arguments were heard both upon the right of the original petitioner to a declaratory judgment and as to the constitutionality of the statute in question.

The petitions to dismiss present a serious question, and it is, therefore, necessary for us to carefully analyze the petition and consider the reasons in support of the claim that the petition should be dismissed.

The caption of the petition is: “In Re: Additional Law Judge, Fifty-third Judicial District.”

William E. Marquis alleges:

“1. That he is a citizen and a taxpayer of the County of Lawrence, State of Pennsylvania, and the Fifty-third Judicial District of said Commonwealth.
“2. That at the 1927 session of the State Legislature there was enacted a statute providing for an additional law judge for said County of Lawrence (53rd District), said statute being No. 9.
“3. That the 2nd section of said act provides that at the next municipal election after the passage of the act, the qualified electors of the Fifty-third Judicial District shall elect in the manner prescribed by law a judge ‘to serve as said additional law judge in said district from the first Monday in January, 1922.’
“4. That the status of the petitioner is that of a citizen of said judicial district, and his rights and legal relations, as well as the rights and legal relations of other citizens of said judicial district, are affected by said statute, and uncertainty exists as to the construction and validity of said statute.
“5. That, by virtue of the Declaratory Judgments Act, he is entitled to have the construction and validity of said act determined.
“6. That considerable uncertainty exists and has been expressed by others relative to the legal construction and validity of said statute.”

The petition then prays that the court, after hearing, construe said act of assembly, “determine the validity and constitutionality thereof” and enter a declaratory judgment thereon.

We do not know of any reason why the same precision and formalities should not be observed in asking for a declaratory judgment as in the pleadings in any other case. While we have abandoned many of the technicalities inherited from the common law, it is a universal requirement that one presenting a claim must do so with sufficient precision to readily determine the exact point in issue. We do not believe that the ordinary rules have been followed in framing the petition in this case. Parties, an issue and the bringing of prospective litigants before the court are just as essential here as in the old and well-established practice. We will, however, endeavor to dispose of the question, although we are of the opinion that the petition itself is defective.

It will be observed that the petition of- Mr. Marquis does not set forth any facts or allegations showing that an actual controversy exists between the petitioner and any other party or parties. It does not allege that the petitioner holds any view or opinion, and he does not make any assertion with relation to the validity or constitutionality of the act. He fails to state whether he contends that it is a valid or invalid, constitutional or unconstitutional, act. He does not name any other person or body of persons who hold any views contrary to his. It is not asserted that any person proposes to do anything pursuant to the act, that the Governor proposes to fill the vacancy, that any one is a candidate for the office, or that the petitioner has any special interest in the office. Although the law provides for municipal elections in odd-numbered years, a primary in September and an election in November, it is not asserted that anything is being done pursuant to the act.

We will first seek such light as we can obtain from the decisions of our own appellate courts. In Kariher’s Petition, 284 Pa. 455, an appeal from this judicial district, the Supreme Court considered the constitutionality of the act, and, in doing so, stated the established procedure with reference to declaratory judgments. We believe that that case is controlling here. Mr. Chief Justice Moschzisker, in that case, as a prerequisite for a determination of its constitutionality, examined and gave an authoritative declaration as to the scope of the act. It was settled in that case that when a proper interpretation is given to the Declaratory Judgments Act, there is no denial of due process of law, speaking with reference thereto as follows: “There is no denial of due process of law. The instant act takes the fundamental conceptions of declaratory judgment procedure as theretofore established. The court must have jurisdiction; there must be notice, an opportunity to present one’s cause, a proceeding appropriate to the character of the particular case, and an adjudication of the same nature as is present in other cases. Where these things are present, there is due process of law: Hagar v. Reclamation District, 111 U. S. 701, 708. The 14th Amendment to the Federal Constitution does not undertake to control the power of the state to determine by what process legal rights may be asserted or legal obligations enforced, or what form procedure and practice shall take, so long as the above elements are present: Iowa Central Ry. Co. v. Iowa, 160 U. S. 389, 393; Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S. 230, 236. In determining whether the essential elements exist, the substance of matter, and not their mere form, is the governing thing: Simon v. Craft, 182 U. S. 427, 436, 437.”

With reference to this same subject, on page 471 of the same opinion, it was said: “Before closing our consideration of the branch of the case now under discussion, it may be well to state that, in all jurisdictions where declaratory judgment practice obtains, the rule is established that it is a matter of judicial discretion whether or not jurisdiction will be taken of any particular case (Dyson v. Attorney-General (1911), 1 K. B. 410, 417; Braman v. Babcock, 98 Conn. 549; 120 Atl. Repr. 150; section 6 of the act); that a proceeding to obtain such a judgment will not be entertained where the court lacks jurisdiction of the subject-matter involved (British South Africa Co. v. Companhia de Mocambigue (1892), 2 Q. B. 358), or where another statutory remedy has been specially provided for the character of case in hand (Barraclough v. Brown (1897), — A. C. 615; Bull v. Attorney-General (1916), 2 A. C. 564); and that jurisdiction will never be assumed unless the tribunal appealed to is satisfied that an actual controversy, or the ripening seeds of one, exists between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy: Lewis v. Green (1905), 2 Ch. 340; State v. Board of Commissioners, 117 Kan. 151; 230 Pac. Repr. 531; Axton v. Goodman, 265 S. W. Repr. (Ky.), 806; Ezzell v. Exall, 269 S. W. Repr. (Ky.), 752. Moreover, in a declaratory judgment proceeding the court will not decide future rights in anticipation of an event which may not happen, but, just as in the ordinary executory action, it will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision, as, for instance, where present rights depend on the declaration sought by plaintiff; and even then such rights will not be determined unless all parties concerned in their adjudication are present and ready to proceed with the case (see section 11 of the act), so that the judgment rendered will make the issues involved res judicata in the full sense of that term: In re Staples (1916), 1 Ch. 322; Norton v. Moren, 267 S. W. Repr. (Ky.), 171; Ackerman v. Union and New Haven Trust Co., 91 Conn. 500; 100 Atl. Repr. 22.”

The specific statement that jurisdiction will never be assumed unless the tribunal appealed to is satisfied that an actual controversy, or the ripening seeds of one, exist between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy, is well established in all jurisdictions. These declarations as made, we believe, are sufficient for a full determination of the case, but we are here called upon to declare an act of the legislature unconstitutional, and additional light may be obtained from examination of the same authorities referred to by the Chief Justice and which are specially applicable to a situation where a court is asked to declare an act of the legislature unconstitutional.

In Muskrat v. United States, 219 U. S. 346, Mr. Justice Day said:

“What, then, does the Constitution mean in conferring this judicial power with the right to determine ‘cases’ and ‘controversies.’ A ‘case’ was defined by Mr. Chief Justice Marshall, as early as the leading case of Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, to be a suit instituted according to the regular course of judicial procedure. And what more, if anything, is meant in the use of the term ‘controversy?’ That question was dealt with by Mr. Justice Field at the circuit in the case of Re Pacific R. Commission, 32 Fed. 241, 255. Of these terms, that learned Justice said:
“ ‘The judicial article of the Constitution mentions cases and controversies. The term ‘controversies,’ if distinguishable at all from ‘cases,’ is so in that it is less comprehensive than the latter, and includes only suits of a civil nature: Chisholm v. Georgia, 2 Dall. 431, 432, 1 L. Ed. 445, 446, 1 Tucker’s Bl. Com. App. 420, 421. By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights or the prevention, redress or punishment of wrongs. Whenever the claim of a party under the Constitution, laws or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.’
“The power being thus limited to require an application of the judicial power to cases and controversies, is the act which undertook to authorize the present suits to determine the constitutional validity of certain legislation within the constitutional authority of the court? This inquiry in the case before us includes the broader question, when may this court, in the exercise of the judicial power, pass upon the constitutional validity of-an Act of Congress? That question has been settled from the early history of the court, the leading case on the subject being Marbury v. Madison, supra.
“In that case, Chief Justice Marshall, who spoke for the court, was careful to point out that the right to declare an Act of Congress unconstitutional could only be exercised when a proper case between opposing parties was submitted for judicial determination; that there was no general veto power in the court upon the legislation of Congress; and that the authority to declare an act unconstitutional sprang from the requirement that the court, in administering the law and pronouncing judgment between the parties to a case and choosing between the requirements of the fundamental law established by the people and embodied in the Constitution and an act of the agents of the people, acting under authority of the Constitution, should enforce the Constitution as the supreme law of the land. The Chief Justice demonstrated, in a manner which has been regarded as settling the question, that with the choice thus given between a constitutional requirement and a conflicting statutory enactment, the plain duty of the court was to follow and enforce the Constitution as the supreme law established by the people. And the court recognized, in Marbury v. Madison and subsequent cases, that the exercise of this great power; could only be invoked in cases which came regularly before the courts for determination, for, said the Chief Justice, in Osborn v. Bank of United States, 9 Wheat. 819, 6 L. Ed. 223, speaking of the third article of the Constitution, conferring judicial power:
“ ‘This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws and treaties of the United States when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws and treaties' of the United States.’ ”

In Chicago and G. T. R. v. Wellman, 143 U. S. 339, Mr. Justice Brewer said: “Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, state or Federal, and a decision necessary rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, honest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts and inquire as to the constitutionality of the legislative act.”

In the case of Muskrat v. United States, supra, Mr. Justice Day, writing the opinion for the court, refused to entertain an appeal to construe an Act of Congress, saying with reference thereto as follows: “The exercise of this, the most important and delicate duty of this court, is not given to it as a body with revisory power over the action of Congress, but because the rights of the litigants in justiciable controversies require the court to choose between the fundamental law and a law purporting to be enacted within constitutional authority, but in fact beyond the power delegated to the legislative branch of the Government. This attempt to obtain a judicial declaration of the validity of the Act of Congress is not presented in a ‘ease’ or ‘controversy’ to which, under the Constitution of the United States, the judicial power alone extends. It is true the United States is made a defendant to this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is to determine the constitutional validity of this class of legislation in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the Government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful character of the legislation in question. Such judgment will not conclude private parties when actual litigation brings to the court the question of the constitutionality of such legislation.”

In Self-Insurer’s Ass’n v. State Industrial Commission, 224 N. Y. 13; 119 N. E. Repr. 1027, there was presented the question of the construction of a provision to the effect that the Industrial Commission may, in its discretion, certify to the Appellate Division of the Supreme Court questions of law involved in its decision. The commission, differing on a question as to its powers, although not in connection with any pending question, certified the question to the appellate court. Certain of the remarks of Justice Cardozo in the opinion in that case are pertinent: “Nothing in these provisions sustains the practice followed.' The commission made no decision. There was no case or controversy before it. No summons to attend a hearing had been given to the insurance carriers. No carrier had appeared. The members of the commission, debating their powers among themselves, asked and obtained the advisory opinion of a court. Without notice to the carriers to be affected by their action, they fortified themselves in advance by judicial instruction. In such circumstances, the answer of the Appellate Division bound no one and settled nothing. We do not know that the commission will ever adopt the proposed resolution. If it does and so notifies the carriers, the legality of its action will remain open for contest in the courts. No advice that may now be given in response to a request for light and guidance can prejudge the issue or control the outcome.”

In the instant case, while there are not any facts before the court to support it, by way of argument, let us assume that nominations were made at the primary held in September, and that, as a result of that primary, persons have received nominations and are entitled to have their names printed on the ballots for the coming November election, no one would have the temerity to suggest that they would be bound by a decision in this case; or, in other words, that a declaration in this action would be res judicata as to one claiming a right to have his name printed upon the official ballot or a stranger and citizen who objected. If some one is elected to the office in November, he likewise would have certain vested rights that could not be taken away from him. It is easy to conceive of a number of situations in which a decision in this case would not be binding upon other parties who have a real interest in the controversy, but as certain of the parties would necessarily go into other courts for a determination of their rights, a decision here would not even be valuable on the principle of stare decisis. If one is elected to the office and receives his commission from the Governor, under our Constitution, the proceeding to oust him would be by a writ of quo warramto at the instance of the Attorney-General before the Supreme Court. In the present case no one is asserting a property right against another person. The question does not arise in the determination of a real, honest or vital controversy between individuals.

In substance, the question presented to us for determination runs something like this: “I, William E. Marquis, am uncertain as to the meaning, validity and constitutionality of an act of assembly. I have heard doubts expressed by other persons. I, therefore, now ask the opinion of the court upon that question.”

Giving to the petition its fullest significance, it amounts to nothing more than an advisory opinion, and does not arise in a controversy between individuals. When we further consider that the petitioner does not even aver that he believes the act to be unconstitutional, or that any other person has differed with him, we can look upon it as nothing else than a request for an advisory opinion.

In a proceeding of this kind, we do not see how we can close our eyes to a fact known to every one in this judicial district, that nominations have been made for the office, and yet no such persons are made parties to this action. If there is any fact in controversy, it could not be said that such a nominee has not such an interest as would entitle him to be made a party. If we treat this as a mere assumption for the sake of argument, and then consider that if there is not any one claiming the office, and no one is going to claim the office, there cannot possibly be a controversy. As noted above, our Supreme Court has said that jurisdiction will never be assumed unless a controversy exists between parties, all of whom are sui juris and before the court.

Again, referring to the decision of the Supreme Court in Kariher’s Petition, it clearly appears that no good purpose would be served by a declaratory judgment under the circumstances. It is provided by the 6th section of the Uniform Declaratory Judgments Act that the court may refuse to render and enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. We have but to refer to the facts to show that not only would a decision as between the parties here serve no good purpose, but would do harm. An opinion would be rendered of no binding effect upon the candidates for office, uncertainty would be thrown into the election and a positive injury dóne. In all jurisdictions, as stated by the Chief Justice, where declaratory judgment practice obtains, the rule is established that it is a matter of judicial discretion whether or not jurisdiction will be taken of any particular case. We are satisfied that this is a case where it is clearly the duty of the court to refuse to entertain the petition.

The petitioner fails to show that he has any substantial interest in the controversy, if one does exist. The first paragraph of the petition alleges that he is a citizen and taxpayer of the County of Lawrence, State of Pennsylvania, and the 53rd judicial district. Taken by itself, there might be some doubt as to whether the petitioner intended to say that he was a taxpayer, both of the county and the State; but in the fourth paragraph he clears the question by stating that his status is that of a citizen of said judicial district, and his rights and legal relations, as well as the rights and legal relations of other citizens of said judicial district, are affected by the said statute. Now, salaries of judges are paid by the State and not the county, and it certainly would be extending the meaning of the word “substantial” to say that, under the terms of this petition, Mr. Marquis has a substantial interest in the matter in controversy.

After we had written the foregoing part of this opinion, it came to our attention that the Governor, pursuant to the Act of 1927, had appointed Hon. James A. Chambers to fill the position of judge until the second Monday in January next, and that Judge Chambers had received his commission and taken the oath of office. We believe there is little doubt about our duty to take judicial notice of this fact. This furnishes a strong and conclusive reason of itself why the petition should be dismissed. By virtue of article v, section 3, of our Constitution, and the Act of June 14, 1836, P. L. 621, the Supreme Court is given jurisdiction to issue the writ of quo warranto in a case of this kind: Com. v. Dumbauld, 97 Pa. 293. The case of List’s Estate, 283 Pa. 255, is authority for the proposition that the Uniform Declaratory Judgments Act was not intended for, and should not be invoked in, cases where the judgment sought can be had as expeditiously in the ordinary course of legal procedure as it can under the statute.

We are of the opinion that the petition should be dismissed for the following reasons:

It does not appear that there is an actual controversy, or the ripening seeds of one; it does not appear that all parties having an interest in the outcome of this suit are before the court; the declaration sought would not be of practical help in ending the controversy; a statutory remedy exists for the determination of the rights of the parties, if any such controversy does exist between them, and it would be an abuse of judicial discretion to entertain the petition in this case.

And now, Oct. 6, 1927, the petition of William E. Marquis at the above term and number, asking for a declaratory judgment, is dismissed for the reasons given in the foregoing opinion.