author: McNees, Dep. Att’y-Gen.,

text:
    Battle Monuments in France.

      Constitutional law — Constitution of United States, art. i, sect. 10, par. 3— Agreements between State and foreign country — Consent of Congress — Act of May 27, 1921 — Soldiers’ monuments.

      1. Under the Act of May 27, 1921, P. L. 1173, the Commission created hy the act has no authority to take title to lands in Belgium and Prance, but can only make agreements with those nations to secure permission for the State of Pennsylvania later to purchase suitable land at the places designated by the Commission for the erection of monuments.
    2. Such agreements may be made without the consent of the Congress of the United States.
    3. If the Commission should proceed further and undertake anything which might in any way affect the political influence or standing of the Commonwealth of Pennsylvania in its relation to the National Government, it would be necessary to have the consent of Congress.
    Attorney-General’s Department. Opinion to David J. Davis, Secretary of Commission to Investigate the Battlefields of France and Belgium and to Select Points for Monuments, etc., Scranton, Pa.
    Jan. 13, 1922.
   McNees, Dep. Att’y-Gen.,

The Attorney-General’s Department is in receipt of your request for advice as to the extent of the authority of the Commission to Investigate the Battlefields of France and Belgium and to Select Points for Monuments, etc., as created by the Act of May 27, 1921, P. L. 1173, with especial reference as to how title should be taken to any sites which you may select in France or Belgium for the erection of monuments and markers to commemorate the achievements of Pennsylvania soldiers during the World War.

The main question divides itself into two parts: First, what sort of agreements did the legislature authorize the Commission to make; and, second, will such agreements conflict with any prohibition in the Constitution of the United States?

In determining the questions in their order, we should first consider the title to the act, which reads as follows: “An act constituting a commission to make an investigation of the battlefields of France and Belgium and to select points for the erection of monuments and markers of appropriate design to commemorate the achievements of Pennsylvania soldiers during the World War; defining the powers and duties of the Commission, and making an appropriation.”

There is no intimation here that the act might contain authority to purchase land in France or Belgium. According to the title, the Commission is authorized to select points for the erection of monuments, but any right to purchase which may be discovered in the body of the act is not referred to in the title. The 1st section of the act under discussion reads as follows: “That in order to commemorate heroic achievements of the citizens of Pennsylvania who served on the battlefields of France and Belgium, and to perpetuate the memories of those who fell in the war against Germany and her allies, there shall be erected, at such points in France and Belgium as the commissioners hereinafter provided for shall designate, monuments and markers of suitable design and with proper inscription thereon to carry out the spirit and intent of this purpose.”

This gives the Commission no authority to erect any monuments. It is apparent that their determination of the location is final, but some other agency may be created for the actual construction.

Section 2 of the act provides for the appointment of a commission, and section 3 proceeds to set out its duties and powers. After directing the entire membership to proceed to the battlefields of France and Belgium and to ascertain the points where Pennsylvania troops were engaged during the World War, the Commission is directed to determine the points where monuments and markers shall hereafter be erected. Following this is the paragraph which contains whatever authority there may be for the actual purchase of sites, which reads as follows:

“The Commission shall have power to enter into such agreements with the Governments of France and Belgium, either directly or through the Government of the United States, as may be necessary to secure permission for the erection of the monuments and markers at the points selected by the Commission.”

By this paragraph the Commission may enter into such agreements as may be necessary to secure permission for the erection of the monuments. Any such agreement, however, should not involve the payment of money nor should it attempt to bind the Commonwealth to accept the sites agreed upon. It was the intention to be sure that the sites selected could be secured if they were later desired, and to that end the Commission should enter into agreements so that there could be no question about permission to erect monuments.

The last paragraph of section 3 reads as follows:

“The Commission shall make-a complete report of its proceedings to the general assembly of 1923 not later than the first Monday of February of that year, and in such report shall state the amount of money required to prepare the monuments and markers agreed upon by the Commission and to provide for their erection at the points selected.”

It is very noticeable that the Commission is not directed to report anything as to the cost of sites, but, so far as cost is concerned, they are only to set forth “the amount of money required to prepare the monuments . . . and to provide for their erection at the point selected."

From a consideration of the whole act and the title, we have concluded that your Commission does not have power to take title to lands in France or Belgium, and it is limited in the agreements it may make with those nations to such as secure permission for the Commonwealth to later purchase or otherwise acquire suitable land at the places designated by your Commission for the erection of monuments and markers.

The second question involves a construction of article I, section 10, paragraph 3, of the Constitution of the United States. This paragraph reads as follows:

“No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

The act creating your Commission provides in section 3, paragraph 2, that “the Commission shall have power to enter into such agreements with the Governments of France and Belgium” as we have above discussed.

Are the agreements which you are herein authorized to make with the Governments of France and Belgium, either directly or through the Government of the United States, such agreements or compacts as are prohibited by the Constitution of the United States?

The language of the Constitution is very broad and inclusive. A literal interpretation of it would require the consent of Congress before any valid agreement or compact could be entered into by the Commonwealth of Pennsylvania with any other state of the Union or with any foreign country. The object of this prohibitory clause of the Constitution was to prevent a state from entering into agreements or compacts with other states or foreign powers which might be in conflict with some agreement which the United States had made (Watson on the Constitution, 848), or that would lead to the increase of the political power or influence of the states, or in any manner encroach upon the full and free exercise of Federal authority in its relationship with other governments.

It is conceded that there is no valid legal objection to your Commission carrying out the purposes of the act creating it if the consent of Congress is secured. May you do so without this consent of Congress? We believe that, under the decisions of the Supreme Court of the United States, such agreements or compacts as you are authorized to make will not require the consent of Congress.

. . The terms ‘agreement’ or ‘compact,’ taken by themselves, are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.

“There are many matters upon which different states may agree that can in no respect concern the United States. If, for instance, Virginia should come into possession and ownership of a small parcel of land in New York, which the latter state might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter state to obtain the consent of Congress before it could make a valid agreement with Virginia for the purchase of the land. If Massachusetts, in forwarding its exhibits to the World’s Fair at Chicago, should desire to transport them a part of the distance over the Erie Canal, it would hardly be deemed essential for that state to obtain the consent of Congress before it could contract with New York for the transportation of the exhibit through that state in that way. ... If, then, the terms ‘compact’ or ‘agreement’ in the Constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply?

“We can only reply by looking at the object of the constitutional provision and construing the terms ‘agreement’ and ‘compact’ by reference to it. . . .

“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states which may encroach upon or interfere with the just supremacy of the United States. . . .

“Compacts or agreements — and we do not perceive any difference in the meaning except that the word ‘compact’ is generally used with reference to more formal and serious engagements than is usually implied in the term ‘agreement’ — cover all stipulations affecting the conduct or claims of the parties. . . . The compact or agreement will then be within the prohibition of the Constitution or without it, according as the establishment of the boundary line may lead or not to the increase of the political power or influence of the states affected, and thus encroach or not upon the full and free exercise of Federal authority. If the boundary established is so run as to cut off an important and valuable portion of a state, the political power of the state enlarged would be affected by the settlement of the boundary; and to an agreement for the running of such a boundary, or rather for its adoption afterwards, the consent of Congress may well be required: . . .” State of Virginia v. State of Tennessee, 148 U. S. 503, 517-520.

It is not a new thing for Pennsylvania to enact laws providing for the erection of memorial tablets outside of its boundaries.

The Act of April 14, 1903, P. L. 174, provided for the erection of memorial tablets or monuments to mark the position, on the field of Antietam, of certain Pennsylvania commands. Part of this act reads as follows: “That the Governor shall appoint three commissioners, whose duty it shall be to act in conjunction with the representatives or committee from each of said commands for the purchase of ground, when found necessary to do so, and in the selection of the site, design, material and inscription for the monument or tablet to mark the position of each command on the battlefield; that it shall be the further duty of the said commissioners to contract for the erection of each monument or tablet.”

In construing this act, Attorney-General Carson said: “It is apparent from this language that the commissioners appointed by the Governor are clothed with the necessary power to make contracts for the purchase and erection of these monuments, and that the Survivors’ Association is recognized only for the purpose of consultation on the design, place or location and other preliminary matter.”

While it is true that the direct question here involved was not decided in that opinion, yet it could scarcely have been overlooked when the question was being considered.

By the Act of May 15, 1903, P. L. 415, $15,000 was appropriated “for the purchase of ground and erection of suitable monuments and memorial tablets to mark the position occupied in the line of entrenchments around the City of Vicksburg,” etc. This act also was interpreted by Attorney-General Carson in determining whether or not the commission might place one large monument or several small ones.

We have come to a conclusion that a reasonable exercise of the duties devolving upon you as herein suggested will not be in conflict with article x, section 10, paragraph 3, of the Constitution of the United States. Were you to proceed beyond that point, however, and to undertake anything which could in any way affect the political influence or standing of the Commonwealth of Pennsylvania in its relation to the other states or the National Government, it would be necessary to have the consent of Congress.

From Guy H. Davies, Harrisburg, Pa.


source: Caselaw Access Project

author: Bechtel, P. J.,

license: Public Domain

text:
    Royer et al. v. Danner.

      Practice, C. P. — Statement of claim — Notice — Attorney’s designation— Act of May 14, 1915.

    1. A statement of claim will not be stricken off because the notice endorsed thereon -reads, “to the within named defendant,” while the Practice Act of May 14, 1915, P. L. 483, requires the words, “the within defendant.”
    2. Nor will it be stricken off because the signature of the attorney does not have after the word "attorney” the words “for the plaintiff.”
    3. Nor will it be stricken off because it contains an alleged immaterial averment that defendant is not in the military or naval service of the United States.

      Fictitious names — Registration—Averment in statement of claim — Practice, C. P. — Act of June 28, 1917.

    4. A statement of claim will not be stricken off on the ground that plaintiffs were doing business under a fictitious name, and that they had not averred that they were registered as required by the Act of June 28, 1917, P. L. 645. Registration will be presumed in such case.
    Motion to strike off statement of claim. C. P. Schuylkill Co., Nov. T., 1921, No. 15.

      R. J. Graeff, for plaintiff; J. A. Ulrich, for defendant.
    Nov. 14, 1921.
   Bechtel, P. J.,

This is a motion to strike off the statement of claim filed by the plaintiff. It is contended that the statement does not comply with the Practice Act of May 14, 1915, P. L. 483, in that the notice endorsed on the statement is “to the within named defendant,” and that the word “named” is not required by the act. Also, that the last line contains the word “thereof,” whereas the act requires “hereof.” We might say, in passing, that an inspection of the statement discloses that the word “hereof” was used.

Also, that the statement is not signed by the plaintiff’s attorney, as required by the act. The statement is signed: “R. J. Graeff, Attorney, 32 W. Broad St., Tamaqua, Pa.” We do not think that it is necessary to add thereto “attorney for the plaintiff,” because if he were not attorney for the plaintiff he would have no right to file the declaration, and it is only in that capacity that he files it.

It is also claimed that the plaintiffs are doing business under a fictitious name, and that they do not set out in their statement that they are duly registered, as required by the Act of June 28, 1917, P. L. 645. There is no contention that they are not registered, and since the law requires their registration, it will be presumed that they have complied with its requirements.

It is also claimed that the defendant is not entitled to a set-off of any kind, and that this should not be contained in the statement. We do not think that there is any merit in this contention.

It is also claimed that the statement alleges that the contract was oral and that there need not be such an allegation because the action is upon a book account.

It is also alleged that the ninth paragraph in the statement sets forth that the defendant is not in the military or naval service of the United States, and that this is not material.

We think that all these reasons are without merit and require no extended discussion at our hands.

And now, Nov. 14, 1921, the motion to strike off the plaintiff's statement is hereby overruled. From M. M. Burke, Shenandoah, Pa.


author: Emery, P. J.

text:
    Lambright v. Lambright et al.

      Equity — Equity Rule 57 — Injunction affidavits not in first person and not divided into paragraphs.

    A preliminary injunction will be dissolved when the affidavits are in the third person and are not divided into paragraphs, as required by Rule 57 of the Equity Rules.
    Motion to dissolve preliminary injunction. C. P. Lawrence Co., Dec. T., 1921, No. 2, in Equity.
    Plaintiff presented a bill in equity and prayed for and secured a preliminary injunction enjoining and restraining the defendants from disposing of certain moneys which the plaintiff claimed to be his, and which were deposited in the two defendant banks in the name of the other defendant.
    The two injunction affidavits were exactly alike, and were as follows:
    “State of Pennsylvania, County of Lawrence, ss.;
    “Charles N. Lambright, being duly sworn according to law, deposes and says that he has been personally acquainted with William A. Lambright and Rhoda E. Lambright, his wife, for many years. He knows that William A. Lambright has been continuously employed by the Pennsylvania Railroad Company during these years and has regularly earned large wages, practically all of which have passed into the possession of his wife, Rhoda E. Lambright, and that out of these moneys she has deposited large sums of money in the First National Bank of East Palestine, Ohio, and Union Commercial Savings Bank of the same place in her own name and in the name of herself and her husband. He further knows that Rhoda E. Lambright deserted her husband on or about the 5th day of July, 1921, and that they have not lived together as husband and wife since said date.
    (Usual Jurat) Chaeles N. Lambright.”
    One of the defendants, Rhoda E. Lambright, filed the following motion to dissolve:
    “Now, Nov. 9, 1921, comes Rhoda E. Lambright, one of the defendants, by her attorneys, Thomas W. Dickey and Harry K. Gregor, and moves the court to dissolve the injunction heretofore granted in this case for the reason that the injunction was not supported by proper affidavits, the affidavits filed being in violation of Rule 57 of the Rules of Equity as adopted by the Supreme Court of Pennsylvania, in that said affidavits are in the third person and not in the first person, and, also, not divided into paragraphs as required by said rule. Thos. W. Dickey,
    Harry K. Gregory,
    Solicitors for Rhoda E. Lambright, one of the defendants.”

      W. E. Porter and Wylie MeCaslin, for plaintiff.

      T. W. Dickey and H. K. Gregory, for defendants.
    Nov. 9, 1921,
   Emery, P. J.

Now, motion to dissolve the preliminary injunction granted at above number and term is granted, and the preliminary injunction heretofore granted is dissolved.

From William McElwee, Jr., New Castle, Pa.


author: Lewis, J.,

text:
    Fibre Yarn Co., Inc., v. Tiberio; Saracenyi, Garnishee.

      Sales in bulk — Proceedings against purchaser — Ninety days’ limit — Act of May 23, 1919.

    The limitation contained in the proviso of the 3rd section of the Sales in Bulk Act of May 23, 1919, P. L. 262, that “no proceeding at law or equity shall he brought against the purchaser to invalidate any such sale after the expiration of ninety days from the consummation thereof,” runs from the date of the consummation of the sale, and not from the time the creditor first had knowledge of it, unless such want of knowledge on the part of the creditor was due to the fact that the transaction was actually concealed from him in some way by the vendor.
    Rule on garnishee for judgment for want of sufficient answer. Municipal Court, Phila. Co., March T., 1922, No. 236.

      E. E. Dicker, for plaintiff; Harry S. Abrams, for garnishee.
    June 29, 1922.
   Lewis, J.,

On April 8, 1922, the plaintiff recovered judgment against Emil Tiberio, trading as the Ideal Hand Embroidery Company, in the sum of $357.08.

On May 17, 1922, an attachment sur judgment was issued and Joseph Saracenyi was summoned as garnishee.

On the same date interrogatories were filed to the garnishee, who in his answers, among other things, stated that on Oct. 18, 1921, he “bought the Ideal Hand Embroidery Company’s business from the defendant,” and that he “bought said business on the above date and paid the full consideration therefor, receiving a bill of sale from the defendant,” and that he “was not notified by any creditors, and, therefore, did not notify them, nor did any creditors of the defendant notify” him “within ninety days of any indebtedness due them from the defendant.”

The seventh interrogatory which was filed, to which the garnishee answered “yes,” is as follows: “Q. Did you, or did you not, on or about Oct. 19, 1921, or at any time, purchase from Emil Tiberio the business conducted under the trade name of Ideal Hand Embroidery Company, located at No. 1846 South 15th Street, Philadelphia, or elsewhere, in bulk?”

On May 29, 1922, the plaintiff entered a rule on the garnishee for judgment for want of a sufficient answer. The amount for which judgment is demanded is not stated in the rule. The questions presented for determination are as follows:

1. Is an attachment sur judgment a proper remedy for questioning the validity of a sale in bulk?

2. Assuming that the procedure in this case is proper, and assuming, further, that the plaintiff is entitled to judgment, is the garnishee liable for the full amount of the plaintiff’s judgment?

3. Can judgment be entered at all, in view of the fact that action against the garnishee was instituted more than ninety days after the date of the alleged sale by the defendant to the garnishee?

Taking up the last question presented for determination first:

“Statutes regulating the sale and purchase of goods in bulk are of comparatively recent origin. Yet so rapidly have they spread that now they are on the statute books of a large proportion of the states of the Union. Of course, the provisions vary somewhat, but there is a very close similarity in the wording of most of them, and the provisions in all have but the one aim— to prevent a sale of goods in bulk until the creditors of the seller have been paid in full. In general, these statutes provide that the sale of all or any portion of a stock of merchandise otherwise than in the ordinary course of trade shall be fraudulent and void against creditors of the seller, unless the seller delivers to the purchaser a list of his creditors, and the purchaser, in turn, notifies such creditors of the proposed sale a stipulated time, usually five days, in advance. But some statutes are a little broader and include within the prohibition fixtures used in the business. These acts are in derogation of the common law and of a person’s right to alienate his property without restriction, and are, therefore, to be strictly construed. The invalidity in any case applies only to cases where the rights of creditors are involved, and sales in violation of the statutes are perfectly valid between the immediate parties or those claiming under them. Though the word ‘void’ is used in the statute, in legal effect it means voidable at the instance of an attaching creditor. The intent of the parties has no bearing under these statutes:” 12 Ruling Case Law, § 54, page 522.

In the enactment of the statute in question, the legislature furnished no evidence of an intention to establish a new rule for the collection of debts in cases of conveyance of property by debtors, which are merely fraudulent in law but not in fact. The intention was to apply the doctrine of constructive fraud to sales of personal property under certain circumstances which before had been regarded as valid sales. The statute was designed to extend the doctrine, but not to affect or increase the remedies that have been applied in cases of constructive fraud as contrasted with cases of actual fraud.

The Act of March 28, 1905, P. L. 62, provided that a sale in bulk of a stock of merchandise or fixtures otherwise than in the ordinary course of trade shall be deemed fraudulent and voidable as against the creditors of the seller, unless the purchasher shall in good faith and for the purpose of giving notice therein required make inquiry of the seller and receive from him a list in writing and the places of business of each of his creditors, and unless the purchaser shall at least five days before the consummation of the sale give notice of the proposed sale to each of the creditors of the seller appearing on the list, and provided, furthermore, “That no proceedings at law or in equity shall be brought against the purchaser to invalidate any such voidable sale after the expiration of ninety days from the consummation thereof.” The provision of section 3 of the Act of May 23, 1919, P. L. 262, is as follows: “And provided, further, that no proceedings at law or equity shall be brought against the purchaser to invalidate such sale after the expiration of ninety days from the consummation thereof.”

Construing these provisions, which are practically identical, Rice, P. J., in Ritter v. Wray, 45 Pa. Superior Ct. 440, 449 (1911), said: “The sale was consummated on April 16th. The defendants did not attempt to impeach the sale by levying on the goods until more than three months thereafter. This would seem to be an insuperable obstacle to their right to avail themselves of the provisions of the Act of 1905, for the statute declares that no proceedings at law or equity shall be brought against the. purchaser to invalidate any such voidable sale after the expiration of ninety days from the consummation thereof.”

In Swanson v. Terwilliger, 17 Dist. R. 11, 13 (1907), it was held: “The sale was good as against the seller and as against all the world except creditors, and can only be avoided by them upon compliance with the provisions of the statute. If they fail to commence proceedings against the purchaser to invalidate the sale within a statutory period of ninety days, they cannot afterwards be heard to question its validity. In this case such proceedings were not commenced against the purchaser within the time limited by the statute.”

In Neumeyer v. Mayers, 11 Dauphin Co. Reps. 134, 18 Dist. R. 843, McCarrell, J., said: “Proper proceedings at law to invalidate the sale would have been by attachment under the Fraudulent Debtors Act of 1869, or by issuing a fi. fa. against Clayton L. Neumeyer, and the seizure of the goods transferred by the sale. As neither of these methods of procedure was attempted in this case until long after the expiration of the ninety days’ limit fixed by the proviso of the Act of March 28, 1906, we are clearly of the opinion that the sale must, so far as the present issue is concerned, be entirely valid.”

In Simes v. Knight, 25 Lanc. Law Rev. 44, the court held: “The evidence as produced showed that possession of the goods was taken on April 22, 1905, by the plaintiff in the issue. The attachment proceedings were not instituted until July 25, 1905. More than ninety days had intervened between those dates, and if it is considered that the sale took place on April 22, 1905, the Act of 1905 cannot be invoked, for the proviso expressly declares that no proceedings at law or in equity can be brought against the purchaser to invalidate any such sale after the expiration of ninety days from the consummation thereof.”

In Jenkins v. Maginnis, 57 Pitts. L. J. 301 (1909), it was held that the ninety days ran from the completion of the act of selling.

It will, therefore, be seen that, so far as the immediate parties to the transaction are concerned, i. e., as between the vendor and the vendee, the sale in bulk is perfectly valid, and it is only when the rights of creditors intervene that the sale is void in the sense that a creditor can attack the sale on the ground of non-compliance with the provisions of the act.

As was said in Jenkins v. Maginnis, 57 Pitts. L. J. 301 (1909): “It is clear that this writ of fieri facias, if finally executed, will invalidate said sale from the defendant to said Deasy, so far as the plaintiff in this writ is concerned. This proceeding is, therefore, not being prosecuted against said ‘purchaser’ for the purpose of invalidating a ‘voidable sale.’ Was the proceeding instituted against him within the period of ninety days from the consummation of said sale, as required by the proviso to section 1 of said statute?

“The words of this proviso amount to an express prohibition of proceedings against a purchaser to invalidate such a sale after the expiration of ninety days. The statute confers rights upon creditors which did not theretofore exist. Prior to its passage such a sale could not have been invalidated for any or all of the causes therein enumerated. Therefore, in order to avail themselves of the benefits given by the statute, creditors are obliged to proceed in accordance with its terms and within the period limited in the proviso. In other words, such a sale is left valid as between the parties, just as it would have been theretofore, but it is made voidable as against creditors if the parties have not observed the requirements of the statute, provided such creditors proceed against the purchaser within the time limited, but not after-wards. It would be most unreasonable not to require such a creditor to proceed promptly in such a case.”

Counsel for the attaching creditor in the case at bar has cited Wilson Brothers v. Fields, Inc., 21 Luzerne Legal Reg. 384 [1 D. & C. 673], which holds that the limitation of ninety days for suit by a creditor under the Bulk Sales Act of 1919 begins to run, not from the date of sale, but from the time the creditor first has knowledge of it.

While this decision is entitled to considerable weight, we are compelled to differ from the conclusion reached, and rather to adopt the reasoning of Chief Justice Mitchell in Smith v. Blachley, 198 Pa. 173 (1901), as follows: “It is said, in general that in an action based upon fraud the statute of limitations will run from the date of the fraudulent act complained of, unless such fraud has been actually concealed by the defendant.”

Certainly it is no hardship for a creditor, within a period of ninety days, to assert his rights under the provisions of the Bulk Sales Act. On the other hand, if the beginning of the ninety-day period is to be determined solely by the time when the creditor first has knowledge of the sale, no purchaser in a sale in bulk would receive the protection which the act in question intended to give him. If the interpretation contended for by the judgment creditor were to be adopted, the meaning of the plain words of the act would have to be strained considerably.

We are, therefore, of the opinion that the ninety-day limitation begins to run when the transaction is, as between the vendor and the vendee, complete, i. e., when the sale between the parties is consummated. It thus becomes unnecessary to discuss the other questions involved in this case.

The rule for judgment is discharged.


author: Rogers, J.,

text:
    Bressi v. London Assurance Corporation.

      Automobile policy — Affidavit of defence — Denial of averments of damage— Precision required.

    In an action for loss of an automobile, where plaintiff seeks to recover upon an accident insurance policy the sum of $1650, being the amount of the insurance, the automobile having' been stolen, a mere averment in the affidavit of defence that the automobile was not worth $400 is insufficient.
    Rule for judgment for want of sufficient affidavit of defence. C. P. No. 2 Phila. Co., March T., 1922, No. 8535.

      David S. Malis, for plaintiff; Swartz & Campbell, for defendant.
    June 10, 1922.
   Rogers, J.,

The plaintiff, Thomas E. Bressi, seeks to recover from the London Assurance Corporation, in an action of assumpsit, the sum of $1650, which is the amount of the insurance on a four-passenger automobile, known as a Haynes, under a policy dated May 9, 1921. The insurance was against loss by theft, and it appears from the pleadings that the automobile was stolen Feb. 4, 1922. Demand for payment, under the policy, was made, and is admitted by the defendant. The defendant has arbitrarily taken the position, notwithstanding the fact that the policy of insurance was for the sum of $1650, that at the time of the loss of plaintiff’s automobile, it was worth less than $400. This was without inspection.

In our opinion, there is no foundation in fact, under the contract of insurance, which gives the insurer in this case the right to arbitrarily fix the value of the stolen automobile. There is no evidence as to actual cash value at the time of the theft. We are also of opinion that we need not go further into the case at bar than to refer to the opinion of President Judge Martin, of Court of Common Pleas No. 5, reported in the Legal Intelligencer March 3, 1922 [1 D. & C. 181], in which there was a rule taken for judgment for want of a sufficient affidavit of defence, as in this case, and the rule was made absolute.

We concur in the opinion of Court of Common Pleas No. 5, the facts under the policy being alike, and, therefore, the rule for judgment for want of a sufficient affidavit of defence is made absolute.


author: Lindsey, P. J.,

text:
    Durkin et al. v. Beshlin et al.

      Practice, G. P. — Pleading — Pleas to the jurisdiction and in abatement — Act of May lb, 1915.

    1. It was not the intention of the Practice Act of May 14, 1915, P. L. 483, in abolishing "pleas in abatement,” to prevent the raising of questions of jurisdiction, misjoinder of parties and the like in limine, and where it is necessary to aver matters of fact in raising such questions, what is in substance a plea to the jurisdiction or a plea in abatement may still be filed in advance of a statutory demurrer or an affidavit of defence as to the merits.
    2. It was the intention of the Act of 1915 to deal with matters of form only; matters of substance and the fundamental principles of pleading are in no wise affected thereby.
    3. Under the Act of 1915, matter going to the jurisdiction or in abatement of the action may still be pleaded in Mmkie, but may more properly be in the form of an affidavit, stating the facts relied on concisely and clearly, than in the formal language of the old plea, and may be properly styled an “affidavit to the jurisdiction” or an “affidavit in abatement.”
    Rule for judgment for want of sufficient affidavit of defence. C. P. Warren Co., Sept. T., 1919, No. 51.

      Frank J. Lyons, for rule; H. J. Muse, contra.
    Dec. 15, 1921.
   Lindsey, P. J.,

This suit was brought Aug. 11, 1919. Plaintiff’s statement of claim was filed Aug. 27, 1920. On Sept. 7, 1920, defendants filed a paper entitled “Affidavit of defence,” in which they say that they, “without answering the averments of alleged facts in the statement of claim filed and served upon them Aug. 26, 1920, make answer as hereinafter stated for the purpose of raising certain questions of law for determination by the court, and aver as follows.” The first paragraph of the paper alleges a variance between the writ and the statement; seven subsequent paragraphs, however, contain averments of facts amounting to the claim (1) that the court has not jurisdiction, and (2) of the misjoinder of parties. The so-called affidavit of defence, therefore, is essentially, and is intended as, a plea to the jurisdiction and a plea in abatement, and in spite of its informality, we think it should be so construed, especially as no objection has been taken as to its form. It was entitled an affidavit of defence presumably from an idea that this was necessary under the Procedure Act of May 25, 1887, P. L. 271, and the Practice Act of May 14, 1915, P. L. 483, on the ground that these acts abolished pleas to the jurisdiction and in abatement. This is not the case.

As to the Act of 1887, it was held that it abolished only the technicalities of special pleading; the fundamental principles remained untouched: Emmens v. Gebhart, 7 Pa. C. C. Reps. 522; Rankin v. Du Puy, 48 Pitts. L. J. 335.

In the case of Fix v. Railroad Co., 5 Pa. C. C. Reps. 420, there was a motion for leave to file an amended plea in abatement, the substance of which was, that plaintiffs were possessed of the real estate in common with others, who were not joined in the action. It was objected that the Act of 1887 abolished all special pleas and allowed but one plea in trespass, that of not guilty. It was argued, in reply, that if the legislature had intended to abolish dilatory pleas, a suitable substitute would have been provided in their place. This view was adopted by the court and the amendment allowed.

A plea in abatement is the correct way to raise the question of jurisdiction. The practice is unchanged by the Act of 1887: Sheetz v. C. & O. Ry. Co., 10 Dist. R. 373.

The Act of 1887 did not abolish pleas in abatement: Virtue v. Ioka Tribe, 5 Dist. R. 634; McConkey v. Peach Bottom Slate Co., 14 Pa. C. C. Reps. 514; Slatteny v. Pa. R. R. Co., 21 W. N. C. 556; Becker v. Street Ry. Co., 25 Pa. Superior Ct. 367; Smith v. Insurance Co., 173 Pa. 15.

It was approved as correct practice in Fitzpatrick v. Riley, 163 Pa. 65; Deshong v. Deshong, 186 Pa. 227; Gardner v. Kiehl, 182 Pa. 194.

In Daley v. Iselin, 212 Pa. 279, a plea to the jurisdiction was interposed, and its effect as raising a preliminary issue of fact fully considered by the Supreme Court.

Similar reasoning would lead to the conclusion that the Act of 1915 does not, as to the substance thereof, abolish pleas in abatement. Section 3 of the Act of 1915 provides that “pleas in abatement, pleas of the general issue, payment, payment with leave set-off, the bar of the statute of limitations and all other pleas are abolished. Defences heretofore raised by these pleas shall be made in the affidavit of defence.” The Act of 1915, in section 16, provides that the defendant at the trial cannot make any defence that is not set forth in the affidavit of defence, and defines the affidavit of defence as a pleading. There remained no necessity, therefore, for any other of the usual pleas in bar, and it was natural to abolish them. But pleas in abatement are also specifically named as being abolished, and it is provided that “defences heretofore raised by these pleas shall be made in the affidavit of defence.” Must the defendant then be remitted to the general affidavit of defence on the merits to raise the question of jurisdiction and, therefore, be compelled to prepare his whole case and not be able to first secure a determination of whether or not the court has jurisdiction in advance of a trial on the merits?

It may be taken as a fundamental proposition that the Act of 1915 was intended to deal with matters of form only and not matters of substance. It was not intended to change or take away any substantive right, but only to deal with the forms in which they should be brought before the Court and jury. This is apparent from the whole act and the general nature of its provisions, and has been recognized by the courts in construing it. In Herron v. Florence Presbyterian Church, 27 Dist. R. 1025, 46 Pa. C. C. Reps. 287, it is said: “Originally the function of an affidavit of defence was merely to show that the defendant had such a defence as entitled him to a jury trial, and when so entitled it was also necessary, in order that an issue might be framed for trial, that he formally set up his defence by a plea. The Act of 1915 has abolished pleas and demurrers and has given to the affidavit of defence the function formerly performed by the plea (or demurrer) in addition to its original function.” In Mollenauer v. Washington County, 28 Dist. R. 199, 46 Pa. C. C. Reps. 300, it is said: “The Practice Act of 1915, in abolishing both demurrers and pleas and giving to the affidavit of defence the function formerly performed by each of them, has not changed fundamental principles. When, by his affidavit of defence, a defendant asks the court to determine a question of law under section 20, he is using the affidavit as the equivalent of a demurrer, and he can do this only on the basis of the facts averred by the plaintiff. When, on the other hand, he sets up an affirmative defence based on facts not previously appearing in the case, but averred by himself, he is using the affidavit as a plea, making an issue for a trial by a jury, and must establish the facts which he so avers by proof before he can ask for a final judgment in his favor based upon them.” The remarks of Justice Mitchell in Barclay v. Barclay, 206 Pa. 307, with reference to the. Act of 1887 on procedure, are applicable under the Act of 1915: “The act directed that ‘special pleading is hereby abolished,’ but it was a vain and futile direction which abolished only the name, the substance is inherent in the nature of litigation and cannot be destroyed by the reforming panacea for imaginary ills, of calling things essentially different by the same name. Some glimmering of this fact seems to have entered the mind of the legislature in passing the act. The general intent undoubtedly was, badly as it was carried out, to simplify and make the pleadings more direct, so that each side should know the exact point of controversy raised by the other.” And also applicable, the remark of Judge McIlvaine in Hughes v. Snee, 9 Dist. R. 526, with reference to the Act of 1887, that “the legislature of our State which abolished special pleading, did not intend to deprive suitors of the benefits of special pleading.” This intent appears also by the language of the Act of 1915: “Defences heretofore raised by these pleas shall be made in the affidavit of defence;” showing that the intent was not to in any way limit the right of asserting any defence that might be interposed under existing law. It would seem that what was intended to be regulated was the usual pleas in bar of the action and that it was such matter of defence which was intended to be relegated to the affidavit of defence. But, although this is the case and there seems to be no intent to interfere with any matter of substance, pleas in abatement are included in the list of pleas abolished. Did the legislature intend to prevent the raising of the question of jurisdiction as a preliminary issue? Such would seem to be contrary to the spirit and general scheme of the act. In the case of the demurrer, while it is provided that demurrers shall be abolished and that “questions of law heretofore raised by demurrer shall be raised in the affidavit of defence,” it is recognized by the act that there is a necessity for raising questions of law separately and apart from questions of fact, and it is provided that questions of law may be raised by affidavit of defence without answering the facts at all and be first decided, and if ruled against the defendant, he may then file a “supplemental” affidavit of defence. So that, after abolishing demurrers, the act then provides for what is in substance a demurrer, but under the name of an affidavit of defence, thus further evidencing the intention to affect not matters of substance, but matters of form only. Further, while the act speaks of “the” affidavit of defence, it is evident that more than one affidavit of defence is contemplated. Did the legislature have in mind those questions as to the jurisdiction, non-joinder of parties, etc., and if it did, would it not have provided for a disposition of them in advance of the trial on the merits if it had intended to do away with the existing method of raising those questions? If we were to confine our attention to the literal reading of the clause of the act, “pleas in abatement . . . are abolished,” this would do away with the motion to quash a writ as well, for “Cassare” is the Latin word, as “Abatre” is the Norman-French, which we translate in English “abate,” quash being derived from cassare, as abate is from abatre: Stephen on Pleading (9th Am. ed.) 47, 22 App. But surely no such result could have been intended.

In our opinion, the plain intention of the act is to deal only with matters of form; matters of substance and the fundamental principles of pleading are in no wise affected thereby. It follows that a dilatory plea may be interposed in exactly the same way and with exactly the same force and effect as before the act. Full effect can be given to the act by holding that it requires only that the matter be set forth in the form of an affidavit stating the facts relied on concisely and clearly, and not necessarily in the old formal language of the plea. It is suggested that in the same way as it has become the practice to style an affidavit of defence raising questions of law a statutory demurrer to distinguish it from the affidavit of defence as to matters of fact on the merits, so it would be proper to style the affidavit of defence setting up a dilatory plea an “affidavit in abatement” or an “affidavit to the jurisdiction.”

However, while pleas to the jurisdiction are sometimes loosely spoken of as pleas in abatement, there is a clear distinction connected with the order of pleading which has persisted almost without change from the earliest periods of our law: 1 Reeves’s Hist. Eng. Law, 451.

This order is, first, to the jurisdiction of the court, by which the defendant excepts to the jurisdiction of the court to entertain the action at all; second, to the disability of the person of the plaintiff or the defendant; third, to the count or declaration; fourth, to the writ; the second, third and fourth species of pleas being termed pleas in abatement because they seek to abate the writ or declaration; and fifth, to the action itself in bar thereof. This, it is said, is the natural order of pleading, because each subsequent plea admits there is no foundation for the former: Stephen on Pleading (9th Am. ed.), 46; 1 Chitty on Pleading, 427; Bacon’s Abridgement, Pleas, A; Coke on Littleton, 303 and 304.

This is still the law in Pennsylvania: Titusville Iron Works v. Keystone Oil Co., 130 Pa. 211.

“The pleas to the jurisdiction are frequently mentioned as pleas in abatement, but inaccurately; for in their form they are not pleaded as grounds for abating the action, but for refusing to answer in the court in which the action is brought. It is true that in their effect they defeat the action; but the case is the same with pleas in bar, which are yet essentially distinguished from pleas in abatement:” Stephen on Pleading, 46, n. 20 App.

“A plea to the jurisdiction is not properly a plea in abatement, although in its consequence it be so; and, therefore, is to have its proper conclusion, as respondiere non debet or si curia cognoseere velit, and not quod billa cassetur:” Bacon’s Abridgement, Pleas E 2; 1 Chitty on Pleading, 428; 3 Blackstone’s Commentaries, 301.

The correct designation of “plea to the jurisdiction” is used in Daley v. Iselin, 212 Pa. 279; McConkey v. Peach Bottom Slate Co., 14 Pa. C. C. Reps. 514; and, indeed, in most of our own reported cases, and where the other term is used it is clearly through inadvertence.

Pleas to the jurisdiction are not mentioned in the Act of 1915, and it would seem to be plain from the whole act that they were not within its contemplation.

A plea to the jurisdiction and in abatement having been filed then by defendants, the plaintiff could do either of two things. He could file a demurrer, thereby admitting the facts alleged in the plea and claiming judgment on the law applicable thereto, or he could file a replication denying the facts alleged and putting defendants to the proof of them, thus completing the preliminary issue, which must be disposed of in some way before there ean properly be any further steps looking to a decision on the merits. As was said in Daley v. Iselin, 212 Pa. 279: “When a party, by entering the plea (to the jurisdiction), seeks to oust the jurisdiction of the court, and thereby delay a trial of the cause on its merits, he must confine his action strictly to the enforcement of the plea. With that plea upon the record, no further action can be taken in the cause without the defendant’s consent until it is disposed of by trial or otherwise. If the plea is sustained, it puts an end to the suit in its incipiency and requires the plaintiff to institute another action, possibly in another form, if he would have the merits of his claim adjudicated.”

In this case, however, the plaintiff has neither replied nor demurred, nor have the defendants taken any steps to compel him to do so. Defendants, under an erroneous impression, noted the case on the argument list on the statement and plea. But there was no issue, either of law or fact, to be disposed of, and in an oral opinion the court so stated, and stated our opinion of the situation of the pleadings as herein set forth, making an order that the case be proceeded in according to law. We did not deem it necessary at that time to file a written opinion, as at the same sitting of the court we had handed down an opinion in another ease fully discussing the questions involved. However, nothing further was done in the cause until this rule for judgment was entered.

' Can we treat this rule as a demurrer and dispose of the preliminary question as a matter of law? In our opinion, a rule for judgment is not an appropriate way to raise the legal question on the preliminary plea; we think that should be done by demurrer. Moreover, we are not certain that it is the intention of plaintiff’s counsel to admit the facts pleaded and rely on the law applicable thereto, and we do not desire to preclude the plaintiff from raising either issue of law or fact, as he may desire.

Since the taking of the rule defendants have filed a supplemental affidavit of defence on Oct. 22, 1921. There is no doubt of the right of defendants to file a supplemental affidavit of defence at any time before judgment: Bordentown Banking Co. v. Restein, 214 Pa. 30; Donoghue v. O’Kane, 55 Pa. Superior Ct. 11.

But should the filing of the affidavit of defence on the merits be held to be a waiver of the plea in abatement? Filing a plea in bar coincidently with a plea to the jurisdiction, and with an express reservation of the benefit of that plea, does not amount to a waiver of the plea in abatement nor to ground for striking it off: McConkey v. Peach Bottom Slate Co., 14 Pa. C. C. Reps. 514; Dailey v. Iselin, 212 Pa. 279, and see Dailey v. Iselin, 200 Pa. 200.

While the defendants in their affidavit to the merits have made no reservation of their plea in abatement under the situation of this case, we do not think we should hold that they have waived it by filing the supplemental affidavit of defence. If they desire to do so, any further steps looking to a trial on the merits would doubtless be so construed: Daley v. Iselin, 212 Pa. 279, 286.

And now, Dec. 15, 1921, the rule is discharged, without prejudice to the right of the plaintiff to renew the same as to the supplemental affidavit of defence after the preliminary plea entered by defendants has been disposed of.

From W. S. Clark, Warren, Pa.


author: Corbet, P. J.,

text:
    Sink et al. v. Straitwell Coal Company.

      Interpleader — Refusal of — Interest of parties — Discretion of court.

    1. An interpleader will not be granted to a defendant in a suit, where it appears that he is not a mere stakeholder, but has a personal interest in the subject-matter of the suit.
    2. The court may exercise a judicial discretion in determining the right to an interpleader.
    Petition for interpleader. C. P. Jefferson Co., Jan. T., 1921, No. 6.

      Pentz & Pentz, for plaintiff; Mitchell & Morris, for defendant.

      Smith M. McCreight, for D. M. Straitwell, claimant.
    Dec. 14, 1921.
   Corbet, P. J.,

On Oct. 26,1920, plaintiffs brought this action of assumpsit against the defendant, Straitwell Coal Company, a corporation.

Plaintiffs in their statement of claim, filed Oct. 26,1920, aver as their cause of action: “Third. That on or about the 1st day of July, 1920, the plaintiffs in this case entered into a verbal contract with defendant to sell their coal which they mined from the Straitwell Mine in Jefferson County, Pennsylvania, at the market price, which said market price was $7.10 per net ton, and between the 1st of July, 1920, and ths 4th of October, 1920, in pursuance of said contract, delivered to the said defendant 123 tons on board their mine cars, as agreed to do by the plaintiffs, which said coal amounts in value to $873.30, for which coal the said defendant was to pay the plaintiffs every two weeks — that being the 15th and the 30th days of each month.” And further aver that, although they made the delivery of the coal as stated, the defendant has neglected and refused to pay for it, and that their action was brought to recover said sum of $873.30 due the plaintiffs therefor, with interest from Oct. 4, 1920.

The sheriff made return to the summons that he served it Oct. 29, 1920, on the defendant, by handing a true and attested copy, and making known its contents, to Martin Straitwell (D. M. Straitwell, the claimant), manager and one of the directors of the defendant company, and that at the same time he served a copy of the statement of claim on defendant by handing such copy to the same official of the company.

On Nov. 10, 1920, defendant presented its petition, setting forth that it had not filed an affidavit of defence:

“4. That on the 1st day of November, A. D. 1920, your petitioner received from D. M. Straitwell a notice, whereof the following is a true copy:

‘“To Straitwell Coal Company, defendant:.

“ ‘Please take notice that the moneys now in your hands for coal delivered at the siding of your mines near Cortez, Penna., by G. C. Sink and Walter Sink, and for which they have brought above suit against you, are not their moneys, nor are they entitled to said moneys. Said coal so delivered was mined from my coal mine in McCalmont Township and my property and the moneys due for same in your hands is mine and I claim the same from you. It is my intention to sue you therefor if you do not promptly pay this money to me. Respectfully, D. M. Straitwell. Dated November 1, 1920.’

“5. The identical money for which this suit has been brought is thus claimed by G. S. Sink and Walter Sink, and also by D. M. Straitwell.

“6. Your petitioner has no interest in the said money and is thus liable to be put to the expense of defending two actions, and is subject to the risk of being compelled to pay said money twice.”

And, offering to pay said money into court (or to dispose thereof as the count shall direct and order), prayed:

(a) That the plaintiffs and said D. M. Straitwell be ordered to interplead.

(b) For process to make D. M. Straitwell a party to the action, for rules and orders for carrying the interpleader into full and complete effect, and for such judgment of the court as shall be agreeable to the rules and practices of law in like cases.

On Nov. 16, 1920, the plaintiffs answered the petition, averring absence of knowledge by them of the notice alleged in the fourth paragraph of the petition, and demanding proof concerning it; denying the matters alleged in the fifth and sixth paragraphs, and, answering generally, that D. M. Straitwell was the principal stockholder in and owner of defendant corporation, the mine operated by it being on his premises, their information and belief that he was manager, owner of a majority of the stock, and had absolute control of the defendant company; that they were informed by defendant that the latter had already paid the amount of plaintiffs’ claim to said D. M. Strait-well ; that they were informed, before they brought their suit, that the money was already in his hands, having been demanded by and paid to him, and that the claim set up to it by the claimant was only a subterfuge and arrangement between said Straitwell and the defendant to seize the money due the plaintiffs and turn it over to said Straitwell. And praying for the dismissal of the petition.

On Nov. 27,1920, D. M. Straitwell answered:

“1. That sometime previous to the 15th of September, 1920, the said D. M. Straitwell entered into a parol contract with the Straitwell Coal Company, whereby the said D. M. Straitwell was to sell and deliver coal from his mine on his farm in McCalmont Township to the Straitwell Coal Company at its tipple near Cortez, Pa., at the sum or price of $7.10 per net ton.

“2. That, in pursuance of said contract, the said D. M. Straitwell delivered or caused to be delivered, to the Straitwell Coal Company, at its tipple, coal as follows: September 15th to Sept. 30, 1920, 107.65 tons, and on October 4th and 5th, 1920, 6.20 tons, making a total of 113.85 tons, at the price or sum of $7.10 per net ton, amounting to the sum of $808.34, all of which is due and remains unpaid; which amount of money the claimant, D. M. Straitwell, claims of the Straitwell Coal Company. And the said D. M. Straitwell avers that $808.34 of the money so paid into court, or to be so paid into court by the Straitwell Company, is his money and property and not the money and property of G. C. Sink and Walter Sink, or any, other persons.

“3. That previous to the 15th of September, 1920, the said D. M. Straitwell entered into a contract with G. C. Sink and Walter Sink, whereby the said G. C. Sink and Walter Sink were to mine coal from his aforesaid mine on his farm in McCalmont Township, Jefferson County, Penna., and haul and deliver for the said Straitwell the said coal to the tipple of the Straitwell Coal Company, near Cortez, Penna., for the price or sum of $4.50 per net ton.

“4. That, in pursuance of said agreement and understanding, there was mined, hauled and delivered by the said G. C. Sink and Walter Sink for the said D. M. Straitwell, on Sept. 16th to Sept. 30, 1920, 107.65 tons, and October 4th and 5th, 1920, 6.20 tons, or a total of 113.32 tons, at $4.50 per net ton, amounting to the sum of $512.32.

“5. That from this amount of $512.32 owing by the said Straitwell to G. C. Sink and Walter Sink, the said Straitwell claims from the said G. C. Sink and Walter Sink the following credits, . . . making a total credit of $403.93, leaving a balance due G. C. and Walter Sink of $108.39 by the said Straitwell; a judgment for which amount is hereby tendered by the said D. M. Straitwell to the said G. C. Sink and Walter Sink.”

On Sept. 27, 1921, the Straitwell Coal Company, defendant, paid into court the principal sum claimed by plaintiffs, $873.30.

The features presented in this case are unusual and exceptional, as much for what is not revealed as for what is revealed. The plaintiffs have not told us by what right they mined coal from the Straitwell Mine in Jefferson County, Pennsylvania, and sold and delivered it to the defendant. The defendant has not in any way denied the contract, and performance of their part of it, averred by plaintiffs, and we must accept those allegations as true at the present stage of the case. Defendant bases its application for the interpleader on the D. M. Straitwell notice to it. In this Straitwell, apparently, lays claim to be paid for the coal in suit on the ground that it was mined from his mine and was his property, although his notice makes no specific mention of the coal being tortiously mined and delivered by the plaintiffs to the defendant. In his answer to defendant’s petition for the interpleader, Straitwell says that, previous to Sept. 15, 1920, he entered into a contract with plaintiffs to mine coal from his aforesaid mine and haul and deliver it for him to the tipple of the defendant company for $4.50 per net ton; that also, sometime previous to the date mentioned, he entered into a parol contract with the defendant company, by which he was to sell and deliver coal from his mine to the defendant company, at its tipple, at $7.10 per ton, and that, in pursuance of such contract, he delivered, or caused to be delivered, to it 113.85 tons, amounting to $808.34, all of which remains due and unpaid him. Yet neither of these alleged contracts, as a basis for the respective demand of the plaintiffs and claim of the claimant, is mentioned by the defendant in its petition, save by way of mere recital of what plaintiffs’ action was brought for, although, if either were made, it is quite apparent the defendant, as a party, would know fully about it.

The plaintiffs do not claim the ownership of any definite and specific sum of money in the defendant’s hands, but damages for the breach of a contract it made, as is alleged, with them. Likewise, the claimant bases his claim on the breach of a contract he alleges was made with him by the defendant, and not on any alleged ownership of a definite and specific sum of money in defendant’s hands. The defendant cannot, therefore, under such circumstances, well say that it does not know which of the parties it owes, for it would be its duty to know; nor could it accurately affirm that it is an entirely disinterested party, liable to be put to the expense of defending two actions, and subject to the risk of being obliged to pay the money twice, if the situation is one of its own making. It appears from the respective claims of the parties who are asked to interplead that defendant is debtor to each on a separate and distinct contract made by it separately with each of them. Neither claims under the contract of the other. That each is claiming payment for the same coal has not been directly and distinctly stated by the defendant in its petition, although there is warrant for that inference from what is stated. And if it be so, the questions still remain: Which of the contracts is the valid one, and by which is the defendant bound and obligated to pay? And if there be a distinction between the parties, plaintiffs and claimant, to which one is defendant really debtor? In respect thereto the defendant is an interested party and not a mere stakeholder. It is interested in the settlement of the questions mentioned with each of the parties, but it ought not to be permitted to call them together or to match them against each other in order that they be settled between them in the interest of, or for the benefit of, the defendant.

It is said in Bechtel v. Sheafer, 117 Pa. 555 (563): “It is true, nevertheless, that the proceeding (for an interpleader) cannot be sustained by a party who has any personal interest in the subject of controversy: Dohnert’s Appeal, 64 Pa. 311; Bridesburg Manuf. Co.’s Appeal, 106 Pa. 275. The party applying for it must occupy the place of a mere stakeholder, without any rights of his own to be litigated.”

In De Zouche v. Garrison, 140 Pa. 430 (435-6), it is said: “That the defendant who applies for the interpleader must be a mere stakeholder; that he must have no interest in the subject-matter of the suit; that he must admit his liability for the whole amount of the plaintiff’s demand, are principles so well settled in the interpleader practice that no discussion of the subject is necessary.”

In McSorley v. Coyle, 40 Pa. Superior Ct. 560 (564), it is said: “It is the rule, generally speaking, relating to interpleaders that the petitioner for such an issue must be free from any independent liability to either of the parties claiming the fund. If he has expressly acknowledged the title and right of one of them and agreed to hold the property for him, he is not an indifferent stakeholder.”

Claimant, D. M. Straitwell, sets up for adjustment an alleged contract between himself and the plaintiffs, and a cross-demand thereunder, which could be tried in the issue which defendant asks. “It is not the form of action to determine the rights of parties on any other question than that of the title to the particular fund:” McSorley v. Coyle, 40 Pa. Superior Ct. 560 (565).

The court may exercise a judicial discretion in determining the right to an interpleader (Schmidt Brewing Co. v. Pittsburgh Life and Trust Co., 256 Pa. 363), and we see no reason why the defendant may not fully protect its rights and defend itself in the present action. If in fact the plaintiffs had no contract with the defendant, or if they had no right to sell the coal to the defendant, because it belonged to D. M. Straitwell, opportunity remains to defendant to defend on those grounds or any other legitimate ground of defence it may have. From what has been said, it follows that defendant’s application for the interpleader must be refused.

And now, Dec. 14, 1921, after hearing and due consideration, the rule to show cause is discharged and defendant’s application for an interpleader is refused.

From Raymond E. Brown, Brookville, Pa.


author: Bell, P. J.,

text:
    Commonwealth v. Neff et al.

      Road law — Supervisors—Neglect to repair highway — Nuisance—Indictment — Acts of March 28, 1808, and July 14, 1917.

    1. Supervisors may be indicted for neglect or refusal to keep in repair a public road, so that its condition has become such as to amount to a public nuisance.
    2. The remedy by indictment provided by the Act of March 28, 1808, 4 Sm. Laws, 531, has not been repealed or superseded by later acts or by the 240th section of the Act of July 14, 1917, P. L. 840.
    Motion to quash indictment. Q. S. Clearfield Co., Dec. T., 1921, No. 23.

      John C. Arnold, District Attorney, for Commonwealth.

      Miller & Hartswick, for defendants.
    Dec. 15, 1921.
   Bell, P. J.,

The indictment in this case charges that the defendants, being the Supervisors of Chest Township, did so neglect and refuse to keep in repair a certain public road that its condition became such as to amount to a public nuisance. A motion to quash has been filed, which avers that the supervisors are not indictable, either at common law or under any statute, for failure to repair and maintain the township road. At bar there was some discussion about the indictment departing from the theory of the information, but, as we look at it, the facts averred in the information fully support the indictment and need not be further considered. The important question is that squarely raised by the motion to quash and which denies that a proceeding by indictment for such cause can be maintained, contending that the court is without jurisdiction, and that for such offending the supervisor may be punished, if at all, only by proceeding under the 240th section of the Act of July 14, 1917, P. L. 840, and relying upon the recent decisions of Com. v. Adsit, 30 Dist. R. 760, in which such conclusion is reached by Judge Prather, and Com. v. Ritchey, 50 Pa. C. C. Reps. 624, in which Judge King reaches a like conclusion. The Commonwealth denies the soundness of these decisions and insists that the jurisdiction to proceed by indictment, charging a public nuisance or charging such neglect of official duty as permitted the public property in the care of the defendants to constitute a public nuisance, has never been taken away. We would be glad to concur with the opinions of our brethren if we could do so, but are unable to reach the conclusion which has led to the findings in the cases cited.

The Act of April 6, 1802, 3 Sm. Laws, 512, provided a general road system and repealed all preceding laws relating to roads other than those in the City of Philadelphia and other corporate towns, and the 12th section provided: “That all and every supervisor or supervisors of the highways who shall refuse or neglect to do and perform his or their duty as directed by this act (and for which penalties are not otherwise herein provided) shall be fined in any sum not less than $4, nor exceeding $50, to be recovered in a summary way, before any justice of the peace of the county, to be applied toward repairing the public roads and highways within the respective townships where such fines and penalties are incurred.” The Act of March 28, 1808, 4 Sm. Laws, 531, provided: “That the respective Courts of Quarter Sessions shall have jurisdiction to enforce the act entitled ‘An act for laying out, making and keeping in repair the public roads and highways within this Commonwealth, and for laying out private roads,’ concurrent with the justices of the peace within this Commonwealth.” The Act of April 15, 1834, P. L. 537, related to counties and townships and their officers, and the 92nd section repeated almost verbatim the section quoted from the Act of 1802, while the 90th section provided: “The supervisors in each township, elected or appointed in pursuance of this act, shall perform all the duties imposed by law on supervisors of the public roads or highways, and be subject to the same responsibilities.” The Act of June 13, 1836, P. L. 551, which dealt elaborately with the subject of roads, and provides many conditions and penalties, contains nothing which affects the preceding Act of 1834 or in any way supersedes its provisions. Space and time have not permitted a checking up of all of the legislation following the Act of 1836, but the subject has been followed sufficiently to indicate a general consistent preservation of the double class of procedure. Thus, the Act of June 23, 1897, P. L. 194, by the 18th section, provides for a fine of not more than $50 for the failure to carry out the provisions of the act, and by the 19th section, provides that the road supervisors “shall be subject to the same responsibilities and penalties that supervisors are now subject to, except in so far as changed or supplied by the terms of this act.” The 13th and 14th sections of the Act of April 12, 1905, P. L. 142, are identical with the sections referred to in the Act of 1897. The 19th section of the Act of July 22, 1913, P. L. 915, extends the classes of persons falling within the penal provision, but is otherwise identical with the 13th section of the Act of 190fj, and section 20 provides that the township supervisors or superintendents “shall be subject to the same responsibilities and penalties as road supervisors are now subject to, except in so far as changed or supplied by the terms of this act.” The Act of July 14, 1917, P. L. 840, in its 240th section, is substantially a re-enactment of the 19th section of the Act of 1913, with slight modifications, and the 241st section is practically identical with the 20th section of the Act of 1913, and is as follows: “The township supervisors or township superintendents, elected or appointed in pursuance of this act, shall have all the powers and shall perform all the duties imposed by existing laws on supervisors of roads and bridges and highways and road commissioners or other officers having in charge the township roads, and shall be subject to all responsibilities and penalties imposed on such officers.”

The result of this investigation is, that from 1802 it has been a part of the provisions of the road law of Pennsylvania to provide proceeding for punishment of delinquent supervisors in a summary way by a proceeding to collect a penalty which has substantially throughout been limited to $50. It has also been the declared legislative intent from 1808 to the present, that supervisors should be subject to the jurisdiction of the Court of Quarter Sessions for such procedure as should be advisable to oblige them to perform their general public duties with reference to the opening, maintaining and repairing of the public roads. Unquestionably an indictment such as is here presented would lie at common law, and the Act of 1808, which was purely declaratory of the common law, was doubtless passed to relieve against any impression which might then exist in connection with the passage of the Act of March 21, 1806, 4 Sm. Laws, 332, and which is relied upon by Judge Prather in his opinion. It scarcely makes for strength of the position now urged in support of the motion to quash that the right to proceed by indictment has stood for more than one hundred years without being seriously questioned, though during all of that time there was upon the statute books provision under which supervisors could be punished by summary proceeding. But we are not without judicial authority directly upon the question. In Edge v. Com., 7 Pa. 275, the supervisors were indicted because of neglect of duty, relative to the repairing of the public roads, as a common nuisance, etc., and it was urged on behalf of the defendants that the Act of April 15, 1834, § 92, P. L. 537, which affixed a penalty recoverable by action, took away the jurisdiction of the Court of Quarter Sessions, and that there alone remained the jurisdiction in an action before a justice of the peace for penalty; to which the Attorney-General replied that the Act of 1834 merely gave an additional remedy by action, leaving the former one by indictment in force, and the Supreme Court, saying that neglecting to keep a highway in repair is indictable as a public or common nuisance, proceeds: “The supervisor is enjoined by statute to open and repair roads, and it is essential to the convenience of the public that the remedy to enforce compliance on the part of the officers should be emphatic and at the instance of the public authorities of the State.” The court referred to the 90th section of the Act of 1834, enacting that the supervisors “shall perform all the duties imposed by law on supervisors of the public roads and highways, and be subject to the same responsibilities,” and held, “and one of those responsibilities was, and continues to be, the liability to an indictment for refusing or neglecting to open and repair highways. There is no other provision nor any other act or clause giving the public or State any remedy save this of indictment.” Since that time the proceeding by indictment has been followed in numerous cases, Phillips v. Com., 44 Pa. 197, and Com. v. Reiter, 78 Pa. 161, in which the Supreme Court said: “That supervisors are liable to indictment for neglecting to open a public highway duly laid out in their respective townships is well settled.” The reason why the necessity exists that such authority should be vested in the Commonwealth is indicated in the reasoning of the Supreme Court in Com. v. Bredin, 165 Pa. 224. In Roaring Brook Township Road, 140 Pa. 632, the Supreme Court, by Chief Justice Paxson, reasserted the doctrine of Edge against the Commonwealth, declaring it to be “essential to the convenience of the public that the remedy to enforce compliance should be emphatic and at the instance of the public authorities;” and to the same effect might be cited Com. v. Johnson, 134 Pa. 635, and other cases. In Com. v. Meany, 8 Pa. Superior Ct. 224, the defendants were indicted for maintaining a common nuisance, which was the neglect to repair a public road, and the propriety of this form of proceeding was recognized by the courts. In Com. v. New Bethlehem Borough, 15 Pa. Superior Ct. 158, the Superior Court, speaking by President Judge Rice, said: “Neglect to keep in repair the public roads in any municipal district is a violation of public duty, and the person or municipal corporation charged with the duty is punishable by indictment at common law.”

Of course, the cases cited are prior to the passage of the Act of 1917, but the parallel between the 90th and 92nd sections of the Act of April 15, 1884, and the 240th and 241st sections of the Act of July 14, 1917, is deadly, and any careful examination of the statutes will indicate that during the period during all of which the cases referred to were decided there was never a time at which the question now presented might not have been raised with equal force. We cannot say whether the profession regarded the matter as conclusively settled by Edge against the Commonwealth, or whether they regarded it as untenable under any circumstances. It is sufficient to conclude that before a jurisdiction which has existed in the court for more than a century, almost without question, be taken away, it must be done by more than uncertain legislation, and in the case at bar we do not regard it as even being uncertain.

Now, Dec. 15, 1921, the motion to quash is overruled, exception noted and bill sealed to the defendants.

From John M. Urey, Clearfield, Pa.


author: Van Swearingen, P. J.,

text:
    Mountain Water Supply Co. et al. v. Melcroft Coal Co.

      Corporations — Water companies — Eminent domain — Waters—Contamination of water by mining company — Intervention by Commonwealth — Equity— Parties — Acts of May 28,1915, and July 7, 1919.

    1. Under the Act of May 28, 1915, P. L. 616, as amended by the Act of July 7, 1919, P. L. 731, the Commonwealth will be permitted to intervene as a party in any case where it is shown to have any interest.
    2. The Commonwealth has an interest entitling it to intervene as a party plaintiff in a suit in equity, where two water companies, whose stock is owned by a railroad company, claim to have made legal appropriation of certain of the waters of a stream for their corporate purposes, and have erected a storage dam into which the waters are collected, and allege that a coal company is operating a mine and is draining its mine water, containing large quantities of sulphuric acid, into the stream above the storage dam, thereby rendering the waters of the stream, as they flow into the storage dam, unfit for domestic use, or for commercial or manufacturing purposes, to which uses plaintiffs have been devoting them, and an injunction is prayed for restraining the coal company from draining its mine water into the pure waters of the stream.
    3. In such case, the Commonwealth has a right to intervene to protect the health and comfort of the citizens of the State.
    Bill for an injunction, and petition for, and rule on parties plaintiffs and defendant to show cause why the Commonwealth should not be permitted to intervene as a party plaintiff. C. P. Fayette Co., No. 965, in Equity.

      Fred Taylor Pusey, Deputy Attorney-General, and George E. Alter, Attorney-General, for Commonwealth.

      Paul H. Gaither, Smith & Best and Play ford & Phillips, for plaintiffs.

      Peed, Smith, Shaw & Beal, Crow, Shelby & Tabor, McDonald & Cray and John S. Brookes, Jr., for defendant.
    Jan. 24, 1922.
   Van Swearingen, P. J.,

This case is before the court now on a rule taken on the parties plaintiffs and defendant, on a petition of the Commonwealth ex rel. George E. Alter, Attorney-General, to show cause why the petitioner should not he permitted to intervene as a party plaintiff in the cause, the petition containing the following allegations:

“1. That a bill of complaint has been filed in the case by the plaintiffs, alleging (a) that the defendant has negligently, wrongfully and unlawfully persisted in pursuing and developing mining operations so as to liberate daily, with the extension of said mining operations, large quantities of polluted and destructive mine water, thereby daily causing to flow into the pure waters of Indian Creek increased quantities of polluted and destructive mine water, whereby the waters of Indian Creek already have become injured, polluted and contaminated, to the end that the waters of Indian Creek are unfit for domestic use or for commercial or manufacturing purposes-(b) That the said defendant has mingled with the otherwise pure waters of Indian Creek additional quantities of polluted water, thereby increasing the quantity of polluted water being cast into the waters of Indian Creek above the masonry dam of the Mountain Water Supply Company, the Dunbar Water Supply Company and the Pennsylvania Railroad Company, in violation of the rights of the plaintiffs, and in violation of the rights of the public in and to the said pure stream of water. (e) That the acts of the defendant in polluting the waters of Indian Creek constitute a public nuisance.

“2. That a petition for leave to intervene was filed by the Westmoreland Water Company, setting forth that the Westmoreland Water Company is supplied by the plaintiffs and in turn supplies water to the public in the municipal districts of the County of Westmoreland, known as the Boroughs of Youngwood, Greensburg, South Greensburg, Southwest Greensburg, Jeannette, Irwin, Manor and Penn, and in the Townships of Unity, Hempfield, Penn and North Huntingdon, supplying in the districts named approximately 8500 domestic and industrial consumers, to whom it delivers daily approximately 8,500,000 gallons of water.

“3. That a petition has been filed with your petitioner, signed by some 1700 citizens of the Commonwealth of Pennsylvania, residents of the Counties of Westmoreland, Fayette, Washington and Allegheny, setting forth that the water supplied by the Mountain Water Supply Company is obtained from its reservoir maintained by it in the County of Fayette, in the water-shed of the said stream, known as Indian Creek, which stream above the reservoir drains a section of the southeastern part of Westmoreland County and the northeastern part of Fayette County; that in recent years large quantities of mine water have been discharged into the streams tributary to the said Indian Creek, which have polluted the waters of Indian Creek and caused irreparable loss’ and damage to the public; that said pollution of the waters of Indian Creek is in violation of the rights of the public and prejudicial to the interests of the community; and praying the Attorney-General to intervene for the Commonwealth of Pennsylvania on behalf of the public.

“4. That the supply of pure water by the plaintiffs is necessary to the health and comfort of the citizens of Westmoreland, Fayette, Washington and Allegheny Counties, and that the Commonwealth of Pennsylvania has an interest in the quantity and quality of the water furnished by the plaintiffs in order to secure for the public a wholesome and adequate supply thereof.”

The plaintiff water companies, whose stock is owned by the plaintiff railroad company, claim to have made legal appropriation of certain of the waters of Indian Creek for their corporate purposes, and have erected a large storage dam into which the waters are collected, and allege that the defendant is operating a coal mine and has been and is draining mine water, containing large quantities of sulphuric acid, into the stream above the storage dam, thereby rendering the waters of the stream as they flow into the storage dam unfit for domestic use or for commercial or manufacturing purposes, to which uses the plaintiffs have been devoting them.

The petition to intervene sets forth that the petitioner adopts as its cause of complaint, in addition to the averments contained in the petition, the averments of fact contained in the bill of complaint filed by the plaintiffs, exclusive of those particular to the plaintiffs therein named, the exhibits therein referred to and the prayers for relief thereunder, to the end that all rights of the public may be adequately protected and preserved. The defendant filed an answer to the petition, denying that the petition accurately states the purport of the bill of complaint; denying that the supply of pure water by the plaintiffs is necessary to the health and comfort of the citizens of Westmoreland, Fayette, Washington and Allegheny Counties; denying that the citizens of those counties who signed the petition filed with the Attorney-General have any interest in this controversy, except as consumers of water supplied by the Westmoreland Water Company, and that the Commonwealth has any direct interest in the controversy; and alleging that the interests of the citizens who signed the petition filed with the Attorney-General, and the interests of the Westmoreland Water Company, by which said citizens are supplied with water, are fully and adequately represented and protected in this action by the Mountain Water Supply Company, by which the Westmoreland Water Company is supplied, and that any interest which the Commonwealth has in the controversy is of a different nature and extent from the interests of the plaintiffs and should be separately litigated, and has no proper place in this proceeding. The principal allegations contained in the original bill of complaint, and the defendant’s answers thereto, are set forth in our former opinion in this case, where we refused permission to the West-moreland Water Company to intervene as a party plaintiff. See Mountain Water Supply Co. et al. v. Melcroft Coal Co., 30 Dist. R. 971.

It is stated in defendant’s brief: “The issues raised by the bill and answer are (1) whether the Mountain Water and Dunbar Water Companies’ appropriation was valid against the defendant; (2) whether the Mountain Water and Dunbar Water Companies have the power of eminent domain; (3) whether the Mountain Water and Dunbar Water Companies could lawfully condemn a watercourse without compensation to the upper owners; (4) whether the natural drainage of a coal mine into a stream is a property right enforceable against lower riparian owners; and (5) whether the plaintiff water companies and the plaintiff railroad did not establish their waterworks with full knowledge of the Indian Creek coal beds and with full knowledge that Indian Creek was the sole drainage from this basin. . . . This action arises out of a fundamental interference between two vast industries, involves questions of the corporate powers of, and the exercise of eminent domain by, the plaintiff water companies, and it requires a careful study of the ancient laws of riparian rights. To add to a case, already of such magnitude, wholly new and distinct questions of public health, public nuisance and public rights cannot have any result but to confuse the situation. If the Commonwealth sincerely believes that the public interests are threatened in this matter, its obvious course is to commence a proceeding in which that question can be clearly adjudicated.”

As to what right the Commonwealth would have, if any, to intervene in a case like this, in the absence of statute, it is not necessary to discuss or decide. We are of opinion that the case is covered and the court is bound by the Act of May 28, 1915, P. L. 616, as amended by the Act of July 7, 1919, P. L. 731, which provides: “That in ail cases at law or in equity, in any court or before any officer, hoard, commission or other body having jurisdiction of the matter, in which the Commonwealth or any officer thereof may he a party, or in which the Commonwealth may have any interest, the Commonwealth shall have the right to intervene and to appear, plead, prosecute, defend or appeal as other parties litigant, but in no case shall be required to give any bond or other security for costs or for any other purpose whatever.” We are unable to reach the conclusion that the Commonwealth is without “any” interest in this controversy. And, under this statute, we are of opinion that the prayer of the petitioner must be granted.

And now, Jan. 24, 1922, for the reasons stated in the opinion herewith filed, the rule for permission to intervene is made absolute, and the Commonwealth of Pennsylvania ex rel. George E. Alter, Attorney-General, is permitted to intervene as a party plaintiff in this cause.

From Luke H. Frasher, Uniontown, Pa.


author: S woo PE, Dep. Att’y-Gen.,

text:
    Gasoline Storage.

      Statutes — Construction—“Buildings”—“Premises”—Acts of July 1, 1919, and May 11, 1921.

    1. Under the Act of July 1, 1919, P. L. 710, as amended by the Act of May 11, 19)21, P. L. 500, the Bureau of Fire Protection has jurisdiction not only over all "buildings” in which inflammable or explosive substances are stored; but over all “premises” in which said substances may be placed.
    2. The word “premises,” as applied to the occupancy of real property,, embraces any definite portion of land and the building and appurtenant structures over which the owner or occupant has the right to, and does, exercise authority and control.
    3. Particular phrases left doubtful by an act itself are to be construed as synonymous with, or analogous to, the same phrases used in other statutes upon the same subject in such connections or surroundings as define their meaning beyond question or point emphatically to a certain interpretation.
    Attorney-General’s Department. Opinion to Charles D. Wolfe, Bureau of Fire Protection, Department of State Police.
    March 27, 1922.
   S woo PE, Dep. Att’y-Gen.,

I received your request for an opinion from this department as to the validity of the “regulations governing the having, using, storage, sale and keeping of gasoline,” etc., recently issued by the Department of State Police under the Act of July 1, 1919, P. L. 710, and the amendment of May 11, 1921, P. L. 600.

The fourth clause of section 1 of the Act of July 1, 1919, P. L. 710, provides as follows: “The department may adopt and enforce rules and regulations governing the having, using, storage, sale and keeping of gasoline, naphtha, kerosene or other substance of like character, blasting powder, gunpowder, dynamite or any other inflammable or combustible chemical products or substances or materials. The department may also adopt and enforce rules and regulations requiring the placing of fire-extinguishers in buildings.”

The first sentence of section 3, as amended by the Act of May 11, 1921, P. L. 500, is in these words: “The Department of State Police or its assistants, upon the complaint of any person, or whenever it or they shall deem it necessary, shall inspect the buildings and premises.”

Further on in this section are the words, “the owner or occupant of such premises or buildings.” In the second paragraph of this section in one place the words “occupant of the premises” are inserted, in another place “owner of the premises.” At the end of section 4 the words are “enter any building or premises within its or their jurisdiction.”

It seems plain from the use in this act of the words “buildings” and “premises” in its various clauses that the intention of the legislature was to confer upon the Bureau of Eire Protection jurisdiction not only over all “buildings’-’ in which inflammable or explosive substances are stored, but over all “premises” in which said substances may be placed.

This conclusion is in harmony with the rules laid down by the courts in the construction of statutes.

“The method is to ascertain the meaning of any particular phrase or provision in the light of every direction made upon the subject-matter it refers to by the legislature up to the time when the court is called upon to pronounce its judgment. It requires particular phrases, left doubtful by the act itself, to be construed as synonymous with, or analogous to, the same phrases used in other statutes upon the same subject in such connections or surroundings as define their meaning beyond question, or point emphatically to a certain interpretation. It requires gaps left in the act, not amounting to casus onmssi, to be filled from the materials supplied by other statutes upon the same subject and in harmony with them. It requires words capable of several meanings, the choice among which is not determined by the use of words in a definite and unmistakable sense in one of the other statutes, to be so construed, if possible, as to preserve in force and effect, side by side with them, the words of earlier statutes, to the avoidance- of an interpretation which would raise a repugnancy between the earlier and the later statutes, fatal to the former. The effect is to preserve harmony and consistency in the entire body of the legislation upon a given subject-matter:” Endlich on the Interpretation of Statutes, § 53.

This view is strengthened by the judicial definitions of the word “premises.”

“As applied to the occupancy of real property, it embraces any definite portion of land and the building and appurtenant structures over which the owner or occupant has the right and does exercise authority and control: Kunkel v. Abell, 84 N. E. Repr. 503, 504; 170 Ind. 305:” 3 Words and Phrases (2nd Series), 1144.

“The words ‘building’ and ‘premises’ are sometimes used interchangeably in prohibitive clauses of insurance policies. These words were so used in the clause of a policy prohibiting the keeping of explosives: Kenefick v. Norwich Union Eire Ins. Society, 103 S. W. Repr. 957, 959; 205 Mo. 294:” 3 Words and Phrases (2nd Series), 1145.

The regulations submitted to me, so far as covering both “premises” and “buildings,” are, therefore, valid.

The general rule in regard to rules and regulations promulgated under an act of assembly is: “. . . That the legislature intended to give only such powers as were necessary to carry out the objects of the enactment, and not any larger powers than were necessary for that purpose. . . . The principle is that rules and by-laws are construed like other provisions encroaching on the ordinary rights of persons. They must, on pain of invalidity, be reasonable and not in excess of the statutory power authorizing them, or repugnant to that statute or to the general principles of law:” Endlich on the Interpretation of Statutes, § 352.

These principles were affirmed in the late case of Goldwyn’s Appeal, 265 Pa. 335, where our Supreme Court said: “The board of censors, in classifying such pictures (by a regulation) and placing them under its condemnation, is exercising its judgment” and the authority conferred upon it by the act.

As the regulations submitted seem reasonable and adapted to the purposes intended by the legislature, you are advised that they are a valid exercise of the authority conferred upon your department by the 1st section of the Act of July 1, 1919, P. L. 710.

From Guy H. Davies, Harrisburg, Pa.