author: Schaeffer, P. J.,

text:
    Brumbach v. Pearson et al.

      Snyder, Zieber & Snyder, for plaintiff.

      Ralph H. Mengel and Stevens & Lee, for defendants.
    Nov. 4, 1929.
   Schaeffer, P. J.,

— To the scire facias upon a mortgage caused to be issued by the plaintiff, the New Home Savings and Loan Association has filed an affidavit of defense, claiming to be the present owner of the property described in the mortgage, and contending that plaintiff’s mort gage has been discharged by the sheriff’s sale at which the New Home Savings and Loan Association was the purchaser.

The facts are as follows:

1. April, 1927. Written agreement, never recorded, between Herman Stroheeker and Maggie M. and Edwin A. Pearson, husband and wife, for sale of land. Immediately thereafter the Pearsons entered into possession and began building a dwelling house, which was completed before the deed was delivered.

2. July 13, 1927. Judgment entered by New Home Savings and Loan Association against Maggie M. Pearson and Edwin A. Pearson, her husband.

3. Aug. 9, 1927. Deed from Stroheeker to Maggie M. Pearson, wife of Edwin A. Pearson, for land described in the agreement of April, 1927. Deed recorded same day.

4. Aug. 9, 1927. Mortgage by Maggie M. Pearson and husband to Aaron Brumbach, the plaintiff here, upon premises that day conveyed by Stroheeker. Mortgage recorded same day.

5. Sept. 8,1928. Sheriff’s sale of premises to New Home Savings and Loan Association on its judgment entered July 13, 1927.

6. Sept. 22, 1928. Distribution of proceeds of sheriff’s sale to New Home Savings and Loan Association upon its judgment. No claim made by plaintiff for any distribution upon his mortgage.

7. Dec. 5, 1928. Scire facias issued upon praecipe of Brumbach, the plaintiff here.

By the Act of April 6, 1830, P. L. 293, and Act of May 8, 1901, P. L. 141, the mortgage remained undestroyed and unaffected by the sheriff’s sale only if the lien of the mortgage was “prior to all other liens upon the same property” except other mortgages, ground rents, purchase money due the Commonwealth and taxes, municipal claims and assessments.

The entry of the judgment by the savings and loan association on July 13, 1927, created a lien against the equitable estate then existing in the Pearsons. The latter had possession of, and had started to improve, the' premises under articles of'agreement with the owner for the purchase thereof. Their interest, though equitable, was subject to the lien of the judgment subsequently entered and was liable to sale by the sheriff upon that judgment: Auwerter v. Mathiot, 9 S. & R. 397. Upon the conveyance of the legal title to them or to one of them, the lien of the judgment- extended to the whole estate, legal as well as equitable: Cake’s Appeal, 23 Pa. 186. For a judgment against the equitable estate which a vendee holds under articles of agreement for the sale and purchase of land attaches to and binds the legal estate the instant that it vests in the vendee: Waters’s Appeal, 35 Pa. 523.

It follows that the instant that Stroheeker delivered his deed to the Pear-sons on Aug. 9, 1927, the entire interest of the Pearsons, legal and equitable, in the property became subject to the lien of the judgment of the savings and loan association.

If this were not so, the doctrine of equitable liens would be worthless. In order that equitable liens may be of real value, the law has made an exception in their favor to the ordinary rule that a judgment does not bind after-acquired property. In Guthrie v. Watson, 33 Legal Intell. 444, decided by the Supreme Court in 1876, this principle was sustained and enforced. Chief Justice Agnew said: “Clearly in every case of equitable estate the record of the judgment is notice of the lien to all subsequent purchasers. . . . When a purchaser,. therefore, sees a judgment against his vendor within a reasonable time before his deed, he is bound to inquire into the incipieney of his vendor’s title; he cannot rely on the date of the deed alone. He is, therefore, put upon inquiry to ascertain when his vendor’s title began.” In that case the equitable title arose on Jan. 12th; the judgment binding it on Feb. 28th; and the legal title conveyed on Sept. 11th. The judgment of Feb. 28th was held to be enforceable against the land in the hands of a subsequent purchaser at private sale.

It must be apparent that the lien of the judgment of the savings and loan association, even as against the legal estate of the Pearsons, was prior in point of time to the lien created by the recording of the mortgage. For the lien of the judgment attached the moment the deed was delivered, and the execution, delivery and recording of the mortgage necessarily followed the delivery of the deed. Hence, we must conclude that the lien of plaintiff’s mortgage could not be said to be prior to all other liens (other than those excepted by the statute), and it must follow that the mortgage was discharged by the sheriff’s sale. For the mortgage, not being a purchase money mortgage given to the vendor, became a lien only upon its entry: Act of April 27, 1927, § 1, P. L. 440.

In Parke v. Neeley, 90 Pa. 52, there arose the question of the divestiture of a mortgage by a sheriff’s sale. The mortgage was given to the vendor and was stated to have been given for purchase money; it was dated Jan. 1st, acknowledged Feb. 29th, and recorded March 2nd. By the record, therefore, it did not appear to have been recorded within sixty days of its delivery. Later, mechanics’ liens were filed with claims showing work and material furnished before Jan. 1st and before the delivery of the deed to the mortgagor. There followed a sheriff’s sale upon a subsequent judgment and distribution of proceeds to the mechanics’ lien creditors. The mortgagee issued a writ of scire facias sur mortgage, against which the purchaser at sheriff’s sale defended, claiming that the lien of the mortgage had been divested. But it was held that parol evidence was admissible to show that the date appearing upon the mortgage was not in fact the date of its execution, and that having been delivered within sixty days prior to its recording, its lien was prior to the mechanics’ liens, and, hence, was not divested. “ Mr. Justice Sterrett said (page 57): “. . . if [the mortgage were] not recorded in time, the mechanics’ liens, although subsequently entered, were first in order, because they related back to the commencement of the building and attached to the equitable interest which the mortgagor had acquired before the conveyance of the legal title. . . . (Page 58) : He [the plaintiff in error] contends that his rights as a purchaser at the judicial sale are to be determined by the proper record of liens and by what appeared on the registry of the mortgage at the time of the sale and not by what was proved aliunde, as to the time it was in fact executed. . . . The mechanics’ claims filed May 8, 1876, and subsequently, might be resorted to by the purchaser for the purpose of ascertaining when the liens were filed, and how far back they related. This, in connection with information derived aliunde, would probably inform him that these liens attached to the equitable interest of the mortgagors before the legal title was acquired. So far as the record of these claims was concerned, he might rely implicitly on what was there represented. Like all judicial records, made up, potentially if not actually, under the eye of the court, the proper averments of record imported verity, and might be taken as his guide in bidding at the sheriff’s sale: Harper’s Appeal, 34 Legal Intell. 250. As a general rule, a purchaser is not bound to look beyond the judgment docket for liens that should there appear: Coyne v. Souther, 61 Pa. 457. It is different, however, with the registry of deeds and mortgages. The chief object of recording them is to give actual as well as constructive notice to everybody of title and encumbrances thereon; and, apart from notice, the only effect given to recorded instruments by the statute is to make certified copies thereof evidence, and, in case of mortgages, to provide that they shall not be liens until left for record, except mortgages for purchase money, which continue to be liens from the date of their execution, if recorded within sixty days thereafter. . . . (Page 59) : While it is true, as a general rule, according to Magaw v. Garrett, 25 Pa. [319] 322, and other cases, that a purchaser need not look beyond the record for liens and encumbrances, it is not universally so. There are several exceptions, and in some of them the safety of purchasers is not consulted. Generally, the record furnishes no notice of mechanics’ liens until they have run for a considerable time. The existence of a purchase money mortgage may appear at any time within sixty days after its execution, and it is not necessary even then to disclose on its face the material fact that it is for purchase money, nor the time when it was executed, without which knowledge the purchaser can form no reliable judgment respecting the liens. . . . There are many facts outside of the record, about which he must inquire or suffer the consequences. There was quite sufficient in this case to put the purchaser on notice. Whatever puts a party on inquiry amounts to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, where the inquiry, if pursued, would lead to knowledge of the requisite fact: Mulliken v. Graham, 72 Pa. [484] 490.”

This latter principle was applied in First National Bank v. Walker, 296 Pa. 192. In that case the court of common pleas had ordered the prothonotary to satisfy a judgment; and the entry was made on the judgment index, “Satisfied November 20,1925, by decree of court.” From that order an appeal was taken Feb. 15, 1926, to the Supreme Court. On Feb. 7, 1927, the defendant in the satisfied judgment conveyed certain land to' Stover, who borrowed certain money from the plaintiff bank, which was secured by a mortgage on the premises. On April 2, 1927, the Supreme Court reversed the lower court’s decree satisfying thp judgment. Upon proceedings by scire facias to revive the judgment, the court said, at page 196: “The question thus arises, what notice was given by this record to persons having occasion to make examination. It is undoubtedly a general rule that a purchaser is not bound to look for judgments beyond the judgment index, and if his search discloses the existence of no liens entered there, he may properly assume that no such lien exists. Likewise, if he finds an entry of satisfaction on the judgment index, he has ordinarily a right to rely upon such entry and assume the lien which formerly existed has been paid or otherwise disposed of. However, if the record discloses any circumstance, in addition to the entry of satisfaction, calculated to put the party on inquiry as to further information to be obtained with respect to the satisfaction of the judgment, it becomes his duty, in the exercise of ordinary diligence, to make inquiry. . . .. Such record carries with it ‘constructive notice of all facts therein expressly recited as well as of such facts as might be fairly inferred from its recitals, but nothing more:’ Johnson v. Hess, 126 Ind. 298, 309. In Parke v. Neeley, 90 Pa. 52, this court, after stating that, although true as a general rule a purchaser need not look beyond the judgment docket for liens that should there appear, called attention to the fact that exceptions exist to this rale,” and that the duty of inquiry, as above stated, sometimes arises. Applying the principles so stated, the court held that the notation “satisfied by decree of court” put on one examining the records the duty of looking further, and as an examination of the appearance docket would have disclosed the pending appeal, that was notice of the possibility of the decree of the lower court being reversed, and, hence, the lien of the mortgage was subsequent to the lien of the judgment.

In our ease there is no trouble about the record upon the judgment index. The judgment of the New Home Savings and Loan Association was there and was unsatisfied. But there was no record in the recorder’s office or upon the records of the court of any title in the judgment debtors. The agreement of purchase between Strohecker and the Pearsons was not on record. But under the foregoing cases we believe that the record of the judgment put upon all who dealt with the judgment creditors upon the faith of after-acquired real estate the duty of inquiring as to the inception of the title, both legal and equitable, of the judgment debtors.

Here, as in the case of Guthrie v. Watson, supra, to hold that a subsequent purchaser was not bound by the judgment entered against the equitable estate would be to render the doctrine of equitable liens worthless.

But in addition to pointing out that there was nothing, upon any record which tended to establish any estate in the judgment debtors at the time of the entry of the judgment, the plaintiff contends that the same principles do not apply in a contest between the mortgagee and the purchaser at the sheriff’s sale. The plaintiff contends that, although as between himself as mortgagee and the savings and loan association as judgment creditor, the latter, under the decisions, would have been entitled to priority (Cake’s Appeal, 23 Pa. 186), yet as between himself as mortgagee and the savings and loan association as purchaser, a different and distinct question arises. In the latter situation, which is the case at bar, the plaintiff insists that the question of the divestiture of the mortgage by the sheriff’s sale must be determined solely by what an inspection of the record disclosed at the time of the sale, and that as the record disclosed no estate, legal or equitable, in the Pearsons at the time of the entry of the savings and loan association judgment, it must be ruled as a matter of law that no evidence from outside the record can be received to prove that an equitable estate did in fact exist in the Pearsons and that, as a corollary, it follows that the lien of the mortgage was prior to all other liens and, hence, not affected by the sheriff’s sale.

It is true that in some situations a mortgage which is not entitled to preference over a subsequently entered lien, such as a mechanic’s lien, which relates back to the beginning of the work upon the ground, is nevertheless not discharged by a sheriff’s sale. For the primary rule is that the question of the divestiture of the mortgage must be determined from the record at the time of the sheriff’s sale. And that record cannot be supplemented or avoided by parol evidence. Such a case is Reading v. Hopson, 90 Pa. 494, where, on page 497, the distinction between the relative positions of a mortgage and mechanic’s liens before and after a sheriff’s sale is set forth, and the importance of having a plain and simple rule for the bidder at sheriff’s sale to go by is emphasized. It is there decided that a mortgage whose entry was preceded by no liens upon the record remained undischarged by a sheriff’s sale upon a subsequent judgment, even though mechanics’ liens had been entered after the mortgage with claims for work begun before the date of the mortgage. If the sheriff’s sale had been had upon the mortgage and no question of the divestiture of the mortgage had then remained, the mechanic’s lien claimants would have been entitled to distribution before the mortgagee; yet as the lien of the mortgage at the time of the sheriff’s sale remained prior to all other liens upon the record, the sheriff’s sale did not work the divestiture of the mortgage. See, also, Hilliard v. Tustin, 172 Pa. 354. Applying the rule that the divestiture of the mortgage must be controlled by the state of the record at the time of the sheriff’s sale, a mortgage was held to be divested where the record disclosed a subsisting judgment entered the same day as the mortgage, for the mortgage, being upon equality with the judgment, could not be said to be prior to all other liens: Magaw v. Garrett, 25 Pa. 319. But the record must appear upon its face to be self-sustaining; a party looking at the record is in fact bound not to notice anything then entered which is upon its face so patently defective as to be null and void, and that is true of defectively entered mechanics’ liens (Goepp v. Gartiser, 35 Pa. 130), and of a defectively registered deed or mortgage: Bolton v. Johns, 5 Pa. 145, 149. If a lien by the record appear to be valid and subsisting, it must be given that effect in determining whether a mortgage be discharged by the sale, and it cannot be shown by parol that such lien had in fact been paid or otherwise discharged by the parties: Coyne v. Souther, 61 Pa. 455; Meigs v. Bunting, 141 Pa. 233. Eckels v. Stuart, 212 Pa. 161, was another case in which a mortgagee, whose mortgage was entered prior to all .other liens but was followed by mechanics’ liens filed with claims fixing the beginning of the work before the entry of the mortgage, purchased at a sale in partition proceedings, but was denied any part of the proceeds of the sale by reason of the fact that the mortgage was undischarged.

These cases are not in conflict with Parke v. Neeley, supra, and do not support the contention of the plaintiff here. They decide that the various records of the valid and self-sustaining liens and encumbrances in the prothonotary’s office cannot, after a sheriff’s sale, be altered, explained away or extended by parol evidence after the rights have been fixed by the sale. But they do not hold that a lien, duly entered, cannot be shown by parol evidence to extend to property as to which the ownership of the lien debtor does not appear upon the record.

In the case at bar the records of the liens are not in question. Neither party seeks to alter or to supplement the record of any lien by parol testimony. The record of the New Home Savings and Loan Association was valid and subsisting at the time of the sheriff’s sale and gave to the association a lien upon whatever interest in real estate the judgment debtors then had. But there was no instrument upon record in the recorder’s office or elsewhere which told of the existence of any estate, legal or equitable, in the land in question in the Pearsons. Nevertheless, upon the authority of Parke v. Neeley, supra, we believe that, even after the sheriff’s sale, parol evidence is admissible to prove the existence of the equitable estate of the Pearsons at the time of the entry of the judgment. Such proof will not contradict any record. The fact of recording the agreement was not essential to the creation of the lien of the judgment, for the entry of a judgment gave to the judgment creditor a lien upon each and every estate in land which the judgment debtors then had. That lien was not dependent upon any record of the debtor’s title; a judgment against one who has taken land under the intestate laws creates a lien even though there be no record of the ancestor’s death or of the identity of the heirs. In fact, where one conveys lands to another by deed which remains unrecorded, a judgment obtained against the grantor after the delivery of the deed is ineffectual to give to the judgment creditor a lien upon the land conveyed, notwithstanding the record, for the reason that the debtor is no longer the owner of the property: Cover v. Black, 1 Pa. 493; Beman Thomas Co. v. White, 269 Pa. 261. It is the fact of ownership in the judgment debtor that is determinative and not the existence or non-existence of a record of the ownership. And the judgment creditor here in entering its judgment had done all that was within its power; it did not have possession of the articles of agreement and had no interest or right to require them to be recorded. The plaintiff in taking his mortgage was bound to know that the mortgagor was already in possession of the premises and had built a house thereon. Similarly, the plaintiff had constructive notice by the record of the existence of the savings and loan association judgment and was bound thereby to inquire as to the origin of the Pearsons’ interest in the land. Such inquiry would have disclosed the equitable title of the Pearsons at the time of the judgment, from the fact of possession coupled with the fact of improvement as well as from the existence of the agreement of purchase for the very land conveyed and mortgaged. Also, the property was sold at sheriff’s sale upon execution issued upon the savings and loan association’s judgment; that fact was notice at that time to the plaintiff that his mortgage was not prior to all other liens.

Clearly, plaintiff’s mortgage was discharged by the sheriff’s sale, and the questions of law must be decided against the plaintiff.

We do not believe that this result is affected by the fact that the legal title was taken in the name of Maggie M. Pearson, one of the equitable owners, instead of in the name of herself and her husband. For although the articles named both as purchasers, and the conveyance was to one alone, the latter obtained the complete legal title thereby, which became completely bound by the savings and loan association judgment the moment that the deed was delivered.

■ And now, to wit, Nov. 4, 1929, the plaintiff’s rule for judgment for want of a sufficient affidavit of defense is discharged.

From Charles K. Derr, Heading', Pa.


source: Caselaw Access Project

author: Culver, P. J.,

license: Public Domain

text:
    Andrus v. Burlington Township School Directors.

      W. G. Schrier and J. P. Vallilee, for plaintiff.

      Romeyn Culver, for defendants.
    Feb. 11, 1930.
   Culver, P. J.,

— The plaintiff petitioned the court for a writ of alternative mandamus, alleging that he is the father of Harry Andrus, a minor child within the compulsory attendance age, who has been assigned by the school board to attend the Luthers Mills Consolidated School; that he lives on a farm more than one and one-half miles distant from the said school, and that, under the law, it is the duty of the school board to furnish proper transportation to his said son at the expense of said district, and further alleging that requests have been made and demanded that said school board furnish proper transportation to the said child to and from said school, and. that the board had refused and failed so to do, praying that an alternative writ of mandamus be issued requiring the school board to furnish such transportation.

A writ was issued as requested, and the school board made return thereto, admitting that plaintiff’s son was properly assigned to the said school and was within the compulsory school age, but denying that they had refused and failed to furnish proper transportation to petitioner’s' child to and from the said school, and affirmatively state, since the opening of the school term, respondents have at all times furnished proper transportation for petitioner’s child, with other children, with a careful and competent driver, and a proper motor-truck under good and proper supervision and control, and further setting forth that petitioner has a full and adequate remedy at law under section 406 of the School Code.

Plaintiff filed what he designated “Plaintiff’s Traverse” to this return, in which he does not deny that defendants have furnished transportation as set forth in its return, but denies that such transportation is proper transportation for petitioner’s child, with other children, with a careful and competent driver. The traverse in substance admits that defendants entered into a contract with Paul T. Bevan, as set forth in its return, and that he was transporting the scholars, including plaintiff’s son, but alleging that Paul T. Bevan was a person of known intemperate habits and not a peaceable and law-abiding citizen of Burlington Township; that he was not a person with whom it was safe to entrust the care, control and custody of girls of tender age, and alleging' that, all these facts were known to each and every member of the board of school directors prior to May 29, 1929, when the school directors let the contract to him to transport the children, and further alleging that'the plaintiff and others attended the meeting of the school board Jan. 29, 1929, and made known the facts herein mentioned to the school board, and then and there demanded of the said board that it enter into no contractual relations with the said Paul T. Bevan for the transportation of school children, for the reason that he was not a fit and proper person by reason of the foregoing facts, and alleging that the school directors, by entering into such contract, exercised an arbitrary authority and did not act in good faith, but acted wholly for the attainment of personal and selfish ends, and that any discretion they at that time exercised was not exercised for the public good, but was so abused and so capriciously and arbitrarily exercised that it resulted in an evasion of the positive duty of the said school board to furnish proper transportation for petitioner’s child.

At the argument of this case, it was agreed by all parties that the school board had acted and had hired Paul T. Bevan to transport plaintiff’s child and other children, and that he was, pursuant to that hiring, transporting them at the time this proceeding was brought. Plaintiff taking the position that he was not a proper person, that the school board did not act in good faith, and that plaintiff was entitled to a writ of alternative mandamus, asked for a jury trial to determine the question whether or not Paul T. Bevan was á proper person to transport the children in question.

Defendants allege that they acted in good faith, that Paul T. Bevan is a proper and competent person, that they have discharged their full duty and are furnishing proper transportation, and further contend that the question of the competency of Paul T. Bevan, after the contract was let to him, was to be determined in the first place, if questioned, under section 406 of the School Code, and that no such proceeding had been asked for by the plaintiff.

It is well stated that mandamus is an extraordinary writ and can only issue in clear cases. If the school directors had refused to discharge their duty and were not furnishing transportation, the writ would lie to compel them to so act. They having exercised their discretion and entered into a contract with Paul T. Bevan and are furnishing transportation, we are not convinced that mandamus will lie to compel them'to undo or revoke their action. The providing of a competent driver and proper transportation is not merely a ministerial act; it is an act requiring judgment and discretion.

This controversy evidently arises out of the controversy over who should have the contract with the school district for transportation of scholars. Plaintiff, with others, desires some other person, whom they were supporting, and, of course, the school' board could not satisfy all the parties where there was a division of opinion.

It seems unreasonable to us that duties which the law commits to the board of school directors, requiring of them the exercise of consideration, judgment and discretion, can, by mandamus, be taken from them and submitted to the determination of a jury.

If petitioner’s contention be correct, that alleging the school directors have not acted in good faith and have not provided proper transportation facilities, gives the right to mandamus, and in such proceeding the action of the board of school directors can be reviewed and overruled by a jury, a most unfortunate situation will exist. If this may be done, let us suppose it be done, and that a jury finds the school board has not provided proper and sufficient transportation, and that Paul T. Bevan is not a proper person to transport the children in question, the school directors all the time asserting that he is a proper person. What will then be the situation? How can the school board dismiss him under the provisions of section 406? It can be done only for cause. Suppose, however, that this consideration be met and overcome, and the school board enters into a contract with some other person to transport the scholars, and then some other dissatisfied person brings an action as this petitioner has done, alleging that the second person so hired is incompetent, is an improper person, etc., and that the school directors have acted in bad faith, asking for mandamus and a trial by a jury, and that question be submitted to a jury and found in favor of the petitioner, and so on ad infinitum. We are not convinced, and it seems unreasonable to us to assume, that such á situation may be created.

The school directors are given certain discretionary powers, and if they act in bad faith, they may for cause be removed, but we are not satisfied that when they are discharging their duties, requiring the exercise of judgment and discretion, duties that are not simply ministerial, but are in a measure judicial, their acts can be reviewed by a jury in mandamus proceeding.

It is the duty of school directors to hire teachers for the respective schools. Can it be contended that if some person be displeased or dissatisfied with a teacher, the action of the school board in so hiring may be reviewed by mandamus, and the question whether or not they have acted in good faith, and whether or not the teacher is properly qualified and a competent person, submitted to the determination of a jury?

“Mandamus is granted when that has not been done which should be done, but not for the purpose of undoing what .has been done:” Short on Extraordinary Remedies, 250; Ex parte Burtis, 103 U. S. 238.

It is true petitioner alleges in general terms that the school board has acted from selfish and personal motives, but we are not satisfied that this broad assertion, without more definitely stating in what manner it has acted in bad faith, or how or in what manner it is personally interested, is sufficient on which to base an inquiry.

The presumption is that the school board has honestly discharged its duty. It has complied with the law by advertising for public bids for the transportation of scholars. It has heard the persons interested, and has exercised its discretion and good judgment and entered into a contract with one who is discharging the duty and against whom there is no allegation that he has not and is not transporting the scholars in a careful and proper manner, and we believe there is no authority in the court by a writ of mandamus to compel the school board to furnish other transportation than it is now furnishing under the facts as they are shown by the pleadings, and that the application for a writ of alternative mandamus should be dismissed.

Order. — And now, to wit, Feb. 11, 1930, after due and careful consideration, petitioner’s application for a writ of alternative mandamus is dismissed, at the cost of plaintiff. An exception is noted for plaintiff and a bill sealed.

From Rodney A. Mercur, Towanda, Pa.


author: O’Hara, Dep. Att’y-Gen.,

text:
    Educational Conventions.
    May 2, 1930.
   O’Hara, Dep. Att’y-Gen.,

— We are in receipt of your request to be advised whether the expenses of a superintendent of schools, city superintendent, principal or supervisor, while in attendance at educational conventions, may be paid from the funds of the school district.

Superintendents of schools,- city superintendents, principals and supervisors are appointed pursuant to, and their qualifications and duties prescribed and defined by, the School Code.

Educational conventions consist of various officials and employees of the educational field who are organized in groups, usually, though not always, limited to certain officers or employees; for instance, school directors, principals of schools, teachers, etc. These conventions afford an opportunity for those in attendance to exchange ideas upon the management, operation or educational policies of schools in the state and the United States. The practice of superintendents and other employees of the school system attending educational conventions for the reflex benefits which will accrue to the local system has developed throughout the country. No duty is imposed by the School Code of this Commonwealth, however, upon superintendents of schools, principals or supervisors to attend these conventions, and it cannot be said that such attendance is necessary or properly incident to the discharge of their specific duties as defined in the School Code.

Under these conditions, may the school district require by rule' or regulation superintendents, principals or supervisors of schools to attend such educational conventions.

Section 119 of the School Code vests the several school districts with all necessary powers to enable them to carry out the provisions of the Code, and tional conventions?

“The board of school directors in every school district in this Commonwealth may adopt and enforce such reasonable rules and regulations as it may deem necessary and proper regarding the management of its school affairs and the conduct and deportment of all superintendents, teachers and other appointees or employees during the time they are engaged in their duties to the district. . . .”

It is submitted that the benefits resulting from attendance at such conventions are two-fold: to the individual attending, it enhances his qualifications for the discharge of his professional duties; to the school district, the indirect benefit which results from the enhanced professional qualifications of its superintendents, principals and supervisors.

The school system is designed for the education of every person residing in the Commonwealth, between the ages of six and twenty-one years, who may attend such schools. It is no part of its purpose to provide for the professional education of its officers or employees. The reflex benefit to the district which may result from the participation of officers and employees in educational conventions depends on the presence of so many conditions that it may be considered problematical in many instances, and the connection of such conventions with the school system in the local district is too remote to justify a board of school directors in adopting a rule requiring these employees to attend their sessions.

In a proceeding had for the Removal of School Directors in Parsons Borough, reported in, 23 Luzerne Legal Register, 455, it was charged that the board had made payments to more than one director for expenses in attending a convention of school directors in Harrisburg, Pennsylvania, and national conventions of school superintendents in Cleveland, Ohio, and Chicago, Illinois. The court, Puller, P. J., in passing upon this charge, said:

“This expenditure . . . was not only unlawful, but also, like all expenditure of public money for attendance upon conventions, was absolutely useless and wasted on something which could not possibly be of any value to the public.”

As a general rule, a school district is liable for such expenses and charges, and such only, as are expressly or impliedly authorized by law, and such as are necessary and properly incident to the performance of a statutory authority or duty.

It was felt necessary to secure legislative authority for the appointment of delegates to such conventions of school directors and the payment of their expenses. This was done by the Act of April 18, 1919, P. L. 56. In the absence of similar legislative authority for this expenditure of school funds, we are of the opinion, and so advise, that the board may not require its employees to attend educational conventions and pay their expenses while so attending.

From C. P. Addams, Harrisburg', Pa.


author: ■Ferguson, P. J.,

text:
    Goldstein v. Obregon Distributing Company et al.

      G. D. Weiss, for plaintiff.

      Charles F. Phillips, Charles Sinkler, J. Howard Rhoads and Winfield W. Crawford, for garnishee.
    June 16, 1930.
   ■Ferguson, P. J.,

Plaintiff issued a foreign attachment against defendant, a corporation organized under the laws of the State of Arizona. A rule was taken to show cause of action and why attachment should hot be dissolved. The affidavit of cause of action was filed April 7, 1930, and the matter came on for argument oni April 28th. The chief reasons advanced for the rule to dissolve were (a) that the affidavit did not show that defendant was a non-resident of Pennsylvania, without a place of business, office or agent within the state where or upon whom process could be served, and (b) that the contract was unenforceable, in that it did not show 'compliance with the provisions of the Sales Act.

Pending a decision plaintiff filed an amended affidavit of cause of action with leave of one of the judges of this court. A stay of proceedings had been granted when the rule was allowed, and immediately after the amended affidavit was filed a rule was taken by the garnishee to strike it off because the order permitting its filing had been inadvertently and improvidently made. In view of the stay and of the fact that amendments other than those relating to formal matters could not be made, this rule was made absolute. We justify this action by reference to the opinion in Eldridge v. Robinson, 4 S. & R. 548, and Com., to use, v. Baxter, 235 Pa. 179. The inclusion in an amended affidavit of an averment that defendant is a foreign corporation, with no place of business within the Commonwealth of Pennsylvania, is a material averment, as will later appear.

We come now to consider the original affidavit. It will be observed that while the affidavit states that defendant is a foreign corporation, it nowhere states that it has no office or agent within the Commonwealth of Pennsylvania where or upon whom service of process could be made. This is a fatal omission. The decisions on the subject are many. In Mindlin et al. v. Saxony Spinning Co., 261 Pa. 354, Mr. Justice Walling said: “To support the writ it is as necessary that defendant have property within the jurisdiction as that he be beyond it. Both are essential and must be averred.” In Raymond v. Leishman, 243 Pa. 64, Mr. Justice Mestrezat said: “The foundation for the writ is that the defendant is beyond the reach of process and his property within it.” The failure to make this necessary averment is sufficient to justify the court in dissolving the attachment.

The other ground urged by the garnishee is that the contract is unenforceable, there being no averment of a compliance with the provisions of the Sales Act. The affidavit avers that the contract was made in Arizona, the home state of defendant. Plaintiff contracted to purchase a large quantity of peas, a total of eighteen carloads, which defendant agreed to sell at a certain price, and which defendant failed to deliver. It is averred that it was verbally agreed between the parties that plaintiff should telegraph to defendant a “guaranty of a banking institution in the City of Philadelphia in favor of defendant in the sum of $10,000," so as to secure the payment of the purchase price. In compliance with that agreement plaintiff avers he procured a guaranty to be telegraphed to the First National Bank of Nogales, Arizona, in favor of defendant in the sum of $10,000, to secure the payment of the purchase price, and the defendant received the banking guaranty. In our opinion, the sending by telegraph of a guaranty of a banking institution is not a compliance with the provisions of the Uniform Sales Act adopted May 19,1915, P. L. 543, and amended April 27, 1925, P. L. 310. It is provided by section 4 of the act that a contract to sell goods of the value of $500 or over shall not be enforceable unless the buyer shall accept part of the goods and actually receive the same or give something in earnest to bind the contract or in part payment, or unless a memorandum in writing of the contract be signed by the party to be charged.

It will be noted that the terms of the so-called guaranty, whieh was sent by telegraph, are not quoted. That its form or language was such as to enable defendant to obtain the payment of any money on demand does not appear. The import of that guaranty is left entirely to conjecture. It is possible there may have been conditions attached to it which would make it valueless. It is possible, also, that it was not to be available until a period of time had elapsed. Whatever its terms, instead of a payment or the giving of something as an earnest of performance, it was only the substitution of a promise by a banking corporation to do or pay that which plaintiff was bound to pay. It is conceded the goods were not shipped and no part of the purchase money paid. We must conclude, therefore, that the requirements of the Sales Act have not been met. “A mere parol promise to pay or to deliver goods at a future day or a deposit of money with another to be paid over upon delivery of the goods does not constitute part payment. ... To constitute a payment as earnest or a part payment, there must be an actual transfer or delivery of the thing or the money agreed to be given as earnest or part payment:” 27 Corpus Juris, 254. In Bouvier’s Law Dictionary, Rawle’s third revision, volume 1, page 964, the word “earnest” is defined as follows: “The payment of a sum of money or delivery of a thing or token, upon the making of a contract for the sale of goods, to bind the bargain, the delivery and acceptance of which marks the final and conclusive assent of both parties to the contract.” In Howe v. Hayward, 108 Mass. 54, it is said that, as used in the statute of frauds, the word “earnest” is regarded as a part payment of the price. In Vitro Manuf. Co. v. Standard Chemical Co., 291 Pa. 85, the present Chief Justice used this language in, respect to the phrase in the statute: “To make a contract of sale enforceable in a case like the present, where there is no sufficient writing or payment of earnest money, both actual delivery to and acceptance by the purchaser of part of the goods must appear.”

We have been referred to no definite decisions in the State of Pennsylvania on the subject other than the one last quoted, and we think the reason is in the fact that the statute is explicit and requires no interpretation upon this point. The statute provides that the purchaser shall “give something in earnest to bind the contract or in part payment.” The affidavit in this case fails to show that anything was given by the plaintiff, either in earnest or part payment. A vaguely described “guaranty” by a banking institution sent by telegraph is not money or thing of value which could be said to be either an “earnest” or payment. The best that can be said of it is that it is the promise of a banking institution to pay, added to the promise which plaintiff had already made, and both promises necessarily were to be performed in the future.

Were we to consider plaintiff's amended affidavit in this respect, we find it in no material way improves the situation. In the amended affidavit it is averred that a “letter of credit” was to be forwarded by telegraph, and it was agreed by plaintiff to accept that letter of credit as part payment, and in point of fact it was so received. The same criticism applies to this averment as applies to the alleged guaranty. Its terms and conditions are not set out nor the method by which defendant was to realize upon it. We know in a general way what is meant by an ordinary letter of credit. It is a document issued by one banker requesting another banker to give credit to its nominee in a certain amount of money, and when that letter is recognized, payment or payments made upon its credit are endorsed upon it. How such an obligation could be sent by telegraph and utilized after it was sent is difficult for us to understand and it was plaintiff's duty to explain. We could easily understand an averment that a banking institution in Philadelphia placed a certain sum of money to the credit of defendant in his banking institution in Arizona, but there is no suggestion that that was the arrangement. A letter of credit, after all, is only a promise to pay, and a verbal agreement to accept a promise to pay cannot be binding in the face of a statute which prohibits verbal contracts without actual payment. In passing, it may be remarked that the terms of this guaranty or letter of credit, whichever it was, may afford an explanation as to why defendant did not ship the goods contracted for.

There remains to be considered the question as to the duty of the garnishee who took this rule to protect the property of the defendant in his hands, and whether or not he has the right to raise the question as to the enforceability of the contract. In Melloy’s Sons v. Deal & Burtis, 124 Pa. 161, it was held that whether he was a bailee of the defendant or a debtor, a garnishee not only has the right, but it is his duty, to insist that no property or effects be taken out of his hands except upon valid process. In McCloskey et al. v. Northdale Woolen Mills et al., 296 Pa. 265, Mr. Justice Sadler held that it was the duty of the garnishees to protect the interests of the defendant. In Ogle v. Barron, 247 Pa. 19, the court held that there was no doubt as to the right and duty of the garnishee to raise the question as to the liability of the fund in its hands to attachment by the plaintiff.

For these reasons we are of opinion the rule to dissolve attachment should be made absolute.


author: Lewis, J.,

text:
    Commonwealth v. Sherman et al.

      John A. Boyle and Ward C. Henry, for Commonwealth.

      Michael Saxe and Wesley H. Caldwell, for defendants.
    Aug. 22, 1930.
   Lewis, J.,

The Passon Athletic Field is located on Spruce Street, between 48th and 49th Streets, in Philadelphia. The field is enclosed on all sides, and for many years in season what are known as semi-professional or amateur baseball games have been played at the field. The defendant, Malcolm McGowan, on Sunday, Aug. 3, 1930, was the manager of the field and of the Passon baseball team. The defendant, Edward Sherman, was acting manager of the North Penn Athletic Club and of its baseball team, which on the Sunday in question was playing in opposition to the Passon team by invitation. The defendant, Todd Vorhees, was the umpire, chosen to officiate at the game arranged for Aug. 3rd. . On the field were erected stands containing seats for several thousand spectators. The defendants, Sherman and McGowan, had arranged the contest for Aug. 3rd, and during the progress of the game, which began about 3.15 P. M., from twenty-five hundred to three thousand persons had assembled by invitation, conveyed through advertising, to witness the exhibition.

The Passon field is located in a high-class residential section, largely built up. As far as the evidence indicates, athletic contests have been conducted at the field for many years without substantial objection from the residents of the neighborhood; at least, no legal action has at any time been instituted to enjoin the athletic events habitually conducted on the premises. This is true of contests staged on Sundays as well as on weekdays.

Philadelphia police officers were present at the field on Aug. 3rd at the time of the beginning of the baseball game, and five or six officers entered the field enclosure against the objection of counsel for those in control. Police Sergeant Reavey testified at the hearing before us that, after entering the field, he warned both managers, defendants McGowan and Sherman, that if there was any attempt to commercialize the baseball game that day, or any violation of the law, such as disorderly conduct, they, the defendants, would be placed under arrest; that there was the usual noise from the spectators and players incident to the conduct of a baseball contest; that at the end of the fourth inning, defendant McGowan and his counsel, Mr. Saxe, left the players’ bench and started out on the field accompanied by a group of photographers; that McGowan took off his cap and walked up into the-stands and solicited contributions of money from the spectators; that thereupon Officer Dilmore beckoned to McGowan to come down and informed him that he was under arrest; whereupon the umpire turned to the crowd and stated that if any one cared to make contribution toward the expenses of both teams, he could do so by throwing coins on the field, and that he, the umpire, would personally collect the coins. Sergeant Reavey stated that many of the spectators arose to their feet and yelled, and that numerous persons started to pitch coins into the field; that he thereupon called Officer Travers and ordered him to arrest Vorhees; that Sherman then came over from the corner of the field and started to pick up some of the coins; that Police Officer Connor placed him under arrest; that prior to these last-mentioned occurrences McGowan had asked the spectators to maintain quiet. The sergeant said that his orders were to take action if there was any violation of the law at the game, such as disorderly conduct; that he did not regard the taking of the collection as disorderly conduct; that if what occurred on the Sunday in question had taken place on a weekday, he would not have made any arrests; that there are six churches within two city blocks of the basball field, and some of them have services on Sunday afternoon, and that this last circumstance, coupled with the fact that there were apartment houses and single-family residences in the neighborhood, was sufficient for the police to take action on Sunday.

Police Officer James Travers testified that he arrived at the field about 2.80 in the afternoon, as it was located on his beat; that the noise occurring during the game was the ordinary noise of a ball game, the loudest of which he thought could be heard about a square away; that there were no fights, no arguments or other disorder.

Officer Dilmore testified that he went onto the field and took a seat on the Spruce Street side about half-way up the grandstand, and that about the beginning of the fifth inning, when contributions were solicited by McGowan, he warned him against taking up a collection, placed him under arrest and sent him to the station-house “for disorderly conduct;” that McGowan, in soliciting contributions, was passing his hat around among the spectators.

Officer Connor, who arrested Sherman, stated that Sherman remarked to him after he had been placed under arrest, “I am losing money on this game,” referring to the North Penn Athletic Club.

There was no other police evidence, but certain residents of the neighborhood testified that there was noise from the game on this particular Sunday; one, the proprietor of an apartment house, alleged that the noise interfered with the rest of her tenants, and another, Mr. Creelmen, stated that the noise interfered with his own rest and that of his family.

Hence, it will be observed that there was no testimony on the part of the Commonwealth that the police had at any time ordered the players or spectators at the ball game to disperse and that such an order was resisted or disobeyed.

The Director of Public Safety of Philadelphia, the Honorable Lemuel B. Schofield, submitted himself as a witness before us, and courageously and frankly outlined to the court the policy maintained by his department with reference to baseball games played on Sunday, indicating that since he had taken office as directing head of the police, he had continued the policy of his predecessors toward such sport and that he had endeavored in every way to sensibly reconcile the discordant attitudes of groups in the community toward Sunday observance, and that he regarded the taking of a collection at a Sunday baseball game as a commercialization of the exhibition or exercises, and had ordered the police to take action whenever such collections were sought.

It was conpeded that no admission fee was charged for the game out of which this controversy arose, and it appears to be conceded that the players on both teams were not professional baseball players — that is, they did not follow baseball playing as an occupation or worldly employment. The evidence as to the purpose of the collection was scant and vague, but it may be assumed that neither of the clubs engaged in the contest was operated for-profit or engaged in basball as a business, and that the contributions were sought for the purpose of paying the expenses of the contest.

The evidence offered on behalf of the defendants included testimony that Sunday baseball games had been played at the Passon field on three Sundays preceding Aug. 3rd, that there had been no police or neighborhood complaints of disorder, and on the Sunday in question there was no loud, boisterous or unseemly noise, no disorder or annoyance that coúld be termed a breach of the peace, and that the only acts of the defendants of which the police complained were such as were incident to the passing of a hat before the spectators to obtain contributions and the solicitation of contributions from the field and the picking up of the coins tossed thereon.

At the police station, the defendants appear to have been admitted to bail for a hearing on the following Monday, at which hearing charges were made against each of them under the Act of Assembly appi-oved May 2, 1901, § 1, P. L. 132, which act reads as follows:

“Section -1. ... That from and after the passage of this act, if any person or persons shall wilfully make or cause to be made any loud, boisterous and unseemly noise or disturbance to the annoyance of the peaceable residents near by, or near to any public highway, road, street, lane, alley, park, square or common within this Commonwealth, whereby the public peace is broken or disturbed or the traveling public annoyed, he, she or they shall be guilty of the offense of disorderly conduct, and upon conviction thereof before any justice of the peace, alderman, mayor or burgess shall be sentenced to pay the costs of prosecution and to forfeit and pay a fine not exceeding ten dollars, and in default of the payment thereof shall be committed to and imprisoned in the county jail of the proper county for period not exceeding thirty days: Provided, however, that the defendant or defendants, within five days after such conviction, may appeal to the Court of Quarter Sessions of the county in which said justice of the peace, alderman, mayor or burgess shall reside, without special allowance therefor, upon entering into a recognizance in double the amount of costs and fine, conditioned for the appearance of defendant or defendants at the next term of Quarter Sessions to answer said charge.”

Specifically, the allegation against the defendants was that they had willfully made or “caused to be made loud, boisterous and unseemly noises and disturbances to the annoyance of the peaceable residents nearby, whereby the public peace was broken and disturbed and the traveling public annoyed.” The evidence produced before the magistrate was substantially the same as that offered before us when the appeal was heard and which we have outlined above. The magistrate found the defendants guilty and imposed a fine of $10 and costs against each as provided in the Act of 1901. Appeals were allowed by us to the Quarter Sessions Court.

Before proceeding to decide this case upon the facts, we have been faced with a difficulty arising out of the very apparent unconstitutionality of that portion of the Act of 1901 contained in the proviso. It is in direct conflict with article V, section 14, of the Constitution of Pennsylvania, in attempting to authorize appeals from summary convictions without allowance by a court of record. An additional question of validity arises because of a defect in the title of the act, which gives no notice of the change in the definition of the offense of disorderly conduct contained in the body of the act.

Whether section 1 can stand as valid legislation apart from the proviso depends primarily upon the determination of the legislative intention. We are inclined to the view that the Legislature would have enacted the main body of section 1 if apprised of the unconstitutionality of the proviso, and that the two divisions of the act are separable. However, “the invalidity of a section of a criminal statute which is not involved in the prosecution in question will not be considered:” 36 Cyc. 984; and we will discuss and decide the issue upon grounds that will be more in accord with the desire of the police department, which seeks guidance, and of the defendants, who ask an adjudication of their rights in the circumstances.

While the so-called blue law or Sunday observance legislation is not directly brought into the case by the charges and testimony, yet it is inextricably involved, for the reason that since the 18th century, in this Commonwealth, and for many centuries prior, dating from the reign of the Emperor Constantine A. D. 321, Sunday has been differentiated from the other days of the week, and whether certain conduct is disorderly within the meaning of the law is to be determined not only from the nature of the acts, but from the time and place of their occurrence. That which may be deemed innocent, orderly, “seemly” and lawful on a weekday in the same environment and under the same circumstances, may by law and custom be wrongful, “unseemly” and criminal when happening on Sunday. The public peace is more fragile, more brittle, on Sunday, and is, therefore, the more easily broken or disturbed.

The Sunday observance laws have been judicially interpreted in two somewhat different lines of decisions; the first, adopted by the more orthodox of our judges, reasons that the Christian religion is a part of the common law of our land, and that in the eyes of the law, the Christian “Sabbath” or Sunday is a holy day, the sanctity of which is to be jealously maintained; that the law sets aside Sunday not only as a day of rest, but as a period for religious worship according to the dictates of one’s conscience. The other group of decisions justifies the Sunday observance laws as creating a “legalized day of rest,” these judges apparently being somewhat careful, to maintain a consistency with our governmental theory of the absolute separation of church and state.

Regardless of the legal ground upon which the peculiar character of Sunday is founded, no wise person would seek in any way to deprive human beings of the beneficent and altogether wholesome effect of this periodic cessation from the toil incident to worldly occupation and of the free opportunity which it affords for religious practices, including church attendance, meditation and private devotion. Economically, the tendency is rather decidedly toward the shortening of the work-week to five days, that Saturday may be added to the period of rest and recreation.

Our courts, when appealed to, have been firm to deny to commerce and gain any encroachment on Sunday, by enforcing that portion of the Act of 1794 which forbids the pursuit of business, one’s occupation and worldly employment on that day. We may say that the courts appear to have gone beyond the people themselves as indicated by the habits and customs of a large part of the population. What has given rise to great controversy, with regard to the Sunday observance laws, is the fact that religious practices do not habitually engross all the time of even the most devout among us on Sunday, and the problem has always been what disposition could be made of such free time, after or between church services.

A statute that runs counter to the habits and customs of a majority of the people whom it affects is not really a law; it is a “bugaboo,” a scarecrow that cows only the timid and amuses the bold. The Act of 1794 has accomplished much good, but in part it has been dead for a hundred years; drastic in the extreme (as construed by the courts) in its attempt to prohibit all sport and diversion whatsoever, as a practical matter it has never been fully enforceable. The act, however, contains an exception of works of necessity and charity, and our changing population, altered habits of life and attitudes of mind, have been partially met by broadened construction of the meaning of the words “necessity” and “charity,” so as to legalize formally many .activities which the people themselves had long before legalized by custom.

We must recognize, and do recognize, that Sunday is to us hallowed and set apart and that the right to religious practices on that day undisturbed by needless disorder should be protected as far as the consent of the governed will permit it to be done. Acts that interfere with the free and tranquil indulgence of church attendance or private devotion are to be prevented or restricted in every reasonable way. That the trolley car, the motorbus, the pleasure automobile, the radio, have invaded dangerously the peace and quiet of Sunday cannot be denied; nor, apparently, will our people consent to this invasion being turned back. The habits of the people blaze trails which the law must follow.

Having regard to all of which, we are led to consider how far things that were once regarded as non-essential, worldly and frivolous have come to be recognized as wise and necessary, and, therefore, properly to be within the exception contained in the Act of 1794. It was once deemed unladylike for women to engage in any violent exercise, except horseback riding; gentlemen had very little more than two methods of keeping their bodies sound — horseback riding and walking. What was once considered frivolous sport and diversion have now come to be regarded as the very essentials of mental and physical health and well-being. Rest is no longer interpreted to mean only reclining, reading or walking. As long ago as 1853 our Supreme Court, in an opinion written by a very able jurist (Judge Woodward), in ruling upon the conviction of an omnibus driver for violating the Act of 179'4 by engaging in his business on Sunday, said:

“It is apparent from these authorities, as well as from the whole history of the instituted Sabbath, and particularly from the preamble to our old Act of 1705, fully quoted in the Commonwealth v. Omit, that rest and the public worship of Almighty God, were the primary objects of the institution, both as a divine and civil appointment; and it seems to me to follow, as a necessary consequence, that no means reasonably necessary to these ends can be regarded as prohibited. Hence, if an invalid, or a person immured for six days within the close walls of a city, requires a ride into the country as means of recuperation, which is the true idea of rest, there is nothing in the Act of 1794 to forbid the employment of a driver, horses and carriage on Sunday to accomplish it. Equally lawful is the employment of the same means to go to the church of one’s choice, or to visit the grave of the loved and the lost to pay the tribute of a tear. In a very high sense, and perfectly compatible with the statute, these are works of necessity and charity, and had this defendant shown that he was employed for these purposes and that he was merely engaged in accomplishing them, he ought not to have been convicted.” [Johnston v. Commonwealth, 23 Pa. 102, 111.]

Those immersed in a maelstrom of the noise and restlessness that appear inseparable from present-day urban life, bound with the chains of family obligation to labors at desk or machine that deplete vitality, often require recreation, exercise or change of mental scene by amusement as the very basis of rest. A large part of the practice of the healing art now is the prescribing and supervision of change in mental exercise, of outdoor physical exercise and stimulation, of amusement, not necessarily worldly, but often in a high degree uplifting. Sermons were long ago found in stones and running brooks, and now are found in open-air musical concerts, travel in the country, contemplation of the tossing of the billows on the sand-strewn shore, and in lectures. Even in religious life, our clergymen can do us little good, are not sound guides, unless they keep in health and occasionally reorient themselves by change of scene, or reinvigorate themselves by the exercise found in sport and diversion.

Who, therefore, is to say that any power, even that of a court, can now revive that part of the Act of 1794 which was — perhaps wrongly — construed to prohibit any “sport or diversion whatsoever” on Sunday? Necessity knows no law, and the judgments of clergyman, physican, philosopher, jurist, lawyer, merchant, mechanic, laborer, housewife and children long ago united to effect a repeal by non-user (37 Cyc., 544) of that extreme portion of the Act of 1794 under discussion.

The remainder of the law remains virile and effective in restraining to a large extent — to such a degree as is really desired by the community — commercial pursuits and other activities that would interfere with the religious character of Sunday.

Hence, Sunday is not now by law and custom so sharply differentiated from other days as was once the fact, but there is nevertheless clear and substantial recognition of the unique nature of the day as a period intended by law to be more tranquil, restful, and, hence, more orderly than other times. With this in mind, we are to inquire whether the defendants offended the law invoked against them, relating to disorderly conduct, and if so, were they subject to arrest on Sunday and without a warrant having been issued?

The evidence justifies the conclusion that the defendants, in their several capacities of managers and umpire, arranged the baseball game and invited and thereby caused the crowd of spectators to assemble. They may be lawfully declared responsible for making or causing to be made such noise, disturbance or disorder as should have been anticipated by them as inevitable or usually incidental to the playing of a baseball game in the presence of several thousand spectators. Admittedly, in connection with the baseball game there was no act of violence committed, invited, excited or threatened, and there was no evidence from which we could conscientiously find that there was any actual disorder in the sense of “lack of order,” a crowd “out of control,” or the like. There was the noise of cheering and criticism habitually occurring at a neighborhood baseball game, with the additional circumstance that contributions of money were solicited and were being collected.

Mere noisemaking may be disorderly conduct, but something more must be proved against these defendants to justify their arrest on Sunday without a warrant, in the light of another Sunday observance law that counsel appear to have overlooked.

By an Act of 1705, 1 Smith’s Laws, 25, § 4, it is decreed:

“No person or persons, upon the first day of the week, shall serve or execute, or cause to be served or executed, any writ, precept, warrant, order, judgment or decree, except in cases of treason, felony or breach of the peace; but the serving of any such writ, precept, warrant, order, judgment or decree shall be void, to all intents and purposes whatsoever; and the person or persons so serving or executing the same, shall be as liable to the suit of the party grieved, and, to answer damages to him for doing thereof, as if he or they had done the same without any writ, precept, warrant, order, judgment or decree at all.”

For more than two hundred years, therefore, in Pennsylvania it has been the policy of the law to greatly restrict the activity and authority of the police and of the courts on Sunday. A citizen may be arrested lawfully on Sunday on warrant or process issued only for treason, felony or breach of the peace, and the act operates, of course, similarly to restrict arrests without warrant.

While there are to be found in the books decisions of law courts óf Pennsylvania which seem to hold that mere noise may be a breach of the peace, yet the better-reasoned authorities distinguish between noise that amounts to a disturbance of mental tranquility and a disorder that amounts to a breach of the peace. The assembling of persons in a mass-meeting without a police permit on Sunday is not unlawful, either as disorderly conduct or as a breach of the peace: Com. v. Cooper et al., 95 Pa. Superior Ct. 382. Judge Orlady, in Com. v. Coleman, 60 Pa. Superior Ct. 380, said that the playing of baseball on Sunday is not in itself a crime under the Act of 1794, and it becomes an unlawful act only when it affects the community as disorderly. “Actual or threatened violence is an essential element of a breach of the peace:” 9 Corpus Juris, 387; 1 Hawk, 254 (relating to bail to keep the peace).

In Com. v. Taylor, 5 Binney, 277, 281, Tilghman, C. J., held that “acts injurious to private persons, which tend to excite violent resentment and thus produce fighting and disturbance of the peace of" society,” are indictable as a breach of the peace.

“A breach of the peace is an offense well known to the common law. It is a disturbance of public order by an act of violence, or by any act .likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community:” People v. Wallace, 83 N. Y. S. 130, 133; People v. Most, 171 N. Y. 423, 64 N. E. Repr. 175, 177, 58 L. R. A. 509 (citing Barb. Crim. Law, 219; Archb. Crim. Prac., 91; Bish. Crim. Law, § 533; Clark & M. Crimes, 983; McClain Crim. Law, § 1012).

“Disorderly conduct” is a broader term than “breach of the peace,” and disorderly conduct is not always a breach of the peace, as where it is merely calculated to disturb or annoy: 18 Corpus Juris, 1216; Com. v. Moss, 9 D. & C. 713.

“In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace:” 8 Ruling Case Law, 284, § 305. '

The best definition of “public peace” that we have found is “that invisible sense of security which every man feels so necessary to his comfort and for which all governments are instituted:” State v. Benedict, 11 Vermont, 236. This definition is frequently quoted, and I accept it because, in my judgment, there must exist in any conduct to make it a breach of the peace some element that affects injuriously the public sense of “security;” in other words, physical safety. “Breaches of the peace” generally manifest themselves by some outward, visible, audible or violent demonstration; not from quiet, orderly and peaceable acts secretly done, though such acts are mala, prohibita: 8 Ruling Case Law, 285, § 306.

It is loosely said by some that a violation of a law in itself is disorderly conduct, or that repeated violations of the same law constitute disorderly conduct and a breach of the peace, but such views have been considered and rejected by the highest courts in Pennsylvania. In Com. v. Foster, 28 Pa. Superior Ct. 400, quoting with approval Com. v. Eyre, 1 S. & R. 347, and Com. v. Teamann, 1 Phila. 460, both well-known cases on the Sunday laws, it was held that the mere doing of worldly employment on Sunday will not amount to a breach of the peace where the work is done without noise or disorder.

In the Foster case, the defendant had several times been convicted of doing worldly employment on Sunday and had on each occasion paid his fine, and the court said that the several proceedings were then at an end, stating: “This did not establish, nor was it in itself evidence, that he had been guilty of any breach of the peace or disturbed the rest of any citizen.” The court ruled, therefore, that a justice of the peace had improperly held the defendant in bail for good behavior merely because of his repeated violation of the Sunday law, saying additionally: “This record contains nothing from which it could be inferred that there was any reasonable ground to apprehend or that this justice of the peace apprehended, that this defendant would commit any felony or misdemeanor, or disturb the peace, or in any way trovMe, disturb or injure any of the people of the state, in their persons or property.”

In Com. v. Eyre, supra, Chief Justice Tilghman had previously stated: “The violation of the Sabbath is a crime which deserves punishment. But when that violation consists of work, without noise or disorder, there is nothing like an actual breach of the peace; nothing of so pressing a nature as to require an immediate and forcible remedy. The serving of legal process on Sunday tends to disturb the quiet of that day, which it is the object of the law, on which this prosecution is founded, to protect [Act of 1794]. Therefore, it is that the serving of all legal process is forbidden by another act [Act of 1705], except in cases of treason, felony or breach of the peace. And there is as much reason to apprehend disturbance from an entry for the purpose of making a conviction as from the serving of pi-ocess.”

In Com. et al. v. Smith, 266 Pa. 511, where an injunction was sought against the Commissioners of Fairmount Park to prevent the playing of outdoor games in the park on Sunday, the Supreme Court stated that equity could not interfere to restrain violations of the Act of 1794, that the proposition was unsupported by reason or any known authority. The court added: “For what was made an offense by that act, it provides a penalty. If the playing of lawn tennis or baseball on Sunday is a violation of it, the players are punishable under it; if their playing does not violate it, they are not punishable, and they cannot be restrained from playing unless their games become a nuisance. ... If the penalty therein provided is not a sufficient deterrent, it is for the legislature to provide another.”

In Com. v. Smith, 43 Pa. C. C. Reps. 93, it was held by the President Judge of the Quarter Sessions Court of Potter County, in 1914, that the playing of a game of baseball on Sunday was not a breach of the peace, but was only a violation of the Act of 1794, and that police officers had no right to arrest players, as was done, without a warrant first issued. The game was a contest between teams representing the Borough of Galeton, Pa., and the Town of Corning, N. Y., and it was indulged in on Sunday, Aug. 9, 1914. During the progress of the game a member of the State Police went upon the field and arrested without a warrant one of the Corning players. The state policeman was required to defend a charge of assault and battery instituted by the ball player whom he had thus arrested without a warrant on Sunday; the defendant was convicted, and motions for a new trial and in arrest of judgment were dismissed.

The more convincing authorities of our own state and many to be found in other jurisdictions lead us to the conclusion that we have expressed, which, restated, is that to constitute a breach of the peace there must be some act of violence committed or thre;. 'ened. Noise and disturbance, though coming from a more or less large assemblage of persons, must have given rise to some act of violence or must incite terror or fear, or threaten or invite some act of violence to breach the peace.

At least, we may go so far as to say that it is only such a breach of the peace as we have last described as will justify an officer in making an arrest without a warrant and particularly on Sunday in this Commonwealth. It is not to be assumed that the Act of 1705, having for its purpose the restriction of judicial and police activities on Sunday to the most serious and necessary cases, in order that interference with the day of rest should be reduced to a minimum, may be construed to widen police authority by authorizing the arrest without a warrant on that day of persons who could not be lawfully thus arrested on any other day of the week.

We agree with the opinion of Judge McCarthy, in Com. v. Krubeck, 23 Pa. C. C. Reps. 38, in which he held unlawful an arrest on a Sunday without a warrant of a Salvation Army worker who was beating a drum. The defendant woman was charged with beating upon a drum at unseasonable hours of the daytime and at late hours of the night on Sunday, July 30, 1899, while in a certain Salvation Army tent in Roxborough, Philadelphia. She was indicted for a misdemeanor for maintaining a common nuisance. It appeared that the Salvation Army tent was on private property, and that the police officer who arrested the defendant woman entered the tent without a warrant and made the arrest on Sunday. Judge McCarthy said, inter alia,:

“The facts of the present case do not disclose that the defendant was engaged in the commission of any act of violence in the presence of the officer, nor does it appear that what she was doing was likely to incite acts of violence in others, or that there was anything in the nature of an affray or breach of the peace accompanied by acts of violence in progress, or that the occurence of such a breach of the peace was imminent at the time the arrest was made. It, therefore, follows that the element of violence, actual or threatened, which was essential to justify the making of this arrest was wanting.

“As the arrest of the defendant was not lawful, the subsequent proceedings based upon it are void. The motion of the defendant is, therefore, sustained, and the indictment is quashed.

“The foregoing is all that is necessary to be said for the decision of this case as presented, but, in order to prevent possible misunderstanding as to the scope and extent of the decision, it is proper to add that the questions whether the act of which the defendant is accused amount to a public nuisance or not, or constitute a breach of the peace, unaccompanied by violence or otherwise, are not decided.”

Applying our conclusion, we hold that the evidence produced before us as to the conduct of the baseball game on Aug. 3, 1930, does not establish that disorderly, conduct amounting to a breach of the peace was committed by all or any one of the defendants. The arrest of the defendants on Sunday without a warrant was, therefore, unlawful, the whole proceeding being without effect and void.

In order that there may he no misapprehension, and as a guide to those concerned, including the police department, we also conclude:

1. That the conduct of a semi-professional or amateur baseball game at the Passon field, located as it is in a built-up residential section of a large city, is unlawful on Sunday, when, in connection with the playing of the game, a large crowd of spectators is invited and permitted to assemble on the field and to engage in noisy demonstrations.

2. That the police have the right to enter all ball parks, hippodromes, arenas, theatres or other places in which large numbers of persons are invited to assemble, whenever, in the judgment of the police authority, the presence of such officers of the law is necessary to protect the public against accident, sudden disorder, criminal practices — for example, from pocket-picking — or for other proper purposes. Hence, the police officers had a right to enter upon Passon field during the progress of this baseball game, notwithstanding it was private property, for it was private property then being devoted to a public use or quasi-public use.

3. The police have a discretion, which, as is indicated in Com. v. Cooper, 95 Pa. Superior Ct. 382, should be most prudently exercised, of dispersing all unwieldy assemblages of persons on the public highway, or other assemblages of persons that are disorderly or noisy, though their conduct falls short of a breach of the peace. Arrests for such noisy demonstrations or minor disorders cannot be made without a warrant either on weekdays or Sundays. A disobedience of such a police order to disperse is a breach of the peace, however, and justifies arrest without a warrant.

4. Games of baseball conducted for profit by corporations or others organized for that purpose and/or participated in by players to whom baseball playing is a regular occupation or worldly employment are now unlawful in Pennsylvania on Sunday. This was clearly and finally adjudged by the Supreme Court of Pennsylvania in Com. ex rel. v. American Baseball Club of Philadelphia, 290 Pa. 136.

5. Amateur or non-professional baseball and other orderly sports or diversions may now be freely practiced on Sunday by men, women and children for exercise, recreation or innocent amusement, and spectators may be lawfully assembled at such games where no admission fee is charged and the exhibition is not otherwise commercialized; provided, that the places selected for such games of exercise and amusement are not located in built-up residential sections of a community or elsewhere where the games would by unseemly noise or disturbance interfere with religious worship or the Sunday rest of residents of the neighborhood.

6. The mere taking up of a voluntary collection at an amateur baseball game played on Sunday is not disorderly conduct per se, is not a breach of the peace, and is not necessarily a commercialization of the sport, although when a collection is adopted as a subterfuge in lieu of an admission fee at an exhibition really held for profit, the entire affair is thereby made unlawful on Sunday.

7. The exaction of a fee for admission to places of instruction and amusement, such as the Zoological Garden, and to orchestral concerts, such as are held in the Dell of Fairmount Park, on Sunday evening, does not make the operation of such places unlawful. If an admission fee is in fact exacted only as a necessity to meet the expenses of such philanthropic and public projects maintained for the common good, there is not present the element of commercialization or worldly employment in the sense forbidden by the Act of 1794.

We have some knowledge of crime, of criminals, and of the conditions which breed the acts and the actors. Those of us who live in metropolitan communities, comprising a population whose ingredients have come from all parts of the earth, bringing with them varying habits, customs, moral standards, religious principles and practices, know that nothing is so fatal to such city-bred youth ias idleness. Satan — to personify the force of evil— still finds something for the idle brain and the idle hands of young and old to do. More orderly and wholesome communities will be maintained when we can provide healthy outdoor sport, preferably competitive in character, and amusement to all of those countless thousands of young and old who have no lawns adjacent to their homes, no gardens, no spacious living-rooms, no libraries, whose playgrounds now are the streets and vacant lots, and who, if they are not permitted to play during the free time of Sunday on those streets and vacant lots, will congregate in dark places where moral fiber rots and clean thoughts give place to foul.

The defendants are found not guilty and are discharged.


author: Evans, P. J.

text:
    Davis v. Davis.

      Marshall & Marshall, for petitioner.

      Montooth Bros. & Buchanan, H. V. Blaxter and Weller, Wicks & Wallace, contra.
   Evans, P. J.

At the above number and term on Aug. 11, 1894, Harry Davis, the libellant, was granted a divorce from Ona May Davis. The parties had lived in Pittsburgh as husband and wife for it does not appear how long. On March 4, 1894, the respondent left Pittsburgh and went to Mt. Clemens, Michigan, and apparently never regularly lived with her husband afterwards. She does allege some illicit relations, but not regular cohabitation as husband and wife.

On Jan. 18, 1929, the above respondent, Ona May Davis, filed a petition in this court, praying that the decree in divorce filed on Aug. 11, 1894, be opened and the petitioner allowed to defend. On March 11, 1929, Harry Davis filed his demurrer to the petition of Ona May Davis for the reason that “the averments contained in the petition do not set forth sufficient facts for opening the decree in divorce entered at the above number and term;

“Second. The petition to open the decree in divorce was not presented to the court until after the end of the term at which the decree was entered, and the court has lost jurisdiction over the subject-matter;

“Third. The term of the court at which the decree was entered having expired, the petition does not contain sufficient facts to warrant the granting of the relief prayed for;

“Fourth. The decree entered at the above number and term is res adjudicatei. of the matter set forth in the petition;

“Fifth. Petitioner has not in or by her petition shown any cause entitling her to the relief prayed for;

“Sixth. Petitioner is guilty of laches.”

The rule that a decree or judgment of court will not be disturbed after the term at which the decree was entered has passed is not usually enforced in cases of divorce. If circumstances in regard to the notice and the conduct of the hearing are not regular, the courts will usually open the decree and give to the respondent an opportunity to be heard.

But this is a very extraordinary case. This divorce was granted more than thirty-four years before the petition of the respondent was presented. During that time the libellant and respondent were living apart, and during those thirty-four years the respondent never made any move to enforce her legal rights, as against her husband. The record in the divorce proceeding shows a return by Edward Lewis, deputy sheriff for Sheriff Richards, on April 14, 1894, under oath taken before John Bradley, prothonotary, that he served Ona May Davis, the respondent in the writ, on April 14, 1894, at Pittsburgh, Allegheny County, by delivering to her a true and attested copy of the within writ, and made known to her the contents thereof. Mr. Lewis is dead and was dead when Mrs. Davis presented her petition to the court. Mr. Lewis was well known as a public officer; not only as an upright man of integrity but also as an intelligent, careful and vigilant officer. For many years he was deputy sheriff; for many more years he was warden of the jail, and his reputation for integrity and for vigilance and care was such that those who knew him well would hesitate seriously to believe that he would either falsify a return or be deceived into making a false return. The petitioner denies that the writ was served on her.

In the testimony taken in the divorce proceeding, Phillip Demmell, a detective, connected at one time with the Police Department of the City of Pittsburgh, gave testimony which stated that Mrs. Davis on April 10, 1894, was in Cleveland all night, on the way to Pittsburgh, and she corroborates this in her petition. She does not deny that she came to Pittsburgh on that trip, nor that she was in Pittsburgh on the 14th day of April, of 1894, three days after she spent the night in Cleveland. She does state that when she stayed all night in Cleveland she was on her way to Pittsburgh. Phillip Demmell, in his testimony before the master in the divorce case, gave serious testimony against Mrs. Davis. Mrs. Davis in this petition presents an affidavit by Mr. Demmell making some reflection on one of the witnesses who testified in the divorce case. Whether that witness is living or not we do not know, but Mr. Demmell does not, in his affidavit, in any manner, contradict the testimony, and serious testimony, which he gave at the trial of the divorce case, and Mrs. Davis in her petition, in referring to the incident, says that she does not know whether she did or said what Mr. Demmell testified to in the divorce case; that she was too excited to know. Mr. Demmell testified that he saw one Edward P. Abbott and wife registered in the Forest City Hotel, and assigned to Room 34 on the register. He went to that room and he found Mrs. Davis and her daughter, thirteen years old, in bed in room 34 and Edward P. Abbott in a bed in an alcove connected with that room, and then testified to certain fondling acts on the part of Abbott and Mrs. Davis. As I say, her answer to that is that she was too excited to know what she was doing.

The petitioner attaches to her petition quite a number of letters which she alleges were written to her while she was in Mt. Clemens, between Nov. 24, 1894 and Dec. 17, 1926, in which he sent her money. The letters which Davis wrote to her nearly all contained some amount of money, and while her letters to him are not enclosed it is evident from his letters that she was urging him to pay her money, but there is no indication that she ever indicated any desire to go back and live with him. But there is in his letter an assertion that he is sending her money in order that she can start a business in Mt. Clemens, so that she will be able to support herself and her daughter.

In the first few letters written by Davis, he expresses his great affection for her and states that he will do what he can for her in reason, but says nothing in any of his letters that would indicate that he was under any legal obligation that she has charged him with being; no legal obligation to furnish her with money. The first seven letters written by Davis to Mrs. Davis are addressed to “Dear May;” from the letter of Sept. 30, 1895, to and including the letter of Oct. 27,1897, the letters are addressed to Mrs. May Davis; beginning with the letter of Feb. 11, 1902, the letters following that are all addressed to “Miss May Patterson,” which was Mrs. Davis’s maiden name, and the letters are all in two or three lines, stating in substance that money is enclosed.

On Oct. 27, 1897, Mr. Davis sent the respondent, in response to a telegram from her, $25. That was the last money forwarded by him to her until Feb. 11, 1902, when, in response to a request from her, he sent her $25, addressing her as “Miss May Patterson,” and closing his letter with “I am, respectfully yours.” His following letters were all addressed to “Miss May Patterson,” and during the year 1902 he sent her altogether $50. From that time he sent her no money until Aug. 12, 1913, when he sent her $20. His next remittance was Oct. 3, 1918, when he sent her $50. On June 13, 1919, he sent her $40, in which he states to her, “You must not count on me.” On Feb. 5, 1920, he sent her $40; on Oct. 29, 1920, he sent her $40; on Nov. 12, 1920, he sent her $40; on Oct. 3, 1923, he sent her $50 ; on Dec. 21, 1923, he sent her $60; on Nov. 27, 1925, he sent her $50; on April 8, 1926, he sent her $60; on Nov. 5, 1926, he sent her $60; on Dec. 7, 1926, he sent her $100. In another letter, not dated so far as the copy is concerned, he sent her $40, and that is the last.

For a period of thirty-two years he sent her $725; she, apparently, all the time urging him to send her money, knowing, as she says, that she was his legal wife and that he was responsible for her support. Yet she took no steps to compel him to support her.

In a letter from Davis’s secretary in 1924 he had stated to her that Mr. Davis was out of the city with Mrs. Davis. Apparently that did not raise any suspicion in her mind that there was any break in her marital relations with him, for she says it 'never occurred to her that this Mrs. Davis was his wife, but supposed it was his mother. It seems to be a pertinent question to ask: what was it that occurred shortly before September, 1928, which caused her to come to Pittsburgh to investigate her marital relations with Mr. Davis? She does not specify. There was an important occurrence. Edward Lewis, the deputy sheriff who made his return under oath that on April 14, 1894, he had served the subpoena in divorce on the petitioner in this case, died on April 2, 1928.

Now, as we have suggested, the strict rule of refusing to open the judgment after the expiration of the term at which the judgment was entered is not enforced in the case of divorce, but here we have a case where the record of the sheriff’s return is regular and the affidavit of the deputy sheriff returns a personal service, and more than thirty-four years afterwards, after that deputy sheriff is dead, after nobody is living who could possibly testify to the fact of the service on this respondent of the subpoena in divorce, this respondent asks this court to open the decree in divorce and let her answer the subpoena. If such a precedent as this were established there would not appear to be any stability of decrees in divorce.

I have referred to the testimony of Phillip Demmell as to what occurred in the Forest City Hotel in Cleveland on the night of March 11, 1894, as being very serious matter affecting Mrs. Davis. He testified that when he opened the door, Abbott came to the door partially undressed. When he was asked who the woman was in bed in the room he said it was his wife. When that question was doubted Demmell says: “I walked into Mrs. Davis’s part of the room and looked at her and said to Abbott, ‘I don’t think this is your wife. I know this woman. It is Mrs. Davis, of Pittsburgh.’ She said nothing to this.” In her petition and answer to this she says she did not know what she said; she was too much excited. Very likely she was excited.

Comparing the allegations of this petition with the history of this case, we are of opinion that the decree in divorce ought not to be disturbed.

From William J. Aiken, Pittsburgh, Pa.


author: Fleming, P. J.,

text:
    Harris et al., Administrators, v. Meek et al.

      E. L. Orvis and A. C. Dale, for petition.

      N. B. Spangler and Ivan Walker, contra.
    Oct. 31, 1929.
   Fleming, P. J.,

This matter is before the court upon a rule on the trustee in bankruptcy of the Centre County Banking Company, bankrupt, as well as the trustee in bankruptcy of the individual estates of Mary C. Harris and John M. Shugert, bankrupts, being one and the same person, to show cause why this court should not allow compensation to the attorneys for the receivers in such sum as this court shall decide.

The question presenting itself at the threshold is that of jurisdiction. Is it for this court to determine the fees to be allowed the attorneys or is it for the Federal court? Counsel for the' receivers cite for our attention Gealey v. South Side Trust Co. (C. C. A., 3rd Cir.), 249 Fed. 189, wherein the court says:

“We are urged to lay down some rule of procedure in such cases hereafter. In the nature of things this cannot he done farther than to call attention, as Chief Justice Fuller did in the case cited, to the fact that, although the paramount jurisdiction and the right of possession is in the District Court, yet, the goods of the bankrupt being already in possession of another court, there still exists, in the necessary change of possession, the rule of comity between courts, the application of which must, in the final analysis, be left to the good sense and considerate conduct of those controlling such comity-related courts.”

We must endeavor, therefore, to exercise, to the best of our ability, good sense and considerate conduct in determining whether we shall assume jurisdiction and dispose of the petition or whether we shall permit the matter to be disposed of under the procedure of bankruptcy administration.

The history of the Centre County Banking Company urges careful consideration of the rights of the thirteen hundred-odd depositors whose interests have been shunted while legal battles to avoid responsibility have been fought by a few. Certainly and most emphatically, were we to assume jurisdiction, would we disallow any claim for services rendered any of these resisting parties in the course of the litigation following the closing of the bank’s doors. We do not gainsay their rights or attempt to pass judgment upon the merits of their contentions, but do hold that all such services rendered were rendered to them personally and should be paid for by them and not by the depositors of the insolvent bank.

If the bankruptcy courts assume the jurisdiction, every creditor of the defunct bank will receive notice and thereby be given an opportunity to be heard if they desire to object. This court affords no provision for such notice to these creditors. The history of practically all the endeavors of the petitioners lies in the bankruptcy court. The records of this court as to their endeavors are almost entirely silent. We have nothing by which we can ascertain whether or not the activities of the petitioners have been for the best interests of the estate or not. Such fact is determinable only in the bankruptcy court. Further and above all, we have had ample opportunity to view comparatively the operations of the receivership and the operations of bankruptcy administration and see plainly and without a shadow of doubt that efficiency for and relief of the creditors has been shown and resulted alone from the latter.

The question of comity is clearly determined by the words of the present learned judge of the District Court for the Middle District of Pennsylvania, who speaks to us as follows: “While I know your judgment on the matter would be as good as mine, the responsibility appears to be placed by law on me, and I fear I will not have the right to waive it or yield jurisdiction in a matter which appears to rest exclusively with the District Court.” Thereby all thought of comity, as moving jurisdiction to us, passes, and in the exercise of good sense and considerate conduct we must yield jurisdiction, if any we have, to the District Court.

We are not unmindful of Lambert v. National Hog Co., 263 Pa. 354, cited by petitioners. There the question was whether or not the receiver appointed by the state court should account to such state court or to the bankruptcy court, and it was held to be the former. We do not herein hold that our receivers shall not account to us. On the contrary, we shall direct the immediate transfer of assets by our receivers to the trustee in bankruptcy in order that the work of finally closing the bank’s affairs may proceed. We shall forthwith direct the receivers to account. Exceptions to such account, if sustained, can result in no lessening of the balance at least. With the confirmation of such account, the receivers can be discharged and sureties released. The administration in bankruptcy as to receivers’ compensation and the compensation of all attorneys will in no manner delay the orderly settling of the whole matter and should bring to an early end that which has been pending, to the distress of many, since 1922.

And now, Oct. 31, 1929, the rule is discharged and the receivers heretofore appointed by this court are directed to turn over to Ivan Walker, trustee in bankruptcy, all assets now in their hands and they shall forthwith account to this court for all matters pertaining to their trust.

Prom S. D. Gettig, Bellefonte, Pa.