author: WiCKERSHAM, J., Wickgrsham, J.,

text:
    In re Hoover & Co. et al.

      Thomas O. Haydoek, George L. Reed and Hugh Roberts, for complainants.

      Cyrus E. Woods, Attorney-General, and Penrose Hertzler, Deputy Attorney-General, for Commonwealth.
    July 7, 1930.
   WiCKERSHAM, J.,

This is an appeal from the decision of the Department of Public Instruction of the Commonwealth of Pennsylvania in suspending the licenses of the appellants under the provisions of the Act of May 1, 1929, P. L. 1216.

The questions involved are:

1. Is there any legally competent evidence in the record to sustain the finding of the Department of Public Instruction that the licensee, J. L. Jordan, obtained the agreements of sale from the complainants, Anna and Joseph Bobb, by making substantial misrepresentations relative to the check for the “down money,” and that he persuaded complainants to permit him to retain the agreements by falsely promising to deliver the check to them, properly endorsed?

2. If it is a fact that the licensee, J. L. Jordan, made substantial misrepresentations and knowingly made false promises for the purpose of inducing the complainants to sign the agreements of sale, was the Department of Public Instruction vested with authority to suspend the license?

It appeared from the evidence that one of the appellants, J. L. Jordan, a licensed real estate agent, and member of the firm of Hoover & Company, was authorized and employed to sell certain real estate in the City of Philadelphia by Anna and Joseph Bobb, the owners thereof. The property was sold to and purchased by Alice C. Bassett. Articles of agreement for the sale of said real estate of said Anna and Joseph Bobb to the said Alice C. Bassett .were prepared by her attorney. These articles of agreement were signed by the said Alice C. Bassett on or about Jan. 22, 1930, upon the execution of which she gave to the said J. L. Jordan her check for $1000 “down money,” made payable to Hoover & Company. Jordan then took the said articles of agreement to Anna and Joseph Bobb at their home the same evening, about 8 o’clock. He told them the property was sold, laid the check for $1000 on the table and requested the said Bobbs to sign the articles, which they did. They then directed Jordan’s attention to the fact that the check for the- “down money” was not made payable to them, but to Hoover & Company. Jordan told them he would take the check with him, have it endorsed, and return it to them the next day — or, perhaps, that he would send them a check the next day. He then left the residence of the Bobbs, taking with him the check and the articles of agreement. A copy of the agreement was left with the Bobbs and forms a part of the record in this case. The Bobbs did not sign the receipt for the “down money,” as it was called, but after Jordan left their residence he himself signed the.receipt with the names of Anna Bobb and Joseph Bobb, per Hoover & Company, agents, and returned it to the attorney representing Mrs. Bassett. Hoover & Company did not return the said check nor the check of Hoover & Company to the Bobbs the next day, nor on any other day, and so far as the evidence goes that firm still holds the check. The sale was never consummated. It appears from the evidence there was some difficulty about the title of the Bobbs; that the title appeared to be in the name of Joseph Bobb and not Anna Bobb, and that there were many judgments of record in Philadelphia County against Joseph Bobb. Hoover & Company claimed the right to retain the check for $1000 as their commission on the said sale, the consideration for which was $20,000. The intention to so hold the check was not communicated to the Bobbs at the time the agreement was signed by them.

It is the contention of Hoover & Company that they were entitled to a commission of 5 per cent.; the Bobbs, on the other hand, claim the commission was only to be 21 per cent. We do not think this controversy is material to the disposition of the litigation now pending.

On Jan. 81, 1930, Hoover & Company notified the Bobbs in writing that they were requested by Mrs. Bassett to hold the check for $1000 until settlement; the letter stating “she had certain reasons for making this request which are immaterial, inasmuch as we told you how the deposit was to be handled.”

On Feb. 14th, a formal complaint was made by Joseph and Anna Bobb to Robert W. Semenow, Supervisor of Real Estate Licensing, Department of Public Instruction, Harrisburg, Pa. The licensee was notified of the complaint by the department and a hearing was held in Philadelphia on March 4, 1930, at which time the complainants, together with their witnesses, and the licensee appeared and testified.

On April 3, 1930, the Department of Public Instruction; made certain findings of fact and concluded as a matter of law that the license of J. L. Jordan should be suspended for a period of sixty days, and that the license for the firm of Hoover & Company should be suspended for a similar length of time if Jordan did not sever his connection with the firm. This order was amended on April 23, 1930, to take effect on May 16th, in order that the licensees should have the required time within which to take an appeal.

Notice of appeal was served upon the Department of Public Instruction of the Commonwealth of Pennsylvania on April 25, 1930, and the department was requested to complete the record and file the same in accordance with the said Act of 1929. This appeal was filed in the Court of Common Pleas of Dauphin County on May 26, 1930; it was accompanied by numerous exceptions to the findings of fact and conclusions of law of said department, and to the order suspending the licenses for a period of sixty days.

Under the provisions of said Ad of May 1, 1929, P. L. 1216, known as the “Real Estate Brokers License Act,” the terms “real estate broker” and “real estate salesman” are defined in section 2. In paragraph (d) of section 2 of said act, “the term ‘department’ shall mean the Department of Public Instruction of this Commonwealth.” Under section 3 of the act, “the department shall issue real estate brokers’ and salesmen’s licenses under the provisions of this act, and shall supervise and control all such licenses as hereinafter specifically provided.” Sections 4 and 5 provide for departmental regulations. Section 6 provides that “from and after January 1, 1930, it shall be unlawful for any person, copartnership, association or corporation to engage in or carry on the business, or act in the capacity of a real estate broker, or a real estate salesman, within this Commonwealth, without first obtaining a license as a real estate broker or real estate salesman from the department.” Section 7 fixes the practice relating to applications for brokers’ licenses, the recommendations required, the duty to issue licenses upon the payment of license fees required by the act to real estate brokers or salesmen, and other matters relating to the regulation and licensing of brokers and salesmen of real estate. Section 8 fixes the fees to be paid by applicants for licenses; and section 9 regulates the place of business to be maintained, the persons to have charge of the office, display of salesmen’s licenses, and notice of change of employer.

These proceedings were had under section 10 of the act, which provides:

“(a) The department may, upon its own motion, and shall, promptly upon the verified complaint in writing of any person setting forth specifically the wrongful act or acts complained of, investigate any action or business transaction of any licensed real estate broker or real estate salesman; and shall have the power temporarily to suspend or permanently to revoke licenses theretofore issued by the department, under the provisions of this act, at any time when, after due proceedings as hereinafter provided, it shall find the holder thereof to have been guilty in the performance or attempt to perform any of the acts prohibited to others than licensed real estate brokers or real estate salesmen under the provisions of this act,

“(1) Of knowingly making any substantial misrepresentation; or,

“(2) Of knowingly making any false promise of a character likely to influence, persuade or induce; or,

“(3) Of a continued or flagrant course of misrepresentation, or making of false promises through agents or salesmen; or,

“ (4) Of any other conduct, whether of the same or of a different character than that hereinbefore specified, which shall constitute a tort, or when it shall be shown that the licensee, within five years prior to the issuance of the license then in force, has been convicted in any court of competent jurisdiction of this or any other state of forgery, embezzlement, obtaining money under false pretenses, extortion, conspiracy to defraud, or other like offense or offenses.”

Paragraph (b) of section 10 provides, inter «Ha, that “before refusing, suspending or revoking any license, the department shall, in writing, notify the applicant or licensee of the charges against him, accompanying the notice with a copy of the complaint, if any filed, and the department shall accord the applicant or licensee ample opportunity to be heard thereon in person or by counsel. . . .” This practice was followed in the present proceeding.

Paragraph (d) of section 10 provides that “the decision of the department in suspending or revoking any license issued under this act shall be subject to review by the Court of Common Pleas of Dauphin County. . . . The appeal shall thereupon be heard, in due course, by the judge or judges of the said Court of Common Pleas, without a jury, by whom the proceedings before the department, its findings and rulings, shall be given similar weight, force and effect as are accorded to the findings and report of a referee selected or appointed under the provisions of the act entitled ‘An act to provide for the submission of civil cases by agreement of the parties to a referee learned in the law,’ approved the fourteenth day of May, one thousand eight hundred and seventy-four, and its supplements. The court may, however, in its discretion, receive and consider any additional pertinent evidence, whether oral or written, either in open court or by deposition, as the said court shall direct, and the decision of the department shall be reviewed in the light of such evidence, provided the court shall order a trial by jury upon demand of any appellant.”

It was suggested at the oral argument before the court in banc that paragraph (d) of section 10 of the act, which provides that the proceedings before the department, its findings and rulings, shall be given similar weight, force and effect as are accorded to the findings and report of a referee selected or appointed under the provisions of the act entitled “An act to provide for the submission of civil cases by agreement of the parties to a referee learned in the law,” approved May 14, 1874 [P. L. 166], and its supplement, might possibly offend against section 6 of article ill of the Constitution of Pennsylvania, which provides that “No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length.”

This provision of the Constitution has been interpreted very frequently by the Supreme Court of Pennsylvania. When there is an established system of procedure in certain cases, whether it be by common law or statute or joint operation of both, a new act applying such system to a new class of cases by general reference to it is not a violation of section 6, article ill, although it may operate, to some extent, as an extension of a previous statute: James Smith Woolen Machinery Co. v. Browne, 206 Pa. 543. The constitutional provision has reference to express amendments only. Its object, like that of section 2 of the same article, requiring each act to have its subject clearly expressed in the title, was to secure to the legislators themselves and others interested direct notice, in immediate connection with the proposed legislation, of its subject and purpose. The Constitution does not make the obviously impracticable requirement that every act shall recite all other acts that its operation may incidentally affect, either by way of repeal, modification, extension or supply: Searight’s Estate, Stuart’s Appeal, 163 Pa. 210; In re Greenfield Avenue, Pittsburgh’s Appeal, 191 Pa. 290; Com. v. Samuel Black Co., 223 Pa. 74, 78; Gilbert’s Estate, 227 Pa. 648, 651; Garrett v. Turner, 235 Pa. 383, 394; Guenthoer’s Estate, 235 Pa. 67.

Mr. Justice Frazer, writing the opinion of the Supreme Court in Free’s Appeal, 301 Pa. 82, quotes from Guenthoer’s Estate at some length, and with approval, as follows:

“If a statute specifically adopts a former statute or particular provisions of a former statute by reference to its title or otherwise, such statute or particular provisions thereof become a part of the adopting statute as though written therein, and are enforced by virtue of the adopting act, but it does not include any subsequent amendment or modification of the prior statute or its particular provisions, unless expressly so declared or is clearly implied.”

We think, therefore, that the legislation we have now under consideration is not a revival, amendment or extension of the said Act of 1874 bringing it within the prohibition of section 6 of article III of the Constitution. It is the mere application of an established mode of procedure or course of official conduct to a new thing or person: McKeown’s Petition, 237 Pa. 626, 631.

Sections 3 and 7 of the Act of 1874, and the act supplemental thereto, approved May 4, 1889, P. L. 80, seem to be the only legislation referred to in the Act of 1929. Section 3 provides that:

“Said referee shall proceed, without undue delay, to perform the duties of his appointment, and shall, in all things pertaining to the trial and decision of the case, have the powers and perform the duties that would belong to the court under a like submission. The decision, together with what pertains to it, shall be filed of record in the case, and shall, in like manner and to the same extent, be subject to exceptions and writ of error or appeal, as in cases submitted in like manner to the court; . . .”

Section 7 provides:

“The judgment entered upon the decision of such referee shall be considered a judgment of the court, and thereafter the power of the referee in regard to it shall end, unless by order of the supreme court the case is referred back to said referee.”

The supplemental Act of 1889 provides:

“That every referee . . . shall give . . . ten days’ previous notice of his intention to file his report, on a day to be fixed by him, during which time the said parties or their attorneys shall have access to said report, and may file exceptions thereto; and it shall be the duty of the referee on exceptions being filed, to re-examine his report and amend the same, if in his opinion such exceptions are well founded. If no exceptions shall be filed with the referee, his award shall be entered as a final judgment of the court, on the day it shall be filed. If exceptions have been filed with the referee, his report and the exceptions, with his action thereon, shall be heard by the court in which they shall have been filed, and said court shall have power to confirm the report of the referee, or alter, amend or reverse it, or send it back to the referee for further proceedings before him; and a writ of error or appeal from the final judgment of the court may be taken by either party, in like manner as in other cases of a similar kind, provided exceptions were duly filed with the referee.”

The Act of 1874 has been in force for fifty-six years, and the supplemental Act of 1889 has been in force forty-one years. In referring to said act and its supplement in the Act of 1929, the legislature had in mind the practice that is well known and is understood by the courts and the profession. It is very clear to us, therefore, that mere reference to this act and its supplement of 1889, byits title and date of approval, does not offend against section 6 of article III of the Constitution.

Referring now to the practice under the Act of 1874 and its supplement of 1889, it was decided, in Philadelphia Company v. United Gas Improvement Co., 180 Pa. 235, that:

“To successfully challenge a referee’s findings of fact, it is not enough to point to evidence suificient to support a different finding; but it must be shown that there is no evidence sufficient to sustain his findings, and this is especially so after they have been considered and approved by the court below.”

And in Finkelstein v. Spatt, 50 Pa. Superior Ct. 293, it was held:

“The findings of fact of a referee . . . supported by evidence, and approved by the court of common pleas, has, on appeal (which operates only as a writ of error), the conclusiveness of a special verdict of the jury; and particularly is this true when they depend upon oral testimony.”

Mr. Justice Frazer, writing the opinion of the Supreme Court in Fidelity-Phila. Trust Co., Exec'r, v. Lehigh Valley Coal Co., 294 Pa. 47, at page 54, commenting on Philadelphia Company v. U. G. I. Co., supra, said, quoting from Hindman’s Appeal, 85 Pa. 466, 470:

“When he [the master] reports facts directly proved by the witness, his report is entitled to great weight. But when the fact is simply a deduction from other facts reported by him, his conclusion is the result of reasoning, the correctness of which we are as competent to judge as he.”

Applying the above quoted well settled principles of law to the report of the Department of Public Instruction in the instant case, we find the findings of fact to be supported by the great weight of the evidence.

Referring now to the several items of complaint on the part of the complainants, the department does not sustain any of them as stated in the complaint. The department finds, however, that Jordan explained to the Bobbs that he was taking the check so that it might be properly endorsed, as it was made payable to Hoover & Company, and the latter would then mail a check to the complainants the next day; that no check was mailed, and upon inquiry the complainants were told by Jordan that the $1000 would remain in the possession of Hoover & Company until settlement, in accordance with the purchaser’s instructions. This finding is supported by the evidence.

The second finding of fact relates to the controversy between the complainants and Jordan with respect to the amount of commission to be charged; and the third finding of fact relates to the transaction at the time an attempt at settlement was made. The department finds that:

“. . . At the time of the settlement, Hoover & Company produced a cashier’s check from the Integrity Trust Company to the order of Hoover & Company for the $1000 in question, but said check was not endorsed by Hoover & Company or turned over to the trust company; and the evidence shows that it is still in possession of Hoover & Company. The negotiations were then suspended pending the clearing of the title and it appears that, up until the time of the hearing, nothing further had been done in the matter. It also appears from the evidence that Hoover & Company have the said $1000 on deposit in their general business banking account and that it has not, to date, been placed in a special or trustee account.”

This finding is supported by the evidence.

In the second conclusion of law the department states:

“There is no evidence here that Jordan ‘fraudulently absconded and ran away from the complainants’ house,’ or ‘forcibly seized a check or contract and ran away with same,’ as alleged in the sworn statement of complaint. It does not appear anywhere in the testimony that the licensee used force or violence in his negotiations with the complainants. The sole question which is raised by the complaint for determination by this Department concerns the retention of the $1000 hand money — whether the licensee’s conduct in regard to this $1000, under the conditions and circumstances brought out at the hearing, constitutes a violation of section 10 of the act and makes the licensee amenable to discipline by this Department.”

With this conclusion of the department we are in accord. In the third conclusion of law the department entered into a discussion of the duty which a broker owes to his principal.

The complaint against Jordan, as set forth in the fourth conclusion of law, is that he did not communicate to the Bobbs prior to obtaining their signatures to the agreement the instructions of Mrs. Bassett that she preferred that the check should remain in the possession of Hoover & Company until the settlement was entirely completed. On the contrary, the testimony indicates that Jordan stated his reason for taking the check was because it was made payable to Hoover & Company, and, therefore, had to be endorsed by the firm; that he promised to mail a check to the Bobbs for the hand money the next day, which he failed to do, and that he did not tell the complainants the purchaser’s instructions • regarding the hand money until the following day after the agreements were signed by both seller and buyer and their respective legal liabilities had already commenced. The department finds that Jordan purposely failed to tell the complainants the terms accompanying the check for fear the deal would fail, and that the licensee was prompted in the matter by personal and selfish motives to insure the payment of his commission. The department finds that the licensee is to be censured for failing to acquaint the grantors with all the facts when the agreements were being signed and for his promise to mail the check the following day, when it appears he had no such intention. It is the opinion of the department that this conduct of the licensee is such as is contemplated by section 10 and constitutes a violation of said section.

The real estate licensing act specifically provides in section 10 (ai) that the department may suspend or revoke the license of any salesman or real estate broker that shall be found guilty “(1) of knowingly making any substantial misrepresentation; or (2) of knowingly making any false promise of a character likely to influence, persuade or induce.”

We think, therefore, that the department properly found that the complainants were induced to sign the agreements of sale by the misstatement of Jordan that he would return said check for the “down money” the next day. We think, also, that such statement on the part of Jordan was made for the purpose of inducing the complainants to sign the agreements of sale and to permit Jordan to secure the said agreements and check which he took with him. We further think that subsequent events clearly proved and established that Jordan never intended to return said check of $1000 to the complainants and that the making of such promise was of a character likely to influence, persuade or induce, in violation of section 10 of the Act of 1929.

It is true there was conflicting testimony produced at the hearing; however, the representative of the Department of Public Instruction had the witnesses before him, saw and heard their manner of testifying, and, therefore, was'the best judge of their credibility. The opinion indicates that the testimony of all the witnesses was carefully considered. In the exercise of its discretion, the department made its findings of fact which are now as conclusive as the verdict of a jury, the testimony referred to being sufficient and legally competent. We think the department was vested with authority to suspend the licenses of Jordan and Hoover & Company.

It was contended by counsel for the appellants that the department, having failed to find the several allegations in the complaint as stated in the sworn statement to be supported by the evidence, but basing its conclusions of law upon the testimony produced at the hearing showing other misconduct on the part of Jordan, not stated in the sworn statement of coinplaint by the Bobbs, acted without authority and should be reversed. It is further contended that the department could not act upon such evidence without furnishing to the appellants a sworn statement of the charges they were called upon to meet. Under all the evidence in the case, we think this contention is not sound and cannot be sustained. Section 10 (a) of the act provides the department “may, upon its own motion . . . investigate any action or business transaction of any licensed real estate broker or real estate salesman.” Having the complaint of the complainants before us and having read and weighed the evidence, we think the department was justified in finding that the said Jordan knowingly made a false promise of a character likely to influence, persuade and induce. We think the department was not required by the Act of 1929, having the facts and the evidence before it, and the licensees having appeared and made defense, to require a new verified complaint in writing to be made before acting upon the evidence. As we have pointed out, the department may, upon its own motion, proceed to investigate.

The exceptions are dismissed. The findings of fact and conclusions of law are approved, and the report of the department is confirmed.

Opinion on petition for reargvment.

Wickgrsham, J.,

July 29, 1930. — This appeal was argued before the court in banc on June 17, 1930. At that time counsel for the appellants did not file briefs of argument upon the law and the facts as required by rule 58 of the rules of this court, which provides:

“Briefs of arguments upon the law and the facts or upon either as counsel may think expedient, must be presented at the time of any argument either at law or in equity which is addressed to the court alone, except when such argument is made in the course of a trial before a jury. No brief will be permitted to be filed after the day of argument except that by special allowance at the time of argument either of the parties may obtain permission to file a reply brief, provided the same is filed within three days.”

After argument counsel for appellants applied for permission to file a brief of their argument on the law, which we granted. At that time we were of the opinion that the brief would be filed promptly, and we are still of the opinion that it should have been so filed. We waited until July 7th and then handed down our opinion overruling the appeal. A motion was then presented to the court for leave to file the brief of counsel for the appellants and to reargue the exceptions to the department’s findings.

We think the courtesy of the court in granting the opportunity to file a reply brief after the argument was abused in that it was not filed promptly. An examination of this brief discloses that it contains nothing new that is relevant to the issue. It is, to all intents and purposes, a restatement of the oral argument presented to the court.

Counsel for the appellants rely upon a number of authorities which hold that an agent is entitled to hold a deposit to secure his commission and that he is entitled to the commission as soon as he procures a purchaser ready, willing and able to buy for the sum stated. These authorities are not relevant to the issue the court heard. Whether the appellants were entitled to hold the $1000 “down money” as their commission for making the sale was not involved. The real question was, did the appellant Jordan so inform his clients when he procured their signatures to the contract of sale? Or did he make statements to them to procure their signatures to the contract calculated to deceive? The department held that he did make such statements. In our opinion filed July 7, 1930, we decided the conclusions of the department were sustained by the weight of the evidence.

The appellants’ brief concludes with a request for findings of fact. The Act of 1929 makes the department the fact-finding tribunal. The function of the court is to ascertain whether the facts so found are supported by the evidence. As above stated, we have decided that the said findings were so supported.

The prayer of the appellants for leave to reargue the exceptions to the department’s findings must be and is, therefore, overruled.

From Homer L. Kreider, Harrisburg, Pa.


source: Caselaw Access Project

author: McLean, P. J.,

license: Public Domain

text:
    Babich v. Duryea School District.

      J. Gordon Mason, for plaintiff; Robert L. Coughlin, for defendant.
    Dec. 17, 1929.
   McLean, P. J.,

Plaintiff tax collector and defendant school district have presented a case stated to determine the compensation of the tax collector for the collection of the school taxes for the fiscal year 1927-1928. The salient facts as submitted are as follows:

“3. That in the month of November, 1925, the plaintiff was duly elected tax collector of Duryea borough and ex-officio tax collector of the Duryea School District.

“4. That in the month of May, 1926, by resolution passed at a regular meeting of the Duryea School Board, the commission of plaintiff as tax collector for the school year 1926-1927 was fixed at four per cent.

“5. That the plaintiff had been tax collector of the Duryea School District since the year 1917, and that each year prior to 1927 his commission had been fixed by the Duryea School Board in the month of May, and that said commission all the years was never less than three per cent, nor more than five per cent.

“6. That in the year 1927 the Duryea School Board assessed and levied the school tax in accordance with the law and furnished to the plaintiff on or before the first Monday of July, 1927, a tax duplicate and a proper warrant directing him to collect the school taxes for the school year 1927-1928.

“7. That the said Duryea School Board did not fix the tax collector’s commission for the school year 1927-1928 at that time.

“8. That, pursuant to said warrant and tax duplicate, the plaintiff collected the following amounts upon the following dates and turned the same over to George Pradel, treasurer of the Duryea School Board:

“September 1st, 1927.......................... $3,420.00
October 1st, 1927.............. 96,730.30
November 1st, 1927.......................... 2,770.92
December 1st, 1927.......................... 1,325.72

“Making a total of one hundred four thousand two hundred forty-six dollars and ninety-four cents ($104,246.94).

“9. That by check dated September 7, 1927, the plaintiff received one hundred thirty-six dollars and eighty cents ($136.80), being his commission at four (4%) per cent, on his collection dated September 1, 1927, in the amount of three thousand four hundred twenty dollars ($3,420.00).”

Section 554 of the School Code provides as follows:

“In all school districts of the second, third and fourth class, all school tax collectors shall be paid such commissions or compensation as may be determined by the boards of school directors; such commissions or compensation to be paid by proper orders drawn on the school treasurer, as other accounts are paid by any school district.”

It will be observed that no time is fixed within which the compensation of a tax collector must be determined. The proper conduct of the business of the board would, however, require that this be done before the duplicate and warrant are delivered to the tax collector, which section 549 of the Code requires shall be done on or before July 1st in each year. The tax collector could then, if dissatisfied with the compensation fixed, refuse to accept the duplicate and warrant and the board could then appoint another collector, or the tax collector could accept the duplicate under protest and petition the court to fix a reasonable compensation.

The failure of the board to fix the compensation before the duplicate and warrant were delivered to the tax collector did not serve to fix the compensation at the rate which had been allowed for the collection of the taxes of the previous year (Folk v. Mt. Penn Borough School District, 30 Dist. R. 591). On the contrary, the acceptance of the duplicate and warrant without protest by the tax collector constituted an implied agreement by him to accept such commission as the board might determine, but it was still incumbent upon the board to formally fix the commission to be allowed, and the payment of Sept. 7th, as set forth in paragraph 9, supra, cannot be construed as a determination of the commission to be paid the tax collector for any other taxes than those to which the payment is specifically applied. The payment itself is of doubtful legality, for the ease stated does not show a compliance with section 315 of the Code, which requires that the board shall have first acted upon and approved payment of any item of expenditure before an order shall be drawn therefor.

Upon Dec. 4, 1927, the commission of the tax collector was formally fixed by the board at 2 per cent., and this action controls the question at issue, notwithstanding the taxes were collected before that date. In accordance, therefore, with the form of judgment as submitted in the case stated—

Judgment is entered in favor of plaintiff and against the defendant in the sum of $2084.94.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: Groff, J.,

text:
    Graybill v. Graybill.

      Edwin M. Gilbert, for libellant; Paul A. Mueller, for respondent.
    April 19, 1930.
   Groff, J.,

This is a divorce proceeding, wherein Weidler Graybill, of Lancaster City, Pennsylvania, on July 5, 1929, filed a libel for divorce in the Court of Common Pleas of Lancaster County, alleging that his wife, Kathryn M. Graybill, “willfully and maliciously deserted and absented herself from the habitation of this libellant without any just or reasonable cause and such desertion hath persisted in for more than one year last past or since the tenth day of August, A. D. 1927.”

On this petition a subpcena for divorce was issued and served upon the respondent, Kathryn M. Graybill, whereupon she, through her counsel, Paul A. Mueller, entered her appearance and filed an answer on Oct. 26, 1929.

On Nov. 16,1929, an issue was agreed upon between the parties and allowed by the court as follows:

“1. Did the defendant on Aug. 10,1927, willfully and maliciously desert and absent herself from the habitation of the said plaintiff without reasonable cause?

“2. Has the defendant since Aug. 10, 1927, continued in such desertion for more than two years last past or until the date of the filing of the libel in divorce.”

On Jan. 27,1930, the libellant, through his counsel, Edwin M. Gilbert, moved the court to permit the plaintiff to amend his libel filed in the above case by adding the following: “That the said Kathryn Graybill, the respondent, in violation of her marriage vow, hath for a considerable time past given herself up to adulterous practices and been guilty of adultery with a certain William Hartman and with divers other persons, to the petitioner unknown,” and signed by Edwin M. Gilbert, attorney for Weidler Graybill. The motion was allowed and the libel was amended.

On Feb. 1, 1930, Paul A. Mueller, attorney for respondent, came into court and asked for a rule to show cause why an alleged amendment to the libel in this cause, presented to the court on Jan. 27, 1930, should not be stricken off for the following reason:

“1. That the so-called amendment is neither signed nor sworn to by the libellant.”

Should this amendment be stricken from the record?

Originally and under the English common law as introduced into this country, the jurisdiction over divorces was exercised by the ecclesiastical and the chancery or equity courts.

There has been a long contention as to whether or not a libel in divorce could be amended, as it is sought to be in this case, by adding a complete new cause of action.

In Toone v. Toone, 10 Phila. 174, Judge Paxson, then on the Common Pleas bench, decides the question in favor of allowing such amendment, saying that the power of the court to permit amendments in a divorce case does not depend on the statutes of amendment; that they refer to common law actions, not to a proceeding in equity; and that divorce is in the nature of a proceeding in equity. In this position we find, on examination, that he is fully sustained by the history of the action and by the authorities. Chancellor Kent, in speaking of divorce proceedings, calls it “this newly created branch of equity jurisprudence.” The jurisdiction is conferred by statute; but in this and other states where not otherwise regulated by statute, the proceeding is regulated by equity practice and by the rules and practice prevailing in the ecclesiastical courts.

After examining a very great number of cases, we have determined that the libel can be amended at the proper time and in the proper manner by adding a new cause of action and provided the respondent has proper notice thereof.

Mr. Justice Paxson, in Appeal of Margaret A. Powers, 120 Pa. 320, at page 327, said, when the case was being heard in the Supreme Court:

“A motion was made at bar for leave to amend the libel by inserting an averment of cruel and barbarous treatment by the wife. We declined to allow the amendment for the reason that it made a change in the cause of action, requiring for its support a different line of proof. The libellant could have amended below, when, if the respondent was of opinion that additional evidence was required to meet the new charge, she would have had an opportunity to introduce it. It would be unjust to allow the amendment at this stage of the proceedings.”

In A. v. B., 2 Dist R. 393, where the libellant obtained a rule on the respondent to show cause why the libel should not be amended by adding thereto a charge of adultery, Biddle, J., orally, Feb. 18, 1893, decided “The Supreme Court in Powers’ Appeal, 120 Pa. 320, 327, appear to have decided that an amendment of this character is admissible,” and the rule was made absolute.

In Ryan v. Ryan, 19 Dist. R. 856, we find the same doctrine, namely, that “A libel in divorce for cruel and barbarous treatment may be amended by adding as a cause adultery committed before and after the filing of the libel.” There does, therefore, seem to be abundant authorities authorizing such amendments.

The first comprehensive divorce law was passed in the State of Pennsylvania in 1815, P. L. 150. The first paragraph thereof set out the causes of divorce. The second paragraph thereof provided:

“That if any person hath been or shall be injured as aforesaid, the husband, in his own proper person, or the wife, by her next friend, may exhibit his or her petition or libel, to the judges of the court of common pleas of the proper county where the injured party resides, in term time, or to one of the judges of the same court in the vacation, at least thirty days before the next term, setting forth therein particularly and specially, the causes of his or her complaint, and shall, together with such petition or libel, also exhibit an affidavit, on oath or affirmation, taken before one of the same judges or a justice of the peace of the proper county, that the facts contained in said petition or libel are true, to the best of his or her knowledge and belief, and that the said complaint is not made out of levity or by collusion between the said husband and wife, and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the said petition or libel, and thereupon a subpoena shall issue from the said court, signed by one of the judges thereof, directed to the party so complained against, commanding him or her . . .”

It is easy to understand what a great injustice might be done a respondent, or co-respondent, when adultery is added as a new cause for divorce if the facts are not verified by an affidavit, or there is no service on the respondent, and while the act of assembly above referred to, and the supplements and amendments thereto, committed the administration of the divorce laws to the courts of common pleas, they have been administered to a greater or less degree according to equity practice. Divorce cases are heard by masters and the opinions or decisions reached are decrees. It seems to us that amendments introducing a new cause of action are of just as much solemnity and importance as the original libel, and, therefore, should be petitioned for and duly verified by an affidavit, following somewhat the practice in equity.

The codification of the divorce laws, as approved May 2, 1929, P. L. 1237, makes no change as to the court by which, or the manner in which, the divorce laws are to be administered. The codification is simply a reenactment of the laws in existence, with the repeal of certain specified acts.

While we discover that amendments in divorce cases are in many courts regulated by the rules thereof, this court has no rule in reference thereto, but we feel that the practice in the future in making amendments should be by petition, duly verified by affidavit.

Our practice heretofore has been to allow amendments to be made on motions of counsel, without 'any affidavit of the libellant as to the truth of the facts therein alleged and without filing a petition.

In King v. King, 75 Pa. Superior Ct. 19, Linn, J., in his opinion, at page 20, says: “The trial judge below, after hearing the witnesses in open court, sustained a complaint in divorce for two causes: indignities to the person of libellant and adultery with a named person. This appeal is from that decree. The former only of the two causes was stated in the complaint filed; the latter was added by amendment.” The question then arose whether or not an affidavit as prescribed by the Act of March 13, 1815, 6 Sm. Laws, 286, to be made to an original petition must be made to the petition for amendment. There, as we understand his decision, an affidavit was made to the petition for the amendment, but not in the statutory form, and what the court held was that an amendment did not require the statutory affidavit, not that an affidavit was not necessary.

An examination of the form books, while not being recognized as stating the law, gives some indication of what the general practice is, and all the form books we have examined would indicate that a libel in divorce should be amended by petition, having an affidavit of the truth of the facts attached.

We believe this is the proper practice, although it has not been the practice followed by this court in the past. The court intends to adopt a rule of court regulating amendments in divorce cases.

In the particular case now being considered, we will, in view of our past practice, sustain the amendment as made and discharge the rule to strike off the amendment. Rule discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Schaeffer, P. J.,

text:
    Commonwealth v. Bingaman.

      Emerson B. Rasbridge, for Commonwealth; Stevens & Lee, for defendant.
    April 4, 1930.
   Schaeffer, P. J.,

The defendant, Charles Bingaman, is the grandfather of May Bingaman, a child of school age, and has the care and custody of said grandchild. Mr. Bingaman resides in Lower Alsace Township, and his granddaughter is required to attend the Woodrow Wilson School at Stony Creek Mills, which is three and three-tenths miles by the nearest highway from the residence of the defendant. The school district has provided a shelter, which is admittedly a proper one, at a point upon a public road which is seven-tenths of a mile distant from the home of the defendant. From this shelter the school district transports the children by a school bus to the school house, a distance of two and six-tenths miles. The grandfather has been prosecuted for failure to require his grandchild to go to school, and, after hearing, was found guilty of violating section 1 of the Act of April 4, 1925, P. L. 131, which is an amendment of section 1414 of the School Code approved May 18, 1911, P. L. 309. From this summary conviction the defendant has appealed. The issue involves the construction of the sections of the School Code and its amendments dealing with the transportation of pupils to the school house.

Article xrv of the School Code of 1911 defines pupils and attendance. Section 1404, under this article, provides that the board of school directors may provide for the free transportation of any pupil to or from the public schools. Section 1406 provides that schools may be closed and consolidated, in which event it becomes the duty of the school district to furnish transportation to pupils who belong to any closed school and reside one and one-half miles or more from the school to which they are assigned. Section 1468 provides for the computation of the distance and the method of transportation. This latter section was amended by section 4 of the Act of May 20, 1921, P. L. 1638, which has been, in turn, amended by section 4 of the Act of May 13, 1925, P. L. 628, which, after defining the points between which the distances should be measured, contains the following proviso: “Provided, That the free transportation of pupils, as required or authorized by this act, or any other act, may be furnished by using either school conveyances, private conveyances, or electric railways, or other common carriers, when the total distance which any pupil must travel by the public highway to or from school, in addition to such transportation, does not exceed one and one-half miles, and when stations or other proper shelters are provided for the use of such pupils where needed.”

Section 1418 of the School Code has been amended by the Act of March 29, 1927, P. L. 75, and is as follows: “In case there is no public school in session within two miles by the nearest public highway, of the residence of any child, such child shall be exempt from the provisions of this act relating to compulsory attendance, unless proper free transportation be furnished to such child to and from school.”

Has “proper transportation” been furnished for the defendant’s granddaughter? These various sections and their amendments must be read together. The defendant contends that the proviso in the Act of 1925, supra, is ambiguous; but, in our estimation, it covers the case before us. We need not determine whether or not the school board must furnish transportation, although there is authority to the effect that the word “may” in the proviso of section 1468 must be read as “shall.” In the event that the school board does not do so, the child cannot be required to attend school. But the school board, in providing a proper shelter and in providing transportation for two and six-tenths miles, requires the child to walk only seven-tenths of a mile, which is, of course, less than one and one-half miles.

In Jones v. Boulter, 61 Pa. Superior Ct. 73, at page 82, it is said: “Section 1468 clearly indicates that free transportation of all pupils residing more than one and one-half miles from the school is provided for. Under certain conditions, the pupils may be required to walk one and one-half miles to meet a public conveyance when stations are maintained.”

In Com. ex rel. v. Benton Township School District, 277 Pa. 13, the child resided half a mile from the building formerly occupied as the Franklin School, which is, in turn, one and nine-tenths miles from the West Benton School, to which the child was assigned. The school district began and ended its transportation at the old school building. It was held that this was proper transportation within the meaning of the act.

In providing transportation for all but seven-tenths of a mile of the distance which defendant’s grandchild must travel, we believe that the school district has performed its full duty as defined by existing law. There are, of course, many children in the country and city who must walk longer distances than the defendant’s granddaughter is required to walk. As was said in Jones v. Boulter: “The parents must cooperate with the school directors in providing the best means of transportation possible under the existing circumstances and at the least expense. When school directors have endeavored to accomplish this, in good faith, having in mind the funds in their custody available for this purpose, they have performed their full duty in this regard.”

Our conclusion is that the transportation furnished hy the district from the shelter to the Woodrow Wilson school building and back to the shelter is proper free transportation within the meaning of the act, and that, therefore, the child is not exempt from the provision relating to compulsory attendance.

And now, to wit, April 4, 1930, the defendant is adjudged guilty and is sentenced to pay a fine of $2 for the use of the School District of Lower Alsace Township and the costs of prosecution and of this appeal.

From Charles K. Derr, Reading, Pa.


author: Potter, P. J.,

text:
    Commonwealth v. Baker.

      Xopher Beek, District Attorney, and Richard W. Williamson, for Commonwealth.

      Harry W. Petriken, for defendant.
    April 24, 1930.
   Potter, P. J.,

17th judicial district, specially presiding,

On Feb. 4, 1930, this defendant was tried before a jury and was convicted of forgery. On Feb. 10, 1930, counsel for the defendant filed his motion for a new trial as well as in arrest of judgment, and set up the following reason: “The proof on the part of the Commonwealth did not legally support the charge in the indictment to be forgery.” The Act of 1860 provides for “fraudulently making, signing, altering, uttering or publishing any written instrument,” &c. The indictment charges the defendant with fraudulently “signing and uttering” the name of another.

It seems that one Vincent Trotter, of Mount Union, had business dealings with one F. B. Berandino, of Philadelphia, by reason of which he desired to remit to him the sum of $55. He produced a cashier’s check for this amount, sealed it in an envelope, and gave it to his nephew to mail. The nephew lost it on the way to the mail box. The next seen of the check was when this defendant walked into Black’s jewelry store in Huntingdon and asked to have it cashed. After some inquiries and conversation it was cashed. It was endorsed on the back with the name of F. D. Berandino in lead pencil, he being the payee named in the check. Two of the employees in this jewelry store identify this defendant as being the person who presented the check to them for payment. After he was arrested he went back to the jewelry store to see if the matter could be adjusted. He admits he was there for this purpose, but denies he presented the check for payment or that he received the money for it. This, then, was a question of fact to be passed upon by a jury, who, by their verdict, say he is the person.

It is true no one saw this defendant endorse the name of Berandino on the back of the check, and the handwriting of the endorsement differs very materially from his name as signed to the recognizance to appear in court. But signing the name of another to his injury is not all of forgery by any means. The uttering is just as important a part of the offense as is the signing, which is offering a forged instrument, knowing it to be such, whether such offer is accepted or not, with a representation, by words or actions, that it is genuine, and with an intent to defraud. And one may be guilty of uttering an instrument forged by another. It is not essential that the accused should have been in any way implicated in the forgery. While it is essential that the party uttering the paper should make false representations as to its genuineness, yet for this purpose any assertion or declaration, by word or act, is sufficient: 26 Corpus Juris, 924, 925; Com. v. Searle, 2 Binn. 332. And ésiis defendant, when he presented this check for payment in the jewelry store, represented himself to be Berandino, the person whose name was endorsed on the back of it. He told them he was Berandino. Perhaps he did not sign the name, but he apparently uttered and published the check. He well knew he was not Berandino and that he was not entitled to the proceeds of the check. This was clearly an act with intent to defraud the payee out of the money represented by the check.

Forgery and knowingly uttering a forged instrument are two distinct offenses, although they may be joined in one count if both are practically simultaneous and arose from the same transaction: Com. v. Leib, 76 Pa. Superior Ct. 413. Either one is classed as forgery. And though this defendant may not be convicted of signing, we do regard him as convicted of uttering, and we had this in mind when we refused binding instructions for his acquittal. Where a defendant is charged with the unlawful, false and fraudulent uttering and publishing of a written instrument, with intent, &c., the failure to charge a scienter deprives him of no legal right. He cannot be convicted without proving his guilty knowledge: Com. v. Hall, 24 Pa. Superior Ct. 558. And in this case we think the jury very properly found he had guilty knowledge. He knew he was not Berandino, and he knew he was not entitled to the money from the check. When a check proved to be false is found in the prisoner’s possession, he will not be discharged on a habeas corpus: Com. v. Sheriff, 10 Pa. C. C. Reps. 341.

To utter and publish a document is to offer directly or indirectly, by words or actions, such document as good. To constitute the offense it is necessary that there should be a knowledge of the falsity of the document; and this is in itself implied as an intent to defraud: 1 Wharton’s Criminal Law, 10th ed., 704.

We think this defendant is guilty of the offense as charged, and we think the verdict of the jury is correct.

Several matters were alluded to by counsel for the defendant in the argument that do not appear in the reasons filed. It is the common practice both in the lower courts as well as those that are appellate to consider what appears on the record, and we have done so in this case.

And now, to wit, April 24, 1930, the reasons assigned for a new trial as well as those in arrest of judgment are discharged, and the defendant is ordered to appear before this court on April 24, 1930, for sentence. An exception is noted for the defendant and a bill is sealed.


author: Schnader, Special Dep. Att’y-Gen.,

text:
    Settlement of Tax Reports.
    June 6, 1930.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised whether your department may entertain a second petition for a resettlement upon petition of the taxpayer.

Your question involves an interpretation of sections 1101-1105, inclusive, of The Fiscal Code (Act of April 9,1929, P. L. 343).

Earlier sections in The Fiscal Code establish the procedure for making settlements upon tax reports filed by persons, associations and corporations. Section 1101 requires your department promptly, after the date of any settlement, to send a copy thereof to the taxpayer by mail or otherwise, and section 1102 permits the taxpayer, within ninety days after the date of settlement, to file with your department a petition for resettlement. Subject to the approval of the Department of the Auditor General, your department must dispose of every such petition within six months from the date of settlement, and it is your duty to notify the taxpayer promptly of the action taken upon his petition for resettlement.

Section 1103 permits the taxpayer, within thirty days after notice of the action taken on his petition for resettlement, to file with the Board of Finance and Revenue a petition for review.

You desire to know specifically whether, within ninety days after receiving' notice of resettlement, a taxpayer may file with your department and your department may entertain a second petition for resettlement.

To this question the answer must clearly be in the negative.

If your department, with the approval of the Department of the Auditor General, has resettled a tax account, you have no further jurisdiction over it unless and until the Board of Finance and Revenue has given your department authority to make a further resettlement as provided in section 1105 of The Fiscal Code, which permits your department, within one year after the date of settlement or of resettlement, to petition the Board of Finance and Revenue for authority to make a resettlement upon the ground that on the basis of information in the possession of your department the settlement or resettlement was erroneously or illegally made.

To state the matter differently, if your department is convinced that it has made an erroneous resettlement, it may ask the Board of Finance and Revenue to grant permission to correct the error by making a further resettlement. This, however, is the only case in which your department can make a second resettlement.

The taxpayer’s remedy, if he is unable to convince your department that it has erred in the resettlement, consists exclusively in the right, within thirty days after receiving notice of the resettlement, to file a petition for review as provided in section 1103. If the Board of Finance and Revenue concurs in his view that the resettlement was erroneous, it may resettle the tax, but it does not have jurisdiction to return the file to your department and either authorize or direct you to make a further resettlement.

Prom C. P. Addams, Harrisburg, Pa.


author: Gordon, Jr., J.,

text:
    In re Grand Central Surety Company.

      James A. Walker and Maurice Stern, for petitioner.

      A. H. Wintersteen, a/micus curise.

    Dec. 12, 1930.
   Gordon, Jr., J.,

This is a petition by the Grand Central Surety Company to be approved as surety under rules 37 to 43 of the rules of court. It is devoid of both technical and substantial merit. The petitioner is a corporation of the State of New York, and has received from the insurance commissioner of this state, under the Act of May 17, 1921 [P. L. 682], a certificate authorizing and empowering it “to transact the business of fidelity and surety in this Commonwealth.” Having received this authorization to do business in Pennsylvania, the petitioner filed with the prothonotary its application to be approved as surety, and our auditors, after examination of the petitioner, disapproved the application and recommended that the petitioner be not accepted as surety. Notwithstanding this action of our auditors, the petitioner then filed the petition now before us, in which it prays that its application to be permitted to act as surety be approved by the court, basing its claim for our approval upon the provisions of the Act of June 29, 1923, P. L. 943. That act, which is an amendment of the Act of June 25, 1885, P. L. 181, is mandatory in its terms, and provides that whenever any bond with surety is required or permitted by law to be made and executed, all heads of departments, judges, prothonotaries, &e., “or other officer who is now or shall be hereafter required to approve the sufficiency of any such bond or undertaking, shall approve the same whenever the conditions of such bond or undertaking are guaranteed by a company duly authorized by the Insurance Department of this state to do business in this state, and authorized to guarantee the fidelity of persons holding positions of public or private trust, and whenever such company has filed, in the office of the prothonotary of the county in which the said bond is to be approved, a certificate issued by the insurance commissioner of the state authorizing it to become surety on all bonds, obligations and undertakings, and until such certificate has been revoked by the insurance commissioner.

“Such certificate shall be conclusive proof of the solvency and credit of such company for all purposes, and of its qualifications to be so accepted as sole surety, and its sufficiency as such.”

The position taken by the petitioner is that, as it has been authorized by the insurance commissioner to do business in this state, the Act of 1923 requires us to approve and accept it as surety under all circumstances and regardless of our own judgment as to its actual responsibility or sufficiency to act as such. It must be admitted that if this unusual piece of legislation is constitutional and applies to all bonds other than those in which the Commonwealth is obligee, the contention of the petitioner has prima facie validity. When we consider the effect of the act, however, its dangerous character becomes apparent. By it the legislature has swept away the necessary and essential protection which the exercise of judicial judgment and discretion in the examination and approval of sureties gives to those for whose benefit such obligations are required and converts an important judicial duty into the purely ministerial act of accepting bonds regardless of the sufficiency and reliability of the surety therein. Indeed, the act goes further and even deprives obligees in bonds of the right to protect themselves from irresponsible and worthless companies by examination and protest of the surety offered, for the certificate which the insurance commissioner issues under it is made conclusive evidence of the sufficiency of the surety. It is impossible to believe that this consequence of the operation of the Act of 1923 was recognized by the legislature when the act was adopted, and we are warranted, therefore, in carefully considering its meaning, its scope and its manner of enforcement before giving effect to it in the form demanded by the petitioner. It is so revolutionary in character that all phases of the proceeding may be justly scrutinized.

Considering, first, therefore, the purely technical phases of the proceeding, it may be observed that there is no warrant in law for the granting of the prayer of this petition. Approval of a surety by a court or judge is an individual and separate act in each case, and the rules of court relating to the examination of corporations desiring to become surety and their approval by our auditors constitute a system adopted by us as an aid in the exercise of our judicial function of approving sureties whenever they present themselves in a particular matter. Of course, the approval of proposed sureties by our auditors creates no legal obligation upon us to accept their approval as final. They are merely advisory agents of the court. They have no cither function or effect, nor is there any other legal effect or significance to their expressed recommendation. The system created by our rules is merely one step in our method of exercising the judicial function of approving sureties, which is confided to us by many acts of assembly. We may approve and accept a surety without invoking the aid of our auditors; or, on the other hand, we may decline to approve and accept a surety which our auditors have recommended. Indeed, we may at any time abolish the examination of proposed sureties by our auditors and adopt in its stead other means to secure the information necessary for the exercise of the function of approval as may seem best to us. Whatever list is kept by the prothonotary of approved sureties is one of convenience only, and there is, therefore, no legal right in any one to be placed upon any eligible list that may be compiled by the courts or the judges who compose them. All that this company can ask, if indeed it may ask anything under the act in question, is that in a particular case it be approved by reason of the certificate of the insurance commissioner, notwithstanding, perhaps, the judicial disapproval of its sufficiency by the officer to whom it presents itself for approval. It cannot demand either that our auditors, in whose judgment we have confidence, shall approve that which they do not approve or that we shall give it, by a general and all-embracing decree, a blanket approval which even this law neither authorizes nor requires us to give.

Again, this petitioner would have no standing to require us to accept it as a surety even if the act were applicable and binding upon us. The only person legally injured by the refusal of a court to approve and accept a particular surety is the obligor tendering it. Until accepted, the surety has no interest in the matter which is enforceable at law, although a refusal to accept it under circumstances in which the law requires it to be accepted might work a redressible legal injury to the obligor in the bond.

Passing now to a consideration of another defect in the petition, it will be noted that the certificate which the act requires to be filed in the office of the prothonotary, and requires us to accept as conclusive proof of the sufficiency of the surety, has neither been filed in the office of the prothonotary nor does it appear that such a certificate has been issued to this petitioner by the insurance commissioner. The mandate of the act comes into operation only when two conditions have been met by the surety company: First, that it has been authorized to do business in the Commonwealth, and, second, that it shall have “filed in the office of the prothonotary ... a certificate issued by the insurance commissioner of the state, authorizing it to become surety on all bonds, obligations and undertakings.” The certificate contemplated by this act is obviously a special authorization, the scope of which will be discussed later, and which must be secured and filed with the prothonotary before the act becomes operative. The only certificate which the petitioner here shows that it has received from the insurance commissioner is that issued under the Act of 1921, in which it is only generally authorized to transact “the business of fidelity and surety” in this Commonwealth, and even this has not been filed in the office of the prothonotary, but was merely exhibited to our auditors at the time of their examination of the company. The petitioner has, therefore, failed to bring itself even within the necessary provisions of the Act of 1923 by securing from the insurance commissioner the certificate required by the act.

Indeed, we seriously doubt whether the insurance commissioner would, upon his official responsibility, issue to this or to any surety company the certificate which the act requires as a prerequisite to approval of sureties under it. The act, it will be noted, confers no power upon the commissioner to limit or circumscribe the extent to which the right of surety may be exercised. The certificate which he must issue to bring into operation the provisions of the act is all-embracing and unlimited in its scope, and no right is conferred upon the commissioner to issue a limited or qualified certificate. He cannot limit the amount to which the surety shall be accepted in a single transaction; he cannot restrict it to becoming surety upon bonds of a particular class; he cannot limit the number of bonds or the total amount of obligations that the surety may undertake. To meet the requirements of the certificate contemplated by this act, the insurance commissioner must empower a company to go on “all” bonds, without restriction or limitation. The effect of the issuance of such a universal certificate would sweep away all those salutary checks and safeguards which the idea of judicial approval involves and would jeopardize the unlimited number of bonds on which such a surety company might appear. We do not believe that any insurance commissioner who fully realized the import and consequences of his act would venture to give such a blanket authority to the most stable of bonding companies. The risk involved would be too great and would be challenged by the importance of the responsibility put upon him, and, until such a certificate is issued, this act does not come into operation.

The very case before us is an example of the evils to which this legislation would inevitably give rise. Our auditors report that their examination of this petitioner discloses that it has been barely a year in business; that its capital and surplus amount to $350,113.26; that, under the laws' of its home state, approximately $200,000 of its assets, in the form of securities, has been deposited at Albany, New York, leaving an available working capital of approximately $150,000; that the insurance commissioner of New York has as yet made no examination as to the conduct of the business of the petitioner or investigation as to the condition of its affairs; that on May 31, 1930, approximately five months after it began business, it had already rendered itself liable as surety to the extent of over a million and a half dollars; that the last examination of it by a committee of its own directors occurred on Dec. 23, 1929, before it had even started to do business; that the largest portion of its business consists of becoming surety on bail bonds in criminal cases, a type of business generally considered undesirable by the older and stronger established companies; and that inquiries among other substantial companies of large experience indicate that such companies would not place their reinsurance with one of the financial structure of this petitioner. In the face of these disclosures, the conclusion of our auditors declining to recommend the approval of this petitioner was fully justified, even though, under our practice, no company, however strong, is taken as surety in any single transaction in an amount in excess of 10 per cent, of the paid-in capital and surplus, which in the case of this petitioner would be $35,000. Would the insurance commissioner have issued to this petitioner the certificate required by this act, authorizing it to go without limit upon all bonds and obligations, had the petitioner requested such a certificate from him? We do not think so.

Any one of all the defects in the petitioner’s case, as pointed out above, would require us to refuse the prayer of the petition, without considering the further serious constitutional questions involved in the case. Judge Pen-rose of our Orphans’ Court, in a learned opinion handed down on Nov. 30, 1895, in the matter of the American Banking and Trust Co., 17 Pa. C. C. Reps. 274, discussed the constitutionality of the Act of June 26, 1895, P. L. 343, which, like the act before us, was an amendment to the Act of 1885, and which was aimed at the same purpose as the Act of 1923. In that opinion Judge Penrose set forth powerful and persuasive reasons for holding the Act of 1895 unconstitutional. We do not deem it our duty, however, to pass at this time upon the constitutionality of the Act of 1923. It is not before us because of the defects in the petition already pointed out. It will be sufficient to observe, however, that while the legislature may perhaps have the power to relieve the courts of the duty of approving bonds in matters within their jurisdiction, yet it is fundamental in our law that, when the exercise of a judicial function is confided to a court, the legislature is without power to control the exercise of that function: Article V, section 1, of the Constitution of Pennsylvania; Richards v. Rote, 68 Pa. 248; Com. v. Halloway, 42 Pa. 446; Hendrickson’s Estate, 19 Legal Intell. 372; De Chastellux v. Fairchild, 15 Pa. 18; Pittsburgh & Steubenville R. R. Co. v. Gazzam, 32 Pa. 340; Com. v. J-, 21 Pa. C. C. Reps. 625. It is a contradiction in terms to place upon one the duty of deciding and then to direct what decision shall be given. The duty of approving bonds is conferred upon the courts by many acts of the legislature. Replevin bonds, appeal bonds, property claim bonds, bonds of guardians, trustees, and many others that might be named, are provided for by numerous legislative enactments, all of which confide to the courts the responsibility of approval of such sureties. It is difficult to believe that it was the intention of the legislature in the passage of the Act of 1923 to repeal these numberless acts, and to create an entirely new system for the approval of bonds of all kinds by transferring that duty from the courts to the insurance commissioner. Yet this is precisely the effect of the Act of 1923, if we give it the interpretation contended for by this petitioner. Such a purpose being undeclared, either in the title or in the body of the act, the only other light in which it can be viewed is as an effort by the legislature to control the exercise of a discretionary and judicial power which it leaves in the hands of the judges. That, it is well settled, is beyond the power of the legislature. A different situation would have been presented had the act made the certificate prima facie evidence of the sufficiency of the surety, for in that case the legislature would have been dealing with a matter of evidence merely, and would have left to the court the ultimate decision of the facts according as all the evidence before it might establish. As we have indicated, however, the question of the constitutionality of the act is not now before us, and is, therefore, not decided.

For the foregoing reasons, the petition of the Grand Central Surety Company is dismissed.


author: Martin, P. J.,

text:
    Bell Telephone Company of Pennsylvania v. Hey et al.

      J. A. Klough, for plaintiff; Frank Fogel, for defendants.
    Sept. 23, 1930.
   Martin, P. J.,

The plaintiff entered into a written contract with the defendants, who were picture frame manufacturers, to publish an advertisement in the telephone directory issued by plaintiff.

Under the terms of the written contract there was a provision that the main heading under which the advertisement should be printed was “Picture Frame Companies.”

The trial of the case resulted in a verdict in favor of plaintiff. The defendants moved for judgment n. o. v. and entered a rule for a new trial.

There was no compliance with the term of the contract. The “main heading” under which the advertisement appeared was “Pianos.”

The facts are undisputed. There is no evidence to indicate the effect of the failure to perform the contract in this particular; but the placing of the advertisement under “Pianos” was not substantial performance.

The motion for judgment n. o. v. should be allowed.

Order.

And now, Sept. 23, 1930, the motion for judgment n. o. v. is granted, and judgment is directed to be entered in favor of the defendants and against the plaintiff.


author: Stearne, J.,

text:
    Munch’s Estate.

      Donoghue, Gibbons & Donoghue, for exceptions.

      W. Le Boy McKinley and Horace M. Barba, contra.
    Nov. 7, 1930.
   Stearne, J.,

The Auditing Judge has so correctly and accurately construed the will that we cannot profitably add anything to his adjudication.

For the reasons and under the authorities therein recited, the exceptions are dismissed and the adjudication is confirmed absolutely.


author: Valentine, J.,

text:
    Commonwealth v. Troutman.

      Cyrus W. Woods, Attorney-General, and Roscoe R. Koch, Deputy Attorney-General, for Commonwealth.

      J. H. Oliver, P. F. O’Neill and John Bigelow, for defendant.
    Nov. 10, 1930.
   Valentine, J.,

The defendant has appealed from his summary conviction by an alderman and justice of the peace for having, as superintendent of the Loomis Colliery, owned and operated by the Glen Alden Coal Company, and located in Hanover Township, Luzerne County, operated the boilers at said colliery without having obtained a certificate of inspection from the Department of Labor and Industry and without such certificate being conspicuously posted as required by the Act of May 2,1929', P. L. 1513.

The Commonwealth’s contention is that the provisions of the Act of 1929 are exclusive as to inspection of boilers, and that all boilers, including boilers used for generating steam in and about anthracite coal mines and collieries, must be inspected as required by the provisions of said act.

The defendant’s contention is that the Act of 1929' did not repeal, by implication, the provisions of the Act of June 2, 1891, P. L. 176, as to the inspection of boilers, etc., located in and about anthracite coal mines.

If the provisions of the said Act of 1891 as to the inspection of boilers used in and about the anthracite coal mines have not been impliedly repealed by the later Act of May 2, 1929’, judgment should be entered for the defendant, otherwise for the Commonwealth. The earlier act (that of June 2, 1891) is entitled “An act to provide for the health and safety of persons employed in and about the anthracite coal mines of Pennsylvania, and for the protection and preservation of property connected therewith.”

Section 1 of article 5 of this act provides: “All boilers used for generating steam in and about mines and collieries shall be kept in good order, and the owner, operator or superintendent shall have them examined and inspected by a qualified person as often as once in six months, and oftener if needed. The result of such examination, under oath, shall be certified in writing to the inspector for the district within thirty (30) days thereafter.”

It is conceded that the defendant had complied in all respects with the provisions of this section.

The Act of May 2, 1929, is entitled: “An act regulating the construction, equipment, maintenance, operation and inspection of boilers,” etc., and expressly repeals section 19 of the Act of May 2, 1905, P. L. 352, “and all other acts or parts of acts” inconsistent with its provisions.

Section 19 of the Act of 1905 (expressly repealed by the later act) had no application to boilers in mines, as section 1 of that act (1905) provided that the term “establishment” where used for the purpose of the act “shall mean any place within this Commonwealth other than where domestic, coal mining or farm labor is employed.”

The later Act of May 2, 1929, provides that “establishment” shall mean any room, building or place within this Commonwealth where persons are employed or permitted to work for compensation of any kind, to whomever payable, and any place of business to which the public has access, except farms or private dwellings.”

It will be observed that the exemption in the Act of 1929 does not expressly include coal mines as did the exemption contained in the Act of 1905.

The Act of 1929 further provides, section 2, General Requirements, “that nothing in this act shall be construed to apply to boilers carrying a pressure of not more than fifteen pounds per square inch, which are equipped with safety devices approved by the department, nor to apply to boilers in municipalities wherein provision is now made by ordinance for their inspection, nor to boilers subject to Federal inspection and control on steam locomotives, railroad cars or steam boats, nor to equipment used in connection with the operation of trains, nor to boilers of other common carriers, nor to boilers used in the operation of oil wells.”

It has been argued with considerable force and logic that the exemptions contained in the Act of 1929 indicate a legislative intent that boilers used in and about the anthracite coal mines should be inspected as provided by it.

“The question of the repeal of a statute by a later one is essentially a question of legislative intent, and while a general aflirmative act without express words of repeal will not repeal a previous special or local act on the same subject inconsistent with it, this rule is not one of positive law, but of construction only, adopted to settle legislative intent in the absence of words declaring such intent:” Fraim v. Lancaster County, 171 Pa. 436.

The anthracite mine industry has been separately treated by the legislature. The Act of 1891, supra, was designed to cover, and apparently did cover, every phase of the anthracite industry. Article 5 of this act (P. L. 187) deals with boilers and connections, machinery, etc., in and about such mines.

The right of the legislature to define and regulate the business of mining and preparing anthracite coal has been recognized by our Supreme Court in Durkin v. Kingston Coal Co., 171 Pa. 193. The Act of 1891 completely and specifically regulates the safety measures which must be employed in and about all anthracite mines and stipulates by whom steam generating boilers used therein must be inspected and to whom a report of such inspection must be made. While the fact that the legislature, in passing the Act of 1929, gave a broader definition to the word “establishment” than was contained in the Act of 1905, lends some support to the Commonwealth’s contention, yet in the last analysis this case seems to involve the question of the implied repeal of an act which applies to a particular business or industry by a later act of general application to business and industry. Implied repeals are not favored. If two statutes can stand together, the latter does not abrogate the former.

The whole course of legislation is to be construed that every part and every word shall have its effect, if it consistently can, and the will of the legislature be completely carried into execution: Erie v. Bootz, 72 Pa. 196; Com. v. Vetterlein, 21 Pa. Superior Ct. 587; Ochall v. Dvorak, 25 Luzerne Legal Reg. 187; Jackson v. Pennsylvania R. R. Co., 228 Pa. 566.

“In order to give an act not. covering the entire ground of an earlier one, nor clearly intended as a substitute for it, the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair, strict or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law, and construing both together, in harmony with the whole course of legislation upon the subject:” Endlich on Interpretation of Statutes, § 210; Citizens Elec. Co. v. L. & W. V. P. Co., 255 Pa. 145, 152.

An earlier statute is repealed by a subsequent one only in those particulars wherein it is clearly inconsistent and irreconcilable with the later enactment; the leaning of all courts being against repealing the positive provisions of former statutes by construction, unless there be such a manifest and total repugnance between the two enactments that they cannot both stand. It is not enough that there is a discrepancy between different parts of a system of legislation on the same general subject; there must be a conflict between different acts on the same specific subject: Com. v. De Camp, 177 Pa. 112.

In 1 Lewis’s Sutherland Statutory Construction (2nd ed.), 466, 467, it is said: “When some office or function can by fair construction be assigned to both acts, and they confer different powers to be exercised for different purposes, both must stand, though they were designed to operate upon the same general subject. Considerations of convenience, justice and reasonableness, when they can be invoked against the implication of repeal, are always very potent.”

The Act of 1929 does not revise the whole subject-matter of the earlier statute as did the acts passed upon in Hammond v. Aluminum Co. of America, 261 Pa. 370; Murdoch v. Biery, 269 Pa. 577, and kindred cases to which counsel for the Commonwealth has called our attention.

We are unable to conclude there is a manifest and total repugnance between the Act of 1891 and the Act of 1929. On the contrary, we think both acts may serve their own purposes and may stand together operating on the same general purpose. There is nothing repugnant in the existence of two methods for inspecting boilers, one method for inspecting boilers located at the anthracite mines and another method for inspecting boilers at all other establishments. An examination of the Act of 1929 in the light of the foregoing principles indicates that by no necessary implication does it repeal or take the place of any of the provisions of the Mine Law of 1891.

Therefore, now, Nov. 10,1930, the appeal is sustained, the conviction by the magistrate reversed and judgment now entered for the defendant.

From Frank P. Slattery, Wilkes-Barre, Pa.