text:
    Boyle v. Westmoreland County et al.

      David L. Waldron, for plaintiff; Marker & Rial, for Westmoreland County.

      S. W. Bierer, for County Treasurer.

      H. H. Fisher and Charles H. Harman, for Youngwood Borough.
    April 13, 1928.
   Copeland, P. J.,

The bill in the above-stated case was filed Dec. 10, 1926; injunction affidavits were filed on the same day; service of bills duly was made and appearances were entered for the defendants. A preliminary hearing on the allegations of the bill was held on Dec. 15, 1926. At the conclusion of the hearing, the defendants moved the court to dismiss the bill of complaint. This motion was refused. The testimony taken was transcribed and filed Dec. 22, 1926. At the final hearing on June 22, 1927, the plaintiff offered additional testimony. An answer of the defendants was filed Jan. 10, 1927.

The bill sets forth that the plaintiff is the owner of a certain lot of ground in the Borough of Youngwood, numbered 527, fronting on the westerly side of Seventh Street and running back along lot No. 526 on the south; along an alley at the rear and along Depot Street on the north. On it is erected a nine-room brick dwelling-house and garage.

The bill further sets forth that this property was purchased from L. L. Lowe and others on Dec. 9, 1925, by deeds recorded in Deed Book 824, pages 212 and 215, and that it is used as a convent for the housing of teachers of the parochial school. The bill further sets forth that this property was assessed in the year 1925 for the purposes of taxation at a value of $6500; that this assessment was protested and exemption therefor was claimed; that the exemption was not allowed; that a levy of taxes against the said property for the year 1926 duly was made as to county, borough and school taxes, the total amount being $318.50.

The bill further sets forth that the convent property produces no revenue and is a necessary part of the parochial school; that the said school and convent are maintained by voluntary contributions; that all children of school age may attend the said school without charge, and that the said convent property is a purely public charity. The bill prays for a preliminary injunction, to be made perpetual upon final hearing, enjoining the defendants from taking any action whatever toward enforcing the collection of taxes and from assessing 6r levying taxes against the property.

The answer filed by the defendants contends that the convent property is not used solely as a home for the teachers in the said school during the school term only, but that at times the building is used for private religious services. In addition, it is contended that a garage is erected on the lot of ground for the storage of motor-vehicles; that this garage is not used for the convenience of the teachers of the school exclusively, but that at times it is used to store the motor-vehicle of the pastor of the church and the motor-vehicles of a person or persons not connected with either church or school, and that the garage is not necessary for the holding of church services or in connection with the said dwelling-house as a residence for the teachers of the school.

The answer further sets forth that, even though the complainant protested the assessment of the said convent property, it failed to take an appeal from the decision of the board of county commissioners to the. Court of Common Pleas as required by law.

The defendants contend that the complainant had a full, complete and adequate remedy at law by appeal as aforesaid; that this remedy is exclusive, and that the court is now without jurisdiction to afford the relief sought in this proceeding.

The defendants further deny that the convent property does not produce a revenue, and, under the allegations of the bill, pray the court for judgment as to whether the complainant is entitled to exemption of the said convent property and whether the same is an institution of purely public charity within the purview of article IX, section 1, of the Constitution of the State. The defendants further deny that the said convent property is a necessary part of the parochial school, and aver that the said garage is not a necessary part of the said school nor is used by the teachers thereof in connection with their duties as school teachers.

The defendants further deny that the real estate described in the 10th paragraph of the bill is a necessary part of the required property of the Holy Cross Roman Catholic Congregation of Youngwood. The defendants further deny that the said property is occupied and utilized by the Sisters of Charity for the educational activities of said congregation. They further deny that the said convent property is exempt from public taxation unless used as an actual place of religious worship.

The defendants further deny that the said convent property was purchased and is maintained by voluntary contribution. They assert it was purchased for $16,000 and that a purchase-money mortgage, as part payment therefor, was given. They further aver that a note for $5000 was given by the officers of the church as part-payment for the said property, and that the balance of $5000 was donated by members of the church, and that, therefore, the convent is not under the law a purely public charity.

The defendants further deny that the said convent property is a necessary and required part of the said school, in that the church building and school building are erected upon a single tract of land, while the convent property is separated therefrom by an alley, does not immediately adjoin the lot upon which the church and school are erected and is not contiguous thereto.

The defendants further deny that the said convent property was purchased for and used solely as a home for the said teachers, but aver that it was purchased for the purpose of a convent where any member of the Sisters of Charity is privileged to live, whether she be a teacher in said school or not.

The defendants further aver that the said church is a purely religious institution, and that the furnishing of educational facilities is not a required or essential part of the organization of said church; that it is under no obligation to furnish educational facilities for its members, and that attendance at the school is not, under the law, compulsory.

Testimony.

A neat, fair and concise summary of the evidence offered in this case is as follows:

That the property in question is lot No. 527, on South Seventh Street, in the Borough of Youngwood, Westmoreland County, Pennsylvania; that prior to 1925, and until Dec. 9th of that year, it was owned by the Sarah Lowe Estate; that on Dec. 9, 1925, the heirs of Sarah Lowe sold the property in question to the Right Reverend Hugh C. Boyle, Roman Catholic Bishop of the Diocese of Pittsburgh, trustee for the Holy Cross Roman Catholic Congregation of Youngwood, Westmoreland County, Pennsylvania, the plaintiff in this case; that, in January and February, 1925, the triennial assessment of the real estate of Westmoreland County was made by the county commissioners, sitting as a board of revision of taxes and appeals, and at that time the property was assessed in the name of the Sarah Lowe Estate, at $6500; that, pursuant to this assessment, the taxes were paid for 1925 by the Sarah Lowe Estate; that after the sale of this property by the heirs of Sarah Lowe Estate to the plaintiff in this case on Dec. 9, 1925, the county commissioners or the tax clerk in the county commissioners’ office, changed on the tax books of the county the assessment of this property from the Sarah Lowe Estate to “Boyle, Rev. Hugh C., in trust for the Roman Catholic Congregation of the Holy Cross Church,” meaning the plaintiff in this case; that this change was made without notice to the plaintiff; that when it subsequently was learned, after the taxes were due and payable by the plaintiff in this case, that the property in question was subject to taxation for all purposes as heretofore assessed, Rev. Gilbert Straub, O. S. B., Pastor of the Holy Cross Congregation of Youngwood and principal of the parochial school, asked the county commissioners to take this property off of the taxable list and place it on the exemption list of the properties of the county, that the county commissioners refused to place the property on the exemption list, being, as the tax clerk stated, “a little dubious about it;” that the plaintiff, unable to obtain relief from the county commissioners, caused this bill to be filed to restrain the tax collector from collecting taxes for any purpose; that the taxes for the year 1926 have not been paid; that the lot in question is known and designated as lot No. 527 in the Youngwood Land Company plan of lots; that this property was acquired for the purpose of a convent to house the sisters or nuns who teach school in the parochial school of Youngwood; that a debt had been created to purchase the property; that the purchase price comprised a donation of $5000, paid in cash, a mortgage of $6000, taken by the heirs of Sarah Lowe, the grantors, and a note of $5000, given by the bishop of the diocese; that no profits are derived from this property; that the contributions go to the church fund, and from this fund the convent building is supported; that in the parochial school, in which the nuns housed in the building teach, practically all of the books used are donated to the pupils, comparatively few pupils voluntarily paying for them; that there were in the school at the time of taking the testimony 130 pupils; that this enrollment consisted of children of the parish and, in addition thereto, children of the Orthodox Greek Catholic Church, who are protestants in the eyes of the Roman faith, children who are unable to get along at the public schools and pagan children not baptized; that, while the parochial school is instituted for the purpose of educating the children of the parish, no one is denied admission on account of creed, color, race or condition; that the children of the Roman Catholic faith must take regular instruction in religion, and that with the children of other faiths this instruction is optional; that the parochial school conforms to the public schools of Youngwood, in that they open the same day and close the same day; that the convent property is used directly for the operation of a parochial school and is part of it; that the property in question, or what is known in this proceeding as the convent property, is used for no other purpose than a residence for the teaching nuns in the parochial school; that three teaching nuns and one other, who acts as housekeeper, are housed there during the school term; that the teachers receive $35 a month, and that the other nun, the housekeeper, gets no pay; that during their vacations the nuns or teachers in this parochial school housed in this convent return to their mother home, the Sisters of Charity Convent on Seton Hill, just outside the city limits of the City of Greensburg; that .the convent property is not used for any purpose during vacation periods; that the garage in question, on the same lot as the convent, is from four to six feet from the convent building and is used for the storage of the automobile used by Father Gilbert Straub, the principal of the parochial school, and for the storing of school furniture, books, supplies, etc., and for the storing of property belonging to the convent property, such as doors and window screens, etc.; that the convent property is a nine-room brick house, and the garage is a tile building large enough to store two cars; that the taxes for the year 1926 are as follows: General taxes, $26; road taxes, $26; borough taxes, $110.50; school taxes, $156, or a total of $318.50.

From the testimony in this case we find the following

Findings of fact.

1. That the Right Reverend Hugh C. Boyle, Roman Catholic Bishop of the Diocese of Pittsburgh, holds in trust for the Holy Cross Roman Catholic Congregation of Youngwood certain real estate situate in the Borough of Youngwood, Westmoreland County, Pennsylvania, upon which are erected a church, a parochial school building, a convent building and a garage.

2. That the convent building and the garage are separated from the parochial school building and church by an alley.

3. That the assessor of Youngwood Borough assessed the property now in controversy for the purposes of taxation for the year 1926 'at the valuation of $6500 and described the said property as fronting 86.75 feet, more or less, on the westerly side of Seventh Street in said borough, with the following dimensions: 86.75 feet by 100 feet by 75.7 feet by 49 feet, more or less, by 52 feet, more or less; that the lots so assessed have erected thereon a two-story brick dwelling-house with a garage in the rear.

4. That at the time said property was purchased by complainant it was intended to be used, and since has been used, by members of a sisterhood of nuns, who are teachers in the said parochial school.

5. That the said convent building is occupied during the school term of the parochial school by members of the said sisterhood of nuns; that the instruction of the pupils in said school is given by the nuns and by Rev. Father Gilbert Straub exclusively, with the exception that lay teachers are called in occasionally to supply a vacancy caused by the illness or absence of one or more of the nuns.

6. That a small salary is paid to the nuns and that no rent is charged for the convent building.

7; That the convent building and the garage, which is erected on the same lot, were purchased and are maintained by voluntary contributions.

8. That a part of the general instruction given in the parochial school consists of religious instruction in the catechism and Bible of the Roman Catholic Church, but that pupils, other than Roman Catholics, are not required to take such instruction.

9. That no pupils of any religious faith other than the Roman Catholic attend the said parochial school at the present time, but that the said school is open, free of charge, to all children of school age, regardless of race, color, creed or condition.

10. That no tuition or admission fee is charged students in this particular school, that the privileges of the school are not confined to any particular class of individuals and that the school, together with the convent property, is maintained by voluntary contributions as a purely public charity.

11. That the said garage, which is erected on the same lot with the convent property, is a necessary part of the parochial school for the reason that it is used as a garage by the principal of said parochial school and for the purpose of storing school furniture and supplies as the most convenient place for such storage.

12. That by reason of the fact that nominal salaries are paid to the teachers in this school, it is altogether proper for the church operating the parochial school to furnish a home for the teachers without charge; that under all the circumstances the building known as the convent property, together with the lot on which it is located, including the garage thereon erected, is a necessary part of the parochial school.

13. That being a necessary part of the parochial school, said convent property, including the garage erected thereon, is entirely exempt from taxation.

Conclusions of law.

1. The convent building and garage assessed in this case are used directly for the purposes and operation of the parochial school of the Holy Cross Roman Catholic Congregation of Youngwood and are a part of it.

2. The parochial school of Holy Cross Roman Catholic Congregation of Youngwood is a purely public charity within the meaning of the Constitution of Pennsylvania and the Act of July 17, 1919, P. L. 1021, as amended by the Act of April 9, 1921, P. L. 119.

3. The convent building and garage assessed in this case are exempt from taxation under the law as a necessary part thereof.

4. The assessment of the real estate in question was illegal and contrary to the provisions of an act of assembly passed by the legislature in pursuance of an express provision of the Pennsylvania Constitution.

5. Equity may enjoin against the collection of a tax so levied without authority and in violation of law.

6. This court has jurisdiction to restrain the defendants from assessing, levying and collecting taxes from the real estate in question.

7. The preliminary injunction granted in this case should be made permanent.

8. The Act of July 17, 1919, P. L. 1021, and its amendment of April 9, 1921, P. L. 119, passed by the legislature in pursuance to power conferred upon it by article IX, section 1, of the Constitution of Pennsylvania, is constitutional.

9. That the County of Westmoreland should pay the cost of this proceeding.

Discussion.

The only two questions argued to the court in this case by the defendants were: First, the exemption of this property from taxation as a charitable institution; and, second, the jurisdiction of a court of equity to grant the relief sought by the plaintiff in this case.

On behalf of the defendants, the question of the constitutionality of the Acts of 1919 and 1921 was also raised.

Taking up the first question as to whether this is such a charitable institution as should be exempted from taxation, we will now turn our attention to the authorities on that subject.

Section 1 of the Act of April 9, 1921, P. L. 119, reads, in part, as follows: “A11 hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence, or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by the public or private charity, ... be, and the same are hereby, exempted from all and every county, city, borough, township, bounty, road, school and poor tax.”

The Constitution of Pennsylvania authorized the general assembly to exempt from taxation institutions of purely public charity, and the general assembly by general laws may exempt from taxation public property used for public purposes, actual places of religious worship and institutions of purely public charity. Article IX, section 1, of the Constitution of Pennsylvania reads as follows: “AH taxes shall be uniform, upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws; but the general assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit and institutions of purely public charity.”

Property used for a purely public charity, whether physically separated by an alley or otherwise, and necessary for the purposes and operation of the charity, is equally exempt from taxation with property that is directly connected with a charitable institution.

In the case of Pennsylvania Hospital v. Delaware County et al., 169 Pa. 305, it was said, quoting from the third syllabus: “Where a charitable institution acquires property not directly connected with the original plant and uses such property directly for the purposes and in the operation of the charity, it is a part of the plant and is exempt from taxation, although it may be used in a manner to yield some return and thereby reduce the expenses.”

This view expressed in the syllabus fully was supported by the facts and the opinion of the court which followed.

The courts have taken a very broad view of a public charity and have not confined their description of a public charity to what the defendants desire this court to hold.

It was said in Methodist E. Church v. Philadelphia, 266 Pa. 405, quoting from Chief Justice Moschzisker’s opinion (page 409): “What is and what is not ‘a purely public charity’ has been much discussed in our cases, and, on the whole, we have taken a rather broad view of the meaning of that term. ... We early ruled that a purely public charity, within the meaning of Article IX, Section 1, of the Constitution, is not necessarily one solely controlled by the State, but extends to private charitable institutions which are not administered for any individual gain; ... we held that the true test of a public charity is the character of the objects sought to be attained, saying, to bring the hearts of an indefinite number of persons ‘under the influence of education or religion’ was a proper object of public charity; . . . we ruled that the mere fact of a public charity being under the control of those belonging to a particular religious denomination, so long as its ultimate object was to help an indefinite number of persons, without regard to their religious beliefs, made it none the less a purely public charity. When these authorities, and others which might be mentioned, are applied to the present case, the right of plaintiff to tax exemption is plain.”

Again, it was said in Friends’ Boarding Home v. Bucks County Comm’rs, 80 Pa. Superior Ct. 475: “In that case the privileges of the plaintiff institution were given by the instrument creating it to certain classes of children in preference to others, but ultimately to the indefinite public. Nor does the mere fact that a public charity is under the control of those belonging to a particular religious denomination make it any the less a ‘purely public charity,’ so long as its ultimate object is to help an indefinite number of persons without regard to their religious tenets.”

In the ruling case of White v. Smith, it was held that a convent building was exempt from taxation, the building in which the teachers live having been erected by voluntary contributions and having been maintained by subsequent contributions, and instruction in the school having been open to all, free of charge, without regard to race, color, creed or condition.

In that case, which is reported in 189 Pa. 222, it was held, quoting from the third syllabus: “A Roman Catholic church owned a lot on which was erected a church, a convent and a school building. The legal title was in the bishop in trust for the congregation. The school building was erected by voluntary contributions and maintained by such contributions. It was open to all, free of charge, without regard to creed, color, race or condition. No revenue was derived from it. The teachers of the school lived in the convent building, which was occupied exclusively by them. They were paid a small salary in addition to the privilege of residence in the convent building. Both buildings when projected, designed and erected were intended for the use to which they were put: Held, that the convent building was exempt from taxation.”

This view expressed in the syllabus was fully supported by the facts and the opinion of the court which followed.

This brings us down to the next question argued to the court, that is, that this court is without jurisdiction to entertain a bill in equity to restrain the tax collector from collecting the taxes originally assessed against the Sarah Lowe Estate after the triennial assessment of 1925; that is to say, that the plaintiff in this bill has no standing for the reason that the plaintiff’s predecessor in title did not take an appeal from the board of county commissioners sitting as a board of revision of taxes and appeal, and that, therefore, the successor in title took this property subject to the assessment as levied by the board of county commissioners sitting as a board of revision of taxes and appeal, and that having had an adequate remedy at law they are now without any right to appeal to a court of equity.

The Act of Assembly of April 15, 1834, § 13, P. L. 509, with relation to the triennial assessment, reads as follows: “At the time and place fixed for the appeal, which in each of the two years after the triennial assessment shall be held in the commissioners’ office of the proper county, the commissioners shall attend and hear all persons who may apply for redress and grant such relief as to them shall appear just and reasonable; provided, that the commissioners shall not make any allowance or abatement in the valuation of any real estate in any other year than that in which the triennial assessment is made, excepting where buildings or other improvements have been destroyed subsquently to such triennial assessment.”

The Act of May 8, 1909, § 3 (section 13 being amended), P. L. 491, reads as follows: “At the time and place fixed for the appeal which in each of the two years after the triennial assessment shall be held in the commissioners’ office of the proper county, the commissioners shall attend and hear all .persons who may apply for redress and grant such relief as to them shall appear just and reasonable; provided, that the commissioners shall not make any allowance or abatement in the valuation of any real estate in any other year than that in which the triennial assessment is made, excepting where buildings or other improvements have been destroyed, or where coal, ore or other minerals assessed under the triennial assessment have been mined out subsequently to such triennial assessment, in which cases such allowance or abatement shall be made.”

Section 1 of this act (section 11 of the Act of April 15, 1834, aforesaid, as amended), in so far as it affects this case, reads as follows: “On or before the first day of April in each of the two years succeeding the triennial assessment, the commissioners of the respective county shall send a transcript of said triennial assessment to the assessor of each ward, township and district therein, together with their precepts, requiring him to . . . make a just return to them, within thirty days after the date of such precept, and to note in such return such alterations in his ward, township or district as may have been occasioned by the transfer or division of real estate, or by the destruction of buildings, or by the mining out of coal, ore or other minerals assessed under the triennial assessment.”

Section 2 of this act (section 12 of the Act of April 15, 1834, aforesaid, as amended), in so far as it affects this case, reads as follows: “It shall be the duty of the several assessors in each of the two years succeeding the triennial assessment to give notice to the taxable inhabitants, in like manner as after the triennial assessment, but in the following cases only, namely, in the case of real property, where buildings or other improvements have been destroyed, and where coal, ore or other minerals assessed under the triennial assessment have been mined out since such triennial assessment.”

The act regulating appeals from assessments of taxes in this Commonwealth to the Court of Common Pleas, passed April 19, 1889, P. L. 37, reads as follows: “That any owner of real estate or taxable property in this Commonwealth who may feel aggrieved by the last or any future assessment or valuation of his real estate or taxable property may appeal from the decision of the county commissioners or board of revision and appeal to the Court of Common Pleas of the county within which such property is situated, and for that purpose may present to said court or file in the prothonotary’s office, within sixty days after the county commissioners or board of revision and appeal have held the appeals provided for by law and aeted on the said assessments and valuations, a petition signed by him, his agent or attorney, setting forth the facts of the case, and thereupon the said court shall proceed, at the earliest convenient time to be by them appointed, of which notice shall be given to the county commissioners of the proper county, or to the board of revision and appeal of the proper city, to hear said appeal and the proofs in the case and to make such orders and decrees touching the matter complained of as to the judges of said court may seem just and equitable, having due regard to the valuation and assessment made of other real estate in such county or city,”

It readily is to be seen from the Act of 1834 that the right of appeal after the triennial assessment was made is not given thereafter except where buildings or other improvements have been destroyed subsequently to the triennial assessment or where coal, ore or other minerals assessed under the triennial assessment have been mined out subsequently to such triennial assessment, in which cases, and only in such cases, may an allowance or an abatement of the assessments be made.

No provision is made in these several acts of assembly for the exemption of property from taxation. The grantor not having appealed from the assessment and taxation as made by the county commissioners sitting as a board of revision of taxes and appeal, the grantee' naturally would take the property with the burden of whatever taxation had been levied upon this property, providing, however, it did not fall into the possession of persons, individuals or corporations exempt from taxation under the article of the Constitution of Pennsylvania and the acts of assembly heretofore quoted. This readily is to be seen from the following authorities:

In the case of Moore v. Taylor, 147 Pa. 481, it was held: “The only remedy of taxpayers who feel themselves aggrieved by the action of the board of revision of taxes is by appeal. If no appeal is taken, the decision becomes final and conclusive, not only as to the owners, but also as to those claiming under them by subsequent conveyance. If a specific remedy is provided, it must be pursued.”

In the case of the City of Philadelphia v. Pennsylvania Institute, 28 Pa. Superior Ct. 421, it was held: “No appeal having been taken from the assessment of the tax in question, the decision of the tax officers became final and conclusive. It was said in Moore v. Taylor, 147 Pa. 481, that the duty of taxing officers is quasi-judicial, and it is well settled that when the general power to assess exists, the remedy for illegal taxation is by appeal. If none be given, neither the Common Pleas nor this court can reverse the judgment of the taxing officers.”

Again, in the case of Stratford v. Franklin Paper Mills Co., etc., 257 Pa. 163, 166, it was held: “Where, in any given case, the taxing authorities have general power to assess the subject-matter involved, an assessment, made in manner and form authorized by law, cannot be questioned or set aside except in the way provided in the statutes.”

In the above acts of assembly and the cases cited, it distinctly is pointed out that relief must come to a taxpayer who is aggrieved by an appeal from the decision of the board of county commissioners sitting as a board of revision and appeal as to the assessed valuation of the property. Of course, the act of assembly and the decisions of the court only relate to assessment of taxes where they duly and regularly are assessed and not where they fall within the exempted class provided by the Constitution and the laws of this State. In such cases where taxes duly and regularly have been assessed at a triennial assessment by the board of county commissioners sitting as a board of revision of taxes and appeal and where the time of appeal has gone by and the property afterward falls into the possession of persons or corporations that are exempt from taxation, a different principle applies and a court of equity has jurisdiction to restrain the collection of taxes against such exempt property.

In a case that was decided in our own county (Westmoreland), Byers v. Hempfield Twp., 226 Pa. 278, it was said: “In Banger’s Appeal, 109 Pa. 79, we held: ‘When a tax is lawfully assessed and there are mere irregularities in the valuation and assessment, the court of equity will not restrain its collection by injunction. But where there is a want of power to tax or there is a disregard of constitutional provisions in the mode of assessment, equity will interfere by injunction to restrain its collection.’ In St. Clair School Board’s Appeal, 74 Pa. 252, Mr. Justice Mercur, delivering the opinion, said (page 256) : ‘That a court of equity may enjoin against the collection of a tax levied without authority of law is undoubted. Even when legislative authority is given to tax for a certain purpose, yet if the tax levied is clearly in excess of the sum required for that purpose, its collection may also be enjoined.’ ”

In the instant case, the taxing authorities were without authority and acted in express violation of. the provisions of the Constitution and enabling Acts of 1919 and 1921, supra, so that the assessment and levy of taxes are without authority, illegal and void, and, therefore, a proper case of equity jurisdiction to restrain the assessing, levy and collection of taxes on the real estate in question, for the reason that this property has fallen into an ownership that makes it exempt from taxation.

In the case of P. & L. E. R. R. v. Allegheny County, 283 Pa. 220, the Supreme Court affirmed the action of the court below, wherein a bill in equity was instituted to enjoin the collection of taxes from the property owned and used., by the plaintiff. The lower court had decided that five-sixths of the value of the building in question was taxable, and one-sixth thereof and the land on which it stood was not taxable.

In York Haven Water and Power Co. v. Londonderry Township School District, 77 Pa. Superior Ct. 308, the court upheld the same principle in affirming the decision of the court below, where twenty acres of land were exempted from taxation by the court through injunction and the balance of the tract in question was permitted to be assessed.

In D., L. & W. R. R. Co. v. Luzerne County, 245 Pa. 515, it was stated by Mr. Justice Elkin: “Equity has power in a proper ease to restrain the collection of a tax, but it is a power that should be cautiously exercised, because, as a general rule, there is an adequate remedy at law. Equity will only intervene in such a case where there is either want of power to tax or a disregard of imperative constitutional requirements.”

In the case above cited it was made to appear that the taxing authorities had power to make the assessment and levy, and since the irregularties could have been corrected by an appeal to the Court of Common Pleas, it was held that equity was without jurisdiction.

Pittsburgh, etc., Ry. Co. v. Stowe Township, 252 Pa. 149, was a bill in equity filed by the railway company to restrain the collection of certain taxes, for the reason that the property was exempt from taxation, the same constituting a part of the capital stock of the railway company — a public service corporation. The question of jurisdiction was raised. It was said by Mr. Justice Mestrezat in sustaining the jurisdiction in equity: “We have no doubt, however, that a bill in equity will lie in this ease to restrain the assessment and collection of taxes for local purposes if the taxing authority had no power to levy and collect the taxes. If, as contended by the plaintiff company, the land in question is necessary, essential and indispensable to the exercise of its franchises as a common carrier, and is thereby not subject to taxation for local purposes, the bills in these eases may be maintained. Where there is a want of power to tax, or the tax is levied without authority of law, a bill in equity will lie to restrain its collection. ... If the tax is lawful, but the manner of collecting it is oppressive or unfair, or there are technical irregularities in the assessment, the remedy' is at law and by an appeal from the assessment.”

In Byers v. Hempfield Township, supra, the distinction again is pointed out, reference being made to Arthur v. School District, 164 Pa. 410, and Banger’s Appeal, 109 Pa. 79. Referring particularly to Arthur v. School District, and quoting briefly therefrom: “When they (taxing officers) do this (attempt to enforce the collection of a tax which they have no power to impose), the taxpayer has a clear right to relief by injunction to restrain the illegal act. When the act of the taxing officers complained of is lawful, but is done in an oppressive and unfair manner, the remedy is by appeal. But if the officers are -without jurisdiction and the act is illegal, as in the case before us, the proper remedy is by injunction.”

In St. Mary’s Gas Co. v. Elk County, 168 Pa. 401, the jurisdiction in equity was sustained. There, it was claimed by the gas company that its property was not liable to assessment, for the reason that it constituted a portion of its capital stock and the corporation was engaged in public service. It was said by the court below, quoting from Banger’s Appeal, supra: “It was urged that a court of equity will not interfere to restrain the collection of taxes, but will leave the party aggrieved to his remedy at law. This is true where the tax is lawfully assessed, or where the matters complained of are mere irregularities in the valuation or assessment; but where for want of power to tax or disregard of the Constitution in the mode of assessment, we have no doubt of the power and the duty of a court in equity to interfere.

In American Sunday School Union v. City of Philadelphia, etc., 161 Pa. 307, it was held by the master that the property of the union was wholly exempt. The lower court, however, held that it was not. Mr. Justice Dean was of the opinion that a portion was properly exempt, but stated, in sustaining the action of the court below: “As to whether the proportions exempt and taxable have been correctly determined, that is a question with which we, in this proceeding, have nothing to do. Any complaint on that score can only be on an appeal from the decision of the board of revision of taxes.”

Christian Ass’n v. City of Philadelphia, 75 Pa. Superior Ct. 516, is to the same effect. Very properly it was held by Judge Trexler that the property of a charitable institution not used directly for the purpose and in the operation of the charities, but for profit, is not exempt, but that the property of such charities which is directly used in the operation of the charities is exempt, although it may be used in a manner to bring some return and thereby reduce its expenses; but he held that where it is shown that a portion of the premises is taxable, equity is without jurisdiction, it not being within the privilege of a court in equity to determine a valuation for the nonexempt property, that power being vested solely in the board of revision and in the Court of Common Pleas, on appeal.

In cases similar to the present one, where an entire exemption has been justified, relief in equity frequently has been granted.

Albert v. Board of Revision, 139 Pa. 467, is a case which rather would tend to the conclusion that if you claim your property to be exempt because it is devoted to charitable use, you are not entitled to have this question determined by the board of revision. In that case it was contended that All Saints Lutheran Church was entitled.to an exemption of certain real estate. The board of revision denied the exemption. An appeal was taken from the action to the Court of Common Pleas. It was urged by counsel for the county that the Act of April 19, 1889, P. L. 37, gave to the Court of Common Pleas “merely the power to reduce the assessment on proofs submitted that it was too high and not to decide that the assessment was illegal.” It will be noted from an examination of the language of the act that there is merit in this contention. The appeal was quashed on the argument at bar. It does not appear whether this was done for the reason urged by counsel for the appellees or for the reason which is found in the foot-note, that no exception had been taken in the court below.

The question of the constitutionality of the Act of July 17, 1919, P. L. 1021, which is an act entitled “An act to exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity, and repealing prior acts relating thereto,” and, as amended by the Act of April 9, 1921, P. L. 119, hás been raised in this case by the defendants, and without these acts it is urged that no relief can be granted in this proceeding. The question, therefore, arises: Has the general assembly exceeded its power in exempting property held by corporations or by individuals and used for purely public charity?

Article IX, section 1, of the Constitution says: “All taxes shall be uniform upon the same class of subjects, . . . and shall be levied and collected under general laws; but the General Assembly may, by general laws, exempt from taxation . . . institutions of purely public charity.”

The general assembly, to put into force and effect this provision of the Constitution, passed the Act of 1919 and the amending Act of 1921, supra, wherein the Act of 1921 provided that: “Universities, colleges, seminaries, academies, associations, and institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by the public or private charity, ... be and the same are hereby exempted from all and every county, city, borough, township, road, school and poor tax.”

If the general assembly has exceeded its constitutional authority in passing these laws exempting property of purely public charity, then, of course, these acts are uncontitutional and the plaintiff has no standing in court. The authorities on the right of the general assembly to exempt property from taxation lead the court to the opinion that these acts are constitutional and that the plaintiff is entitled to relief in this proceeding, providing the plaintiff has brought himself within the provision of a purely public charity. This we already have determined he has done.

It was said in 12 Corpus Juris, 1153: “As an incident to its power to select the persons and property to be taxed, a state may grant exemptions from taxes imposed by general laws . . . that exemptions from taxation increase the burden placed on property taxed does not show a denial of the equal protection of the law. Thus, exemptions may he granted to mortgagors, charitable corporations and public service corporations.”

While the Constitution guarantees the equal protection of the laws to all, yet it does not deprive a state of the power to adjust its system of taxation in accordance with its own ideas of public policy. A state, therefore, may tax certain classes of property to the exclusion of other properties and may prescribe different methods of assessment, different rates of taxation, different means of enforcing the collection of taxes, different penalties for non-payment for different classes of persons and property. And since taxation is largely a question of policy, the general assembly possesses the largest discretion in these matters.

It was said in 12 Corpus Juris, 1152: “The courts will not declare a tax statute void as a violation of the equal protection guaranty so long as the classification or selection made by it is based on a reason, even though, in their opinion, the reason is a poor one and the statute itself is unjust.”

In our own State, it was said in 81 i Pa. 211, Kitty Roup’s Case, quoting from the syllabus, which fully is supported by the facts and opinion following the syllabus: “The power to classify the subjects of taxation is not taken away from the legislature by the new constitution. The provision, Art. IX, Sec. 1, in the new constitution, that all taxes shall be uniform on the same class of subjects within the territorial authority levying the tax, etc., is merely declaratory of the law as before the adoption of the constitution. Where the legislature has determined what lands belong to several classes, the courts cannot declare the act void unless the violation of the constitution he so clear, plain and palpable as to preclude doubt or hesitation. Unless the constitution plainly makes void an act of assembly, the constitution acts prospectively, not retrospectively.”

Again, in Com. v. Delaware Div. Canal Co., 123 Pa. 594, we find: “The new constitution (1874) does not withdraw the power of classification from the legislature; . . . indeed, the power is necessarily implied in the constitutional provision to which the fourth section of the Act of 1885 is supposed to be obnoxious. The power to impose taxes for the support of the government, subject to the limitations of the constitution, still belongs to the constitution; the selection of the subjects, their classification and the methods of collection are purely legislative matters. When the action of the legislature, with respect to these matters, is not repugnant to the constitution, it would certainly be a case of the grossest inequality which would call for the interventions of the courts: Kelly v. City of Pittsburgh, 85 Pa. 170.”

The two cases above cited were quoted with approval in Com. v. Alden Coal Co., 251 Pa. 134. It was said in that case, quoting from page 135: “Classification is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition. If the distinctions are genuine, the courts cannot declare the classification void, though they may not consider it to be on a sound basis. The test is not wisdom, but good faith in the classification.”

The evidence in this case is a full answer to everything that has been denied in the answer to the plaintiff’s bill, and the authorities cited are decisive of every question of fact and every conclusion of law found by us heretofore. When it once has been determined that the property in question is used in connection with a purely public charity, then it follows that the property is exempt from taxation and that any tax assessed and levied against this property from the date it came into the possession of the plaintiff and from the date it was used in connection with, and solely for the benefit of, a public charity was without authority of the law, and a bill in equity will lie to enjoin the defendants from the collection of any tax that may have been or hereafter may be assessed and levied against this property so long as it is used in connection with, and solely for the benefit of, a public charity. From the facts and the law, it follows that the following decree should be made.

Decree.

And now, to wit, April 13, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed that the County of Westmoreland, the School District of the Borough of Youngwood, the Borough of Youngwood, Mrs. Gertrude Golgan, Tax Collector of the Borough of Youngwood, or her successor in office; Eustace Wingfield, Assessor of the Borough of Youngwood, or his successor in office, and W. C. Henderson, Treasurer of Westmoreland County, or his successor in office, forever be enjoined and restrained from assessing, levying and collecting taxes, assessed and levied in 1926, 1927 and 1928, or any taxes that hereafter may be assessed and levied, against the plaintiff on the property described in the plaintiff’s bill of complaint; this decree is entered nisi, and, if exceptions are not filed thereto according to the equity rules, to become absolute as provided by said rules; and the plaintiff’s counsel then shall prepare a final decree in accordance with our findings of fact and conclusions of law and submit it to the court for approval.

From William S. Rial, Greensburg, Pa.


source: Caselaw Access Project

author: Potter, P. J.,

license: Public Domain

text:
    Kuster et al. v. Stahl et al.

      Charles P. Ulrich and A. F. Gilbert, for plaintiffs.

      Bloom & Bloom, for defendants.
    Sept. 21, 1928.
   Potter, P. J.,

We need not at this time enter into a discussion of the merits of this ease, but will confine ourselves to the alleged insufficiency of the plaintiffs’ statement. We have, with interest, read the statement of claim, as well as the specifications set up as to its insufficiency, and we may as well say at this time that, so far as to setting up a good cause of action is concerned, we do not think it offends against the provisions of the Practice Act of May 14, 1915, P. L. 483, and its supplements. It is terse, concise and to the point, at the same time giving to the defendants full information as to what they must meet on the trial of the case.

It was admitted on the argument of the case by counsel for the plaintiffs that the name of William Stahl was inadvertently used as one of the defendants, and in the statement of claim we can see no cause of action against him, so that his name, as one of the defendants, is hereby eliminated from the records and the case will proceed against Minnie Stahl as the sole defendant.

It is set up by the counsel for the defendant that the ownership of the defendant’s car should be stated in the statement of claim. In many cases this would be an impossibility. Operators’ licenses are issued by the State authorities, by which the owners of them can operate any car, and the owner of every car must have, not only his registration card, but he must also have his operator’s license, with which he can operate any car. How, then, would it be possible to set up the ownership of a car from the person operating it? How would it be possible to say whether or not Minnie Stahl was the owner of the car simply from the fact that she was driving it at the time of the collision? The answer is obvious.

If the car of the defendant had been driven by a chauffeur or some one else than the defendant, then it would be necessary to allege ownership in order to attach liability for injury to the owner, and it would be necessary to show that the operator of the car at the time of the accident was engaged in the master’s business.

The case of Farbo v. Caskey, 272 Pa. 573, is relied upon by the defendant in support of her contention, but the facts in that case are not at all similar to the facts in the case at bar. In that case, the car was operated by a chauffeur, and, of course, before liability could attach to the owner, it would be necessary to show who was the owner and that the chauffeur was at the time of the accident engaged in his master’s business.

In the case at bar, Minnie Stahl was driving the car when the collision occurred, and she was the person sued in this action. She was responsible for the management of the car, and not some one else in the car with her. If the doctrine set up by the respected counsel for the defendant was the law of the land, it would be very difficult to institute legal proceedings against wrongdoers, for the good reason that it would be very difficult to ascertain just who was the owner oí the car involved in a collision on the part of the defense. We do not think this position tenable in the case at bar. As we view it, the driver of a car is primarily liable for injuries to others if he is at fault, unless he is engaged in service for his master, the owner of the car.

We think a further discussion of this question needless.

And now, to wit, Sept. 21, 1928, the specifications as to the insufficiency of the statement of claim are dismissed and the defendant is given fifteen days from this date to file an affidavit of defense, if she so desires, to the merits of the case, in default of which the case is ordered on the trial list for the succeeding term of this court.

An exception is noted for the defendant and a bill is sealed.


author: Stewart, P. J.,

text:
    Herring’s Estate.

      Francis H. S. Ede, for rule; Smith & Paff, contra.
    April 9, 1928.
   Stewart, P. J.,

This is a petition for a commission to take testimony of witnesses in California. The petitioner set forth that he is a resident of San Francisco, California, where he has resided continuously for the past twelve years. He gives no street address, and upon the argument his counsel stated that he had never written to him at any street address, that he addressed his letters to the General Post-Office, San Francisco. He also avers that he formerly lived in Pen Argyl, Pennsylvania, and “left that vicinity approximately twenty years ago and did not disclose his whereabouts until March, 1926.” He also avers that he “is unable to present himself before your Honorable Court because of the great amount of expense which he would have to incur in traveling from California, together with the loss of wages, which expense would not be justified in accordance with the amount of money he would be entitled to under the will of the said Elizabeth Ann Herring.” That will provided that the residue should be paid “unto Foster Amy, if found within six months after my decease, one equal share.” On the argument, it was stated that the amount of that share was $1000. An answer was filed to the petition, but no replication. The answer set1 out the very great delay in the settlement of this estate; that the executor, desiring to be informed whether Foster Amy was, in fact, alive, had requested the address of petitioner to be given to him, and that counsel refused or neglected to do it; that the executor himself had made an investigation and was utterly unable to find the whereabouts of Foster Amy, and that he did not believe he was alive. (On the argument, it was stated that the investigation was made through a firm of attorneys in San Francisco.) It was also stated upon the argument that the signature of Foster Amy was submitted to witnesses, and that they did not believe it was his signature. We filed an opinion in this case on Jan. 2, 1928, in which we called attention to the great delay in the settlement of this estate and fixed a time-limit of sixty days for the production of proof before the auditor that Foster Amy was alive. Nothing was done until almost the expiration of that time, to wit, Feb. 27, 1928, when the present petition was presented, although we understand one or two meetings were had before the auditor.

While it is true that a claimant or a plaintiff need not be personally present at the trial (see Kichline v. Nolf, 12 Northamp. Co. Repr. 279, and Hibbs’s Exec’rs v. Robinson et al., 28 Dist. R. 781), nevertheless, when the essential matter in dispute is the existence of a claimant, and -where the claimant admits that he concealed his existence for twenty years and still refuses to disclose his street address, the case looks suspicious, and if he is guilty of some offense under our law, as was suggested on the argument, we ought not to aid him in any attempt to obtain immunity from our laws. Not only will the present proceeding cause delay, but it will entail expense on the estate. It was suggested that a bond' would be given to cover expenses of the commission and of counsel fees. That might be done in some cases, but we do not think this is that kind of a case. To establish the existence of Foster Amy under the circumstances which he himself has created would involve the examination by interrogatories and the cross-examination of a number of witnesses in California, while a ten minutes’ appearance by him in Pen Argyl would settle the question at once. The whole matter is one of money. If he prefers to remain concealed in California, he will forfeit the $1000. If that sum induces him to return to his former home, it is up to him to do it, provided he was not in default when he first disclosed “his whereabouts.” There is no difficulty about our power to order a commission. All question has been set at rest by the Orphans’ Court Act of June 7, 1917, § 20 (b), 2 and 3, P. L. 363, which provides for commissions and for oral testimony before an examiner. So much of our Rule of Court, § 59, which provides that a rule for a commission may be entered of course, is abrogated, but the balance of the section remains. It should be borne in mind that, under section 255, the rules of the Common Pleas apply to the Orphans’ Court. This matter has been passed on by Judge McKeen in two cases, Loveland et al. v. Roberts, opinion filed Feb. 11, 1924, and the same plaintiffs against Willis, opinion filed May 10, 1926. Neither of these cases seems to have been reported, but we follow them, and they hold that before a commission can issue, the court, in the exercise of its judicial discretion, must be satisfied that it is a proper case to have a commission. It also ought to be borne in mind that the petition should set forth the name and address of the proposed commissioner and the names and residences of the witnesses and the subject-matter of the testimony expected: Carter, Exec’r, v. Blair, Admin’r, 10 Dist. R. 749, and Hodell Furniture Co. v. Leonard et al., 17 Pa. C. C. Reps. 513. Both of these cases were approved by the Supreme Court in Force’s Petition, 265 Pa. 228. In addition to the other cases referred to in Force’s Petition, see Sims v. Cooper et al., 27 Dist. R. 471, where the court allowed the commission on facts similar to the present case so far as residence was concerned, but entirely dissimilar so far as the subject-matter was concerned, and Bleakley’s Estate, 28 Dist. R. 289, where President Judge Criswell reviewed the cases and made an order in which he showed that the better practice would be to follow section (b) 3 of the act. While, perhaps, not germane to the present proceeding, we think it proper to say that the auditor should fix a day certain for a meeting, after consulting with counsel, and if Foster Amy appears, hear him. If he does not, end this matter.

And now, April 9, 1928, rule to show cause why a commission should not issue is discharged. Prom Henry D. Maxwell, Easton, Pa.


author: Van Dusen, J.,

text:
    Pietrazko’s Estate.

      Henry Arronson, for petitioners.
    Jan. 22, 1929.
   Van Dusen, J.,

This petition asks for payment out of the estate of a minor for the funeral of her mother, and Hunter’s Estate, 8 D. & C. 533, is cited as authority.

That case was intended to and does hold exactly the contrary. The ground of liability suggested was that it was a necessary for the minor. Following Sibilia’s Estate, 82 Pa. Superior Ct. 67, which held that medical attendance in a parent’s last illness was not a necessary for a minor, we came to the same conclusion with regard to funeral expenses. In discussing this question, we also observed that, even if it was a necessary, the cost of the funeral was out of proportion to the amount of the minor’s estate.

Unfortunately, the syllabus of the report seizes upon this feature of the case, and intimates that in a proper case there would be liability. The result has been this petition and others of the same kind.

We now repeat that a minor’s estate is not liable for funeral expenses of a parent. The petition is dismissed.


author: Ferguson, P. J.,

text:
    Thissell’s Case.

      Frederic L. Ballard, for Committee of Censors.

      John M. Thissell, respondent, P. P.
    Jan. 26, 1929.
   Ferguson, P. J.,

It having been brought to the attention of the court that John M. Thissell, a member of the bar, appointed master in divorce in the case of Latimer v. Latimer (December Term, 1927, No. 8778), had been guilty of misconduct, the Committee of Censors of the Law Association was requested to make an investigation. Thissell was notified of meetings held by the committee and attended two of them. A third meeting he did not attend. As a result of the investigation, a rule was taken to show cause why he should not be disciplined under Rule No. 215.

At the hearing on the rule, the testimony taken before the Committee of Censors was presented, with their findings of fact and their conclusion that the case was one for discipline. We are of opinion that the findings and conclusion are sustained by the evidence.

It appears Thissell was appointed master on April 27, 1928. About three weeks after the appointment he approached counsel for the libellant and requested a loan on the ground that he was in dire need of funds. He secured $100, which he has never paid. When Latimer, the libellant, heard of this loan he reimbursed his attorney. On June 11th, Thissell approached Latimer directly for a loan and secured $250, for which he gave his note. On Sept. 4th he obtained an additional $150 from Latimer. On Oct. 6th he informed Latimer that his report as master was finished and that he would let him read it. The two men went in Latimer’s automobile to a quiet place in the neighborhood of the Delaware River Bridge and the report was read to Latimer. The report was favorable. Thissell thereupon asked for $350 additional, and secured $150 then and a promise of $200 more when the report was filed. Latimer at that time returned to Thissell the note for $250, which he had previously received. During the course of the hearings, This-sell demanded, and Latimer paid, additional sums for additional meetings, or meetings of unusual length, at the rate of $10 per meeting and the same amount per hour. These totaled about $150.

These facts are not seriously disputed, but Thissell attempted a justification or explanation of them. He contends that the so-called loans were outside of the case; that they had no connection with or relation to his position as master and that he intended to pay them; that the meetings were many and lengthy, and the matter troublesome, and the additional sums which he received for holding lengthy meetings were justified by usage, if not by authority; that the courts have allowed additional fees to masters in protracted cases; that he notified the parties that he would insist upon additional compensation; that the amounts asked for and received were without accompanying intimation that they would have effect on his findings or conclusion, and, in point of fact, they did not have such effect.

These explanations are not convincing or acceptable. It is impossible to believe the approaches to Latimer were made with any innocent intent. Assuming that nothing was said with corrupt suggestion, the obvious result was to encourage Latimer to believe and expect that prompt response on his part would mean a favorable consideration of his case. He knew that This-sell had borrowed from his own counsel under a plea of pressing need. To describe the payments as loans was a specious device, even though a note was given for one of them, and the flimsy disguise fell off when the note was subsequently returned at the time the report was ready for filing. As to the matter of extra compensation demanded for extended meetings, it is only necessary to say that there is neither usage nor rule to justify it. That the other large sums were justly demanded as additional master’s fees because of the many meetings and the difficulty of the case cannot be accepted. The case was not unduly lengthy for a contested one. The master was without authority to exact sums from the libellant as additional compensation. Had he been entitled to more than the rules allowed, he could have applied to the court for relief. We feel that this is merely a belated plea to justify an inexcusable exaction of money from a litigant, on the ground that it was only an irregular method of obtaining what was justly due.

The cause of the wrongdoing was, no doubt, the unfortunate fact of This-sell’s need of money. He used his position as master to work upon the expectations of a litigant. No words were necessary after the first financial transaction. It could not be otherwise than that Latimer hoped his response to demands would advance his cause. These hopes were justified, as the report demonstrated. Nothing can excuse the conduct of either party and the circumstances surrounding the private reading of the report are significant. At that time Thissell demanded $350. He received his note and $150 and a promise of $200 more when the report was filed. The matter was apparently conducted in a cold-blooded commercial way, neither party wholly trusting the other, and when the report was filed the $200 was paid.

The master was in the position of a judge; Latimer, in that of a litigant. For a judge to demand money under any guise whatsoever, and for a litigant to pay the amount demanded is an indefensible, corrupt and criminal transaction. It shows on the part of the master a lamentable lack of appreciation of the conduct required of a member of the bar. His necessitous condition was an explanation, but not an excuse. For the sake of the community and for the honor of the profession, it is necessary that the name of such an attorney be stricken from the rolls of the court.


author: Martin, P. J.,

text:
    Philadelphia School District, to use, v. Nardizzi et al.

      Byron, Longbottom, Pape & O’Brien, for petitioner.

      D. L. German, Jr., contra.
    Oct. 22, 1928.
   Martin, P. J.,

The defendant, Quirino Nardizzi, entered into a contract with the School District of Philadelphia to erect walls and fences and do grading in the school yard of the Germantown High School for the sum of $9200. He executed a bond with the National Surety Company of New York as surety in the penal sum of $4000, conditioned that if the contractor paid or caused to be paid all persons all money due for labor or material supplied in or about the work, and complied with the provisions of the School Code, the obligation would be void; otherwise, in full force.

Nardizzi contracted debts for work and material furnished by thirty-five different persons, whose claims amount to $11,679.34. The Rock Hill Quarry instituted suit against Nardizzi and the National Surety Company to recover $2834.38 for stone supplied to the contractor and used in the work. The surety company filed an affidavit of defense raising questions of law, and subsequently presented a petition praying leave to pay the amount of the bond, less counsel fee and costs, into court, upon such payment to be discharged from further liability.

Answers were filed on behalf of Rock Hill Quarry and the Truscon Steel Company, a creditor of Nardizzi, for material supplied to the contract.

The Rock Hill Quarry denied that there were any sub-contractors, materialmen and laborers entitled to pro rata payment under the bond “to the same extent as the plaintiff,” and averred that, upon payment of the full amount of the penal bond, the liability of the surety company would cease.

The answer of the Truscon Steel Company admitted that there were subcontractors, materialmen and laborers making claims against the bond, but denied that any right accrued to them until suit had been started against the defendant, according to the terms of the bond, and admitted that others than sub-contractors, materialmen and laborers have claims pending for materials furnished and labor done in connection with the contract.

The questions of law raised by the affidavit filed by the National Surety Company present no legal ground of defense. The surety company should be permitted to pay the amount of the bond into court, and, upon the payment of the full amount of the bond into court, should be relieved from further litigation. The money should be distributed pro rata by an auditor to the parties entitled to receive it. The creditors of Nardizzi, the contractor, should not be barred from presenting their claims against him. He should be credited with the amount each creditor collects from the fund paid into court by the surety company.

And now, to wit, Oct. 22, 1928, the prayer of the petition of the National Surety Company of New York to pay into court the sum of $4600, less counsel fee and costs, is allowed, without prejudice to the rights of the creditors of Quirino Nardizzi to prosecute any and all claims which they may have against him.

The prayer of the petition that an interpleader be ordered between Bernard McCabe and Thomas McCabe, copartners, trading as Rock Hill Quarry, and the Truscon Steel Company is refused, and the affidavit of defense raising questions of law is not sustained. ■


author: Berkey, P. J.,

text:
    Harvey v. Naugle, Treasurer.
    Jan. 23, 1928.
   Berkey, P. J.,

The petitioner, Harvey Howard, entered the police service in the Borough of Hooversville during October or November of 1921. He has been in the service of the borough since the date of his original appointment. The last appointment by the Council of Hooversville Borough was made Jan. 4, 1926, the minute thereof being: “Howard Harvey was nominated and elected borough policeman by acclamation.” May 16, 1927, the petitioner was suspended as policeman by action of the burgess. June 6th following the council reinstated him at a salary of $75 per month. In July the council took the following action: “Council by majority vote restored policeman’s salary to $130.00 per month, same as before his suspension by the burgess.” The next day the burgess again suspended the petitioner, and he was reinstated by the council Aug. 1st, and the “salary fixed at $130.00 per month, dating from Aug. 1st.” Aug. 10th he was suspended again. The next monthly meeting of the council was held Sept. 6th; the minutes disclose the following: “The suspension notice of- Howard Harvey, Borough Policeman, was read, and on motion of Tipton, seconded by Gindlesperger, policeman Harvey reinstated, and a new order covering his July and August salary was authorized to be issued.” The order for payment authorized by the council at the September meeting was issued in payment of the petitioner’s services during the preceding October.

It is admitted upon the record by the petitioner “that no ordinance has been enacted, approved by the burgess and published as required by law, fixing the salary of the policeman.” The petitioner presented his vouchers drawn by the borough officials to the borough treasurer, which the treasurer refused to honor and pay.

The material facts in the case are contained in the foregoing brief history thereof. The petitioner was awarded an alternative writ of mandamus on the relator. An answer was filed. The matter was heard by the court, when testimony was taken, the case argued by counsel, and is now before the court for opinion and decree.

The question for decision is whether the petitioner’s claim for salary under these facts can be enforced against the Borough of Hooversville. The General Borough Act of May 14, 1915, P. L. 312, and its amendments, and the General Borough Act of May 4, 1927, P. L. 519, are controlling in the law of the case.

The petitioner was appointed under the Act of 1915 and its amendments. Section 14, article VI, chapter 7, provides: “Borough councils may appoint one or more suitable persons, citizens of this Commonwealth, as borough policemen.” Paragraph 7, section 6, article I, chapter 7, authorizes the council “to fix the compensation of . . . the . . . and such other officers and employees as they may appoint.” Section 1, article VI, chapter 7, reads: “Appointed officers of the borough shall receive such compensation for their services as the council shall prescribe.” Section 17 of article VI, chapter 7, directs: “The borough police shall receive a stated salary to be fixed by ■ordinance.”

The provisions quoted from the Act of 1915 have all been re-enacted in the •General Borough Act of 1927, respectively, in sections 1125, 1006, paragraph 8, 1101 and 1128. The mandate of the Act of 1915, under which the petitioner was appointed, as well as the Act of 1927, under which this action was instituted, is that “the borough police shall receive a stated salary to be fixed by ordinance.”

Ordinances which involve the expenditure of money relating to government, welfare and the prosperity of the borough require the burgess as a necessary party in passage: Kepner v. Com., 40 Pa. 124, 126. Ordinances operating on matters concerning council alone or its members, relating to the detail work of municipal affairs, as distinguished from executive work, are matters which need not be presented to the burgess for approval. The employment of the laborers in connection with a highway, the general upkeep of the streets, or the water system, or acts embodied under the term maintenance of the departments, of their physical structures, operated and conducted under borough ordinances and laws, are acts which are not legislative in their character. But a betterment, a new undertaking, or an enlargement of any of these departments, or the creation of a new department, or any other act which may be considered an original exercise of governmental duty, power or obligation, requires the burgess’s approval.

“Fixing salary is the creation of a continuing liability in a new department of the city which the taxpayers must meet; it cannot be considered as an incident to maintenance, upkeep or protection of any department of government; it is a new departure, an original undertaking or exercise of governmental power outside of mere routine business. As such, the resolution should have been submitted to the burgess for his approval:” Eddy v. Ashley Borough, 281 Pa. 4, 9, 10.

The borough council having failed to enact an ordinance at any time fixing a stated salary to be paid to the policeman, as provided by law, the Borough of Hooversville is not liable to the petitioner for the services rendered.

Now, Jan. 23, 1928, writ of peremptory mandamus refused.

Prom Mrs. Daryle K. Heckman, Somerset, Pa.


author: Fleming, P. J.,

text:
    Gingerich v. Ferree et al.

      Ivan Walker (with him N. B. Spangler), for rule; W. G. Bunkle, contra.
    Dec. 3, 1928.
   Fleming, P. J.,

It is quite evident that plaintiff’s statement is not in conformity with the Practice Act of 1915, as amended.

The case arises on an appeal from a justice of the peace, and the transcript filed shows that the action below was in assumpsit. The statement as filed, in an attempt to comply with section 1 of the act, as amended April 14, 1921, P. L. 144, occupies three and one-half pages in the averment of facts necessary to support an action of trespass, and one page to recite the alleged promise of the defendants to pay the bill of the mechanic who was selected to repair the car alleged to have been damaged. Having originally declared in assumpsit, the only material fact would be, did or did not the defendants agree to pay for the alleged damage? The defendants’ liability in tort would not be a matter for our consideration.

Under section 5 of the act, it is required that the statement set forth in a concise and summary form the material facts on which the party pleading relies for his claim: Bullock et al. v. Metacomet Home Ass’n, 27 Dist. R. 76; Bean v. Philadelphia, 26 Dist. R. 110. Here the material fact is one of contract and not of tort. The averments of tort are immaterial and the statement is not concise and brief within the meaning of sections 5 and 9 of the act: Weiss v. Schafer, 26 Dist. R. 166; 46 Pa. C. C. Reps. 260. Very evidently the happenings in relation to the alleged automobile accident were ' preliminary to the alleged promise upon which plaintiff’s action is founded, but it is improper to include them. See Rhodes, etc., et al. v. Terheyden et al., 29 Dist. R. 507, where it is held improper to include a statement of prior negotiations which led to the execution of the negotiable instrument in suit.

The motion of the defendant is, therefore, allowable under section 21 of the act, as amended May 23, 1923, P. L. 325. Considering the manner in which this action arose, we feel that the plaintiff should be given the opportunity of filing a new statement.

And now, Dec. 3, 1928, defendants’ motion to strike off plaintiff’s statement is allowed and plaintiff permitted to file a new statement within fifteen days from this date. _ Prom S. D. Gettig, Bellefonte, Pa.


author: Brownson, P. J.,

text:
    Cook v. Coulter & Co.
    Before Brownson, P. J., and Cummins, J.

      Bloom & Bloom, for plaintiff.

      John C. Sheriff and Marriner, Wiley & Wiley, for defendant.
    April 30, 1928.
   Brownson, P. J.,

D. J. Coulter, having acquired three leaseholds for oil and gas purposes (one of which was known as the Hudson Tucker lease), sold and assigned undivided “working interests” therein to a number of persons, who are named in the insurance policy below mentioned, among them A. J. Cook, the interest assigned to him being an undivided one-sixteenth. These assignments were made subject to certain “stipulations, covenants and agreements,” which may be summarized as follows: (1) The party of the first part (the assignor, Coulter) agreed to drill a well on the Hudson Tucker lease; (2) the party of the second part agreed to pay to party of the first part a specified sum as “his proportionate share of the cost of drilling the above well;” (3) if oil or gas should be found, and party of first part should decide to operate said well, party of the second part agreed to pay a proportionate share of the casing, tubing and other equipment; (4) if oil or gas should not be found in said well, and party of first part should elect to drill another well, party of second part should pay to him a proportionate share of the cost of drilling it, and a like share of the cost of equipping it for operation should oil or gas be found therein in paying quantities; (5) default in making the payments aforesaid should cause a forfeiture of the interest assigned; and (6) if party of second part should refuse to join in further drilling which party of first part might elect to do after the obtaining of production in paying quantites, the former should forfeit all interest, except in any producing wells at that time existing, with a protecting area adjoining them.

A well was drilled on the Hudson Tucker lease, which produced gas in paying quantities, and this well was equipped and operated. Its operation was in the control of D. J. Coulter. A. J. Cook, the decedent, worked at this well in connection with its operation, and was paid a per diem compensation for so doing. On Dec. 29, 1924, while working at the bailing out of the well, Cook met with an accident, which resulted in his death. These proceedings were instituted by a petition of his widow, filed April 17, 1925, to obtain an award of compensation for his death, the petition averring that he was employed by “D. J. Coulter & Co.,” without saying of whom D. J. Coulter & Co. consisted.

The Fidelity and Casualty Company of New York had, on or about June 11, 1924, issued a workmen’s compensation policy of insurance to “D. J. Coulter, Raymond Coulter, John Duncan, John Panconi, Charlie Bloom, H. G. Klink, Mr. Wickensson, Sam Broida, A. J. Cook, Mabel Coulter, H. H. McKinney, Jesse Ramsey, Frank Farulli, trading as D'. J. Coulter & Co.,” and after these proceedings were commenced, the insurance company intervened and filed on behalf of D. J. Coulter & Co. an answer, in which liability was denied, for the reason that the deceased, A. J. Cook, “was a partner in the partnership of D. J. Coulter Company.”

The referee found, inter alia, that D. J. Coulter assigned undivided one-sixteenth interests in the leases to twelve, other persons, retaining the balance (stating briefly the terms of the assignments); that A. J. Cook had a one-sixteenth interest, one-half of which he sold to his son; that “this association [which may perhaps be intended to mean an association composed of D. J. Coulter, A. J. Cook and the other holders of interest] was known as D. J. Coulter & Company;” that “D. J. Coulter had sole control and management of all things pertaining to the operations for oil and gas upon these leases;” that A. J. Cook “was employed by D. J. Coulter & Company, defendant,” and was an employee of D. J. Coulter & Company within the meaning of the Workmen’s Compensation Act. An award of compensation was made by the referee against both “D. J. Coulter & Co.” and the Fidelity and Casualty Company of New York.

As above indicated, the referee’s findings may probably be supposed to mean that the organization, in and about whose business Cook was working at the time of the injury which caused his death, was a partnership or association composed of himself and other persons; but the referee did not make a distinct and unequivocal finding on this point; and on the appeal from the referee to the board, the insurance company asked for a determination of “the question whether D. J. Coulter & Company is or is not a copartnership of which A. J. Cook was a copartner.” This request was made for the reason that the insurance company’s position was, and from the time when it first came into the case had been, that it is not liable for any compensation for the death of A. J. Cook, because (a) the Workmen’s Compensation Act does not apply to a partner who does work in the business of the partnership, as the same person cannot be both employer and employee, at the same time, within the meaning of the act; and (b) this company, by the terms of the policy which it issued, insured only the liability of A. J. Cook and others, trading as D. J. Coulter & Co., to such employees (other than themselves) as might become entitled, against them, to compensation under the statute. On the other hand, the appellee has, in the brief presented to the court, argued, in substance, that, according to the effect of the evidence, D. J. Coulter & Co. was not a partnership; that the owners of the interests in the leases were tenants in common who had left their interests in the control of D. J. Coulter for operation, subject to his duty to render to them a share of the proceeds; and that the business of operating the leases was the individual business of D. J. Coulter, carried on by him individually under the name of D. J. Coulter & Co. as a matter of convenience to distinguish it from other operations in which he was engaged, and, hence, there was nothing to prevent Cook’s working as Coulter’s employee, notwithstanding the ownership of an interest in the leases. (In connection with this argument, the cases of Walker v. Tupper, 152 Pa. 1, and Butler Savings Bank v. Osborne, 159 Pa. 10, may be consulted.)

The opinion of the board dismissed the request for a definite finding in these words: “There being competent evidence that Cook was an employee of Coulter & Company, the referee was not obliged to extend his findings to include a definition or entitlement of the master’s business, whether a corporation, a copartnership, joint stock association, tenancy in common, tenancy by entireties or other association. If this be true, it is not incumbent upon the board to define the precise legal status of defendant or to remit the record to the referee for an amended finding on this subject.”

We do not take the same view of the matter. We think it is necessary, in order to determine whether the conclusions of law reached are correct, to have distinct and definite findings of fact exhibiting the relation of A. J. Cook to the business in which he was working. This is necessary because, in order to dispose of the case entirely, we have to determine not only whether compensation for the death of Cook is within, or outside of, the liability which the insurance carrier was paid for assuming, and by the provisions of the policy actually did assume, but also whether D. J. Coulter & Co. — whoever or whatever they may be — are liable to an award for such compensation; and to decide whether the award shall stand against both parties as made, or be set aside as to both, or shall stand as to one and be set aside as to the other. If the fact be that A. J. Cook and other individuals, associated together as a partnership, or quasi-partnership, or other organization (not a corporation), were the proprietors of the business, and D. J. Coulter was managing it as their agent or superintendent, so that A. J. Cook was working for himself and others, then, according to the interpretation which was given to the English Workmen’s Compensation Act in Ellis v. Ellis, 7 Workmen’s Compensation Cases, 97, and was adopted and applied to our act in Speck v. Omwake & Speck, 8 Dept. Reps. 482, and Arthurs v. Drilling Co., Claim Petition No. 12,451, not reported, there would seem to be no liability at all under the Workmen’s Compensation Act, because the statute defines an employee as embracing “persons who perform services for another for a valuable consideration,” and does not intend to create “the personality that is unknown to the law, a person who at one and the same time is both master and servant, employer and workman;” and when, by arrangement between partners, one of them works for the partnership and is allowed for so doing what are called “wages,” this is in reality nothing more than a mode of adjusting accounts between the partners and does not create the relation of employer and employee within the meaning of the statute. But if the fact be, as contended here by the appellee, that “D. J. Coulter & Co.” means, and is, merely D. J. Coulter doing business under that name, and the operation of the leases was his individual business, carried on in a character substantially that of a contractor (or analogous thereto), so far as concerning the interests in the property of his co-tenants, so that Cook was his employee, then the insurance company may not be liable, because it did not insure the liability of D. J. Coulter as an individual employer; but D. J. Coulter himself, doing business under the name of D. J. Coulter & Co., may be so.

As we are not authorized to find the facts ourselves from the evidence, we think the case should go back, to the end that the facts may be fully, distinctly and unequivocally found with reference to the following questions:

1. Whether, at the time of receiving his injury, A. J. Cook was performing services for himself and other persons associated together as a partnership under the name of D. J. Coulter & Co.;

2. Whether, at that time, he was performing services for himself and other persons, associated together in any form of organization or relation other than a partnership, and if so, the nature of such organization or relation; and

3. Whether, at the time aforesaid, he was performing services for and as an employee of D. J. Coulter, individually trading under the name of D. J. Coulter & Co., in a business of which D. J. Coulter alone was the proprietor.

And if, in order to determine these questions, additional evidence is required, a hearing de novo should be granted.

And now, April 30, 1928, the court being of opinion that the findings of fact by the referee and the board are not sufficient to enable it to decide all the questions of law raised by the appeal, it is ordered that the record be remitted to the Workmen’s Compensation Board, to the end, and with the direction, that it shall make or cause to be made more specific findings of fact touching the questions that are stated in the opinion herewith filed.

From Harry D. Hamilton, Washington, Pa.


text:
    Keith’s Petition.
    No. 1.

      Francis H. S. Bde, for petitioner; Smith & Paff, for respondent.
    April 9, 1928.
   Stewart, P. J.,

This is a petition for a rule upon respondent to bring an action of ejectment within six months. It is presumably under the Act of March 8, 1889, P. L. 10, as amended by the Act of April 16, 1903, P. L. 212. It is sometimes difficult to determine without a specific reference in the petition whether the above act governs or the Acts of June 10, 1893, P. L. 415, or April 18, 1905, P. L. 202. A study of the cases shows that courts sometimes have confused these acts. In| Fearl v. Johnstown, 216 Pa. 205; the syllabus is: “Where the title to real estate is in dispute, but the fact of possession is clear, the remedy is for the person in possession to rule the person out of possession to bring an ejectment, as provided by the Act of March 8, 1889, P. L. 10; but where both the title to the land and the fact of possession are in dispute, the remedy is a rule for an issue to be framed by the court as provided by the Act of June 10, 1893, P. L. 415.” In Hemphill v. Ralston et al., 278 Pa. 432, the matter is further amplified. The syllabus is as follows: “In proceedings to bring ejectment under the Act of April 16, 1903, P. L. 212, ■or under the Act of June 10, 1893, P. L. 416, for an issue to quiet title, the proceedings must be instituted by the party in possession, and this finding of fact is jurisdictional and must appear on the record. In neither proceeding is the question of title to be settled in disposing of the rule. If the record does not show which of the parties was in possession, the proceedings will be dismissed. Where the record shows an application for a rule to bring ejectment under the Act of April 16, 1903, P. L. 212, a decree awarding an issue in express terms under the Act of June 10, 1893, P. L. 415, is fatally defective. In such case, the order entered must conform to the case as made out by the pleading, and be consistent with the relief prayed' for. It seems that an amendment might be allowed in such ease to bring the petition and its prayer within the scope of the statute under which assistance is actually sought.” In that case, Mr. Justice Sadler refers to Mildren v. Nye, 240 Pa. 72, as having been brought under the Act of 1903, supra. On referring to that case, Mr. Justice Brown said the petition in this ease was filed under the Act of 1893. He, however, said at the commencement of the opinion as follows: “The Act of March 8, 1889, P. L. 10, amended by the Act of April 16, 1903, P. L. 212, is for the settling of titles to real estate, and the Act of June 10, 1893, P. L. 415, provides ‘for the quieting of titles to land'.’ Each act is for the same purpose, and, though the methods of procedure under the one differ from those under the other, the provisions of neither can be invoked by any one who is not in possession of the land.” The syllabus of that case is: “Where a petition filed under the Act of June 10, 1893, P. L. 415, to quiet title to land, avers possession in the petitioners, and such averment is denied by the respondents, and upon a rule to show cause why an issue should not be awarded testimony is taken and the court finds as a fact that the petitioners’ jurisdictional averment of possession has not been sustained, and that the respondents were in the actual physical possession of the property at the time the petition was filed, an issue is properly refused by the Court of Common Pleas. Pearl v. Johnstown, 216 Pa. 205, considered and distinguished. Possession in the petitioner is necessary to give the court its purely statutory jurisdiction, and such jurisdiction cannot be acquired where there is only a contest as to the fact of possession, and there is not actual possesssion in petitioner. In such case, the remedy is still trespass or ejectment under the common law. If possession by the petitioner be denied by the respondent, the court must pass upon that fact, not, however, with the conclusiveness of the verdict of a jury, but as establishing the petitioner’s right to the issue, for, though the Act of 1893 makes no express provision for a determination of this preliminary question by the court, it does so by clear implication, when it declares that the issue shall be granted ‘if it shall appear to the court that the facts set forth in such petition are true.’ The meaning of this is that, before the court can award an issue, it must find to be true the facts averred in the petition, if they are disputed.” However, assuming that it is under the Act of 1903, this case is not ripe for a decision. There is a petition, an answer, no replication and no testimony. While there is nothing in section 1 of the Act of 1889 that provides for the taking of testimony, yet it is plainly implied that the jurisdictional facts be made to appear before the issue is granted.

The Act of 1893, in its terms, does provide for a hearing in the second section. Under that act, in Titus v. Bindley, 210 Pa. 121, it was held: “On a petition under the Act of June 10, 1893, P. U. 415, entitled ‘An act to provide for the quieting of titles to land,’ the court cannot summarily determine the title to the property on the application for the issue, whether the dispute is over facts or the law arising upon the construction of a written instrument. Whenever the adverse claimant relies upon possession, actual or constructive, to oust the jurisdiction .of the court under the act, he must establish it without requiring the court on the application for the issue to first adjudge and sustain the validity of his title. Where the petitioner sufficiently avers the petitioner’s claim of title and right of possession and the respondent’s denial thereof, and the parol testimony shows that the petitioner and those under whom he claimed title had exclusive possession of the land for many years, the court should grant the issue prayed for by the petition.” In Putt et al. v. Africa, 232 Pa. 182, the syllabus is: “A petition for an issue to quiet title filed under the provisions of the Act of June 10, 1893, P. L. 415, must be dismissed where, upon a hearing’, it appears from the evidence of the petitioners that one of the necessary jurisdictional averments in the petition is not true.” See, also, Earhart v. Marshall, 233 Pa. 365; Bell’s Petition, 259 Pa. 495; Notley’s Petition, 263 Pa. 377, and Laidley v. Rowe, 275 Pa. 389, the syllabus of which is: “In a proceeding under the Act of June 10, 1893, P. L. 415, for an issue to determine the title or right of possession of real estate, in the absence of an adverse occupancy, a prima facie legal title in petitioner draws to it such possession as will warrant the awarding of an issue.” An examination of above authorities and others which we have not cited satisfies us, therefore, that a replication should be filed, and a day must be fixed for a hearing before we can determine whether the rule shall be made absolute or not. The only order that we can make is the following:

And now, April 9, 1928, leave is granted petitioners to file a replication, and April 23rd is fixed for a hearing.

From Henry D. Maxwell, Easton, Pa.