author: Sayers, P. J.

text:
    Wayne Township School District v. Lantz et al.

      A. M. Nichols, for plaintiff.

      K. W. Scott and W. T. H. Pauley, for defendants.
   Sayers, P. J.

— The School District of Wayne Township filed a petition in this court at the above number and term, praying for the appointment of viewers to assess damages for the taking of land in Wayne Township, Greene County, Pennsylvania, belonging to the defendants, which the petitioner claims had been taken and condemned by the board of school directors of said district as a site for a high school building and playgrounds adjacent thereto. Viewers were appointed by the court and notice was given to the defendants in this proceeding of the time and-place when the viewers would meet for the purpose of viewing the premises and estimating the damages, if any, to which the defendants would be entitled. Before the time set for the view had arrived, the defendants in this case filed a petition and obtained a rule on the School District of Wayne Township to show cause why the petition for the appointment of viewers should not be quashed and the condemnation proceedings instituted by said school district against said defendants should not be declared illegal and void. At the same time an order was made staying proceedings on the part of the viewers and restraining the school directors, their agents, employees and contractors, from entering upon the land of defendants or interfering with defendants in any way until the further order of the court. An answer to this rule was filed by the School Directors of Wayne Township.

Depositions were taken on behalf of the plaintiff, and the matter was submitted to the court on depositions, argument and briefs.

Findings of fact.

1. The School District of Wayne Township, Greene County, Pennsylvania, is a municipal division of the said county and township for school purposes, with all the powers and authority in its school directors as provided by the Act of May 18, 1911, P. L. 309, and its several supplements and amendments.

2. Said district is constituted as a district of the fourth class.

3. George Kerr, President; Gail Wood, Vice-President; B. F. Thralls, Paul 0. Eddy and John H. Henderson, members, constituted the duly elected and qualified school directors of said township at the inception of this proceeding, and Clyde Hoy was the secretary of the said board of school directors.

4. The tract of land belonging to the defendant respondents in this proceeding is a part of a tract of land formerly belonging to Ulysses Grant Lantz, situate in Wayne Township, Greene County, Pennsylvania, adjoining land of D. J. Hoy, lands now or formerly of Jacob Eddy, Samuel Eddy, and lots in the village of Brave, containing 180 acres, more or less.

5. Dora M. Lantz, executrix and trustee under the will of Ulysses G. Lantz, deceased, and Dora M. Lantz and Lyle E. Lantz are the owners of and the only persons interested in the lands sought to be condemned for school purposes in this proceeding.

6. No part of the tract of land proposed to be taken for school purposes is used as a burial ground, nor does any part belong to any incorporated institution of learning, incorporated hospital association or unincorporated church, incorporated or unincorporated religious association, and no part of said land is actually used or held for the purpose of a burial ground, institution of learning, hospital association, church or religious association whatsoever.

7. The Peoples Natural Gas Company maintains a large pumping station at Brave, in Wayne Township, Greene County, Pennsylvania, most of the population of that village being skilled laborers and mechanics employed in and about said pumping station.

8. The School District of Wayne Township maintains a two-room school house for the accommodation of pupils in said district, and is using and occupying a tool house owned by the Peoples Gas Company as a third school room, and there are now in the district between 102 and 106 children of school age.

9. For the past four years the residents of the district and the school board have been considering the advisability of constructing a high school building and maintaining a high school at Brave, and building in connection therewith an auditorium and a gymnasium.

10. About four years before this proceeding began the Peoples,Natural Gas Company, through Mr. J. B. Tonkin, its Vice-President, realizing the need in the community, proposed to the school board to assist in the erection of an auditorium and a gymnasium in connection with the proposed new school building.

11. On April 21, 1928, the following motion and action of the board appears on the minutes of the school board:

(Depositions, page 3.) “By motion of Gail Wood and seconded by Paul O. Eddy, that we erect at Brave a new four-room school building. Motion carried.”

12. At a special meeting held on May 26, 1928, the following minutes appear in the minute book:

(Depositions, page 4.) “The Wayne Township School Board met at Brave, Saturday, May 26, 1928. Members present: Mr. George Kerr, Mr. B. F. Thralls, Mr. John Henderson, Gail Wood and Paul O. Eddy. Meeting being for the purpose of meeting with Mr. J. B. Tonkin, Vice-President of the Peoples Natural Gas Company.”

13. At this special meeting, Mr. Tonkin made a proposition to the school board for erecting an auditorium and gymnasium. The minute book entry reads:

(Depositions, page 5.) “Moved by Gail Wood and seconded by John H. Henderson, that we acept the proposition made by Mr. J. B. Tonkin, representing the Peoples Natural Gas Company, by which the Wayne Township School Board would construct a four-room brick school building, and the Peoples Natural Gas Company to construct at their expense in connection with the said school building a combined auditorium and gymnasium. Said school building and gymnasium to be erected on the location staked off on the land of U. G. Lantz heirs farm by the Wayne Township School Board and Mr. J. B. Tonkin on this 26th day of May, 1928.”

14. On the same day the entire school board, in company with J. B. Ton-kin, H. D. Freeland, County Superintendent, Conrad Compton, architect, Clyde Hoy, Secretary, and some others, met on the site selected, when the following motion was made:

(Depositions, page 6.) “Moved by B. F. Thralls and seconded by George Kerr, that a committee be appointed for the purpose of securing a piece of approximately three acres of land belonging to U. G. Lantz heirs farm, and upon which the location for this new school building has been made.”

15. On the same day, George Kerr, the president of the board, appointed a committee composed of B. F. Thralls, Gail Wood and Paul O. Eddy. The minute book under the same date shows the following entry:

(Depositions, page 9.) “Moved by P. 0. Eddy and seconded by Gail Wood, that the Wayne Township School Board take necessary steps to condemn that portion of ground on the U. G. Lantz heirs farm staked off on this 26th day of May, 1928, for the purpose of erecting thereon a new school building; also whatever ground is necessary in connection therewith as a playground. This resolution to be effective only in case the committee appointed under the above resolution is unable to secure a reasonable and satisfactory price upon the ground desired.”

16. The minute book under date of June 14, 1928, shows the following:

(Depositions, page 10.) “The committee consisting of B. F. Thralls, P. O. Eddy and Gail Wood, appointed to secure a price on approximately three acres of land belonging to the U. G. Lantz estate, on which a new school building has been located, reports that on May 26, 1928, the committee talked with Dora M. Lantz and Lyle E. Lantz and was unable to agree on any price for any land for school purposes. The committee being informed by Dora M. Lantz that she would not consider selling any land to the School District of Wayne Township for school purposes, and the school district would have to condemn any land it got from her.”

17. On June 22,1928, Geo. D. Jenkins, C. E., made a survey and plot of the site selected, containing 4.74 acres. Nothing appears in the minute book to show that this survey was ever officially authorized or adopted by a resolution of the Wayne Township School Board.

18. On July SO, 1928, the School District of Wayne Township, Greene County, Pennsylvania, presented its petition at the above number and term, praying for the appointment of viewers to view the premises sought to be condemned and assess the damages, etc. There is nothing on the minutes of said school board directing the presentation of this petition.

19. It was the unanimous agreement and opinion on the part of the school directors of said district that a school building of five rooms was necessary at Brave, and, having in view the future needs of the district, that a provision should be made, if possible, for an auditorium and a gymnasium and the necessary playgrounds surrounding said buildings.

20. Part of the 4.74 acres of land staked off by the school board is on low ground, next to Dunkard Creek, and frequently overflows, but it appears to be necessary to take such strip in order to reach the public road leading from Brave to the village of Blacksville. The draft seems to indicate that the proposed school building could only be approached in other directions over alleys in the village of Brave.

21. On May 26, 1928, the school board, through a committee appointed by its president, endeavored to agree with the defendants upon a price or value of the land which they proposed to take, and which they had designated and marked by boundary lines and indicated by stakes driven in the ground. It was represented to Dora M. Lantz that they proposed to take something over three acres and they offered to show her a rough draft of the tract which they proposed to take. (Depositions, page 8.) She told them that she did not want a school house there. (Depositions, page 14.) She also said that she did not have any land for school purposes and would not put a price on any. (Depositions, page 29.) On another occasion her attorney was offered $400 an acre for the land by A. M. Nichols, solicitor and agent of the school board, and his proposition was refused. (Depositions, pages 17, 18.)

22. At the meeting of May 26, 1928, the proposal of the Peoples Natural Gas Company, made a few years before, was reconsidered, and on that date was renewed by Mr. Tonkin, who had a meeting on the day before with certain citizens and employees of the gas company in the Brave School District, in which it was agreed that the proposed building could not be erected for $10,000, and practically all of the employees at the pump station agreed to donate sixty-six hours’ labor towards the erection of the auditorium and gymnasium. That proposition was accepted by the school board on May 26th, and later embodied in the writing attached to the deposition, marked Exhibit No. 2.

23. The said written confirmation, marked Exhibit No. 2, is as follows:

“To the School District of Wayne Township,

Greene County, Pennsylvania:

“Whereas, the School District of Wayne Township proposes to erect a new school building at Brave in said School District, and on the 26th day of May, 1928, selected a site therefor on the U. G. Lantz farm; and

“Whereas, The Peoples Natural Gas Company, by its Vice-President and General Manager, after a meeting with the citizens of Brave on May 25, 1928, did, on May 26, 1928, make a verbal offer to the School District of Wayne Township to build at the expense of the Gas Company, for the use of said School District, a combined auditorium and gymnasium as a part of the new school building, provided that the expense thereof would be reasonable; and

“Whereas, the plans and specifications as prepared by C. C. Compton, architect for the School District, and the estimates of costs as prepared by the contractor, clearly indicated that the cost would greatly exceed the amount the Gas Company was prepared to contribute, said amount being in the neighborhood of the $10,000 appropriated for such purpose; and

“Whereas, the architect was to alter the plans and specifications and the contractor was to prepare new estimates of costs for submission to the Gas Company for approval; and

“Whereas, the contractor is now unable to accurately estimate the costs for the reason that the work is not to be started until the spring of 1929; and

“Whereas, the citizens of Brave, at the meeting of May 25, 1928, agreed to assist in reducing the cost by contributing part of their time toward the construction of the building in excavating, mixing and pouring of concrete, rough carpenter work, truck driving, painting, etc.; and

“Whereas, the offer to build the auditorium and gymnasium by the Gas Company was made as a gift or donation to the said School District, and after its completion was to be under the sole control and management of the School District.

“You are, therefore, advised that The Peoples Natural Gas Company now confirms in writing its verbal offer of May 26, 1928, as above set forth, made in person to the said School District by J. B. Tonkin, its Vice-President and General Manager.

“Dated at Pittsburgh, Pa., November 9th, 1928.
“The Peoples Natural Gas Company.
“By (s) J. B. Tonkin,
“Vice-President and General Manager.”

24. That the above proposal and all the other evidence in this case is that the Peoples Natural Gas Company are to contribute $10,000 toward the erection of an auditorium and gymnasium, and the citizens of Brave will assist in its construction, and after its completion, the buildings and grounds are to be under the sole control and management of the school district.

25. It is difficult to tell from the testimony, including the minutes of the school board, just the order in which the events of May 26, 1928, occurred, but apparently all the proceedings were had and all the minutes were entered before the committee to agree with the defendants called on Dora M. Lantz at 4 P. M. on that afternoon to ascertain what damage she wanted or what price she would take for the land.

26. On May 26, 1928, the school board selected a site for its building and playgrounds.

27. It tried on that day, and afterwards, to agree with the owners upon the price of the land, but failed to reach an agreement.

28. It decided on May 26, 1928, and so informed the owners, of the amount and location of the land desired.

29. It entered on May 26, 1928, and took possession thereof, occupied the land, and designated and marked the boundary lines thereof.

30. The meeting of May 26, 1928, was a special meeting, called for the purpose of meeting Mr. J. B. Tonkin.

Discussion.

It is alleged on the part of the defendants respondent, in their petition for the rule to show cause, that the school directors have not proceeded in the manner required by law to condemn the land required by them for school purposes and that their proceedings and acts are illegal and void:

(a) Because it does not appear by the petition that the location and amount of the real estate required by the School District of Wayne Township for school purposes was determined by the board of school directors by a majority vote prior to the resolution of May 26, 1928, nor was it ever determined by a majority vote of all of the members of the board as required by law.

(b) That no effort was made by the school directors to agree with the petitioner on a price for said land prior to the passage of the resolution of May 26, 1928, and prior to their entry upon the land.

(c) That no resolution was passed by the board making any offer to petitioners for the land to be condemned or authorizing any person to negotiate for the purchase of the land.

(d) That it does not appear by the petition for viewers that the school board followed the procedure laid down in sections 604 and 605 of the School Code of May 18, 1911, P. L. 809', in any particular.

(e) That the resolution of May 26, 1928, is insufficient and not in conformity with the law because it does not show any attempt to agree with the petitioners or identify and designate the lands proposed to be taken or give the location and amount thereof.

(f) That the school district is not attempting to appropriate the land solely for school purposes, but that they are appropriating it for the use of the Peoples Natural Gas Company who will be permitted to control the auditorium and gymnasium, and that the school board will permit the use of the grounds by the company as a ball park.

(g) That the amount of land proposed to be condemned is in excess of any needed for school purposes and is not reasonably necessary.

(h) That the joint control and management of said auditorium and gymnasium is in direct violation of article IX, section 7, of the Constitution of Pennsylvania.

The exercise of the right of eminent domain, whether directly by the State or its authorized grantee, is necessarily in derogation of private right, and the rule is that such authority must, be strictly construed. No principle of law is better settled than that a municipality can only exercise the right of eminent domain when it is conferred upon it by the Legislature expressly or by necessary implication, since a municipal corporation has no more right than any other corporation to condemn property: McQuillin on Municipal Corp.. 352; Laird v. Pittsburg, 205 Pa. 1; Lazarus v. Morris, 212 Pa. 128, 131; Philadelphia’s Petition, 60 Pa. Superior Ct. 594, 596; Solar Electric Co.’s Appeal (No. 1), 290 Pa. 156, 165. There are numerous cases in the books to the effect that school districts are creatures of the statutes, and have only such powers as are thereby given them: Mulligan v. School District, 241 Pa. 204, 207. It, therefore, follows that if the statutory requirements for the condemnation of land for school purposes have not been complied with by the official action of the board of school directors, the entire proceedings are void: Redstone Township School District’s Petition, 4 D. & C. 609.

Section 307 of The School Code of 1911 provides that each board shall have specified times and places at which to hold its meetings, and designates what shall be called regular meetings and special meetings, section 310 provides that members shall have reasonable notice of all special meetings, and section 309 provides: “‘No business shall be transacted at any special meeting except that named in the call sent to the members for such special meeting; provided, that special meetings may be called for general purposes.”

It is objected that the meeting of May 26, 1928, was a special meeting and that no notice thereof was given to the school directors; consequently, the resolutions passed at that meeting with reference to the condemnation of the school lot are illegal and void. This would be true if it were not for the fact that the minutes show that all the members of the board were present. The law directs that notice shall be given to all of them in order that the business to be transacted may be lawful and regular: Redstone Township School District, 284 Pa. 325. If one or more of the directors had not been present at the meeting, then this objection would be good, but since they were all present and took part in the meeting, the manner in which the meeting was called is not of vital importance, nor are the matters to be considered at the meeting.

The minutes of the meeting show that it was called for the purpose of meeting with Mr. J. B. Tonkin, presumably with relation to the proposition of the Peoples Natural Gas Company to assist in the district’s building program, but since the directors were all present, and all of them knew that the purpose of the meeting was not only to confer with Mr. Tonkin but to select the site for a new school building, to mark the boundaries thereof, to try to agree upon the purchase thereof from the landowner, and finally to appropriate the land for school purposes, and it being their apparent intention to take action on these matters, objections to the resolution of May 26, 1928, on this ground alone cannot be sustained.

The objection, however, as stated above in paragraph (al), to the effect that the minutes of the meeting of May 26th show that the various resolutions were not adopted by a majority vote of all of the members of the board, as required by law, presents a more serious proposition. The School Code of 1911 provides as follows:

“Section 403. The aifirmative vote of a majority of all the members of the board of school directors in every school district in this Commonwealth, duly recorded, showing how each member voted, shall be required in order to take action on the following subjects: . . .

“Purchasing, selling or condemning land. Locating new buildings or changing the locations of old ones. . . . Establishing additional schools or departments. . . .”

The resolution of April 21, 1928, providing for the erection of a new school building, is followed on the minutes by the words “Motion carried.” The various resolutions passed on May 26, 1928, do not show any vote on the motion, either affirmatively or negatively, to construct a new school building combined with an auditorium and a gymnasium, and the same is true of the motion directing the committee to secure a portion of the Lantz farm upon which to erect the buildings, and the same is true also of the resolution providing for the necessary steps to condemn the lot selected. There was some testimony on the part of the directors that their actual vote was unanimous, but this fact does not appear by the minutes, and the minutes are the best evidence of the action of the school board.

Directors can only bind the district by their official acts, of which the minutes are the best evidence: Wachob & McDowell v. School District of Bingham, 8 Phila. 568; In re Appeal of Sykesville Borough, 91 Pa. Superior Ct. 335, 340. The burden is on the party claiming the right to act under a resolution of a school board to show its regularity and legality, where the minutes were not kept in the way prescribed by the statute: Coal and Iron Co. v. Dunphy et al., 11 Dist. R. 218. If the minutes had shown that the resolution had been “carried unanimously,” it would have been a substantial compliance with the statute: Tobin v. Morgan, 70 Pa. 229. It cannot subsequently be shown that the word “unanimous” was inadvertently omitted from the minutes: Ryan v. Norwegian Township School District, 39 Pa. C. C. Reps. 506.

The directions of the law as to the manner in which the vote must be recorded are mandatory: Strathern v. Gilmore, 184 Pa. 265, 273; Waltman v. Albany Township School District, 64 Pa. Superior Ct. 458, 465. Inasmuch as all the directors were present at the special meeting and understood the purpose of the meeting, the resolutions to build a new building, to establish an additional room or rooms and an auditorium and gymnasium, and to appropriate and condemn land necessary therefor, might have been sufficient to accomplish their object if the vote taken had been recorded in the proper manner. If the minutes had shown that the motions were carried unanimously, that would have been a sufficient compliance with the law: McCandless v. Summit Township School District, 55 Pa. Superior Ct. 277, 280.

We must hold that none of the resolutions, hereinbefore referred to, show an appropriate record of an affirmative vote, and we must hold, as the Supreme Court held in Jackson v. Conneautville Borough School District, 280 Pa. 601, that the acts of a school board of which there is no record of any affirmative vote relating thereto, are in violation of section 403 of the Act of May 18, 1911, P. L. 309, and are void. The resolutions, therefore, preliminary to the condemnation of the land in this case for school purposes, being void, it necessarily follows that the petition for the appointment of viewers must fall, not being grounded upon proper action of the school board, and the petition must be quashed and dismissed.

It is unnecessary to pass upon the question as to whether the resolutions of the school board preliminary to the condemnation proceedings were in regular order, nor is it necessary to determine whether the school board followed the procedure to condemn the land in the order laid down in sections 604 and 605 of the School Code. It is suggested in the case of Lewisburgh School District v. Harrison et al., 290 Pa. 258, 266, that there is a certain order of procedure to be followed, as stated in the following language:

“It is plain, therefore, that the order of procedure for condemnation proceedings as set forth in section 605 of the School Law follows this line: (1) The selection of the site; (2) disagreement as to price; (3) decision on the amount of land and location; (4) entry, taking possession and occupancy, being one and the same act, concurrently performed by going upon the land; (5) designating and marking the boundary lines; after which steps the school district ‘may use the same for school purposes.’ ”

The facts in this case indicate that the board undertook to do all of these acts in one day and they did substantially all that is required above, but the disagreement with the landowners as to price followed all their other actions and was not reported by the committee until a subsequent meeting. It is apparent, however, that they were not able to reach an agreement with the landowners, and it is also a fact that they attempted to reach such an agreement long before they filed a petition in this case, and if their resolutions in this case had been properly adopted and so shown by their minutes, there would be no difficulty in sustaining the petition for condemnation in this case.

It has also been suggested that the buildings and land were to be under the partial control of the Peoples Natural Gas Company, but the evidence in this case disposes of that contention. In this connection, it was suggested thát such joint control and management were in direct violation of article IX, section 7, of the Constitution of Pennsylvania, forbidding any incorporated district to become a stockholder or interested in a corporation, or to appropriate money to any corporation. There was no such undertaking in this case, and while joint control and management between the school board and the Peoples Natural Gas Company would be unlawful and not permissible, we see no reason why the township cannot accept a donation and assistance in the erection of its buildings both from the Peoples Natural Gas Company and from the citizens residing in the district.

It is further contended that the amount of land proposed to be condemned is in excess of any needed for school purposes and is not reasonably necessary. This contention is not supported by the evidence nor the law. The question of the necessity for a new school building and its location (and incidentally the size and location of the grounds adjacent thereto) is a matter within the sound discretion of the school board; and the courts will not interfere with the decision of the board on such matters where there is no abuse of diseretion: Gilfillan et al. v. Fife, 266 Pa. 171. We do not deem it necessary to discuss any of the other matters raised by the objections to the petition for condemnation.

Conclusions of law.

1. The School District of Wayne Township has not, by its resolution or vote, signified a desire to erect a new school building or to purchase and condemn the land necessary therefor.

2. The petition for the appointment of viewers to assess damages for the taking of the ground or lot necessary for school purposes is not founded upon proper action and proper resolutions of the school board and is, therefore, illegal and void.

Order.

And now, July 22, 1928, after due consideration of the foregoing case, it is ordered and directed that the petition for the appointment of viewers to estimate and determine the damages sustained by the owners by reason of the taking of said land by the said school district is hereby quashed and dismissed, at the cost of the petitioner, the School District of Wayne Township.

Prom S. M. Williamson, Waynesburg, Pa.


source: Caselaw Access Project

author: Houck, J.,

license: Public Domain

text:
    Oransky et ux. v. Stepanavich.

      B. J. Duffy, for plaintiffs; A. D. Knittle and Geo. M. Gerber, for defendant.
    Dec. 23, 1929.
   Houck, J.,

— This is a rule to show cause why judgment should not be entered on the pleadings against the plaintiffs and in favor of the defendant. In the plaintiffs’ declaration it is alleged that the defendant is in possession of certain real estate to which the plaintiffs are entitled, and the plaintiffs seek to recover possession of the premises, together with mesne profits from Feb. 9, 1929. The plaintiffs’ abstract of title sets forth two conveyances: the first, a deed dated Feb. 7, 1924, from Max Plocinak and Mary Plocinak, his wife, to Peter Stepanavich, including the premises here in dispute; and the second, a deed dated Dec. 16, 1924, from Peter Stepanavich and Anna Stepanavich, his wife, to Gordon Oransky and Anna Oransky, his wife, for the premises which are the subject of this action. The defendant entered a plea of not guilty and filed an answer, in the nature of a special plea, claiming title by virtue of sheriff’s deed dated Jan. 22, 1929. It appears from the answer that the sheriff’s sale was based upon a fieri facias issued on a judgment of the First National Bank of Coaldale v. Gordon Oransky, Anna Oransky and Peter Stepanavich, No. 714, July Term, 1927. The answer sets forth in detail the events leading up to the entry of that judgment and to the sheriff’s sale, and refers to the pleadings in certain proceedings on the judgment in which Anna Oransky sought to have the judgment opened as to her on the ground that she was a minor when she signed the note on which judgment was entered. It is sufficient for the purposes of this rule, without reciting the respective contentions of the parties as they appear from the pleadings, to state that the pleadings necessarily aver facts. The defendant, taking the position that every fact averred in his answer can be established by record proof, obtained this rule for judgment in his favor on the pleadings.

In an action of ejectment, the only pleadings are the plaintiff’s declaration and abstract of title, and the defendant’s plea of not guilty, his answer in the nature of a special plea, and the abstract of title by which he claims. The plaintiffs’ pleadings make no mention of the sheriff’s deed relied upon by the defendant. Therefore, to enter judgment on the pleadings in favor of the defendant, we would have to assume that the defendant could prove this deed and the judgment on which it is based in due form. We would also be obliged to assume that the defendant could establish by incontrovertible proof all the other facts alleged in the answer. We do not see how this can be done. The legal questions involved in this case present a complicated situation, and, in our opinion, their determination should not be attempted until the relevant facts have been established by proper proof. It may be gathered from the defendant’s answer that he conveyed the premises in question to Gordon Oransky and Anna Oransky, his wife; that part of the money to pay for the property was borrowed from the First National Bank of Coaldale, secured by a judgment note signed by the two Oranskys and the defendant; that this note was later renewed, Oransky and his wife signing the renewal note as makers and the defendant as endorser guaranteeing payment; that judgment was entered on this renewal note and execution issued against the makers; that Anna Oransky then filed a petition to open the judgment as to her on the ground that she was a minor when she signed the note; that the court required her to affirm or disaffirm the note, whereupon she disaffirmed it, and her name was then stricken off as a defendant in the judgment; that Stepanavieh, the defendant, then paid the amount of the note to the First National Bank of Coaldale, which assigned the judgment to him; and that he issued execution on the judgment against Gordon Oransky alone, the sheriff selling the property to the defendant on this execution.

It may be very material for a proper determination of the case to know all the facts surrounding the execution of the original note, because the rule to be applied may depend entirely upon whether the note was a purchase-money note or simply a loan by the bank to Oransky and his wife: See Coxnmonwealth Title Insurance and Trust Co. v. Ellis, 192 Pa. 321; Kennedy v. Baker et al., 159 Pa. 146; Citizens Building and Loan Ass’n v. Arvin, 207 Pa. 293, and Schlosser’s Appeal, 58 Pa. 493. As we have already indicated, the facts must first be established before the legal questions can be answered. The necessary facts are not established by the pleadings, and, consequently, in the present state of the record, the case is not in position for the entry of judgment for either party on the pleadings. The case must be tried in order that the facts may be developed.

And now, Dee. 23, 1929, the rule to show cause why judgment should not be entered on the pleadings against the plaintiffs and in favor of the defendant is discharged.

Prom M. M. Burke, Shenandoah, Pa.


author: Groff, J.,

text:
    Murphy et al. v. Omwake.

      F. Lyman Windolph and John E. Malone, for rule.

      Harris C. Arnold and John A. Coyle, contra.
    July 6, 1929.
   Groff, J.,

— The defendant in the above action was granted a rule to show cause why the plaintiffs should not file a more specific statement, and he alleges as his reason that:

“The plaintiffs aver in paragraph 6 that the minor plaintiff was riding in and upon an automobile driven by the defendant, but do not aver in or upon what part of said automobile the minor plaintiff was riding, nor do they aver in what capacity the minor plaintiff was riding in or upon said automobile so driven by the defendant.”

The purpose of the Practice Act is to have the statement set forth the cause of action in such concise and plain language that a responsive answer can be made by the defendant, and this would apply to actions in trespass as well as to those in assumpsit.

In our mind, “riding in and upon an automobile” is very indefinite, and if, for any reason, the defendant should determine to file an affidavit of defense, as is his right, under the act of assembly, he should be informed whether the minor plaintiff was riding “in or upon” the automobile, and whether he was riding as a guest or in some other capacity. If a guest, the statement should state whose guest he was, and if a passenger, who received the compensation for his passage.

In Papieski v. Bridge Co., 75 Pitts. L. J. 473, the court held that a “Statement of claim in trespass to recover damages for death of plaintiff’s minor son on ground that defendant was violating the child labor laws should be stricken from record where it failed to show what work was being done by minor in alleged operation of hoisting machine at time of injuries'.”

Plaintiffs, in their argument and in their brief filed, seem to object to filing a more specific statement, for, as they say, reciting from the opinion of Dattola v. Burt Brothers, 288 Pa. 134, 136: “A plaintiff need not prove negatively that he was not guilty of contributory negligence.”

We assume that the plaintiffs can amend their statement without alleging such facts as would convict them of contributory negligence. If they cannot, then, of course, they would not have brought this action against the defendant.

It would seem to us that the reasoning set out in Budnaitis v. Mining Co., 24 Luzerne Legal Reg. 198, would be applicable to the case in hand. There it was held, that in an action of trespass for injury to a child from culm and ashes on the premises of another, the statement should show in what part of the premises the accident occurred.

We feel that plaintiff’s action was brought in good faith, and cannot see how it would injure him to specifically state what part of the automobile in question the plaintiff was occupying, or in what capacity he was riding, or whose guest he was.

We, therefore, make the rule for a more specific statement absolute, and direct that it be filed within fifteen days from the filing of this opinion.

From George Boss Eslileman, Lancaster, Pa.


author: Koch, Dep. Att’y-Gen.,

text:
    Geistown’s Justice of the Peace.
    April 25, 1930.
   Koch, Dep. Att’y-Gen.,

— The Court of Quarter Sessions of Cambria County entered a decree on Jan. 18, 1930, incorporating the Borough of Geistown, in said county. A special election was held therein on Feb. 25, 1930, whereat one G. N. Good was elected justice of the peace, “to serve until the next municipal election.” [The quoted words are taken from the certificate of election furnished by the prothonotary.]

Mr. Good has requested the issuance of a commission to him as justice of the peace for a term to expire, presumably, the first Monday of January following the next municipal election: Constitution, art. v, .§ 11; Act of March 2, 1911, P. L. 8. The next municipal election will be held the Tuesday next following the first Monday of November, 1931 (Constitution, art. vin, § 3), unless the Legislature, perchance, should meantime fix another date in the manner provided in said article and section.

The contention has been advanced that upon the creation of the Borough of Geistown, a vacancy ipso facto existed in the office of justice of the peace, and that the right of the Governor to appoint an incumbent immediately attached to such vacancy. This contention finds support in Com. ex rel. Snyder v. Machamer, 5 Dist. R. 560.

Mr. Good contends that his election at the special borough election entitles him to a commission, and that the right of the Governor to appoint extended no further than to an appointment to expire on the date of the special borough election.

The authority for a special borough election is found in the General Borough Act, approved May 4, 1927, P. L. 519. Section 805 provides that when the court orders a special election for the election of borough officers in a newly created borough, the officers so elected shall hold office until the first Monday of January next succeeding the municipal election. Section 807 lists the officers to be elected, but excludes from said list the office of justice of the peace, which is entirely in harmony with the provisions of section 102, which distinctly provides: “This act does not include any provisions, and shall not be construed to repeal any acts, relating to: . . . (i) Justices of the peace.”

It, therefore, goes without saying that a special election for the election of justices of the peace is not authorized under the provisions of the General Borough Act of 1927.

Nor is it contended that a justice of the peace is a borough officer: Com. ex rel. Attorney-General v. Callen, 101 Pa. 375; Com. ex rel. Graham v. Cameron, 259 Pa. 209.

The Act of April 3, 1851, § 26, P. L. 320, authorizes the electors in any newly incorporated borough, “at the first borough election to elect six school directors under the provisions of the laws regulating common schools, and two justices of the peace to serve for a term of five years, and thereafter to elect justices of the peace and school directors as directed by law.”

But article V, section 11, of the Constitution, both as originally adopted and as amended in 1909, seriously affected the Act of 1851. As amended, said article and section provide for the election of justices of the peace at the municipal election for a term of six years. There is no provision, either in the Constitution or in any act of assembly enacted after its adoption, that provides for a special election of a justice of the peace. It seems clear, therefore, that section 26 of the Act of 1851, as applicable to the question here under consideration, is inconsistent with the provisions of the Constitution that justices of the peace may be elected only at the municipal election.

It has been the unbroken practice of your predecessors to refuse to issue commissions to persons claiming to have been elected to the office of justice of the peace at special elections. This practice should not be changed, in our opinion: first, because there has been no argument advanced that convinces us that the practice is legally unsound; and, second, because it is always wise, in eases of doubt, to refrain from issuing a commission until the party claiming the same has tested out his right thereto by appropriate action.

Attorney-General McCormick advised the Secretary of the Commonwealth, in an opinion rendered June 3, 1896 (5 Dist. R. 437), that is was the duty of the Governor to appoint an alderman in a newly created ward in the City of Harrisburg. Another person was later elected to the office at a special ward election, and obtained a rule to show cause why a quo warranto should not issue against the Governor’s appointee. The Attorney-General’s ruling was vindicated by the Court of Common Pleas of Dauphin County: Com. ex rel. Snyder v. Machamer, 5 Dist. R. 560. The situation here presented is very similar, and we, therefore, advise that, in our opinion, there exists a vacancy in the office of justice of the peace in Geistown Borough, and that the same may lawfully be filled only by appointment by the Governor, until the person elected at the next municipal election is entitled to enter upon his term of six years: Article IV, section 8, of the Constitution, as amended Nov. 2, 1909.

From C. P. Adflams, Harrisburg, Pa.


author: McDevitt, P. J.

text:
    Sidebotham et al. v. City of Philadelphia et al.

      Harold Evans, for plaintiffs.

      G. Coe Farrier and Ernest Lowengrund, Assistant City Solicitors, and Augustus Trask Ashton, City Solicitor, for defendants.
   McDevitt, P. J.

— This cause came on to be heard on bill, answer and proofs, from which the court makes the following

Findings of fact.

1. Plaintiffs are citizens and taxpayers of the City of Philadelphia.

2. Defendant, Harry A. Mackey, is Mayor of the City of Philadelphia. Defendant, Clarence E. Myers, is Director of City Transit of the City of Philadelphia. Defendant, WillB. Hadley, is City Controller of the City of Philadelphia. Defendant, Philadelphia Rapid Transit Company, is a motor power company incorporated under the Act of Assembly of March 22, 1887, P. L. 8, and operates under lease the street railways of the City of Philadelphia, the franchises for which are owned by a number of street railway companies.

3. On Feb. 17,1928, there was introduced into Council of the City of Philadelphia a bill, entitled “An ordinance to authorize and direct the execution of a contract between the City of Philadelphia and the Philadelphia Rapid Transit Company for the leasing by the City to said Company of a two-track surface car subway proposed to be constructed by the City upon the route therein described.” On the said date, the said bill was referred to the Committee on Transportation and Public Utilities. A copy of the said bill is attached to the plaintiffs’ bill of complaint.

4. The proposed route of the said subway, commonly known as the Locust Street Subway, as set forth in section 1 of the said bill, is as follows:

“Beginning at or near the entrance to the Delaware River Bridge at or near Franklin Square, thence to the intersection of West Washington Square and Locust Street by any one of the three following routes as may be determined by City Council: (a) Southward under Randolph Boulevard, as the same now is or may appear on the City Plan, to Chestnut Street; thence southwestward under Independence Square and Washington Square to the intersection of West Washington Square and Locust Street; or (b) southward under Sixth Street to Walnut Street; thence southwestward under Washington Square to the intersection of West Washington Square and Locust Street; or (a) southward under Seventh Street to Walnut Street; thence southwestward under Washington Square to the intersection of West Washington Square and Locust Street; thence from the intersection of West Washington Square and Locust Street westward under Locust Street to Eighteenth Street; thence northwestward under Rittenhouse Square to the intersection of Nineteenth and Walnut Streets; thence northward under Nineteenth Street to Sansom Street; thence westward under Sansom Street to a point at or near Twenty-fourth Street; thence northwestward under private, City or public property between said point and the east bank of the Schuylkill River, at or near Chestnut Street; thence via tunnel under the Schuylkill River to a point at or near the intersection of the west bank of the said river and Chestnut Street; thence westward under Chestnut Street to Woodland Avenue; thence southwestward under Woodland Avenue to a suitable connection with the West Philadelphia surface lines of the Company at or near Thirty-ninth Street; or such modified, changed or substituted route as may be adopted by the City with the approval of the Company.”

5. On April 5, 1928, the said bill, designated as Appendix No. 137, was reported favorably to City Council by the said Committee on Transportation and Public Utilities. It was read the first time and laid over to be printed.

6. On April 12, 1928, the said bill was called up for second reading in City Council and agreed to and laid over for third reading.

7. On April 19, 1928, the said bill was called up for third reading and amended in certain particulars not involved in this suit. On the said date the amended bill was agreed to and further consideration thereof was postponed.

8. On May 10, 1928, the said bill was reconsidered and the following amendments thereto were offered:

“Amendment to Appendix No. 137.
“Amend Section 1, by striking out, on page 383, 5th line, paragraph 1, the following:
“ ‘by the City.’
“Further amend by adding:
“ ‘Sect. 3. Pursuant to the authority conferred upon the City under and by virtue of the Act of Assembly of this Commonwealth, approved June 17, 1913, P. L. 520, the Director of City Transit be and he is hereby authorized and directed to enter into a contract or contracts with the Philadelphia Rapid Transit Company for the construction of a two-track surface car subway as described in section 1 of this ordinance, at the actual cost thereof, said subway to be designed by the City.’
“Further amend by adding:
“ ‘Sect. 4. The money to be paid by the City under the contract or contracts authorized in section 3 of this ordinance shall be charged to Item 301 Loan, in the appropriation to the Department of City Transit, or to any other appropriation or appropriations now or hereafter available for such expenditures.’
“Amend title by striking out on the 5th line thereof the words:
“ ‘by the City’
“and adding on the 6th line thereof, after the word ‘described,’ the following:
“ ‘and authorizing and directing the Director of City Transit to enter into a contract or contracts with Philadelphia Rapid Transit Company for the construction of said surface car subway.’ ”

The said amendments were mimeographed. On the said date, viz., May 10, 1928, the said amendments were agreed to and the final vote was taken on the said bill as so amended and it was passed by Council.

9. The effects of the said amendments offered and agreed to May 10, 1928, were:

(a) To amend the title so as to read:

“An ordinance to authorize and direct the execution of a contract between the City of Philadelphia and the Philadelphia Rapid Transit Company for the leasing by the City to said Company of a two-track surface car subway proposed to be constructed upon the route therein described and authorizing and directing the Director of City Transit to enter into a contract or contracts with Philadelphia Rapid Transit Company for the construction of said surface car subway.”

(b) To amend the first sentence of section 1, paragraph 1, so as to read:

“1. That in consideration of the rent reserved and the covenants to be performed by the Company, the City doth hereby let and demise to the Company all that certain two-track surface car subway which is proposed to be constructed, when the same shall be completed, substantially according to the following route:”

(c) To add sections 8 and 4 to the said bill as above set forth in finding of fact No. 8.

10. On May 16, 1928, Harry A. Mackey, Mayor of the City of Philadelphia, approved and signed the said ordinance amended as above set forth.

11. Defendant, Harry A. Mackey, Mayor of the City of Philadelphia, has executed on behalf of the said City the contract of lease set forth in the said ordinance.

Discussion.

This is a taxpayer’s suit to test, the validity of the Ordinance of May 16, 1928, and the letting thereunder to the Philadelphia Rapid Transit Company of a contract for the construction of a section of the proposed Locust Street Subway without competitive bidding. After hearing, the court granted a preliminary injunction. The case is now before the court on final hearing.

Questions involved.

1. May a contract for the construction of a subway or other transit facility to be owned by the City be lawfully entered into between the City and a local street railway or motor power company without competitive bidding?

2. May an ordinance authorizing the lease of a subway to be constructed by the City be amended on the date of its final passage by the addition of sections directing the Director of City Transit to enter into contracts with a local motor power company for its construction, without referring the amended ordinance to any committee, having it printed or reading it more than once?

On Feb. 17, 1928, there was introduced into Council a bill entitled “An ordinance to authorize and direct the execution of a contract between the City of Philadelphia and the Philadelphia Rapid Transit Company for the leasing by the City to said Company of a two-track surface car subway proposed to be constructed by the City upon the route therein described.” This was duly referred to the proper committee, printed, read three times, and with slight amendment was ready for final vote. On May 10, 1928, it was reconsidered, amended by adding two new sections authorizing and directing the Director of City Transit to enter into a contract or contracts with the Philadelphia Rapid Transit Company for the construction of the subway at the actual cost thereof. The title was also amended so as to read, “An ordinance to authorize and direct the execution of a contract between the City of Philadelphia and the Philadelphia Rapid Transit Company for the leasing by the City to said Company of a two-track surface car subway proposed to be constructed upon the route therein described and authorizing and directing the Director of City Transit to enter into a contract or contracts with Philadelphia Rapid Transit Company for the construction of said surface car subway.” These amendments were mimeographed, were referred to no committee, were read once only and adopted. On the same day the bill as so amended was finally passed and on May 16th approved by the Mayor.

On June 12, 1928, the present suit was filed to enjoin the Director of City Transit from signing and the Controller from numbering and certifying the proposed contract.

The grounds on which the injunction was sought are twofold: (1) The invalidity of the City entering into a contract for the construction of a public improvement such as a subway without competitive bidding; (2) the invalidity of the Ordinance of May 16, 1928, authorizing the contract, due to its form and manner of passage.

The court in granting the preliminary injunction upheld complainant’s contention that the letting of the contract without competitive bidding was illegal and found it, therefore, unnecessary to deal with the questions of procedure in passing the ordinance.

The construction of the Act of 1913, contended for by defendants, would render the statute unconstitutional as special legislation, in that (a) it would give to street railway and motor power companies in cities of the first class powers not given to other like companies, and (b) would give such companies the privilege of taking contracts from the City without competitive bidding, while still requiring construction companies and individual contractors to engage in competitive bidding: Weinman v. Passenger Ry. Co., 118 Pa. 192, 201; Ashworth v. Pittsburg Rys. Co., 231 Pa. 539; Reeves v. Phila. Traction Co., 152 Pa. 153.

A construction that invalidates an act or lays it open to grave constitutional doubt must always be rejected for one, supported by reason, which will not conflict with the Constitution: Com. ex rel. v. Benn, 284 Pa. 421, 442; Lewellyn v. Frick, 268 U. S. 238, 69 L. Ed. 934.

The Ordinance of May 16, 1928, as originally introduced in February, pro-' vided merely for the leasing to the Philadelphia Rapid Transit of a subway therein described to be constructed by the City, generally referred to as the Locust Street Subway. After the bill had been referred to the appropriate committee, read three times and was ready for final passage, it was suddenly reconsidered, and there was introduced at the close of the meeting of Council on May 10th an amendment which changed the purpose of the bill by eliminating the requirement that the subway should be constructed by the City and adding two sections authorizing and directing the Director of City Transit to enter into one or more contracts with the Philadelphia Rapid Transit for its construction. In order to accomplish this, the title of the bill was amended so as to eliminate reference to the construction of the subway by the City, and to add the words “and authorizing and directing the Director of City Transit to enter into a contract or contracts with Philadelphia Rapid Transit Company for the construction of said surface ear subway.”

The City Charter (Act of June 25, 1919, art. xvr, § 6, P. L. 581, Pa. Stat., 1920, § 3069) provides:

“No ordinance shall be passed except by bill, and no bill shall be so altered or amended during its passage as to change its original purpose. No bill shall be considered unless referred to a committee, returned therefrom, and printed for the use of the members, and no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.

“All amendments shall be printed for the use of the members before the final vote is taken on the bill, and no bill shall become an ordinance upon the same day on which it was introduced or reported.”

These requirements are mandatory.

“Ordinances being among the most important and solemn acts of a corporation, it is essential to their validity that they shall be adopted by the proper body, duly assembled, and in the manner prescribed by the charter. . . . When the mode of enacting ordinances is prescribed it must be pursued. Hence, a city ordinance which is contrary to the charter provisions is as invalid as a statute which does not conform to the requirements of the Constitution:” Dillon, Municipal Corporations (5th ed.), 575. Accord, Corry v. Corry Chair Co., 18 Pa. Superior Ct. 271, 278; Altoona v. Bowman, 171 Pa. 307.

There is no presumption of the regularity of the proceedings of Council such as exists in the case of the State Legislature: Altoona v. Bowman, 171 Pa. 307, 311.

“We cannot assent to the suggestion that the almost conclusive presumption in favor of the constitutional regularity of proceedings of the legislative department of the government is equally applicable to the regularity and legality of municipal corporation proceedings. The cases are widely different. In the consideration of acts of assembly, etc., emanating directly from the lawmaking department, courts, as members of the judicial department, must necessarily presume that every constitutional requirement in the enactment of such laws has been observed. A proper degree of deference is due by each department to each of the others. The limited power and authority with which municipal corporations, as agencies of the state, are invested, must be exercised strictly within the lines and limitations prescribed by the law-making power.”

The Ordinance of May 16, 1928, violates the City Charter, in that (a,) the original purpose was changed, (b) it contains more than one subject, (a) it became an ordinance the same day the amendment of May 10,1928, was introduced, etc.

(d) Change of pwrpose.

The original purpose of the bill was to provide merely for the lease of a subway to be built by the City. The dual purpose of the ordinance as finally passed was (1) to provide for the lease of a subway to be built by the Philadelphia Rapid Transit, and (2) to direct the execution of contracts with the Philadelphia Rapid Transit for its construction.

It is evident that Council itself thought the purpose was changed, because it felt it necessary to alter the title so as to cover the amendment.

The original title of the bill was:

“An ordinance to authorize and direct the execution of a contract between the City of Philadelphia and the Philadelphia Rapid Transit Company for the leasing by the City to said Company of a two-track surface car subway proposed to be constructed by the City upon the route therein described.”

This clearly expressed the subject of the bill as introduced. It certainly failed to express the subject of the bill as amended, and it was consequently altered to read:

“An ordinance to authorize and direct the execution of a contract between the City of Philadelphia and the Philadelphia Rapid Transit Company for the leasing by the City to said Company of a two-track surface ear subway proposed to be constructed [by the City] upon the route therein described, and authorizing and directing the Director of City Trmisit to enter into a contract or contracts with Philadelphia, Rapid Transit Company for the construction of said surface car subway.”

The amendment consisted in eliminating the words “by the City,” marked in brackets, and adding the last clause as italicized.

The purpose of the bill was thus clearly changed from a mere lease of a subway to be built by the City to a dual purpose of a lease of a subway to be built by the Philadelphia Rapid Transit and a direction to enter into a contract with the Philadelphia Rapid Transit for its construction.

“To render valid the passage of an ordinance under charters or statutes of the character under consideration, the ordinance finally passed must be in substance the same as the ordinance originally introduced. Any material or substantial difference between the ordinance originally introduced and that passed will render the ordinance void if the ordinance in the form in which it was finally passed was not before the council for the required time, or was passed at the meeting at which it was introduced:” 43 Corpus Juris, 528.

(b) The ordinance contains more than one subject.

The provision of the City Charter against the passage of ordinances containing more than one subject imposes the same restriction upon Council as are imposed by the Constitution upon the Legislature.

The test in such cases is whether the several provisions have a proper relation to each other and constitute parts of a scheme to accomplish a single general purpose.

It has been held that an act referring in one section to one school borough and in another section to all the schools in that borough and a district not connected with the borough school district contains more than one subject and is unconstitutional: Payne v. School District, 168 Pa. 386.

So, also, a tax levy and ah appropriation cannot properly be joined in one ordinance: Com. v. Morrow, 40 Pitts. L. J. 287.

A lease of a subway and a contract for its construction are two quite different subjects, which should be dealt with in separate ordinances. That Council thought the two subjects were distinct is indicated by the fact that it was deemed necessary to amend the title when the new subject was introduced.

(c) The amended ordinance was passed the same day the amendment was introduced.

The amendment was introduced on May 10th and the ordinance passed the same day. So great was the haste that the amendment was only mimeographed and was read only once and referred to no committee.

“Any material or substantial difference between the ordinance originally introduced and that passed will render the ordinance void if the ordinance in the form in which it was finally passed was not before the council for the required time, or was passed at the meeting at which it was introduced: 43 Corpus Juris, 528.

In considering the analogous provision of the Act of May 23, 1889, P. L. 277, which provided that “no bill shall be considered unless referred to a joint or separate committee, returned therefrom and printed for the use of the members,” the Supreme Court has laid down the rule that “under a fair construction of the wording of the law, the bill is to be offered, referred to a committee, returned therefrom, and then printed for the use of the members, before it can, in a proper sense, be considered:” Hallock v. Lebanon, 215 Pa. 1; Altoona v. Bowman, 171 Pa. 307, 310.

“In employing the language above quoted [Act of May 23, 1889, ‘No bill shall be passed finally in either branch upon the same day on which it was introduced or reported’], the legislature evidently intended to absolutely prohibit the final passage of any bill or ordinance by either branch of councils on the same day upon which it was introduced or reported in said branch. The wisdom of the prohibition, or limitation on the authority of councils, has been demonstrated by experience, and the law should be rigidly enforced, notwithstanding the alleged fact that councils, in this case, may have acted on erroneous advice as to the scope of their power in the premises. No such saving clause can be found in the act, and its interpolation, by strained construction or otherwise, would be not only unauthorized but exceedingly dangerous.” See, also, Seventh St., Lebanon City, 5 Dist. E. 591.

In passing the ordinance Council did not comply with the provisions of the City Charter, in that (a) the original purpose of the ordinance was changed from the mere authorization of lease by the addition of the provisions directing the award to the Philadelphia Eapid Transit of a contract for its construction without competitive bidding; (b) it contains two distinct subjects, and (c) it was passed on the same day the amendment was introduced without reading the amendment more than once or referring it to any committee.

The proposed contract is illegal because such contracts can only be let to the lowest responsible bidder, after an estimate of the cost has been made in accordance with the Act of May 23, 1874, § 6, P. L. 230, and with the City Charter (Act of June 25, 1919, art. XX, ■§§ 1 and 2, P. L. 581).

The Ordinance of May 16, 1928, authorizing the contract, is void because not passed in accordance with the requirements of the City Charter, art. xvi, sect. 6.

For these reasons, the Director of City Transit is enjoined perpetually from executing the proposed contract and the City Controller is likewise enjoined from certifying and numbering the said contract.

Conclusions of law.

1. The Ordinance of May 16, 1928, is unlawful and void, in that it directs the execution of a contract for the construction of a subway, to be owned by the City, without competitive bidding, in violation of the Act of May 23, 1874, § 6, P. L. 230, and the Act of June 25, 1919, art. XX, § 2, P. L. 581.

2. The Act of June 17, 1913, P. L. 520, does not authorize a city of the first class to enter into a contract with a motor power company for the construction by such company of a subway, to be owned by the said city, without competitive bidding.

3. To construe the Act of June 17, 1913, P. L. 520, as authorizing the construction of a subway, to be owned by the City, without competitive bidding would raise grave doubts as to the constitutionality of the act as being special legislation forbidden by the Constitution of the Commonwealth of Pennsylvania, art. in, sect. 7.

4. The Ordinance of May 16, 1928, was not passed in accordance with the requirements of the Act of June 25,1919, art. xvi, § 6, P. L. 581, and is, therefore, void.

5. The plaintiffs are entitled to an injunction perpetually restraining the Director of City Transit from executing a contract with the Philadelphia Rapid Transit Company for the construction by such company of the Locust Street Subway as directed by the Ordinance of May 16, 1928, and perpetually restraining the City Controller from certifying and numbering the said contract.

Let a decree be entered accordingly. Defendants to pay costs.

Pinal decree entered April 5, 1929. An appeal was taken therefrom to the Supreme Court, but subsequently discontinued on Sept. 30, 1929.


author: Searle, P. J.,

text:
    Koch v. G. Matter & Sons.

      A. G. Rutherford and P. V. Matter, for plaintiff.

      J. Wilson Ames and William A. Skinner, for defendants.
    March 10, 1930.
   Searle, P. J.,

— This is an action of trespass for personal injuries suffered while plaintiff was engaged in painting defendants’ garage. Defendants have filed an affidavit of defense raising the legal objection that it does not appear that the case is within the jurisdiction of this court rather than within the scope of the Workmen’s Compensation Act.

Counsel for both parties, in oral argument and in the briefs filed with the court, have referred to the fact that the plaintiff some months ago filed a petition with the compensation authorities, and, after hearing thereon, was refused compensation on the ground that his employment was casual and not in the regular course of the business of his employer, who is the defendant in this case.

The plaintiff apparently accepted the position of the workmen’s compensation referee as a correct ruling that he was not within the provisions of that act, and turned to this court in the present action of trespass.

Had the plaintiff seen fit to include in his present pleadings a recital of the proceedings before the workmen’s compensation authorities, this might have estopped the defendants from setting up here any defense inconsistent with the position assumed in the other tribunal. But while it might have been proper, it seems unnecessary to the plaintiff’s case that these proceedings be pleaded. They form no part of his cause of action because, if the underlying facts are well pleaded, the action could have been maintained here in the first instance without any resort to the compensation authorities.

The statement sets forth that the plaintiff is a painter by trade and that the defendants are engaged in the automobile or garage business; that the plaintiff verbally contracted to paint the defendants’ garage upon certain terms, and, through the alleged negligence of the defendants, was injured in the carrying out of the contract.

Regardless of any prior decision by the referee, these facts indicate that the employment was not of that regular and continuing character contemplated by the Workmen’s Compensation Act, but was of a casual nature, for the performance of a particular job or contract. Furthermore, the defendants’ business was not that of master painters. They were in the automobile business, and when they engaged a painter to paint their garage, that painter was “not within the regular course of the employer’s business:” Marsh v. Groner, 258 Pa. 473; Blake v. Wilson, 268 Pa. 469.

Defendants’ brief avers: “The act provides a complete system controlling recovery in industrial accidents.” This has reference only to cases expressly within the scope of the act, and overlooks the fact that there are numerous industrial accidents to which the workmen’s compensation legislation does not pretend to apply. Among these may be mentioned employees engaged in interstate commerce, farm labor, domestic labor, casual employees, minors employed in violation of statutory law, etc.

Where the act does not apply, of course, these classes of employees still retain their common law rights of action in case of negligent injury: Lincoln v. National Tube Co., 268 Pa. 504; White v. Logan, 10 D. & C. 383.

The facts set forth in the plaintiff’s statement sufficiently indicate, in our opinion, that the plaintiff was a casual employee and was injured not within the regular course of the employer’s business. Therefore, jurisdiction of the cause is with this court and not with the workmen’s compensation authorities.

Now, to wit, March 10, 1930, the affidavit of defense filed by defendants raising questions of law is overruled.


author: Van Dusen, J.,

text:
    Williamson’s Estate.

      M. B. Elwert, for exceptant; Edward J. Toole, contra.
    May 29, 1930.
   Van Dusen, J.,

— Testatrix devised No. 5217 Wamock Street to her brother, D. H. L. Smith, for life, “and not to be sold for his debts,” with remainder to his son, and gave the residue of her estate to her five brothers, including D. H. L. Smith. She then said, “The money to be divided so that D. H. L. Smith will receive no more than the four brothers mentioned with him, including the property 5217 Wamock Street, at a price of $4500.”

We are of opinion the testatrix charged this whole property in distribution to D. H. L. Smith, though actually he got only a life estate. He is to receive no more than his brothers, “including the property.” Testatrix seems to fear that the whole property might be liable for his debts. It is not uncommon for a testator to speak of a gift to a child for life, with a remainder to his children, as the “share of my child.”

If testatrix had really thought of valuing the life estate and charging that only to her brother, it is probable she would have said so.

It seems that this property is subject to a mortgage of $3000, given by the same D. H. L. Smith when he was the owner; and the claim is made that only $1500 should be charged to him. The devisee gets only the equity, and this equity is the property which testatrix charges to him at a price of $4500. If she had intended the charge to be, not the sum she mentions, but another sum to be deducted from it by calculation, she should and would have said so.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Shanaman, J.,

text:
    Krizovenisky v. Krizovenisky et al.

      Silas R. Rothermel, for plaintiff.

      John A. Rieser and John W. Forry, for defendants.
    Oct. 11, 1929.
   Shanaman, J.,

— Plaintiff's bill alleges that she and her husband own a house by entireties; that due to his cruelty to her, she was forced to withdraw from it, and that they are since living separate and apart; that she and he both contributed to the purchase price of the house, which, since her leaving, he has rented to a tenant and from which he has received rents, the net amount of which, after taxes, water rent and interest paid, was, at the time of the filing of the bill, $96.28. She further avers that he refused to pay or account to her for these or any other rentals of the said property. She has made him a defendant and has joined as defendant one Paul O. Wolf, who, she alleges, is his agent for the collection of the said rentals, and has refused to pay any of them to her. She seeks a decree that they pay her one-half of their present and future collections and any additional sums which the chancellor may order paid. They have filed what they call an answer preliminarily objecting to the bill, but which, with the exception of the fifth reason, that plaintiff has a remedy at law, is substantially a demurrer.

The case of O’Malley v. O’Malley, 272 Pa. 528, authorizes such a plaintiff, after a divorce, to sue in assumpsit. The Act of May 10, 1927, P. L. 884, also permits her, after a divorce, to sell the property by a quasi-partition proceeding. The present parties are separated, but not divorced. Under such circumstances, she cannot avail herself of the authorities just mentioned. The Act of May 24, 1923, P. L. 446, would, however, authorize her, if she first obtained a support order, to sell the property in execution of that order. The question is whether she has a further right to bring the present bill in equity.

In Meyer’s Estate (No. 2), 232 Pa. 95, 96, the Supreme Court said: “Being an estate by entireties, neither husband nor wife could, under any circumstances, require an accounting by the other; nor could either restrain the other against consuming more than an equal part. The effect of requiring security as a condition of the wife’s enjoyment of her estate would be to restrain consumption by her of her own property in order that her husband’s creditors might be protected. She received the estate on no such condition. It is hers to consume if she so desires. The husband would be powerless to prevent it by legal proceedings, and those claiming under him have no higher rights.”

In O’Malley v. O’Malley, supra, the Supreme Court, at page 535, explained Meyer’s Estate, above cited, as follows: “In that case, the question arose while husband and wife were both alive, married and living together, the attempt was to compel the wife to give security to a trustee in bankruptcy of the husband before she would be permitted to enjoy the estate which she held in entirety, and it was decided, in accordance with our later cases above referred to, that her right to its enjoyment could not be thus hampered. Limited to the facts of the case the quotation is unobjectionable; beyond that it must not be understood to go.” The quotation referred to, and which the Supreme Court has thereby limited, was the statement that neither spouse could restrain the other from consuming more than an equal part.

In the case of Gasner v. Pierce et al., 286 Pa. 529, the Supreme Court said, at page 533: “Because of the unity of person and estate existing during marriage, either spouse may lease it and collect the rent; but this is so not because the right to do it is an incident of the estate, on the contrary, it only flows from an incident thereof. While the marriage subsists it is a matter of indifference which of the parties leases the property or which of them obtains the rents; presumptively, the moneys received will be expended for the benefit of both of them. The unity of the relation of the parties results in a unity of the estate; the leasing by either is for the benefit of them in that relation, and the rents paid to either is to him or her in that relation only.” Again, on the same page, the Supreme Court said: “The husband could not sell the-land or dispose of it in any way without the consent of his wife. If this were not true, the one tenant by entirety might destroy the entire beneficial interest of the other during his lifetime. Both are entitled to the entire income to be used for their joint benefit, and neither may deprive the other of the use of the rents accruing unless by agreement.” On page 535 of the same decision, the Supreme Court said: “Legally, the husband acted for himself and as agent of the wife, executing the lease in the right of both.” Again, on the same page, the court said: “Here, though either husband or wife could lease, both were entitled to the income. When the former acted, it was presumably with her authority and on her behalf. Whichever collected the rent, the appropriation of it must be for their joint use, and the receiver was bound to account to the other.”

Some of these statements may have been dicta, in view of the fact that Gasner ■y. Pierce does not present the case of a suit of one spouse against the other. However, they are portions of a thorough discussion of the rights of tenants by entireties in rentals proceeding out of a lease of the premises, and, together with the careful exposition of the germane principles contained in O’Malley v. O’Malley, supra, which expressly limited Meyer’s Estate, supra, to its peculiar facts, the above cited quotations furnish an adequate authority for such nisi prius decisions as Hahn v. Hahn, 2 Erie, 2; Aaron v. Aaron, 72 Pitts. L. J. 384, and Zwolski v. Zwolski, 75 Pitts. L. J. 534.

While Solack v. Solack, 28 Dist. R. 592, is cited in Gasner v. Pierce, supra, it is cited for a different proposition than its statement that neither spouse can obtain an accounting from the other, and the Supreme Court, almost immediately after citing it, concludes by saying: “Whichever collected the rent, the appropriation of it must be for their joint use, and the receiver was bound to account to the other.”

The rule where parties are separated but not divorced, as here, has not explicitly been laid down by the appellate courts of Pennsylvania. The same practical and equitable considerations which the Supreme Court in the O’Malley case, supra (272 Pa., at 534, 535), set forth as a basis for permitting a suit by one against the other after divorce to recover rentals, would seem to apply to a case where the parties are separated but not divorced.

In Aaron v. Aaron, supra, the bill in equity presented a case similar to the present one, except that in that case the parties were living together. Nevertheless, the court, in dismissing defendant’s demurrer, said, at page 384: “If the husband is to be allowed to do what the demurrer admits he intends and is attempting to do, the wife will be deprived of property which is certainly in a general sense her separate estate, and as she is empowered by the acts of assembly on the subject to maintain an action against her husband in regard to her separate estate, we see no reason why she should not maintain it merely because the estate is one by entireties.”

And now, to wit, Oct. 11, 1929, defendants’ preliminary objections are overruled, and the defendants are given fifteen days after notice hereof to answer the bill.

From Charles K. Derr, Reading, Pa.


author: Thomas, P. J.,

text:
    East Mauch Chunk Borough’s Petition.

      Wendell Y. Blanning, for rule.

      James M. Breslim,, Borough Solicitor, contra.
    Dec. 2, 1929.
   Thomas, P. J.,

On June 28, 1929, the Borough of East Mauch Chunk presented its petition under the General Borough Act (Act of May 4, 1927, P. L. 519), sections 2415 to 2424, setting forth that the Mauch Chunk Water Company is a corporation organized under the laws of the State of Pennsylvania and that the said water company supplies the residents and people of the said borough from the water works or system in the said borough, and praying the court for the appointment of three civil engineers or appraisers to value and appraise the said water works or system of the said water company in the said Borough of East Mauch Chunk in accordance with said act. Whereupon the court appointed three appraisers in accordance with the prayer thereof.

Notice having been given to said water company of the action of the court, the said water company presented its petition, setting forth that it was created under the Act of Assembly of March 6, 1849, P. L. 110, for the purpose of supplying water to the village of Mauch Chunk, letters-patent having been issued on April 9, 1849, and that its rights and powers were extended to include the supplying of water to the Borough of East Mauch Chunk by the Act of May 1, 1861, P. L. 612. That the said water company had accepted the Constitution and General Corporation Act of 1874 and its several supplements.

That from the date of its incorporation down to and including the present time the said Mauch Chunk Water Company has continued to exercise its corporate powers in the said Borough of Mauch Chunk and, since the extension of its charter in 1861, in the Borough of East Mauch Chunk, and is the owner of property in both of said boroughs and outside of said boroughs used for the purpose of supplying water to each of said boroughs. And that the said water company desires to raise the question of the jurisdiction of the court over the cause of action in said proceedings. The court granted a rule upon the Borough of East Mauch Chunk to show cause why the order made June 28, 1929, should not be rescinded and the petition dismissed and to dispose of such preliminary question as provided by the Act of Assembly of March 5, 1925, P. L. 23. Proceedings thereupon were stayed until final determination of said rule.

An answer was filed to said rule by the said Borough of East Mauch Chunk admitting the incorporation of said water company and the extension of the rights and powers of said company by the said Act of May 1, 1861, P. L. 612. The answer avers that the adoption and approval of said Act of May 1, 1861, P. L. 612, was irregular and unlawful, in that:

(a) It purported and attempted to give to the same corporation the right and privilege of supplying water to more than one municipality of this Commonwealth.

(b) The said Act of May 1, 1861, P. L. 612, attempted to extend the rights and privileges of the Act of March 6, 1849, P. L. 110, into a separate and distinct municipality.

(c) No letters-patent were ever issued by the Governor of this Commonwealth extending the powers of the Act of March 6, 1849, P. L. 110, by the Act of May 1, 1861, P. L. 612.

(d) No letters-patent under the Act of May 1, 1861, P. L. 612, were ever recorded in the office of the Recorder of Deeds of Carbon County, Pa.

(e) The Legislature had no power to extend what purported to be charter rights of said corporation to an additional community.

(f) The said Act of May 1, .1861, P. L. 612, was unconstitutional in attempting to extend the rights and privileges of said corporation over an additional municipal body.

The answer further sets forth:

1. That letters-patent were never issued by the Governor to the water company, as required by section 26, Act of April 29, 1874, P. L. 73. (This was withdrawn by counsel for the borough at the argument.)

2. That the exclusive rights and privileges guaranteed to the Mauch Chunk Water Company were exclusive only against another private corporation and not against the Borough of East Mauch Chunk.

3. That the Borough of East Mauch Chunk, by Act of April 6, 1854, P. L. 287, being a supplement to Act of January 21, 1854 (P. L. 4), incorporating said borough, was authorized to provide a supply of water for the residents of said borough. That the said act has never been repealed.

4. That the system supplying water to the people of the Borough of East Mauch Chunk is separate, distinct and independent of the system supplying the Borough of Mauch Chunk, and is and can be operated separately.

Discussion.

The water company contends:

1. That sections 2415 to 2424 of the General Borough Act of May 4, 1927, P. L. 519, are unconstitutional as applied to water companies having exclusive privileges and not desirous of selling.

2. That clause 7, section 34, of the General Corporation Act provides the method by which a municipality may acquire the property of a water company without its consent.

The contention of the petitioners, the Borough of East Mauch Chunk, is fourfold:

1. Letters-patent under the act of incorporation and its supplement, and letters-patent issued after acceptance of the Constitution and General Corporation Act by the company, were not filed in the Office for Recording of Deeds of Carbon County.

2. The General Corporation Act did not confer upon water companies an exclusive right as against boroughs.

3. The Borough of East Mauch Chunk was given the right to construct a municipal plant by the Act of April 6, 1854, P. L. 287.

4. A water company could not be incorporated for more than one municipality, under the General Corporation Act, and, therefore, acceptance of that statute by a water company formed prior thereto does not confer an exclusive right to serve more than one municipality. As the Mauch Chunk Water Company was formed to serve the village of Mauch Chunk and its powers later extended to the Borough of East Mauch Chunk, its exclusive right is limited to the first named municipality.

Section 2419 of the said Act of 1927 is substantially the same as section 4 of the Act of May 31, 1907, P. L. 355:

“After the value is finally determined, the borough is authorized to buy such water works or system at the value so fixed; and the person, firm or corporation owning the same shall, within ten days after notice, file in court its consent to sell and convey its water works or system and property to the borough at the valuation fixed; and, in default thereof, such person, firm or corporation shall cease to have any exclusive privilege of supplying the borough, or the citizens thereof, with water, and the borough may install such water works or system as may be necessary for the accommodation of the public.”

The validity of the Act of 1907 has been passed upon by our Supreme Court in Manheim Borough v. Manheim Water Co., 229 Pa. 177. In this case the court holds that section 4 of the Act of 1907 does not apply to water companies having exclusive right to supply water to boroughs; therefore, the principle involved is that of stare decisis. In this case the court did not definitely decide that the exclusive right of the company protected it from competition by the borough, but it did state that it was the company’s most valuable asset.

The only question in this case, as the court views it, is, “Has the Mauch Chunk Water Company the exclusive right to supply water to the people in the Borough of East Mauch Chunk?”

The Mauch Chunk Water Company, having been incorporated in 1849, and its rights and powers having been extended to the Borough of East Mauch Chunk by the Act of May 1, 1861, P. L. 612, and having accepted the General Corporation Act of 1874, and letters-patent having been issued on Feb. 9, 1886, is entitled to “all of the privileges, immunities, franchises and powers conferred by this act upon corporations to be created under the same:” Section 26, Corporation Act of 1874.

It is provided by clause 7, section 34, of said General Corporation Act as follows:

“It shall be lawful at any time after twenty years from the introduction of water or gas, as the case may be, into any place as aforesaid, for the town, borough, city or district into which the said company shall be located, to become the owners of said works, and the property of said company, by paying therefor the net cost of erecting and maintaining the same, with interest thereon at the rate of ten per centum per annum, deducting from said interest all dividends theretofore declared.”

This statute is still in force (Reynoldsville Borough v. Reynoldsville Water Co., 247 Pa. 26), and application must be made to the Public Service Commission for approval before any proceedings are instituted in the courts: New Brighton Borough v. New Brighton Water Co., 247 Pa. 232; Waynesboro Water Co. v. Public Service Commission, 78 Pa. Superior Ct. 143.

The Corporation Act of April 29, 1874, P. L. 73, provides in section 34, clause 3, referring, inter alia,, to water companies, that “The right to have and enjoy the franchises and privileges of such incorporation within the district or locality covered by its charter shall Be an exclusive one; and no other company shall be incorporated for that purpose until the said corporation shall have from its earnings realized and divided among its stockholders, during five years, a dividend equal to eight per centum per annum upon its capital stock.”

The Borough of East Mauch Chunk relies on the Act of April 6, 1854, P. L. 287, as giving the borough the right to supply water for the use of its inhabitants, and that the borough having the right, the water company does not have the exclusive right. A perusal of this act shows that it (1) gives the power to the borough to erect its own water works and the manner of raising the necessary funds. (2) Or, if the “burgess and town council shall deem it inexpedient ... to erect the proper water works . . . for the supply of the inhabitants . . . and the same shall be erected by a company incorporated for that purpose, ... it shall and may be lawful ... to levy and collect such tax as they shall think proper and expedient, . . . and the tax so levied and collected shall annually be set apart and invested ... as an accumulating fund for the purchase by the borough of the rights and property of the water company, by which said works shall be erected, whenever the said borough may, by the terms of the charter of the said company, become the purchaser of said works.”

The burgess and town council have never deemed it expedient to erect water works, but did permit the water company, incorporated for that purpose so to do, in accordance with section 3 of said Act of 1854. If this act is applicable to the present controversy, it is incumbent upon the borough to proceed in accordance therewith. It is to purchase the rights and powers of the water company by the terms of the charter of the said company. The terms of the charter of the said company are embodied in clause 7, section 34, of the Corporation Act as above cited, and if the borough desires to acquire said water works, it can do so only in such manner.

The borough’s petition praying for the condemnation of the company’s water works is conclusive in itself that it has abandoned any right under section 1 or section 2 of the special Act of 1854 and has accepted section 3. The powers given to the borough by the statute to erect its own plant or to provide for the purchase of a private plant, which might later be constructed, were, alternative, and the borough having permitted the construction of the private plant, its powers are exhausted: Pennsylvania Water Co. v. Pittsburg, 226 Pa. 624.

In effect, the water company and the borough have an implied contractual relation, and this precludes the borough from erecting its own water works: Tyrone Gas and Water Co. v. Tyrone Borough, 195 Pa. 566; Gas and Water Co. v. Downington Borough, 175 Pa. 341; Bennett Water Co. v. Millvale Borough, 200 Pa. 613.

Under the facts disclosed by the pleadings, the water company has the exclusive right to the franchises and privileges to supply water to the Borough of East Mauch Chunk. >

As to the other questions involved, they are a collateral attack on the charter and rights of the company. The borough in its petition recognized the corporate existence of the water company, its franchises and privileges to supply water to the borough, its territorial unit, and its property which it desired to condemn.

The failure to file letters-patent in the county office does not apply to corporations formed prior to 1874. Corporations accepting the provisions of the Act of 1874 receive, under section 26, letters-patent from the Governor and do not require such letters-patent to be filed in the county office. Even under the General Corporation Act it is the certificate of notification, not the letters-patent, that is required to be filed.

In this proceeding the question of the water company serving more than one territorial unit cannot be raised for the reason already stated, that the borough in its petition admits the rights of the water company and desires “to purchase the said water works, or system now being operated in the said Borough of East Mauch Chunk and owned by the Mauch Chunk Water Company for the purpose of supplying and providing water for domestic and other purposes in the said Borough of East Mauch Chunk.” However, this question has been passed upon by our Supreme Court in the case of Blauch v. Johnstown Water Co., 247 Pa. 71:

“An answer to this is that the only territory which it is now supplying, and has been supplying for nearly twenty-five years, is the City of Johnstown, and during all of that period the said five boroughs have been embraced within the limits of that municipality. Another answer is that the water company neither lost nor surrendered, in accepting the provisions of the Act of 1874, the franchise or privilege, specially conferred upon it by the Act of 1866, to supply five named boroughs with water. Bly v. White Deer Mountain Water Co., 197 Pa. 80, is, therefore, without application. If the proposition contended for by counsel for appellant be correct, that when the Johnstown Water Company accepted the provisions of the Act of 1874 it was bound to confine its supply of water to one of the five boroughs named in the act incorporating it, it would mean that the company would have been compelled to abandon and sacrifice all of its mains and its supply system in four of the said five boroughs. Such a situation surely was never within the contemplation of the legislature.”

When the Mauch Chunk Water Company accepted the Constitution and the General Corporation Act, the restrictions thereby imposed applied to its entire chartered territory, and the rights, including the exclusive right to serve, applied to the same territory. This exclusive right prevents the incorporation of a competing company, and our Supreme Court having already decided that the exclusive right is a valuable right, which the Legislature cannot take away in the manner provided in the sections of the Borough Code herein invoked, it follows that the order granted June 28, 1929, in this proceeding should be rescinded and the petition dismissed and the rule granted Sept. 13, 1929, should be made absolute.

Now, to wit, Dec. 2, 1929, the rule granted Sept. 13, 1929, is made absolute and the order made on June 28, 1929, is set aside and the petition of the borough dismissed.

Prom Jacob C. Loose, Mauch Chunk, Pa.


author: Potter, P. J.,

text:
    Commonwealth v. De Ghequier.

      William K. Miller, District Attorney, for Commonwealth.

      A. F. Gilbert, for defendant.
    Dec. 13, 1929.
   Potter, P. J.,

— This defendant was arrested on his failure to stop his automobile at a stop sign at the western end of the bridge leading from Sunbury to Shamokin Dam, where the thoroughfare across the bridge connects with the Susquehanna Trail. An information was made by the arresting officer before J. B. Bulick, Esq., a justice of the peace at Selinsgrove, which is five miles from the point where the offense occurred. Notice was given the defendant by the justice, who appeared, plead guilty, posted his check for $15, waived a hearing and took an appeal to this court. He was arrested under the provisions of the Act of May 1,1929, § 1016, P. L. 905, 981.

He asks for a dismissal of the charge against him for the reason that proceedings were not instituted against him in accordance with section 1201 of the Act of May 1, 1929, P. L. 905, 993, requiring them to be brought “before the nearest available magistrate,” there being two of them at Shamokin Dam, where the offense was committed.

To say the least about it, this is an exceedingly technical defense, one not going to the merits in any manner. We would like very much to dismiss this appeal and remit the case to the justice for payment of the fine and costs, but we faff to see how we can do so in the face of the act. The information “shall be brought before the nearest available magistrate” is the language of the act. This would mean one of the two justices residing in Shamokin Dam. It does not mean a justice at Selinsgrove, five miles away, with two of them nearer.

Then again, penal statutes are to be strictly construed, especially those involving summary convictions. A strict compliance with their provisions must be had.

And now, to wit, Dec. 13, 1929, the prosecution is dismissed and the defendant is discharged.