author: Maxey, J.,

text:
    Seidman’s Nomination.

      Election law — Nomination petition — Signers’ qualifications — Act of July 12, 1913.

    1. Under the Act of July 12,1913, P. L. 719, no nomination petition may be refused or set aside except for material error or defects apparent on the face thereof or on the face of the appended or accompanying affidavits; or material alterations made after signing, without the consent of the signers; or for want of a sufficient number of genuine signatures of persons qualified, with respect to age, residence and citizenship, to be electors.
    2. Registration is not a qualification within the meaning of the act.
    Petition of William H. Thomas, incumbent, to set aside nomination petition. C. P. Lackawanna Co., Oct. T., 11927, No. 1669.

      James E. Watkins, for petitioner; Frank W. Coyne, contra.
    Sept. 2, 1927.
   Maxey, J.,

This is a petition to set aside a nomination petition of Nathan Seidman for the office' of alderman of the 8th Ward of Scranton. The petition is attacked on the ground that it does not contain the signatures of a sufficient number of qualified electors, as required by law. There is no dispute of fact. It is conceded that the petition contains a sufficient number of signatures, but the point is made that the persons signing the petition are not qualified electors because they were not registered in the City of Scranton on any of the 1926 registration dates.

The Act of July 12, 1913, § 8, P. L. 719, 730, provides:

“No nomination petition shall be refused or set aside except for:
“(a) Material error or defects apparent on the face thereof, or on the face of the appended or accompanying affidavits; or
“(b) Material alterations made after signing, without the consent of the signers; or
“(c) Want of a sufficient number of genuine signatures of persons qualified, with respect to age, sex, residence and citizenship, to be electors.”

Paragraph (c) of section 8 is the only paragraph that is pertinent to the issue now before us. We interpret this paragraph (c) as a statement about as clear as language can make it that the court cannot set aside a nomination petition if it contains a sufficient number of signatures of. persons who are old enough to be electors and who have the legal residence required and are citizens of the United States and of Pennsylvania.

It has been argued that no person is qualified to be an elector unless he is aetully registered. Against this, it might be argued that registration is not a qualification of an elector, but is simply a procedure which a person must follow in order to exercise his rights as an elector. For example, a person might be qualified to marry by reason of the fact that he was of sufficient age, but in order to be legally married he would have to apply for a license. However, we do not think it is necessary for us to determine this precise question as to whether or not registration is a- qualification of an elector, because the act of the legislature says that “no nomination petition shall be refused or set aside except for . . . want of a sufficient number of genuine signatures of persons qualified, with respect to age, sex, residence and citizenship, to be electors.” The question of sex, of course, does not enter into the matter at all since the passage of the 19th Amendment to the Constitution of the United States.

As the petition before us contains “a sufficient number of genuine signatures of persons qualified, with respect to age, sex, residence and citizenship, to be electors,” we hold that we are prohibited by section 8 of the aforesaid act from setting aside the nomination petition.

Therefore, now, to wit, Sept. 2, 1927, the petition to set aside the nomination petition is refused.

Watson, J., also signed the opinion.

Prom William A. Wilcox, Scranton, Fa.


source: Caselaw Access Project

author: Hassuer, J.,

license: Public Domain

text:
    Starr, to use, v. Conestoga Traction Company.

      Collision between truck and trolley car — Negligence—Damages—Measure of- — Evidence—Sufficiency of.

    1. Where, in an action to recover damages for injuries to the plaintiff’s truck caused by the negligence of the defendant, the testimony shows such negligence, and that the truck was in first-class condition and in good running order immediately before the accident and that it was in good condition and running order a week prior to the accident, and that it was run into by a car of the defendant company, and that after the accident it required the repairs that were made on it, which were properly made and properly charged for, the evidence is sufficient to justify the’finding of the jury that the injuries were due to the accident, and their verdict for the plaintiff should stand.
    2. The proper measure of damages in such case is the cost of putting the motor-truck in the same condition that it was in before the accident.
    Rule for new trial. C. P. Lancaster Co., Oct. T., 1923, No. 37.

      George T. Hambright and John E. Malone, for defendant and rule.

      Oliver S. Schaeffer and Charles G. Baker, contra.
    July 2, 1927.
   Hassuer, J.,

At the trial it was shown that the plaintiff was the owner of a motor-truck which, on May 9, 1923, collided with one of the defendant company’s cars and was damaged. It was towed to the garage of the Queen Motor Company after the accident, where it was repaired. The jury found that the damage to the! truck was caused by the negligence of one of the defendant company’s employees in the operation of one of its cars, and found a verdict against it for $416.18. We are now asked to grant a new trial for two reasons: (1) Because there was no testimony that showed that the repairs made were necessary because of the accident; and (2) because we erred in permitting the jury to find that the price of a new chassis was an item of damages for which the plaintiff could recover.

It is well settled that, before a plaintiff can recover damages for injuries to an automobile caused by a defendant’s negligence, he must show that the injury was actually caused by the defendant’s negligence and that the repairs were necessary because of it: McLaughlin Bros. v. Baker Co. (No. 2), 39 Lanc. Law Rev. 393; Campbell v. Frey, 40 Lanc. Law Rev. 70; 8 D. & C. 593; Haughey v. Clush, 40 Lanc. Law Rev. 555.

We think the testimony in this case shows that the injuries were actually caused by the defendant’s negligence and that the repairs were necessary because of the accident. A number of witnesses testified that plaintiff’s employee was operating the truck in question at the corner of Christian and Walnut Streets when the collision with defendant’s car occurred. Roy Wire-back, the operator of the truck, testified (page 9) that before the accident it was in first-class mechanical condition and good running order. John Oden-wald testified (page 18) that the trolley car ran into the motor-truck and mashed it up. Blance E. Oliver, an employee of the Queen Motor Company, testified that he saw the truck a week before the accident and also immediately after it, it having been towed to the garage of his employer. When he saw it a week before the accident, he said, it was in good condition and running order. Immediately after the accident, he examined it and found that the motor was broken, the headlights, radiator and fenders were damaged, the front axle was bent, the windshield was broken, and there were other minor injuries. He superintended the making of the repairs, and testified that they were necessary and, also, what the. proper cost of the material and labor furnished in making them was. It is true he did not examine it in detail when he saw it a week before the accident to see if it was in sound condition, but such examination was not necessary. If it was, it would be rarely that recovery could be had for injuries occasioned by collisions, for such careful examinations of automobiles or motor-trucks, to say the least, are unusual. This testimony, in our opinion, was sufficient to justify the jury in its finding that the injuries were due to the accident. It shows that the truck was in first-class condition and in good running order immediately before the accident and that it was in good condition and running order a week prior to the accident, that it was run into by a car of the defendant company, and that after the accident it required the repairs that were made upon it.

The proper measure of damages is the cost of putting the motor-truck in the same condition that it was in before the accident. Blance E. Oliver, who superintended or made the repairs necessary because of the accident, says it was cheaper to put a new chassis in the truck and deduct the junk value of the old one from the price of the new one. He testified that the repairs made were necessary to put it in its former condition, and that the charges for both the material and labor furnished are proper. If it could have been repaired so as to put it in its former condition in another way, or if unnecessary repairs were made, or if the price charged for the labor and material was not the usual and proper charge for such services, the defendant should have offered testimony to show it, but he did not do so. The testimony as to the damages and their cost, in our opinion, was proper and sufficient and fully justified the verdict. The rule for a new trial is, therefore, discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Henderson, J.,

text:
    Watrous’s Estate.

      Divorce — Alimony—Future alimony — Claim against decedent’s estate for alimony accrued after death.

    1. A wife divorced in another state under a decree allowing her alimony, cannot recover in Pennsylvania alimony which accrues after the death of her divorced husband.
    2. A lien cannot be secured upon a divorced husband’s estate for future alimony.
    3. The Orphans’ Court in Pennsylvania will not set aside a fund from the estate of a decedent to secure payment of alimony allowed to his divorced wife by a decree.of a court of another state.
    Exceptions to adjudication. O. C. Phila. Co., April T., 1927, No. 1001.
    That part of the adjudication which treats of the subject of the exceptions is as follows:
    Gest, J., Auditing Judge. — By his will, dated Feb. 28, 1910, the testator devised his entire estate to his wife, Daisy Hamlin Watrous, who, by writing executed in accordance with the Act of Assembly, on March 15, 1927, elected to take under the will of the testator.
    The claim of Annie Isadore Watrous was presented, which arises as follows: Annie Isadore Watrous was the wife of Edwin A. Watrous, the testator, and, from the duly exemplified copy of the record of the District Court of Douglas County, Nebraska, hereto annexed, it appears that the said Annie Isadore Watrous on May 2, 1906, filed her petition in said court, setting forth that she was married to the testator on Jan. 12, 1888; that he, on Dec. 22, 1903, deserted her and had wilfully absented himself from her for two years past, and praying that she might be divorced from him and given the custody of their two children, and that the said defendant be decreed to pay her reasonable alimony and a reasonable amount for the support of said children; and it further appeared that the defendant, by his attorney-at-law, on May 25, 1906, filed an answer to the petition, and afterwards, on May 26, 1906, the court entered a decree finding that the defendant had wilfully deserted his wife, the plaintiff, and that the plaintiff was entitled to a divorce from him; and further decreed that the marriage relations existing between the parties be set aside and wholly and forever annulled, and the parties to the suit were released from all obligations of said marriage relation. It was further ordered that the plaintiff have the care and custody of their two minor children; and it was further ordered and adjudged “that the defendant pay the plaintiff, in lieu of her dower interest and rights in any property he has or may have, the sum of one hundred and ten dollars ($110.00) per month as alimony as long as she lives or until she remarries.” It was admitted by the claimant that all the alimony falling due in the lifetime of the testator had been duly paid. She claimed, however, (a) that she should be awarded the alimony which fell due since his death to the date of the audit, and (b) that a fund should be set aside to secure the payment of the alimony to fall due, in instalments, in the future. Counsel for the executrix argued, first, that a Pennsylvania court has no jurisdiction to enforce this decree of the District Court of Douglas County, Nebraska, see Mullinix v. Mullinix, 16 Dist. R. 977; and, second, that the obligation created by the said decree is not a debt due from the decedent which it is the duty of the executrix to pay under section IS (a) of the Fiduciaries Act. I do not consider constitutional law, as I think the claim should be dismissed on other grounds. I shall assume, for the purposes of this adjudication, that the foregoing decree of the Nebraska court for alimony is a record of a judicial proceeding to which full faith and credit must be given, under article iv, section 1, of the Constitution of the United States, and I shall assume that the record of this decree, as presented, would entitle the claimant to an award from the estate of this decedent of all the alimony due and unpaid, if any there were, at the time of his decease. I dismiss the claim, however, on the ground that the decedent’s liability for alimony ceased upon his death. It is difficult to see any sound basis for holding that the right of a divorced wife for support should be greater than that of a wife who has not been divorced and survives as his legal widow. Alimony is merely a provision of support, just as a wife has a right to be maintained by her husband, but it has never been held that a wife’s right to maintenance survived her husband’s death.
    It may be observed, further, that the decree of the Nebraska court does not even attempt to impose such a continuing obligation upon the defendant in the action, see Lennahan v. O’Keefe, 107 111. 620; and even if it had contained such a provision, it would not be binding upon this court, for the rights of parties in the distribution of the estate of a decedent here depend upon our laws.
    The enforcement of the theory sought to be maintained would lead to extraordinary consequences. The alimony, at the rate of $110 per month, would be $1320 per annum, and to secure this amount, at 5 per cent, per annum, would require $26,400, while the balance for distribution is $53,952.68, so that half of the estate would have to be reserved. And if the alimony, considered as an annuity, should be protected by a reservation on a 3 per cent, basis, according to the usual practice in this court, the reservation would be proportionately greater, and the legal widow of the testator, whose rights certainly are higher than those of a wife divorced twenty-one years ago, would be reduced to a minimum. And a case may readily be imagined where the entire estate would not suffice and the distribution be postponed until the death of the divorcee, who might, if she were a young woman, live for fifty years. This would be, in my opinion, against the policy of the law.
    The weight of authority in other states, as cited by Mr. Adams in his very thorough brief, sustains the position herein taken. Among the decisions are Wilson v. Hinman, 182 N. Y. 408, in which case a mortgage was given to secure alimony, and it was held that the lien terminated upon the husband’s death. This decision is fully annotated in 2 L. R. A. (N. S.) 232, and see, also, 18 Am. Law Reps. 1040. Lennahan v. O’Keefe, 107 111. 620; Knapp v. Knapp, 134 Mass. 353; Lally v. Lally, 152 Wis. 56, support this view, and although the question appears to be res nova in this State, at least I have been referred to no decision, I do not hesitate to adopt it. The claim of Annie Isadore Watrous is dismissed.

      William E. Caveny, for exceptions; John Stokes Adams, contra.
    March 5, 1928.
   Henderson, J.,

A careful study of the adjudication and of the briefs of counsel leads us to the conclusion that the Auditing Judge was correct and for the reasons given by him.

In his lifetime this decedent could openly have dissipated his estate, and neither in Nebraska nor elsewhere could this claimant have secured a lien upon his property for future alimony. Strictly speaking, there is no such thing as future alimony, because it is for present support and ceases with the death of the respondent.

It being clear that the relief now sought could not have been obtained in our courts during the lifetime of the decedent, no such relief is available after his death. It is specifically provided by the Fiduciaries Act (§ 35 b) that actions in which executors and administrators shall be liable to be sued are those “which might have been maintained against such decedent if he had lived.”

The exceptions are dismissed and the adjudication is confirmed absolutely.

Van Dusen, J., did not sit.

NOTE.—Compare Storey v. Storey, 125 Ill. 608.


author: Kun, J.,

text:
    Hasler & Co., Inc., v. Forde Construction Co. et al.

      Foreign attachment — Defenses by garnishee.

    1. In foreign attachment a garnishee has a right, as well as a duty, to interpose any just defense a defendant has against the plaintiff at any stage of the proceedings.

      Foreign attachment — Foreign corporation — Place of business in Pennsylvania.

    2. Although a foreign corporation has established an office in Pennsylvania ■with an agent therein upon whom service of process may be made, and has also registered with the Secretary of the Commonwealth and authorized him to accept service in its behalf, it may, nevertheless, be sued by foreign attachment.
    Chase v. Ninth National Bank of New York, 56 Pa. 355, followed, and the principle critically examined.

      Foreign attachment — Property in State — Record—Judgment.
    3. No judgment can be entered in foreign attachment proceedings where it affirmatively appears from the record that no property of the defendant was attached.

      Foreign attachment — Affidavit to statement of claim and cause of action— Information and belief.

      4. In foreign attachment, affidavits to statement of claim and cause of action are insufficient if they are made on information and belief without any averment that the affiant expects to be able to prove the facts therein alleged to be believed.

      Contracts — Admiralty law — Substitution of vessel.

    5. A contract for the letting of a vessel named or substituted does not call for the substitution of another vessel if the one named is lost.
    Rule to strike off judgment and dissolve writ of foreign attachment. C. P. No. 1, Phila. Co., June T., 1926, No. 24.

      William J. Conlen, for garnishee and rule.

      Acker, Manning & Brown, for plaintiff, contra.
    April 28, 1928.
   Kun, J.,

This is an action of assumpsit begun by foreign attachment issued April 15, 1926, by Hasler & Co., Inc., plaintiff, against Forde Construction Company, a Delaware corporation, defendant. Wistar, Underhill & Nixon were summoned as garnishee. The return was nihil hab'et as to the defendant. The garnishee entered an appearance. At the time the writ was served, defendant was duly registered by the Secretary of the Commonwealth to do business in the State, and had a place of business, an officer and agent in the City and County of Philadelphia, where service of a writ of summons could have been made. Moreover, defendant company, in registering in this State, duly authorized the Secretary of the Commonwealth to accept service on its behalf of any legal process issued against it in this State.

Plaintiff filed its statement of claim and its affidavit of cause of action. Plaintiff did not serve a copy of either the statement of claim or the affidavit of cause of action on garnishee. Plaintiff did not aver either in its statement of claim or its affidavit of cause of action that property of the defendant was attached. Plaintiff entered judgment against the defendant for want of an appearance on March 7, 1927, and served interrogatories on garnishee with rule to answer. Garnishee filed sworn answers to the interrogatories, stating that no property of whatsoever nature of the defendant was at any time in their possession or control. Plaintiff filed exceptions to garnishee’s answers, and garnishee moved the court to grant a rule upon plaintiff to show cause why the judgment should not be stricken off and the attachment dissolved. The rule was allowed.

The court, on July 12,1927, discharged the rule and ordered the assessment of damages; it also ordered the interrogatories, answers to interrogatories and exceptions to interrogatories stricken off. Subsequently, on July 22, 1927, damages were assessed against defendant. Interrogatories were served on garnishee with rule to answer. Garnishee filed sworn answers to interrogatories, stating that no property of whatsoever nature of the defendant was at any time in their possession or control. Plaintiff filed rule for judgment against garnishee for want of sufficient answers to interrogatories. Plaintiff also filed exceptions to garnishee’s answers, and garnishee petitioned the court to grant -a rule upon plaintiff to show cause why the judgment should not be stricken off and the attachment dissolved. The rule was granted and argued before this court on Sept. 19, 1927. On Sept. 30, 1927, plaintiff filed a “supplemental affidavit of statement of claim, setting forth added facts.”

The first question raised is as to the jurisdiction of the court. It has been held that, as to this question and all others, a garnishee undoubtedly has a right, as well as a duty, to interpose any just defense a defendant has against the plaintiff at any stage of the proceedings: Melloy v. Burtis, 124 Pa. 161; Keystone Brewing Co. v. Canavan, 221 Pa. 366, 372.

On the point of jurisdiction, the precise question raised in this case has not been before the appellate courts in this State. The act governing foreign attachments as respects this question is the Act of June 21, 1911, § 1, P. L. 1097, which provides as follows: “A writ of foreign attachment, in the form aforesaid, may be issued against the real or personal estate of — (a) any person not residing within the Commonwealth and not being within the county in which such writ shall issue at the time of the issuing thereof; or (b) of any corporation incorporated under the laws of any other state or nation, in all actions ex contractu and in actions ex delicto for a tort committed within this Commonwealth.”

The nature and purpose of the writ of foreign attachment was precisely defined in the case of Raymond v. Leishman, 243 Pa. 64 (1914), in which the court said, at page 69: “Foreign attachment, under our statute, is the equivalent of a summons for commencement of a personal action: Megee v. Beirne, 39 Pa. 50, 62. It is a process by which to commence a personal action and compel an appearance: Albany City Ins. Co. v. Whitney, 70 Pa. 248. The foundation for the writ is that the defendant is beyond the reach of process and his property within it: Pennsylvania R. R. Co. v. Pennock, 51 Pa. 244. The purpose of the statute is to compel the constructive presence in court of the defendant, who, by reason of his absence from its jurisdiction without a dwelling-place therein, cannot be served with a summons. The law regards it the duty of a debtor to answer the demand of his creditors and permit his indebtedness to be litigated when it is due, and if he is beyond the usual process of the court, they are remediless, unless they may inyoke the remedy to compel his appearance by seizure of his property. In construing the statute authorizing the issuance of the writ, its object should be kept in view so as to accomplish the intended purpose.”

That the heal basis of the writ is that defendant is beyond the usual process of the court is particularly emphasized by the extraordinary case just referred to, in which the writ was allowed against an Ambassador to Germany at the time, although it was admitted his legal domicile was in the county, the reason being that he had been out of the county so long he was in fact beyond the usual process of the court. So it seems that neither domicile nor residence is controlling.

Now, it would seem that the nature and purpose of the writ cannot be held to be one thing where the defendant named is an individual and another thing where the defendant named is a corporation. The purpose of the writ is to compel the defendant to appear, but if he or it may be legally served with a summons, is there legal justification for attaching defendant’s property? As stated in the case of Albany City Ins. Co. v. Whitney, cited in the quotation supi’a, foreign attachment is a process to commence a personal action and compel an appearance, so that if the defendant, although a non-resident (a foreigner to the State), is within the county at the time, a foreign attachment may not be issued against him. The reason is that he may be served with an ordinary summons. It would seem to follow that if a foreign corporation is within the county so as to be subject to the service of ordinary process of the court, that is to say, has an office therein, an officer and agent in charge, and under the requirements of the laws of the State for the admission of foreign corporations to do business therein, the Secretary of the Commonwealth has been appointed in writing its attorney or authorized agent upon whom all lawful processes may be served, a foreign corporation so situated ought not to be subject to the writ of foreign attachment, because it cannot be said in such case it is beyond the usual process of the court.

It is presumably on this theory that President Judge Martin, of Court of Common Pleas No. 5, in a recent case, Louis Sabarof & Son v. Central of Georgia Ry. Co., 9 D. & C. 238, dissolved an attachment, although plaintiff’s affidavit of cause of action set forth that the defendant was a Georgia corporation, a non-resident of Pennsylvania, because it failed to set forth “the additional necessary fact that defendant has no place of business, office or agent within the State where or upon whom process may be served.” It was likewise ruled in Perrine v. Evans, 6 Vroom (N. J.), 221, that, though the defendant was a foreign corporation, it was not liable to foreign attachment in New Jersey because it carried on its business and had an office in that state and one of the officers resided there. Undoubtedly, as stated in German-American Coffee Co. v. Diehl, 216 N. Y. 57, the fiction of origin of residence must be disregarded for many purposes when a corporation goes into another state and there transacts business. In other words, the old fiction that a corporation cannot be anywhere but in the state of its incorporation, its technical domicile, must give way to the fact that foreign corporations, by their officers, agents, managers of all kinds, do go into business and establish offices and formally register to do business and appoint certain state officers as their attorneys-in-fact to accept service of process in many other states than the ones in which they are incorporated. As a matter of fact, it frequently happens that in the state of its incorporation, a corporation has nothing more than its legal office with a firm of lawyers or some incorporating company, without any property in the state whatsoever. May a corporation in such a situation, notwithstanding it has its property, does business and has its office located in a state, be subject to foreign attachment in that state, although in such case it is admitted that the defendant could be served with an ordinary summons? As stated, the precise question has not been before the appellate courts in this State. There are a number of Common Pleas Court cases which have taken the adverse position to that indicated by President Judge Martin: Pain’s Co. v. Lincoln Co., 5 Dist. R. 474; Diener v. Wopsononock Co., 10 Dist. R. 57; Riordan v. West Coast Co., 23 Dist. R. 831; Brenner & Co. v. Erie Iron Co., 28 Dist. R. 927. The basis of these decisions seems to be largely that the right as agáinst corporations is statutory without qualification.

Without regard, however, to any reasoning that may be applicable to the case and the consideration that the nature and purpose of the writ of foreign attachment is as indicated, and that the foundation of the writ is that the defendant is beyond the reach of process, as has been stated in numerous cases, the case of Chase v. Ninth National Bank of New York, 56 Pa. 355, sustained the issue of a writ of foreign attachment because defendant was out of the county, although it was stipulated in the case that the defendant was engaged in business in the county and had then and there a clerk or agent upon whom a writ of summons could have been lawfully served. This court is bound by that decision, under which we must hold defendant, a foreign corporation duly registered with the Secretary of the Commonwealth, authorized by it to accept service of process on its behalf, having a place of business in the county and an agent or officer in the county at the time, upon any of whom ordinary process can be served; in other words, a foreign corporation entirely within the reach of ordinary process, is, nevertheless, subject to foreign attachment.

We now come to the next question. The sheriff’s return indicated' that no property of the defendant was attached. The plaintiff filed a statement of claim and affidavit of cause of action, but did not aver in either of them that property of the defendant had been attached. This was error: Mindlin et al. v. Saxony Spinning Co. et al., 261 Pa. 354 (1918). Thereafter, judgment was entered, interrogatories were filed, and in the sworn answers the garnishee declared that they had no property in their possession belonging to the defendant. Thus, it affirmatively appeared on the record that no property of the defendant was attached. The answers put in are prima fade true, in the absence of testimony tending to prove the contrary, and are conclusive in favor of the garnishee: Conshohocken Tube Co. v. Western New York & Pennsylvania R. R. Co., 175 Pa. 235.

In the opinion heretofore filed by the court it was said: “If the affidavit of cause of action had been filed pursuant to the garnishee’s rule therefor, it would have unhesitatingly dissolved the attachment, because the affidavit of cause of action is fatally defective, both in form and substance.” That the affidavit of cause of action was filed by the plaintiff voluntarily and not in pursuance to garnishee’s rule does not make it any the less its affidavit of cause of action: Kamsler v. Parker Stores, Inc., 2 D. & C. 318. The affidavit being defective in form and substance, the attachment should have been dissolved.

The statement of claim filed does not set forth a cause of action. Plaintiff seeks to recover on a contract for the letting of a schooner, “Benjamin A. Van Brunt,” “or substitute, of New York, of the burden of 1191 gross tons or thereabouts.” Prom the plaintiff’s statement it appears that the schooner “Benjamin A. Van Brunt” became a total loss (an exception in the contract). On the assumption that the defendant was, notwithstanding the loss of the vessel named, obligated to furnish a substitute, and, having failed to do so, the plaintiff engaged another vessel, and the amount claimed is the excess cost alleged to have been incurred by the plaintiff in so doing. The obligation of the defendant under the contract was not to furnish one of two vessels, but one vessel only. That vessel was named. The provision for a substitute is one frequently used in contracts of this kind, called charter parties, and is intended to give to the owner an option to substitute another vessel for the one named. It seems to be the clear intent of the contract, however, if the vessel named is lost, the obligation to furnish a vessel is terminated. The question has never been raised in this country, because it seems to have been assumed that that is the case, and no one has, so far as any reports of cases disclose, heretofore asserted the right to have a vessel substituted under such a provision if the vessel named was lost. There is, however, a decision against this asserted right in the High Court of Justice, King’s Bench Division, reported as Alex. King v. Howden Bros., 15 Irish Law Times Reps. 27 (1916).

It also appears that in the statement of claim filed the damages claimed are stated to be “as nearly as the same can now be estimated, amount to the sum of $1085.24.” A rule to assess damages was subsequently filed and damages assessed for $1197.59.

The affidavits to the cause of action, the statement of claim, and to the so-called amended statement of claim, are all on information and belief, without any averment that the affiant expects to be able to prove the facts therein alleged to be believed. It is settled that such an affidavit to the cause of action is insufficient: McLennan v. Public Utilities Construction Co., 245 Pa. 567. The affidavits to the statement of claim are also insufficient, not complying with Rule 45 of the court and section 9 of the Practice Act of 1915. It is urged that this rule applies only to affidavits of defense. There seems to be no such distinction made in the decisions, and certainly there is no such distinction made in the Practice Act. On the contrary, the provisions as to the requirements of affidavits to statements of claim (section 9) and as to affidavits of defense (section 12) are identical. Accordingly, the interpretation of the statute, whether applied to affidavits to statements of claim or to affidavits of defense, must be the same: Newbold v. Pennock, 154 Pa. 591; Mendenhall v. Jackson, 268 Pa. 123; Dayhoff v. Masland, 29 Dist. R. 393; Cohen v. Snyder, 30 Dist. R. 1008; Paul v. Hargey, 10 D. & C. 82.

It is unnecessary to pass on other questions raised in the ease. For the reasons stated, the rule to strike off judgment and dissolve writ of foreign, attachment is made absolute.


author: Brownson, P. J.

text:
    Novak v. Casole et al.

      Attachment under Act of 1863 — Stolen money- — Implied assumpsit — Indebtedness — Act of March 17, 1869.

    1. An action may be commenced by an attachment under the Act of March 17, 1869, P. L. 8, to recover money alleged to have been stolen from the plaintiff.
    2. While the Act of 1869 only authorizes an attachment where there is an indebtedness, a theft of money creates an implied promise to pay, which is sufficient to permit an action of assumpsit for the indebtedness.
    Attachment. C. P. Washington Co., Feb. T., 1927, No. 107.

      J. Salem Flack, for plaintiff.

      Dounan & Miller and Paul D. Carmichael, for defendants.
   Brownson, P. J.

This action, commenced by a writ of attachment under the Act of March 17, 1869, P. L. 8, is to recover money alleged to have been stolen from the plaintiff. The defendants have moved the court “to quash the above-entitled action” upon the ground that the plaintiff’s affidavit shows that the money sued for was obtained by the defendants tortiously, and does not show an indebtedness in any amount to the plaintiff; and, “further, that the above-entitled action was in error, being based upon a tort, which was an unliquidated claim, and not upon a cause of action arising ex contractu.”

Passing over the question whether the proper procedure of the defendant is a motion to “quash the action” or a motion to dissolve the attachment, we shall (in view of the fact that the brief of counsel substantially asks the court, if of opinion that a prayer for a dissolution would be the proper prayer, so to treat the prayer contained in this motion) consider the merits of the objection made to the plaintiff’s right to have an attachment.

The Act of 1869 allows an action for the recovery of a debt to be commenced by attachment when (1) the defendant has done, or is about to do, certain acts, the result of which would be to withdraw his effects from the creditor’s reach, or (2) has “fraudulently contracted the debt or incurred the obligation for which such claim is made.” “The act of assembly only authorizes an attachment of this kind where there is an indebtedness, and the action under our Procedure Act is necessarily assumpsit:” Nesbett v. Tamler, 2 Lacka. Jurist, 139. In the instant case the praecipe for the writ directed the issue of a writ of attachment “in tort” under the Act of 1869, but the prothonotary corrected this error by issuing an attachment in assumpsit. As the nature of the action is determined by the writ as actually issued, this action is one of assumpsit. The only question, then, is whether the affidavit filed shows an indebtedness for a liquidated sum owing to the plaintiff. That it does so, we have no doubt.

An express contract is not always necessary to cause an indebtedness to arise. It may arise upon an implied contract. And in many cases the law will imply a promise to pay, giving rise to an indebtedness, as the result of a transaction amounting to a tort. When the possession of money belonging to another has been tortiously obtained, the law will, from the mere fact that the money so in the hands of its possessor belongs and is known to belong to the other, imply a promise to pay it to the owner, and upon that basis will vest in the owner a right to sue for and recover it in an action of assumpsit for money had and received: Hindmarch v. Hoffman, 127 Pa. 284, and authorities therein cited. And this applies to money the possession of which has been obtained by theft. While, if the subject of the theft be a chattel, no debt can arise in respect of it before the thief has sold it and received its proceeds (when the money so by him received may be sued for in assumpsit upon the ground that, as proceeds of the stolen article, it becomes, if the owner of the article stolen so elects, his money), yet, when the theft was of cash, the thief “was justly indebted to [the owner] for the money so taken the moment he seized it with intent to steal it:” O’Neill v. Brown, 17 Dist. R. 1062. “There is no doubt that an attachment under the Fraudulent Debtors Act may be issued to recover money stolen, and the duty to return it constitutes an indebtedness contemplated by the act:” Franklin Trust Co. v. Hegh, 6 D. & C. 231, citing Mechanics’ National Bank v. Miners’ Bank, 13 W. N. C. 226; Love-Thompson Co. v. Brass, 70 Pitts. L. J. 501; Maitland Driving Park Ass’n v. Fisk, 3 Lacka. Leg. News, 210; and O’Neill v. Brown, 17 Dist. R. 1062.

Although the plaintiff’s affidavit is somewhat inartificial, in that it avers that the indebtedness of the defendant to him arose “upon a tort,” yet it states facts, the legal effect of which is to give rise to an implied promise to pay, creating an indebtedness and laying the basis for the action of assumpsit. We have not been convinced by the arguments of the defendants, nor by any of the authorities cited by them, that this attachment will not lie.

And now, May 9, 1927, after argument, the defendants’ motion or petition is dismissed.

From Harry D. Hamilton, Washington, Pa.


author: Chase, P. J.,

text:
    Dersin v. Roach.

      Prohibition enforcement — Search warrants — False imprisonment — Act of March 27,1923.

      1. The acts of a judicial officer beyond his jurisdiction will render him liable in false imprisonment in the same manner as when he has no jurisdiction.
    2. Under the Act of March 27, 1923, P. L. 34, the complaint for a search warrant must substantially set forth the facts on which the probable cause for the belief on the part of the complainant is based.
    3. If the complaint does not set forth such facts, the justice has no jurisdiction to issue a search warrant, and if he does so, he will be liable in the proper action.
    4. A mere averment in the complaint that the complainant has in his possession an affidavit setting forth facts upon which probable cause is based is not sufficient; he must go further and aver that the person making the affidavit is known by the complainant, that he has reason to believe that affiant is reliable, and that the affidavit is true, and he must also set forth, to some extent, the facts which he has learned from the affidavit and which caused the affiant to make the affidavit as to the wrongful acts committed.
    5. The fact of the unlawful sale of liquor, in order to justify the issue of a search warrant, must be known to the person who makes the complaint, either by direct or circumstantial evidence.
    Statutory demurrer. C. P. Clearfield Co., Sept. T., 1927, No. 596.

      Carl A. Belin, for plaintiff; Arnold & Platt, for defendant.
    Oct. 26, 1927.
   Chase, P. J.,

The plaintiff in this case files a statement in trespass to recover from the defendant, Charles E. Roach, the sum of $2800. The facts alleged in said statement which are material to the disposition of the issue before the court, in substance, are as follows:

The defendant, Charles E. Roach, is a justice of the peace of Woodward Township, Clearfield County, Pennsylvania; that, on July 9, 1927, W. P. Couser, county detective, appeared before the said justice and swore out a complaint for a search warrant, the material parts of said complaint which are herein in controversy being herein set out. That, as a result of that complaint, the defendant issued a search warrant, which was placed in the hands of the said county detective and other officers and a raid was made upon the premises of the plaintiff herein, a private dwelling-house.

This action on the part of the plaintiff is based upon the allegation that the justice had no jurisdiction to issue said search warrant for the following reasons: First, the complaint was in blanket form and all immaterial facts were not erased; second, there was no description of the property to be seized; third, the description of the house to be searched was insufficient; fourth, no facts were set forth in the complaint on which to base probable cause. The said W. P. Couser, by authority of his search warrant, went to the home of the pláintiff and made search of the premises. The statement alleges that the plaintiff was under arrest and was not permitted to leave the house by the officers during the said search. That the damages suffered were the result of said arrest and consisted of her feelings being hurt, her reputation suffering and her mental condition affected, as well as her physical condition weakened permanently, from nervousness caused by shock and excitement of the search. Wherefore, damages are claimed.

The affidavit of defense raising questions of law which needs consideration at this time by the court are as follows: First, that the facts averred by the plaintiff fail to set forth a proper cause of action upon which a recovery can be had; second, that the complaint for the search warrant, by virtue of which the search warrant was issued, was legal and valid, as appears on the face of the plaintiff’s statement of claim; third, that the search warrant is legal and valid, as appears upon the face of the plaintiff’s statement of claim.

The first objection raised by the defendant herein is that the facts averred by the plaintiff fail to set forth a proper cause of action upon which a recovery can be had. If the allegations of the plaintiff’s statement are true, and they must be accepted as being true for the disposition of this objection raised, the plaintiff would have a good cause of action, as we understand the law.

The act of a judicial officer beyond his jurisdiction will render him liable in false imprisonment in the same manner as when he has no jurisdiction: Reid v. Wood, 2 Ches. Co. Reps. 513; Gallitzin Borough v. Gains, 7 Kulp, 479; Kossouf v. Knarr, 206 Pa. 146; Harris v. Mercur, 202 Pa. 313.

The requirements of the Act of March 27, 1923, P. L. 34, under section 8 of search warrants, provide that the justice of the peace or magistrate, upon certain other conditions, may issue a search warrant “setting forth probable cause.” As we view this language and the law, the complaint must substantially set forth the facts on which the probable cause for the belief on the part of the complainant is based. If this is not done in the complaint, the justice would have no jurisdiction to issue a search warrant and would be liable in the proper action; this requirement being a condition precedent to jurisdiction in the matter of issuing a search warrant under said act.

In the disposition of this complaint raised by the plaintiff in the statement, the allegation on the part of the plaintiff in her statement that no substantial facts were set forth in the complaint on which to base probable cause, and which, therefore, gives cause for this action, is well taken. The complaint upon the subject being in the following language: “W. P. Couser, County Detective of Clearfield County, who, being duly sworn according to law, doth depose and say, that there is probable cause to believe an affiant has just and reasonable grounds for believing and does believe that intoxicating liquor, the exact quantity being to the affiant unknown, is being unlawfully possessed, sold, manufactured, furnished, offered for sale, transported for beverage purposes.” And, further, that the following are the reasons for the affiant’s belief, to wit, “an affidavit that the said Marie Dersin is manufacturing, trafficking and selling liquor for beverage purposes illegally and contrary to Section 3 of Act No. 25, P. L. 1923, and amendments thereto.”

Section 8 of the provision under discussion reads: “Whenever any individual makes complaint in writing before an alderman, justice of the peace or magistrate, supported by his oath or affirmation and subscribed to by him, alleging there is probable cause to believe, and that he has just and reasonable grounds for believing, and does believe, that intoxicating liquor is unlawfully manufactured, sold, offered for sale, bartered, furnished or possessed, or that any mash, still, implement or other property designed or intended for use in the unlawful manufacture, sale or furnishing of intoxicating liquor is possessed in or upon any room, house, building, boat, vehicle, structure, receptacle, premises or any other place or thing whatsoever, said complaint describing the said place or thing to be searched and the thing or things to be seized as nearly as may be, and setting forth probable cause, the said alderman or justice of the peace or magistrate, if it be made to appear that there is probable cause for such belief, shall issue a search warrant.” And, further, the provision provides that no search warrant shall issue to search any private dwelling occupied as such, unless it is being used for the unlawful sale of intoxicating liquors.

An examination of the language used in the complaint shows that the affiant sets forth all the elements which the law requires and complied with all the conditions essential to be set forth in the complaint so far as the allegations of sale or reasons to believe that sale was being made in the private home which would give the alderman or justice of the peace jurisdiction, with the possible exceptions' that the alleged facts set forth on which the affiant bases his belief are not sufficient to sustain the complaint. It is essential, as we view the law from the decisions, in addition to what the affiant set forth and swore to in the complaint, to set forth facts in the complaint on which the reasonable conclusion can be drawn of probable cause for belief. No doubt, the reasons for this requirement of setting forth facts on which reasons for belief are based, as required by the act of assembly, has a manifold purpose. First, it is for the purpose of furnishing information to the person against whom the search warrant subsequently issues, so that the individual may protect himself or herself from unreasonable and unjustifiable searches. Secondly, the law recognizing that a search warrant is an extreme method and must be used with the greatest care and caution and only under such conditions that it is reasonable to assume that a violation of the law exists, this requirement as to setting forth facts in the complaint is for the purpose also of giving information to the public in order that the dangers of the abuse of such power may be kept at a minimum.

Again, the power placed in the hands of the justice of the peace to issue a search warrant under this act of assembly [being] neither an arbitrary power nor a discretionary power, but a power vested in the justice which he must exercise upon the proper conditions existing which raise the belief of probable cause of the violation of the law, it is of importance to the individual against whom the action is proposed, to the public and the officers in executing the process, to be able to determine from the facts set forth in the complaint whether or not the conditions which require the issuing of the search warrant exist.

Taking the language in this complaint (the only fact that the complainant sets forth is that an affidavit [was made] that the said Marie Dersin is manufacturing, trafficking and selling liquor for beverage purposes), it can hardly be contended that an affidavit, without disclosing the further fact at least that the affiant to the affidavit was known to the complainant and that the complainant had reasons to believe the affiant in the affidavit was a reliable person, would be sufficient to create in the mind of a person that a probable cause existed. If it is the law that the mere declaration that an affidavit in the hands of the complainant, without anything further, is sufficient to create that condition of mind which is designated as a probable cause to believe without anything further, it is hard to conceive how a citizen is to be protected from the search of his home upon the affidavit of either unscrupulous or over-zealous individuals. It may be said that the dangers to the individual are so remote because of affidavits by the unscrupulous that it is not deserving of consideration, and that fact may possibly be true. However, it is a well-known fact that there are individuals who in good faith would make affidavits of a sale or manufacture of intoxicating liquors upon the slightest suspicion, and we feel that this provision of the act of assembly is aimed to prevent that situation. This contention seems to the court to have considerable force because of the very language of the act of assembly itself, which requires that the complainant must not only set out facts on which the complainant has probable cause to believe that the law has been violated, but a further requirement of the act of assembly is that the justice of the peace must also have that probable cause for belief. We know of no ease which has been decided by our appellate courts which has gone so far as to say that the declaration of facts merely setting out that a person has violated the law is sufficient to meet the requirements of the act, which provides that the facts on which probable cause is based must be set out, and we feel that such a statement does not meet either the spirit or the intention as expressed in this particular provision of the act of assembly.

In the ease of Com. v. Schwartz, 82 Pa. Superior Ct. 374, Keller, J., speaking for the Superior Court, says: “Were it not for the provisions of the act that the complainant shall set forth probable cause, it would have been sufficient for the affiant to make affidavit in the language of the act, viz., that there is probable cause to believe and that he has just and reasonable grounds for believing and does believe, etc.” The same principle is expressed in Com. v. Hunsinger, 89 Pa. Superior Ct. 238, by Judge Porter. And we feel that this conclusion reached by the Superior Court confirms what has already been said as to what the law requires of facts upon which belief is based, and surely there should be at least, in addition to the mere declaration that the complainant has an affidavit, the additional facts that the affiant therein is known to the complainant, that the complainant has reasons to believe that the affiant is reliable, and has reasons to believe that the affidavit in his possession is true because of additional facts, setting out to some extent what those facts are which have been learned from the affiant which would cause the affiant to make affidavit that sales had been made.

In the ease of Com. v. One Box Benedictine, 290 Pa. 121, Justice Kephart says: “The search warrant cannot issue unless the private dwelling is used for the unlawful sale. This fact must be known by the person who makes the affidavit either by direct or circumstantial evidence.” As we understand, the affidavit to which the Justice has reference is the affidavit made by the complainant on which the search warrant is based, and, if that is correct, the language of the Justice is significant. The fact of sale must be known to the person who makes the complaint either by direct or circumstantial evidence. In the instant case, there is nothing in the statement of fact in the complaint or anywhere in the complaint itself which indicates that the affiant in the complaint had any direct knowledge of sale on the part of the said Marie Dersin, nor does there appear any statement of facts as to circumstances which would lead to a conclusion of probable cause and belief of sale.

The other allegations of the plaintiff, namely, that the complaint was in blanket form, that there was no description of the property to be seized, that the description of the house to be searched was insufficient, that the warrant was in blanket form and all immaterial facts were not stricken out, that there was no description of the things to be seized, and that the description of the house to be searched did not comply with the Liquor Law of 1923, and amendments thereto, needs no discussion on the part of the court. There seems to the court to be no question but that the complaint and search warrant in regards to these particulars complained of were as fully set out as could be expected under the circumstances, and that the same were in compliance and in accordance with the requirements of the act of assembly. It seems unnecessary to discuss the questions raised therein because the courts have so frequently recently discussed the various questions raised.

Now, Oct. 26, 1927, motion for judgment for defendant for want of sufficient statement is overruled.

Exception noted and bill sealed to the defendant.

From John M. Urey, Clearfield, Pa.


author: Evans, P. J.,

text:
    Buccasi’s Naturalization.

      Naturalization — Declaration of intention — Act of Congress of June 29, 1906, 3k Stat. at L. 596.

    1. A declaration of intention of naturalization must be made at the office of the clerk of the court or in the court itself for the district in which the alien resides.
    2. A declaration of intention executed by an alien elsewhere than in the pro-thonotary’s office for the district in which such alien resides, though executed before the deputy prothonotary of said office, is not such a proper or sufficient declaration as to entitle such alien to admission as a citizen.
    Petition for naturalization. C. P. Cambria Co., No. 7606.

      Alvin Sherbine, for petitioner.

      C. A. Bernhard, Assistant District Director of Naturalization, contra.
    Dec. 22, 1927.
   Evans, P. J.,

At the hearing of the application of the above-named Nicola Buecasi for admission to citizenship in the United States, it appeared this his declaration of intention was made at the office of a railroad company in the City of Altoona and not at the office of the Clerk of the Court of Blair County, at Hollidaysburg. The applicant, who had been working for the Pennsylvania Eailroad Company at Altoona, was notified in May of 1922 that if he desired to make his declaration of intention to become a citizen of the United States, he could do só at the office of the railroad company upon a day, of which he would be given notice. Accordingly, on May 19, 1922, about four o’clock in the afternoon, he, along with a number of others, appeared at the office of the supervisor of the railroad company in Altoona and then and there declared his intention to become a citizen of the United States before an officer, who brought with him from his office at Hollidaysburg to the office of the supervisor of the railroad company at Altoona a book containing the application and other supplies for use in connection with the taking of applications for citizenship; that he never was in the office of the Clerk of the Courts of Hollidaysburg for the purpose of making a declaration and did not make any declaration at that place. Counsel for the Government thereupon objected to the consideration of the petition on the ground that there had not been any proper declaration of intention made in accordance with the letter as well as the spirit of the Act of Congress.

The declaration in question purported to have been made in the Court of Common Pleas of Blair County, Pennsylvania, before the deputy prothono-tary, who is the clerk of said court, and at the office of the said clerk. It bore the seal of the Court of Common Pleas of Blair County.

Section 3 of the Act of Congress of June 29, 1906, 34 Stat. at L. 596, provides, in part, as follows: “That exclusive jurisdiction to naturalize aliens as citizens of the United States is hereby conferred upon the following specified courts: ... all courts of record in any state . . . having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited.”

Section 4 of the same act provides, in part, as follows: “That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise: First. He shall declare on oath before the clerk of any court authorized by this act to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years at least prior to his admission, and after he has reached the age of eighteen years, that it is bona fide his intention to become a citizen of the United States and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, and particularly, by name, to the prince, potentate, state or sovereignty at which the alien may be at the time a citizen or subject. . . .”

Section 12 of the act makes it the duty of the clerk of the court exercising jurisdiction in naturalization matters to keep and file a duplicate of each declaration of intention made before him.

Section 13 of the act provides for the fees for the service rendered.

Section 14 of the act provides: “That the declarations of intention and the petitions for naturalization shall be bound in chronological order in separate volumes, indexed, consecutively numbered and made part of the records of the court. . . .”

The question is squarely raised here as to whether one may be admitted to citizenship upon a declaration of intention made elsewhere than at the office of the clerk of the court, or in the court itself.

There are four reported cases in which the matter has been discussed or decided. The one which impresses us most is the case In re Langtry, 31 Fed. Repr. 879, decided in 1887. The remarks of Mr. Justice Field, of the United States Supreme Court, present the matter in a way most appealing to us, and one that we believe to be a correct and proper statement of the law. The report contains the following:

“Field, Circuit Justice, addressing Mr. Barnes, a counselor of the Circuit Court, inquired whether he was counsel for Mrs. Langtry. Mr. Barnes replied that he was not such counsel, although he had given her advice as to making a declaration to become a citizen. The Justice then said that his attention had been called to the fact that Mrs. Langtry’s declaration had been taken at her residence in this city and not at the clerk’s office, and that for that purpose the records of the court in which such declarations are entered had been carried by the deputy clerk to her rooms, and that great doubt existed in his mind as to the legality of the declaration thus made. He did not think that the statutes furnished any authority for the clerk of the court to take a declaration of one to become a citizen out of his (the clerk’s) office, except in open court, and for that purpose to carry the records of the court to the private residence of the party. To permit the proceeding to pass without comment would be to establish a dangerous precedent, and one calculated to give rise to gross abuses. The Justice observed that to be an American citizen was a great privilege; that citizenship should be regarded as a sacred trust; and that persons seeking to take upon themselves its responsibilities ought to consider it of sufficient value to attend where the records of the court are held in proper legal custody. In some states, a man is allowed to vote as soon as he makes his declaration of intention to become a citizen; and if the clerk of the court, or his deputy, can go around the country taking declarations of intention and administering oaths, it is evident that dangerous consequences might follow, especially as there is no limit to the number of deputies which a clerk might appoint.
“The Justice suggested to Mr. Barhes that he should inform Mrs. Langtry of the doubt expressed by the court of the legality of her declaration, and to inform her that she could remove that doubt by repeating the declaration before the clerk of the court at his office or before the court.”

The second case called to our attention is that of Santo Scola, 8 Pa. C. C. Reps. 344, in which Judge Archibald adopts the same position as suggested by Justice Field, and holds that the application must be made at the office of the clerk or in open court.

The next case is that of Andres v. Judge of Circuit Court, 77 Mich. 85; 43 N. W. Repr. 857. The Supreme Court of Michigan in this ease took a contrary view and held that the application might be made before a clerk at any point, and suggest that there is no law requiring that the application be made at any particular place. As we view the matter, instead of it being the law that the clerk, whose place of business is fixed in this state by our Constitution, may carry the records and seal away from his office and perform his duties elsewhere unless prohibited by statute, it should be held that to permit an act as important as this to be done elsewhere than at such established places is only permissible when the statute specifically grants such a privilege. No clerk of any court possesses the right or authority to remove or carry out of his office any of the records or seals in his care as clerk of the court, without permission or authority from the court itself. Another matter suggested in the opinion of the Michigan court is that the declaration of intention confers no privileges and fixes no rights, but the court seemed to overlook the fact that at that time the right to vote in many states followed the mere declaring of an intention to become a citizen; that an alien who has declared his intention to become a citizen may take a homestead on public land; so that it does in fact confer a privilege, or results in conferring one. Mr. Justice Morse, of the Michigan Supreme Court, dissented from the majority of the court, and we are much more impressed with what he said in dissent than with the opinion of the majority of the court.

The remaining case is the case of Boso, 6 Kulp, 83. In this case it is held that the declaration might be made elsewhere than in the office of the clerk or in court. This case is also based upon the assumption that because the act does not prohibit the declaration from being made otherwise than at the usual place of business of the clerk or in court, therefore, it may rightfully be done elsewhere. With this view, as suggested above, we are unable to agree.

The vieiousness of a practice which would make it possible for clerks to carry the records of the court around through the county to take the applications óf persons who might wish to declare their intention to become citizens cannot be too strongly condemned. Where an act is to be done before a court or its clerk, in which the records are to be used, it is intended that it shall be done at the place of holding the court and at the office of the clerk. No records or seals may be taken away from the office of a clerk of the court and carried about the county without special statutory authority permitting it. It is not a matter of prohibiting such an act. In our opinion, the granting of citizenship in the United States of America is of such importance that nothing should be done by the courts, or their officers, which might in any way tend to give the impression that citizenship is a matter to be treated lightly and of little concern. We are of the opinion that if Congress had intended that clerks might travel about and take or seek applications for declaration of intention, they would have said so in the Act of Congress, but no such language is there to be found, and, in our judgment, the presumption is that it intended, and has a right to expect, and the Government will demand, that those persons who desire to become citizens of this country shall appear formally before the proper court, or its clerk, and make their solemn declaration in a manner fitting to such an application.

While we regret the inconvenience which will be caused to the applicant in this case, nevertheless, we consider the matter of such importance that the inconvenience of an individual may not weigh in determining a matter of this importance. We, therefore, enter the following decree:

And now, Dec. 22, 1927, after due consideration, the application of Nicola Buccasi for citizenship is refused because of the fact that there was ho proper or sufficient declaration of intention preceding the same.

From Henry W. Storey, Jr., Johnstown, Pa.


author: Berger, J.,

text:
    De Rose’s Detective License.

      Detectives — Private detectives — License—Policeman—Incompatible offices.

    1. A license will not he granted to a policeman to act as a private detective. The positions are incompatible.
    2. Necessity for the appointment of a private detective must always he shown.
    3. The appointment of a private detective is discretionary in its nature.
    Petition for private detective license. C. P. Schuylkill Co.

      J. H. Bothstein, for petitioner.
    March 7, 1927.
   Berger, J.,

The petitioner seeks a detective license pursuant to the Act of May 23, 1887, P. L. 173. He is a married man of good character, twenty-nine years of age, and has honorable discharges from service in the United States Army in the World War and from the Pennsylvania State Police force. At present he is a member of the police force of the City of Pottsville, and intends to exercise the rights, powers and privileges of a private detective, if licensed, in addition to the discharge of his duties as a city policeman. Two witnesses have testified to the fitness of the applicant as a detective and to his integrity, and a petition from prominent citizens, permitted to be filed at the hearing, recommends the granting of the license for which he prays. No proof regarding the necessity for any additional private detectives in Pottsville has been made. In Baker’s Detective License, 7 D. & C. 707, 708, we said that the weight of authority is that the power of appointing a private detective is discretionary in its nature and that necessity for appointment ought always to be shown. In that case, we also pointed out that the function of a private detective is to make investigations 'for hire or reward and that private detectives are not supposed to perform the functions of a constable or of a police officer, but that their services shall be of a private nature, for which they are permitted and expected to receive compensation from those who employ them, while for a city police officer to do so would constitute extortion. See, also, Quatello’s Detective License, 9 D. & C. 74. If the petitioner were granted a license as a private detective, it would be difficult at all times to determine whether he was acting in that capacity or in his capacity as a city policeman. Therefore, it seems to us that the position or office of city policeman and of a private detective are incompatible. For the reasons stated, the prayer of the petition is refused.

Petition dismissed, at the cost of the petitioner.

From M. M. Burke, Shenandoah, Pa.


author: Koch, P. J.,

text:
    Sincavage v. Philadelphia & Reading Coal and Iron Company.

      Workmen’s compensation — Recovery from accident — Subsequent neurasthenia.

    An injured workman is entitled to compensation after he has so far recovered from an accident that he is physically able to work, but, because of neurasthenia which results from his accident, honestly thinks he cannot work.
    Appeal by the defendant from the order of the Workmen’s Compensation Board reinstating compensation agreement. C. P. Schuylkill Co., Nov. T., 1927, No. 374.

      Roger Dever, for plaintiff; John F. Whalen and Geo. Ellis, for defendant.
    Jan. 30, 1928.
   Koch, P. J.,

The question in this case is whether a claimant is entitled to compensation after he has so far recovered from an accident that he is physically able to work, but, because of neurasthenia, which results from his accident, honestly thinks he cannot work. This case has a long history and we shall review, it.

On May 5, 1919, while the claimant was being lowered in the shaft at the defendant’s Maple Hill Colliery, the cage dropped to the bottom of the shaft and the claimant was severely injured. A compensation agreement was entered into on May 19, 1919, for the payment of $10 a week to the claimant. On June 15, 1921, the claimant petitioned for a modification of the agreement, on the alleged ground that he was totally disabled and would never be able to work, and averred that the agreement should provide for compensation for 500 weeks to enable him to petition for computation to start a small business. The defendant denied the averments in the petition and alleged that the claimant was able to do light work and that he had been directed by the attending surgeon to present himself to the employer for the purpose of learning just what kind of labor he could do. The referee found that the claimant was entitled to partial compensation because he could do some light form of work and dismissed the petition. The claimant appealed from the referee’s order and was sustained by the board. So the defendant filed a petition, in December, 1922, to terminate the compensation agreement, on the ground that the claimant’s disability had terminated. The defendant averred that the claimant could do light work since Aug. 5, 1921, but had never made any effort to demonstrate his earning power and had not reported to the company for trying such work, as advised by the surgeons who gave him treatments. The claimant made answer to the petition from the National Soldiers’ Home in Virginia on Dec. 20, 1922, denying the averments in the defendant’s petition and saying that he was totally disabled as a result of the accident and had been ever since it happened, and that he had been dependent on charity since receiving his last compensation on May 31, 1921; that he was confined to the almshouse, where he was cared for by the American Legion and Red Cross, and was then, Dec. 20, 1922, at the said National Soldiers’' Home. The referee dismissed the petition Feb. 2, 1923. His action was sustained by the board and later by this court. See 20 Schuyl. Legal Rec. 108. Then the defendant filed a petition, dated Dec. 10, 1923, to terminate the compensation agreement, saying that the disability had terminated; that the employee was able to do light work not later than July 25, 1922, but had never made any effort to determine his earning power. Claimant answered and denied that he could do light work, and averred that he was totally disabled since the accident, saying that he had been an inmate of the National Soldiers’ Home in Virginia since December, 1922. Referee Seidel disposed of the case, inter alia, saying: “(2) We find that this claimant was totally disabled until the date of this hearing, which is Feb. 28, 1924. ... (3) On the day of the last hearing, which was as above mentioned, Feb. 28, 1924, he was examined by Doctors J. Monahan and J. B. Rogers on behalf of the defendant company. After the examination, they testified at the hearing that the claimant could do some character of light work. We agree with them and find that, on and after Feb. 28, 1924, claimant was able to do work of a light character.” He dismissed the petition for the termination of the agreement, but ordered compensation payments to be made up to Feb. 28, 1924, and suspended them thereafter until such time as claimant would demonstrate his earning power. Dec. 8,1924, Sineavage petitioned the board to reinstate the agreement which was suspended on Feb. 28, 1924, saying: “I attempted to work, securing employment at Maple Hill Colliery, but was unable to continue, owing to my physical condition. I am still totally disabled as a result of the accident. I am unable to do any work; I have no earning power; my physicians have advised that I be examined by a neurologist. I have no funds to pay for such examination; I believe that injustice will be done with my case if I do not have such examination. I request the appointment of an impartial neurologist to examine me.” The defendant denied the averments and said that the claimant worked for defendant at Maple Hill Colliery from Nov. 20th to Nov. 26, 1924, and quit without giving any reason; that he did his work satisfactorily and was physically able to do it. Referee Seidel disposed of the case Aug. 8, 1925. Among the witnesses before him was an impartial witness, Dr. T. H. Weisenberg, a neurologist, who had examined the claimant and then sent him to the Orthopedic Hospital in Philadelphia, where a more thorough examination could be had. The claimant remained at the hospital four days and a thorough examination of him was made there. The referee, inter alia, found: “(4) Dr. Weisenberg is of the opinion that the claimant can and should do some work. That if the claimant could be brought to feel that he would get no more compensation, it would have a tendency to cause him to go to work. (5) The claimant did secure a job at Maple Hill Colliery of the defendant company and worked from Nov. 20th to Nov. 26, 1924, when he quit without notifying any one at the colliery. The work that he was doing was scrapping and cleaning the gangway; shoveling and digging loose stuff in the ditch and throwing it to the high side in the gangway. He could take his time at this work. Was permitted to do so by the defendant company. His weekly wage rate for this work would be $32.70. (6) We agree with Dr. Weisenberg that the claimant can do some character of work. We believe that he can do.the work that he was doing from Nov. 20th to Nov. 26, 1924, or work of a kindred character. (7) He was a miner when injured. His weekly wage rate was $25.60 at the time.” So the referee dismissed the petition on Aug. 8, 1925, and the claimant appealed Aug. 15, 1925, to the Workmen’s Compensation Board, alleging that the findings of fact, four, five and six, are not supported by the evidence. On Dec. 21, 1925, the board affirmed the referee’s action, and a petition by the claimant for a reargument, filed on Dec. 28, 1925, was dismissed by the board Aug. 10, 1926.

On Oct. 12, 1926, Sineavage, the claimant, again petitioned for a reinstatement of the compensation agreement which had been suspended Feb. 28, 1924, averring: “I have attempted to work, but am unable to work. I am still totally disabled, due to my injury. I got light work at the Pott^ville Stove Works on Sept. 8, 1926, but was unable to do the work and only worked two and one-half days. I am dependent on charity and confined to the Schuylkill County Almshouse since July 8, 1925, and am still there.” Defendant answered Oct. 26, 1926, denying the averments in the claimant’s petition and saying that Sincavage had had unusually fair consideration of his case, that the interests of justice had been fully served and further repetition should be discouraged, and that the claimant’s trouble is likely to persist as long as he can hope to gain something by it.

The referee dismissed the claimant’s petition on June 10, 1927, and he appealed to the board on June 14, 1927, on the ground that the findings of fact are not supported by the evidence and that the referee, therefore, erred in his conclusion. The board reversed the referee on Sept. 26, 1927, and reinstated the compensation agreement as of Dec. 8, 1924. So we now have before us the defendant’s appeal from that decision. Defendant claims that certain findings of the compensation board are not sustained by competent evidence. Among them are these: (a.) Dr. Weisenberg testified unequivocally that the neurasthenic condition of the claimant is due to his injury; (6) “Neurasthenia is recognized by the medical profession as a disease and there is testimony in this case that the neurasthenia was definitely caused by the accident and that the man’s inability to will to do work is caused by the neurasthenia,” and (c) “In this ease the evidence is definite and the claimant is entitled to an award,” etc.

The conclusion of the board must rest upon the testimony of Dr. Weisen-berg, who has been engaged in mental and nervous diseases for the last twenty-five years and is Professor of Nervous Diseases in the Medical School of the University of Pennsylvania. He has examined the claimant several times, the last time being on March 30, 1927. He read over the testimony of the claimant and of others. He does not find the slightest difference whatever in his examination of the claimant; it is “just the same as two years ago.” In the doctor’s testimony we find the following: “I came to the conclusion that physically he is able to work. I find there is nothing wrong, so far as I could find from my examination that he couldn’t work, because the power in his limbs is normal; that he could have done everything as before, excepting some stiffness in his back and feet, and his right leg is shorter than his left leg. Mentally, I find he is worse than two years ago. Here is a man who in a period of eight years did practically seven and one-half days’ work, who is confirmed in his belief that he cannot work and confirmed in his belief that he can never get well. When I examined him two years ago, he thought he might get well; now he feels he will not get well. Now, while I don’t see any difference physically, I think, so far as his mental status is concerned, he is now more than ever confirmed that he can’t work. ... I believe if this man’s case was finally disposed of so he would know he couldn’t reopen his case, he would be given something final, some final settlement, he would return to work. . . . There is another complication, and that is the fact he is a veteran, and this man doesn’t differ at all from the hundreds of cases I have seen in the Veterans’ Bureau. I mean, once those men get in the hands of the Veterans’ Bureau, they keep on being hospital cases over and over again and will not work, and the Government has the same thing to do as you in this compensation case. This man, even though you were to settle his case, would still be a Veterans’ Bureau case. Q. I understand your last qualified statement, assuming his case was finally disposed of from a compensation standpoint of this State’s law, yet there would still be that mental belief there would be something coming to him from the Government? A. Yes, as he does not differ from the thousands of other cases in this country. Q. You would regard him as a neurasthenic? A. Yes, sir. . . . Q. Your opinion is substantially the same as you expressed when you testified in this case before? A. Yes; if I may refer to that opinion, my.former hearing, I said that as long as the ease continued, just as long as he will continue to reopen the case and try to get more compensation. On pages seven, eight and nine. That is exactly what he has done. He is running true to form. That is what all these people do. Q. So far as he is concerned, there is no doubt about it; the fact is he can work; that is, he can physically, but doesn’t have the mental co-ordination? A. I would agree with the first part, but not with that he didn’t have the mental co-ordination. I agree that he can’t work and that the injury is responsible for producing such a mental phenomena. I believe that if this were finally disposed of, he would go back to work because he would have to. In that it would be rendering him service. He is now three years older. Had his ease been disposed of two years after the accident, but as long as this thing continues, the more likelihood of making him permanently dependent on charity. I believe this man thinks he is entitled to compensation; that is evident, because he is constantly asking for a reopening of his case; that is the element which makes him feel he doesn’t have to. He knows he can open this case, and he knows there is always a possibility that he might get some money. If that possibility were removed, he would then be faced with one of two alternatives, to one of the poorhouses or to one of the veterans’ homes, or go to work, and the probabilities are, barring the eight years of enforced idleness having made a permanent idler out of him, that he would go to work, and I believe as long as he knows the case can be opened, the greater the probability that he will never work. In that respect I might say the man doesn’t differ a particle from the scores of veterans I have seen, men who didn’t get to France and men who probably didn’t have a thing the matter with them in service, and after their discharge they worked a week or two and then went back to the Veterans’ Hospital — admitted and discharged, admitted and discharged, and if not admitted they appeal to a congressman for admittance. It is a deplorable condition. Q. As far as Sincavage is concerned, this, as a matter of fact, is a real condition? A. Yes, sir. Q. It is a condition which plays upon his mind? A. Yes, sir. Q. It does naturally disable him, although he has the physical power to perform labor? A. Yes. Q. You did say before, and I think you still say, this man is not a malingerer? A. I do not think he is a malingerer. I believe he feels the pains he has and the inability to work are all true. He is not a faker. Q. Sort of an illusion? A. Not an illusion, but a false idea, which is based upon the fact that he does not have to work; that he can always get compensation; that perhaps the company owes him something for the severe injury he had. Q. This case has dragged out because he has the hope of something coming to him? A. Yes.”

The evidence clearly supports the findings of the board. The board received no new evidence. It simply took the evidence produced before the referee and came to a conclusion contrary to that of the referee, as it may do under section 423 of the Act of June 26, 1919, P. L. 642, 664, which, inter alia, provides that: “In any such appeal, the board may disregard the findings of fact of the referee and may examine the testimony taken before such referee, and, if it deem proper, may hear other evidence, and may substitute for the findings of the referee such findings of fact as the evidence taken before the referee and the board, as hereinbefore provided, may, in the judgment of the board, require, and may make such disallowance or award of compensation or other order as the facts so found by it may require.” See Vonot v. Hudson Coal Co., 285 Pa. 385.

The board has found that the claimant’s condition is a disease which results naturally from the accident and makes his case compensable. As the findings are supported by competent evidence, we may not disturb either them or the order reinstating the compensation agreement.

We have no case similar to this in this State, otherwise we should not have gone so fully into the history and the testimony respecting this claim. But the case of Lupfer v. Baldwin Locomotive Works, 269 Pa. 275, is somewhat analogous to this and is supportive of the conclusion arrived at by the Workmen’s Compensation Board in this case, even though the petition for reinstatement of the agreement was presented years after the accident happened: Stinger v. Rinold Brothers et al., 80 Pa. Superior Ct. 420.

And now, Jan. 30, 1928, the exceptions are dismissed and the order reinstating the compensation agreement is affirmed.

Prom M. M. Burke, Shenandoah, Pa.


author: Moyer, Dep. Att’y-Gen.,

text:
    Taxation of Steamship Companies.

      Taxation — Corporations — Capital stock tax — Bonus — Steamship companies — Vessels—Home port — Situs—Acts of May 8, 1901, P. L. 150, and July 22, 1918, P. L. 908.

      ■ 1. Steamship companies incorporated under the laws oí another state with their principal office therein are not liable for the Pennsylvania capital stock tax on that portion of their capital represented by steamships and other vessels owned by such companies and registered at a port in Pennsylvania as their home port, if said vessels have not acquired an actual situs in Pennsylvania.
    2. Nor are such companies liable for bonus upon an increase in the capital stock as represented by an investment in such vessels.
    Department of Justice. Opinion to Hon. J. Lord Rigby, Revenue Deputy, Auditor General’s Department.
    Nov. 23, 1927.
   Moyer, Dep. Att’y-Gen.,

You have forwarded to this office the Capital Stock and Bonus Reports of the Cape Steamship Company and the Pure Oil Steamship Company for the year 1925, together with the petitions of these companies for resettlements of the capital stock tax and bonus settlements made against said companies for said year, with affidavits of the officers of said company, setting forth in detail the voyages of the various steamships and vessels of said companies during the year in question. Your inquiry is whether these companies, both of which are incorporated under the laws of Delaware, with their home offices in said state, and qualified to do business in Pennsylvania, are liable for the Pennsylvania capital stock tax on that portion of the value of the capital stock represented by steamships and other vessels owned by said companies and registered at a port in this State, but which steamships and vessels had not acquired an actual situs in Pennsylvania; ¡and, further, whether said steamship companies are liable for bonus upon an increase in the capital of said companies as represented by their investment in said steamships and other vessels?

Let us consider first the case of the Cape Steamship Company. The Cape Steamship Company is a corporation incorporated under the laws of the State of Delaware, with its principal or home office at Dover, Delaware, and chartered for the purpose of owning, leasing and operating ships and other vessels for carrying oil, merchandise and freight of any kind “to and from any ports and in all parts of the world.” According to the affidavits filed by officers of this company, it owned three oil tank ships. Two of these oil tank ships did not touch a port in Pennsylvania during said tax year, and the other vessel only touched a port in Pennsylvania seven times during the year while actually engaged in discharging interstate commerce.

The Pennsylvania capital stock tax is provided for by various acts of assembly. The principal act under which the capital stock tax here in question was imposed is the Act of July 22, 1913, P. L. 903. The bonus settlement in this ease was made under the provisions of the Act of May 8, 1901, P. L. 150. We deem it unnecessary to further refer to or discuss these various acts of assembly, inasmuch as their construction is not at issue here.

The general rule is that tangible personal property is subject to tax by the state in which it is, no matter where the domicile of the owner may be, and notwithstanding the fact that the property may be employed in interstate transportation: Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. Ed. 613. However, in the instant ease, in light of the affidavits filed by the officers of the company, the oil tank ships and barges in question did not acquire an actual situs in Pennsylvania. The question which you have presented to this department arises because of the fact that said oil tank ships and barges are registered or enrolled at a port in Pennsylvania. The Supreme Court of this State, in the case of Com. v. American Dredging Co., 122 Pa. 386, held that the rule as to vessels engaged in foreign or interstate commerce is that their situs for the purpose of taxation is their home port of registry, or the residence of their owner if unregistered. I presume that it was because of this decision that the settlements which comprehended the value of the ships and barges referred to were made against the Cape Steamship Company. The rule laid down in said case of Com. v. American Dredging Co., supra, appears to have been based upon the decision of the United States Supreme Court in the case of Hays v. Pacific Mail S. S. Co., 17 Howard, 596. In this case, it so happened that the home port of the vessels in question was the same port at which they were registered, to wit, New York City. The corporation which owned the vessels was incorporated in the State of New York and had its principal office in New York City.

The case of Com. v. American Dredging Co., supra, was decided in 1888. That the rule therein referred to, to the effect that the situs for the purpose of taxation is the home port of registry of the vessel, is not the rule today, is conclusively shown by the decision of the United States Supreme Court in the ease of Ayer & L. Tie Co. v. Kentucky, 202 U. S. 421, 50 L. Ed. 1086, decided in 1906. In this case, the boats in question were engaged in interstate commerce between the ports of Kentucky, Illinois, Mississippi, Tennessee and Arkansas. They were owned by an Illinois corporation which has its principal office at Chicago, where taxes had been paid under the laws of the state, both to the state and to the city. Brookfield, in the extreme southern part of the state and upon the Ohio River, was a port of call, and an office was probably maintained there, it being a place where cargoes were often discharged. The general manager of the transportation department of the company resided in Kentucky, and the boats of the fleet were enrolled at Paducah, in that state, and bore upon their sterns the name “Paducah,” as the home port or port of hail under the statute. Paducah was the place where the boats received their supplies and repairs, where seamen were hired and [boats] laid up when not in use, though it seems that Paducah was not a point where cargo was either received or discharged. Upon this state of facts it was held that the boats of the company had neither such artificial situs through enrollment or the marking upon their sterns, nor such actual situs by reason of the temporary stoppage at Paducah and other ports of the state, as to draw to it jurisdiction for purposes of taxation. In this case, Justice White, in his opinion on page 1087 (50 L. Ed.), states the general rule as follows: “The general rule has long been settled as to vessels plying between the ports of different states, engaged in the coastwise trade, that the domicile of the owner is the situs of a vessel for the purpose of taxation, wholly irrespective of the place of enrollment, subject, however, to the exception that where a vessel engaged in interstate commerce has acquired an actual situs in a state other than the place of the domicile of the owner, it may there be taxed because within the jurisdiction of the taxing authority.”

In this ease the Federal statutes pertaining to registry or enrollment of a vessel in an American port were fully referred to. In view of this general rule, it will serve no purpose to discuss them here.

In support of the general rule laid down by the case of Ayer & L. Tie Co. v. Kentucky, supra, we also wish to cite the case of Southern Pacific Co. v. Kentucky, 222 U. S. 63, 56 L. Ed. 96, where the Supreme Court of the United States fully discussed all the important cases on the subject.

In the case of Old Dominion S. S. Co. v. Virginia, 198 U. S. 299, 49 L. Ed. 1059, the domicile of the owner of the vessels there in question as a taxing situs was held to have been lost and a new taxing situs acquired by reason of a permanent location within another jurisdiction. The Supreme Court of the United States said, in the ease of Southern Pacific Co. v. Kentucky, supra, with respect to this case (56 L. Ed. 156): “But in that case the judgment was rested upon the fact that the vessels had for years been continuously mid exclusively engaged in the navigation of the Virginia waters, which state had thereby acquired jurisdiction for imposing a tax as upon property which had become incorporated into the tangible property within her territory.”

In the instant case, although the Cape Steamship Company owns three oil tank ships which are enrolled at the Port of Philadelphia, for the purpose of protection on the high seas, nevertheless, under the facts shown in the affidavits filed by the company, these ships have acquired no actual situs in this State. As previously referred to, two of the ships did not touch a port in Pennsylvania during said tax year, and the other vessel only touched a port in Pennsylvania on seven different occasions. These occasions were when the ship in question was engaged in lawful commerce between the states. This ship was here only temporarily, depending at the time upon the amount of business transacted at the particular port incident to its interstate commerce. The situation here is entirely different from that found in the ease of Old Dominion S. S. Co. v. Virginia, just referred to.

You are, therefore, advised that the Cape Steamship Company, a foreign corporation qualified to do business in Pennsylvania, is not liable for the Pennsylvania capital stock tax, during the year 1925 in question, on that portion of the value of the capital stock represented by oil tank ships owned by it, although registered at a port in this State, because these ships had not acquired an actual situs in Pennsylvania; and you are further advised that, for the same reason, this corporation is not liable for bonus upon the increase in the capital of said company as represented by its investment in said oil tank ships during the same year.

As to the Pure Oil Steamship Company, the facts are quite similar to the Cape Steamship Company. The Pure Oil Steamship Company is the owner of three oil tank ships and three barges used for transporting oil. According to the affidavit filed by the company, three of the oil tank ships and two of the barges are registered at a port in Pennsylvania, the remaining barge is registered at a port in Texas. A detailed statement of the voyages of the three ships and two barges shows that they visited Pennsylvania ports on numerous occasions, but only when engaged entirely in the business of interstate commerce, and that they were here only temporarily for the purpose of this commerce. They did not acquire an actual situs in this State. The barge which was registered at a port in Texas did not touch a Pennsylvania port during the tax year in question.

You are accordingly advised that for exactly the same reason as in the case of the Cape Steamship Company, just discussed, the Pure Oil Steamship Company, a foreign corporation qualified to do business in Pennsylvania, is not liable for the Pennsylvania capital stock tax during the year 1925 in question on that portion of the value of the capital stock represented by oil tank ships and barges owned by it; and, likewise, it is not liable for bonus upon the increase in the capital of said corporation as represented by its investment in said oil tank ships and barges during said year.

I am herewith returning to you all reports, affidavits and papers pertaining to these cases which were submitted with your request for an opinion in order that you may effect the necessary resettlements of the accounts of these corporations for capital stock taxes and bonus.

From C. P. Addams, Harrisburg, Pa.