author: Smith, P. J.,

text:
    Susquehanna County Liquor Licenses.

      Liquor law — 18th Amendment — Constitutionality of Act of May 5, 1921 (Woner Act) — Art. Hi, sections 3 and 6, of Constitution.

    1. The Act of May 5, 1921, P. L. 407 (known as the Woner Act)r amending the Brooks High License Act of May 13, 1S87, P. L. 108, violates art. 3, § 3, of the Constitution, requiring the subject of a bill to be clearly expressed in its title, in that it attempts to amend other acts of assembly not referred to in the title.
    2. Section 1 of the Act of May 5, 1921, P. L. 407, which defines the phrase “vinous, spirituous, malt or brewed liquors” and the word “liquors” to “mean vinous, spirituous, malt or brewed liquors fit for beverage purposes other than such as are from time to time determined and found to be intoxicating by Act of Congress,” etc., and defines the phrase “intoxicating liquors” to mean “anything found and determined from time to time to be intoxicating by Act of Congress,” etc., violates art. 3, § 6, of the Constitution, in that it attempts to write into the statutes of Pennsylvania the present and future Federal legislation on the subject of intoxicating liquors by reference only, i. e., without re-enacting and republishing the statutes so attempted to be incorporated into the Pennsylvania law.
    3. Other sections of the Act of May 5, 1921, P. L. 407, relating to the petitions for licenses are also void, because they are so necessarily dependent upon, interlocked and connected with the first section that it may be presumed that the legislature would not have passed one without the other.
    4. The Act of 1921 being void, the petition must conform to the Act of 1887; and if it fails to allege that the place to be licensed is necessary or to contain the names of two sureties, it is defective, and license will be refused.
    5. The Act of 1887 places no restrictions or limitations upon the licensee concerning the alcoholic contents of the liquors which can be sold under the law, and, it seems, the court is without power in granting a license to impose such restrictions or limitations upon him without legislative authority.

      Semble. The ISth Amendment, while it has not repealed the prohibitory sections of the license law of Pennsylvania, does repeal that portion of the Act of 1887 which authorizes the courts to grant licenses for the sale of liquors.
    Applications for licenses to sell liquors. Q. S. Susquehanna Co., January Miscellaneous Sess., 1922, Nos. 1 to 28.

      Thomas A. Doherty, John M. Kelly, William J. Maxey and Frank M. Gar-diner, for petitioners.

      William A. Skinner, for exceptants.
    Jan. 24, 1922.
   Smith, P. J.,

. . . The constitutional objections interposed, and which apply to all retail applications only, for the reason that the “Woner” amending act is amending only of the “Brooks” High License Statute, which does not relate to applications to sell at wholesale, are verbatim thus:

“1. The Act of May 5, 1921, P. L. 407, known as the amendment of the Brooks High License Law, and under which the said application is drawn and filed, is unconstitutional and void:
“(a) Because in violation of art. ill, § 3, of the Constitution of Pennsylvania, requiring the subject to be clearly expressed in the title; the said act purporting to amend and repeal the Act of April 24, 1901, P. L. 102, and the Act of Feb. 26, 1919, P. L. 10, without notice thereof in the title.
“(b) Because in violation of art. hi, § 6, of the Constitution of Pennsylvania, prohibiting the revival, amendment, extension or conferring of any law by statute by reference to title only and without re-enactment and publication at length; the said Act of May 5, 1921, attempting to incorporate as a part of the statute law of Pennsylvania Acts of Congress in force or to be hereafter enacted without reference even to the title or date and without re-enactment or publication.”

We will consider these seriatim, and—

First, as to (a): Is the amending (Woner) Act of 1921 violative of section 3, art. in, of the Pennsylvania Constitution? This section is as follows: “No bill, except appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.”

The title of the amending Act of 1921, now attacked as unconstitutional, is thus worded: “An act amending an act approved the 13th day of May, 1887, entitled ‘An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof,’ by prohibiting the manufacture, sale, offering for sale, transportation, importation, exportation, furnishing or possession, for beverage purposes, of anything determined and found to be intoxicating by Act of Congress passed pursuant to, and in the enforcement of, the Constitution of the United States of America; and by restraining and regulating the sale of vinous, spirituous, malt or brewed liquors, or any admixtures thereof, fit for beverage purposes, other than such as are, from time to time, determined and found to be intoxicating by any such Act of Congress.”

The principal reason for urging the unconstitutionality of the entire act because of defective title is that no reference is therein made to the intermediary amendatory acts to the same Act of 1887, of April 24, 1901, and Feb. 26, 1919, cited as for amendment in sections 3 and 5 respectively of the amending Act of 1921 under consideration, either by title, section, date of approval, subject-matter or otherwise. We note that section 3 is amendatory of the 5th, and section 5 of the 8th section of the original Act of 1887, by omitting from the former the requirement of citation in license petition of the following clause, “That the place to be licensed is necessary for the accommodation of the traveling public,” and also the requirement of recital in the same petition of the names and qualifications of sureties upon license bond. That amending section 5 changes the amount of license fees payable by the licensee, and omits the clause permitting payment of such in instalments.

It is to be further observed that both these amending sections 3 and 5 recite their amendment of sections of the original Act of 1887 “as amended by an act,” then reciting by title and date of approval of each intermediary amenda-tory act; and we may consider to what extent they are s.uch, as well as being in themselves amendments of the original Act of 1887, being so denominated in their title as enacted, and which is repeated in the amending sections of the present 1921 amending act.

The rules governing the jurisdiction and duty of courts to pass upon the constitutionality of an act of the legislature are well established, and an excellent resumé of them appears in the opinion of Moschzisker, Justice (now Chief Justice), rendering his opinion in the case of Com. v. Mathues, 210 Pa. 372, 391-393, the chief of which, quoting authorities, is: “That every possible presumption and intendment must be made in favor of the constitutionality of an act, and the courts can only interfere in cases of clear and unquestioned violation of the fundamental law. The authority of the courts to declare statutes unconstitutional is a high responsibility and not to be exercised except in cases free from doubt, and all doubt is to be resolved in favor of the constitutionality of the act. . . . There is a presumption in favor of the constitutionality of a statute. . . . The uniform construction given to a provision of the Constitution with the silent acquiescence of the people, including the legal profession and the judiciary, . . . are proper elements of a legal judgment on the subject. If an act be susceptible of the interpretation which has been put upon it by long usage, the court will not disturb that construction.” But even of this rule of hesitation at age and acquiescence, it has been said by the Supreme Court in Kucker v. Sunlight Oil and Gas Co., 230 Pa. 528, in reversing the court below in refusing to declare the act there in question, for such reason, unconstitutional, at page 533: “If such an act is plainly in conflict with the organic law of the State, old age cannot give it life, and when the issue of its constitutionality is properly raised, it must be declared void. We have never ruled to the contrary.”

The Pennsylvania Constitution distributes the functions of government to three classes of officers, (a) legislative; (b) judicial, and (o) executive, and each, acting within its lawful sphere and limitations, is absolute and controlling, and directly referring to the constitutional question now presented, the Supreme Court has said in Provident L. & T. Co. v. Hammond, 230 Pa. 407, 414: “It was not the intention to interfere with or prevent the legislature from freely enacting proper legislation, but the purpose was to prevent fraud, by requiring the title to the bill to disclose fully and clearly its subject, so that all interested parties could be heard for and against the proposed legislation if they desired.”

It will be noticed that art. ill, ■§ 3, of the Constitution, provides that no “bill” shall be passed by the legislature. “Bill,” as presented to that body for its action, is distinguished from “act” or “statute,” which becomes such only after such action, and so prohibits for “the purpose of preventing fraud and deception, by requiring the title of the 'bill’ to disclose fully and clearly its subject, so that all interested parties could be heard for and against the proposed legislation if they desired.” If, therefore, the title is defective, it cannot be cured by the subsequent enactment of the bill into a law, by its being passed by the legislature and approved by the Governor. In passing upon the adequacy or sufficiency of the title, we must act regardless of the subsequent enactment of the bill into a law. “We cannot look beyond the title and into the body of the bill for information as to the subject of the proposed legislation. . . . The investigator has the right to rely solely on the title without scrutinizing the body of the bill for confirmation as to the subject of the proposed legislation. ... If the title is defective, in that it contains (either) more than one subject, or only one subject which is not clearly expressed, the law which results from the passage of the bill contravenes the Constitution and is void:” Provident L. & T. Co. v. Hammond, 230 Pa. 407, 414; and “the title of an amendatory act entirely fails to express the subject when the act to be amended is not disclosed in some clear and defined manner:” Provident L. & T. Co. v. Hammond, 230 Pa. 407, 415.

The purpose of the constitutional provision is again stated to “prevent the passage of unknown and alien subjects which might be coiled up in the folds of the bill:” Dorsey’s Appeal, 72 Pa. 192, 195, cited in 230 Pa. 411. The objection here made has been so many times interposed as to be termed a “well-worn objection:” Orlady, J., in Daugherty’s Case, 51 Pa. Superior Ct. 120, 123.

The amending Act of 1921 in question, by its title, restricts its amending features of the original Act of 1887 to two enumerated particulars, viz.:

“1. By prohibiting the manufacture, sale, transportation, furnishing or possession, for beverage purposes, of anything determined and found to be intoxicating by Act of Congress pursuant to, and in the enforcement of, the Constitution of the United States of America; and
“2. By restraining and regulating the sale of vinous, spirituous, malt and brewed liquors, or any admixtures thereof, fit for beverage purposes, other than such as are from time to time determined and found to be intoxicating by any such Act of Congress.”

Such restriction and limitation of purposes are distinguished from statutes whose title is general and relate to one general subject.

In the last case, no matter how the details may be multiplied in the body of the act, provided they are subordinate to the general purpose of it, as stated "in its title and germane to its provisions, it is constitutional, notwithstanding art. in, § 3, of the Constitution: Gilbert’s Estate, 227 Pa. 648; Page v. Carr, 232 Pa. 371; and we may add Com. v. Sellers, 130 Pa. 32, wherein the Brooks High License Act of 1887 was itself attacked and sustained on this principle. But in the first case, in which the title limits the changes made, its provisions are also limited to the subjects of change mentioned in the title (Com. v. Bender, 7 Pa. C. C. Reps. 620), because the title tends to mislead the investigator or inquirer by conveying the belief that one subject is the purpose of the bill, while another is embodied in the body of the bill: Union Passenger R. R. Co.’s Appeal, *81 Pa. 91.

This distinction has been frequently since repeated and emphasized. See Com. v. Thomas, 248 Pa. 256; Keystone State Building Ass’n v. Butterfield, 74 Pa. Superior Ct. 582; Central D. & P. Co. v. Homer City Borough, 242 Pa. 597.

The legal effect of sections 3 and 5 of the amending Act of 1921 is, the former to repeal clauses five and nine of the intermediary Amendment of 1901, requiring sureties, their qualifications, etc., required by the 1901 Amendment, and the requirement also recited of place licensed “necessary.for accommodation,” etc., as necessary to be incorporated in the petition for license; and the latter to eliminate the previously existing requirement of the court in which application for license is presented to determine whether such license “is necessary for the accommodation of the public,” etc.: Reid v. Smoulter, 128 Pa. 324.

Does the title of the act, as sub-divided into two enumerations of subjects, give the required constitutional notice of the subject-matter of the two foregoing amendments effecting repeal and elimination to which we have referred?

Bearing in mind the rules imposing that clarity of conviction which we must possess in order to negative this inquiry, we conclude that both of said sections 3 and 5 are invalid because their subject-matter does not appear in the title of the act; this notwithstanding we are of the opinion that we would be required to hold the contrary had the language of the title of the amending act in question stopped with the words “or any admixtures thereof,” immediately preceding the language which we have interpreted as expressing a two-fold limitation of subjects, not including those we now hold invalid, because even the latter would be then germane and cognate to the general title and within the scope and scheme of the subject of such title; the fact of their specific enumeration or of the intermediate Amendments of 1901 and 1919 being then so omitted would not avoid them as violating art. ill, § 3, of the Constitution, under the authorities of Purvis v. Ross, 158 Pa. 20, and Smyers v. Beam, 158 Pa. 57, to which may be added, on the same point from another state, Saunders v. Provisional Municipality of Pensacola (Fla.), 4 So. Repr. 801.

Passing to the second constitutional objection to the act, that section 1 violates art. in, § 6, of the Pennsylvania Constitution, in that the Federal legislation upon the subject of intoxicating and non-intoxicating liquors therein recited is not “re-enacted and published at length,” as required by the constitutional mandate as to laws “extended and conferred” by Pennsylvania statutes.

Of course, the same rules of interpretation and construction as to this article and section of the Constitution are the same which we have referred to and quoted heretofore in this opinion when discussing the objections as to “title” of the present statutory amendment and need not be repeated.

This article and section mean “that all statutes shall be self-explanatory and complete in their provisions:” Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627; Barrett’s Appeal, 116 Pa. 486.

It is interesting to note that in Pittsburgh’s Petition, 138 Pa. 401, 407, the court below states that the above two citations are the only cases in which the Supreme Court has been called upon to give effect to this (constitutional) provision, citing also one from the Common Pleas of Philadelphia County, viz., Donohugh v. Roberts, 11 W. N. C. 186; in all three the acts then under examination were declared void, as violating this constitutional mandate. The statutory provision and judicial criticism thereof in the 11 W. N. C. 186 case are peculiarly appropriate to the present discussion of section 1 of the Act of 1921.

The statute there provided that the “receiver of taxes have all the powers,” etc., conferred upon the officer whose place he is to fill, “by any and all acts of assembly heretofore passed,” of which Hare, J., in his opinion, said: “Thus leaving the effect of the enactment to be ascertained by a laborious search-through the numerous volumes of the Pamphlet Laws. It was even contended during the argument that there is nothing to preclude the legislature from providing that the duties of a particular office shall be performed by another branch or department of the administrator without designating them specifically, or save by a general reference to the statutes by which they were originally imposed. This position is untenable, both as regards the letter of the organic law or the object which it presumably has in view. What is bestowed on one man is not the less conferred upon him because it is at the same time taken from some other. Nor can it be said to be less important in the case of such a transfer that such legislation should take place in the light of day, with a full disclosure of the object and the means by which it is to be attained. The intention of the framers of the Constitution obviously was that the purport of every statute should appear on its face with sufficient clearness to enable the legislature to know what it was doing and give notice to the community at large.” (The italics are our own.) In quoting this case, the Supreme Court, in Pittsburgh’s Petition, 138 Pa. 401, 429, says: “This mode of defining the powers of a newly-created officer is in violation of the letter and the spirit of the constitutional provision, and cannot be sustained.”

Without discussing several more recent decisions, mostly lower court, declaring invalid similar statutory provisions for the same reason as in the above eases, we will note those of Com. v. Kephart, 17 Dist. R. 1051, which distinctly holds that [the Pure Pood Law of June 1, 1907, P. L. 386, is void] under the constitutional provisions now being applied. “Certainly, a prior Act of Pennsylvania could not have been picked up bodily and thrown into the Act of June 1, 1907, by reference to its title only” [17 Dist. R. 1051] ; and if it be doubted from the language of that court, in answer to his own query and citations following, as to whether “an Act of Congress be thus (by reference to title only) interpreted into said Act of Legislature?” If he decides it cannot, such negative clearly appears in the case of Com. v. Sweeney, 61 Pa. Superior Ct. 367, where, in the opinion on page 373, it is expressly stated: “Now, an Act of the Federal Congress is a law. Where its terms are applicable, it is as much the law of Pennsylvania as it is of Maine or California.” But “to attempt to write in bulk the entire provisions of such a law into a statute of Pennsylvania, by a reference only to its title, would be a legislative act clearly and expressly forbidden by the very language of our own Constitution.” And in Com. v. Dougherty, 39 Pa. Superior Ct. 338, 345, in slightly different verbiage: “Under our Constitution, our legislature could not introduce into a statute, and make operative as a part of such statute, an Act of Congress by a mere reference to its title.”

The three last cases so far discussed are so parallel with the one at bar as to force us to declare this 1st section of the Amendment of 1921 under view invalid, as in violation of both the letter and spirit of art. in, § 6, of the Pennsylvania Constitution, in which we are the more confident because of the wide scope and sweep of its, what we may term, “ambulatory” provisions, as attempting to incorporate into its subject-matter a method of ascertainment and definition of beverage liquors, intoxicating and non-intoxicating, by reference to United States constitutional and Federal statute regulations. Such as are “from time to time determined,” thus presenting the accumulating features of unconstitutionality involved in both Donohugh v. Roberts, 11 W. N. C. 186; Com. v. Dougherty, 39 Pa. Superior Ct. 338, above cited, of uncertainty of their existence, inadequacy of means of finding out, and imposing upon members of both bench and bar and also the community at large, presiding, practicing law and operating within the sovereignty of our own State borders, intolerable conditions and burdens of research throughout all the Federal statutes, and even the entire text of the Federal Constitution, for even of the latter no article, section or paragraph is identified in either the title or section of the amendment we have thus construed; such, at least, is our opinion. To sustain such legislation seems to us inconceivable, as tending to a looseness of construction extending beyond the authoritative liberality or authorized by constitutional provisions as expounded by the courts, and which we are unwilling to attest what would appear to be its first precedent in Pennsylvania, leaving that to the appellate courts, if they decide we are wrong.

It necessarily follows from our foregoing conclusions that by reason of the invalidity of the 1st, 3rd and 5th sections of the amending Act of 1921, the sections of the original Act of 1887 thereby sought to be amended and intermediate amendments thereof of 1901 and 1919 are still in force, leaving the amending Act of 1921 of no authority to grant licenses to deal in beverage liquors; and unless other authority therefor exist, we must refuse all the petitions filed for license to sell at retail at least, and it is only the retail dealers who are provided for by either the original Act of 1887 or the amending statute of 1921, as far as the actual grant of licenses are concerned.

Can such licenses be granted the petitioners under the terms of the original Act of 1887?

We are of the opinion they cannot be for two reasons:

First. That all of such petitions omit the requirements of clauses “fifth” and “ninth" of section 5 of the original Act of 1887, which clauses are mandatory; and

Second. That our authority under the Brooks Law of 1887 is superseded and annulled by the 18th Amendment and the “Volstead Act” of Congress in the enforcement thereof. It was for this reason that we refused all retail applications at January Sessions, 1919, in our opinion, which appears as Susquehanna County Licenses, 48 Pa. C. C. Reps. 409, easy of access, and our views there expressed we will not here repeat. However, we feel called upon because of the decisions of Com. v. Vigliotti, 75 Pa. Superior Ct. 366; s. c., 271 Pa. 10, to make a few further supporting observations.

The Vigliotti cases are cited by the learned attorneys for the petitioners as judicially sustaining the Brooks Law of 1887 as authority to grant such licenses by the Pennsylvania Quarter Sessions Courts. We cannot so interpret them. In considering their relevancy and application, we must bear in mind that such authority was not the question involved, but rather were the defendants there legally subject to conviction for selling “vinous, spirituous, malt or brewed liquors” under the prohibitory and penal features of the act? Both the Superior and Supreme Courts decided they were, and affirmed such conviction in the court below.

The petitioners cannot, therefore, invoke application of the principle of stare decisis, because the judgment of a court of competent or exclusive jurisdiction is not evidence of any matter incidentally cognizable, nor in any manner to be inferred by argument from the judgment. Its conclusive effect cannot be extended by argument or implication to matters not heard and determined, nor to collateral questions not a part of the case: Kapp v. Shields, 17 Pa. Superior Ct. 524; Schwan v. Kelly, 173 Pa. 65; Siebert v. Steinmeyer, 204 Pa. 419.

But it is contended that the reasoning of the opinion of both the Superior and Supreme Courts in the Vigliotti cases support the validity of the license features of the Act of 1887. Again, we disagree and read all that seems to apply here, as obiter dictum possibly, significant as supporting our view of the superseding effect of the Federal amendment and legislation.

In the Superior Court we find (75 Pa. Superior Ct. 374) its statement of the defendant’s contention “that the provision for the granting of licenses is inseparably connected with the other provisions of the act, and that the legislature would not have enacted the law without its license provisions,” [the court] then proceeded (page 375) : “That question is, Did the adoption of the amendment to the Constitution abrogate all the law relating to the vending of liquors? ... It (the Pennsylvania statute) had two purposes: to prevent the granting of licenses to sell to some persons, and to forbid all .other persons from dealing in the merchandise described.” Judge Henderson then notes the wider scope of this prohibition, applying to all vinous, etc., liquors, which includes both intoxicating and those non-intoxicating, to that of the Federal provisions, i. e., applying to the former only, saying: “It will be seen that none of the prohibitions of Congress are in conflict with the prohibitory provisions of the Act of the Legislature of 1887.” And the language which follows on the same page, 376, emphasizes the opinion of the court that the license provisions and prohibitory features of this act are clearly severable and the latter unaffected by the Federal law, made especially apparent from the following: “It cannot be questioned that the legislature might have repealed the provisions of the Act of 1887 authorizing the granting of licenses, leaving in force the prohibitory provisions thereof; and if this might have been done, why is not the same result accomplished by the paramount authority of the amended Constitution? . . . Having in view the terms and objects of the State statute, it seems evident that its provisions with respect to licenses are not so dependent on or interlocked with its prohibitory provisions that the authority to grant licenses cannot be abrogated without at the same time overthrowing its prohibitory features.”

We discover nothing in the opinion of the Supreme Court in the same case, 271 Pa. 10, contrary to the utterances of the Superior Court’s conclusions there expressed or proper inference therefrom.

We will refer to such portions of the opinion of Chief Justice Moschzisker as are urged upon us indicating support of the validity of the entire 1887 Act, including authority in us to grant licenses, notwithstanding the 18th Amendment and Volstead Act.

True it is he says (at page 15): “We conclude that the Brooks Law still survives as Pennsylvania’s own police power method of officially listing and controlling the customary sources of general supply and distribution ... of those kinds of liquors among which intoxicating beverages are usually found, and she may thus assist in prohibiting their illegal use as such. . . . The statute is adapted to serve as an instrument with which to perform, at least in part, this State’s right and obligation by appropriate legislation [to enforce] the 18th Amendment.”

Later, on the same page of opinion, the language to the effect that the prohibitive features of the Brooks Law are not “subordinate” to its license provisions affords the strong inference that he deems them not “dependent upon or interlocked therewith,” and is in accord with fhe same conclusion inversely expressed by the Superior Court, above quoted.

The eminent Chief Justice, then concludes (page 16) : “The act is capable of serving a useful purpose in preventing the illicit distribution to the people of intoxicating drinks by those in control of the usual source of beverage supply.”

Concluding, he says: “It is sufficient to say that we find no error in the ultimate conclusions of that (Superior Court) tribunal, represented by its determination of the several cases now before us for review,” being the lawfulness of the conviction of the defendants for selling liquors without license under the prohibitory features of the Brooks Law.

It may be we are wrong in our interpretation of the attitude of both the Superior and Supreme Courts in the Vigliotti cases; but it appears logical under the exceptions to the rule of stare decisis, and the severability of the license provision and prohibitive features of the Pennsylvania statute, which is recognized by both courts from whose opinions we have quoted, and which we in effect placed upon record in this court at January Sessions, 1919, in a supplementary opinion not published with the original in 48 Pa. C. C. Reps. 409.

In what we have said it is not our purpose to argue either the Superior or Supreme Court out of their position, but to adopt and follow them as we interpret and understand their opinions.

That “intoxicating” liquors are included in the terms “vinous, spirituous, malt and brewed liquors” enumerated in the Act of 1887 is stated by the opinions in both; therefore, unless the Court of Quarter Sessions expressly prohibits the vending of such intoxicants in the license granted, or such inferential restriction arises from the 18th Amendment and Volstead Act, obviously the letter of the Pennsylvania statute and the intention of the legislature enacting it permits such sale.

The proposition thus stated raises several important questions which we 'will now consider:

First. Would not the act of the court eliminating “intoxicating” liquor from the permissive terms of the license granted be an exercise of legislative power by the court, an encroachment on the province of the legislature and for that reason invalid?

Ever since the characteristic utterance by Gibson, C. J., in Greenough v. Greenough, 11 Pa. 489, 494, relative to the constitutional distribution and limitation of the three branches of governmental administration, that “every tyro or sciolist knows that it is the province of the legislature to enact, of the judiciary to expound, and of the executive to enforce. These functions may, if the people will it, be performed by a single organ, but the people of Pennsylvania have not so willed it.” It has continued a cardinal principle and recognized and applied by the courts, of which particular citations are unnecessary, because of which we are of the opinion such judicial limitation of a liquor license would be beyond court function.

Second. If, under a Quarter Sessions license, either in general terms or thus restricted, the licensee should sell or furnish intoxicating liquor, as defined by the Volstead Act, to persons not included within those prohibited by the provisions of the Pennsylvania statute, we know of no statute or provision thereof of the Pennsylvania Legislature under which the licensee could be prosecuted or penalized; the remedy could be in the Federal courts only, making it manifest to us that, under our interpretation of the license features of the Pennsylvania statute, superseded by the Federal law and its prohibitive and penal features unaffected thereby, it remains as that effective, “appropriate concurrent legislation,” and of which it is credited by the courts in the Vegliotti cases and our reasoning and conclusions consistent with our interpretation of them, and from which it naturally follows that the inference of limitation of license in the Pennsylvania statute by reason of the Federal law does not exist, gives effective potentiality to provisions of both and avoids establishing what we deem would eventually prove an embarrassing precedent of construction and interpretation of the Constitution, and is also in line with the previous decisions of the Pennsylvania courts that the license court has no right to place limitations or restrictions upon the licensee not clearly authorized by the statute, such as Com. v. Spence, 230 Pa. 571; Donoghue’s License, 5 Pa. Superior Ct. 1.

We would also refuse all retail applications at this time under the Act of 1887, because we are of the opinion no necessity exists therefor “for the accommodation of travelers and strangers;” a fact for our determination under its 7th section, the amendment to which, by section 4 of the “Woner” Act of 1921, being invalid, as we now find as a necessary result of like finding as to section 3 of the same act, as the two are necessarily interlocked and dependent one upon the other: Booth & Flynn v. Miller, 237 Pa. 297, and citations.

While no remonstrances have been filed or evidence taken on this point, we thus determine it, based upon our own knowledge and observation of conditions throughout this county during the past two years, in which there have been no licenses whatever and no serious complaints of their absence, as well as conditions previously known to exist during our continuous practice at the bar of the county from the date of the act, many times representing license applications and also the opposition, in which our opportunities for observation and knowledge have been ample to inform us of the habits and customs regarding the use of beverage liquors by both those residing within our borders and those comprising the “traveling public,” seeking, requiring and being afforded “accommodation,” and we have noted here a gradual, somewhat rapid and conspicuous diminution of consumption of such liquors and demand therefor; and we have also acquired, as we believe, such knowledge'of the habits and customs of the people residing in all the communities affected by all these applications, together with the foregoing facts and a proper regard for the number and character of the signers upon each petition and the best interests of the community and the county at large, as to warrant our conclusion that a legal necessity for any of such licenses does not exist, bearing in mind that our discretion “is to be exercised primarily for the public good and secondarily for the.private interest:” Schlaudecker v. Marshall, 72 Pa. 200, 207. See Raudenbusch’s Petition, 120 Pa. 328, in which we have allowed no personal opinion as to the public policy of the existing laws excluded by Indiana County Licenses, 6 Dist. R. 358; Gross’s License, 161 Pa. 344, nor of justice or expediency of their enactment or operation, or that such is contrary to any supposed policy or custom or the like, which are always excluded from judicial determination. See cases cited, Vale Digest, vol. viii, column 24830 B (a).

For the reasons above stated, all the applications for retail licenses are refused, and that of Anthony Suponic, No. 9, January M. S., 1922, because his own testimony shows that with such stock of liquors he proposes to sell candy to children, which comes within the spirit of the prohibition of the entire scope of license legislation in Pennsylvania.

The two applications for wholesale license of Pereival G. Kibert and J. Fred Wellbrock, Nos. 27 and 28, respectively, January M. S., 1922, are also refused. These are necessarily under the Act of April 25, 1907, P. L. 122, to which, as we have already said, the “Woner” amending Act of 1921 does not apply, it being amendatory only to the “retail” Act of 1887, and base our refusal upon the same grounds stated in our opinion in Susquehanna County Licenses, 48 Pa. C. C. Reps. 409, supplemented by our reasoning above in the opinion, equally applicable to the Act of 1907, deciding, as we now do, that the latter act is superseded and abrogated as to its licensing features by the 18th Amendment and the Volstead Act of Congress.

We, therefore, for the reasons stated, now enter the following:

And now, to -wit, Jan. 24, 1922, all applications for license to sell liquors, either at wholesale or retail, except Nos. 15, 24, 25 and 26, which are withdrawn, are refused; the clerk of this court to file the foregoing opinion and this decree in No. 1, January M. S., 1922, enter this decree in full upon the records of the same, and endorse upon each of the other license petitions, except Nos. 15, 24, 25 and 26, which are withdrawn, and enter of record in each case the following: Jan. 24, 1922, license refused. See opinion and decree filed and entered in License Files No. 1, January M. S., 1922. Exceptions noted and bill sealed.

Prom Gerritt E. Gardner, Montrose, Pa.


source: Caselaw Access Project

author: Fox, J.,

license: Public Domain

text:
    Commonwealth Title Insurance and Trust Co., Trustee, etc., v. Midland Pennsylvania Railroad Co.

      Corporations — Mortgages—Foreclosure—Order of court — Failure to comply with requirements — Distribution—Bondholders—Forfeiture of rights.

    Where, upon foreclosure of a corporation mortgage and sale of the corporate property, the court makes a decree calling for the presentation to the trustee named in the deed of trust of all claims against the corporation, and decrees that "all claims not presented shall be forever barred,” bondholders who fail to comply with the order of court will not be permitted to participate in the distribution of proceeds. Exceptions filed by such bondholders, without showing any substantial reason for their failure to comply with the order of court, will be dismissed.
    Exceptions to distribution. C. P. Dauphin Co., Equity Docket, No. 665.

      Frederick C. Newbourg, for exceptants; Charles H. Bergner, contra.
    Jan. 31, 1922.
   Fox, J.,

In this matter a bill to foreclose a mortgage was filed on Oct. 6, 1920, and on Dec. 14, 1920, a decree was made, in which it was, amongst other things, decreed: “That the property described in the bill should be sold by the trustee at public sale, unless within five days after the service of a copy of the decree the defaults in the payment of interest, taxes due the Commonwealth, to the sinking fund, etc., should be made good and settled; and

“5. That after confirmation of the sale and payment of the entire purchase money to the trustee, in the manner provided for in this decree, the trustee shall, by advertisement once a week for two weeks in a newspaper published in the City of Harrisburg, and a newspaper published in the City of New York, and a newspaper published in the City of Philadelphia, give notice that on a day and hour certain the said trustee will, at its office, Northwest corner of 12th and Chestnut Streets, Philadelphia, receive claims arising on said bonds or coupons belonging thereto, and hear all persons interested therein, or alleging to have or hold claims against the mortgagor company; and all claims not presented shall be forever barred from participation in the proceeds arising from the sale, etc.”

The sale was made, and the trustee on Jan. 14, 1921, presented and filed its report of distribution. To this report exceptions were filed on behalf of the holders of bonds secured by the deed of trust, which bonds were not presented to participate in the distribution of the funds derived from the proceeds of the foreclosure sale.

The holders of these bonds did not comply with the 5th paragraph of the decree above quoted, in that they did not present the same to the trustee for distribution at the time fixed for hearing claims. No substantial reason is given for their failure to comply with the decree of the court, nor do they show any good reason why they should at this late date be permitted to participate.

Wherefore the exceptions are overruled; the report of the trustee is confirmed absolutely, and distribution is ordered to be made in accordance therewith.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Bell, P. J.,

text:
    Davis, Director General of Railroads, v. Balistrere.

      Practice, C. P. — Statement of claim — Affidavit of defence — Act of May lb, 1915.

    1. Under the Practice Act of May 14, 1915, P. L. 483, an affidavit of defence which consists of a bald denial of the several paragraphs of the statement of claim is insufficient.
    2. When a defendant denies the accuracy of a statement of fact, he must also aver the true fact.

      Set-off — Freight charges — Goods lost or damaged.

    3. In an action by a railroad company for freight charges, the defendant cannot set-off a claim for goods lost or damaged.

      Assumpsit for freight charges. Motion for judgment for want of a sufficient affidavit of defence. C. P. Clearfield Co., Dee. T., 1921, No. 133.

      O’Laughlin, Fenerty and Kelley, for motion; Chase & Chase, contra.
    Jan. 18, 1922.
   Bell, P. J.,

The plaintiff’s statement contains twenty-one paragraphs, of which 1, 2, 3, 6, 7, 9, 11, 12, 13, 20 and 21 are expressly admitted, 17 admitted as to the fact averred, but the result denied, 8, 10 and 19 are “neither denied or admitted, the defendant not being familiar with the facts,” 14 denied and explained, and 4, 5, 15, 16 and 18 denied without explanation or other statement. The defendant also pleads a counter-claim larger than the claim of plaintiff.

The facts averred show a good cause of action and the right to recover $39.04. The averments in paragraphs 8,10 and 19 are to be taken as conceded, under Beuhler v. U. S. Fashion Plate Co., 269 Pa. 428, but facts essential to a recovery are pleaded in the paragraphs expressly denied. This has been largely regarded by the profession as sufficient to prevent judgment under the Practice Act of May 14, 1915, P. L. 483, but the 8th section thereof provides : “It shall not be sufficient for a defendant in his affidavit of defence to deny generally the allegations of the statement of claim, . . . but each party shall answer specifically each allegation of fact of which he does not admit the truth.” The recent case of Beuhler v. U. S. Fashion Plate Co., 269 Pa. 428, contains an elaborate discussion of the subject generally, but does not indicate what complies with the requirement that the affidavit “shall answer specifically.” This, however, was settled in Fulton Farmers’ Ass’n v. Bomberger, 262 Pa. 43: “Nor is defendant any happier in his contention that his bald denial of the averments of the several paragraphs of the statement of claim was sufficient. We agree with the court below that these averments are wholly insufficient, because of section 8 of the Act of May 14, 1915, P. L. 483, which provides that ‘it shall not be sufficient for the defendant in his affidavit of defence to deny generally the allegations of the statement of claim’ to make his denial effective, and defendant must deny that he collected1 anything from the party named in the statement or aver how much he did collect from that party; and he must make that denial so clear and specific that plaintiff may forthwith obtain judgment for the amount as to which there is no real defence, and at the ensuing trial the court may know exactly what the issue is. That is the purpose of the above quoted provision from the Act of 1915, and that purpose will be enforced.”

There are averments of fact which a defendant may well say are nonexistent, and he can say so; and when the defendant merely denies the accuracy of a statement of fact, he must give his averment of the true fact. This is illustrated by the plaintiff’s 15th paragraph, “The weight of the said carload of watermelons was 29,700 pounds;” and the answer in the affidavit of defence, “The 15th paragraph of the plaintiff’s statement is denied.” The pleadings show there is no dispute as to the fact of a car, and, of course, it had weight, so the defendant is bound1 to plead his contention as to weight and state facts which may fairly put the burden of entire proof on the plaintiff. It is not quite accurate to say that a flat denial of an averment admits the fact averred; it is a failure to deny according to the requirements of the Practice Act which brings about the same substantial result.

The claim stated in the counter-claim may be entirely meritorious, but cannot be set off in a suit for freight charges: Adams Express Co. v. Albright Bros., 75 Pa. Superior Ct. 410.

The affidavit of defendant is insufficient, but defendant shall have full opportunity to file an amended affidavit if he so desires. We may add that we regret to note that the effect of the present Practice Act is to present a great number of disputes upon procedure, and it seems to be rendering litigation to a large extent a battle of technical pleaders.

Now, Jan. 18, 1922, leave is granted to the defendant to file amended affidavit of defence within twenty days, and in default of such affidavit being filed, judgment to be entered as of course for the plaintiff for the full amount of the claim for want of a sufficient affidavit of defence.

From John M. Urey. Clearfield, Pa.


author: A. W. Johnson, P. J.,

text:
    Wagenseller v. Wagenseller.

      Divorce — Weak-minded persons — Intervention by relative — Act of May 4, 1921.

      1. The Act of May 4, 1921, P. L. 343, 'which gives to blood relatives of weak-minded persons the right to intervene in proceedings pending in court where such weak-minded person is a party, applies to a suit in divorce where the wife, a weak-minded person, is respondent.
    2. In such a case a sister of the respondent may intervene and compel the master to submit his notes of testimony to her or her attorneys.
    NOTE. — See Wagenseller v. Wagenseller, 30 Dist. R. 573.
    Rule on William K. Miller, Master, to show cause why Mrs. Lillie S. Harter, a sister and blood relative of said Miriam O. Wagenseller, should not be permitted to inspect his notes of testimony, etc., and introduce testimony, etc., in her behalf, etc. C. P. Snyder Co., Oct. T., 1920, No. 39.

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

      A. A. Leiser and J. G. Weiser, for petitioner.
    Nov. 23, 1921
   A. W. Johnson, P. J.,

We have now for disposition the petition of Mrs. Lillie S. Harter, and rule thereon, praying the court to make an order requesting William K. Miller, Master, to submit his notes of testimony and proceedings had before him to the inspection of the petitioner and her attorneys, and to afford her an opportunity to be heard touching the matters at issue on the petition of George W. Wagenseller v. Miriam 0. Wagenseller for divorce, with witnesses and other evidence and by her attorneys and counsel.

On March 12,1921, we filed an opinion in this case dismissing a rule granted on the petition of Mrs. Lillie S. Harter, sister and next of kin to Miriam O. Wagenseller, respondent, to intervene on behalf of the respondent and to award a trial by jury. In that opinion, among other things, we said: “No law, either statute law or common law, has been cited showing the right of the petitioner here to intervene as a party in behalf of the respondent.” But since our decision of March 12, 1921, the Act of May 4, 1921, P. L. 343, has been passed, which gives to blood relatives of lunatics or weak-minded persons the right to intervene in all pending proceedings in court where such lunatics or weak-minded persons are parties.

Section 2 of this act provides as follows: “In all cases now pending or hereafter begun in any of the courts of this Commonwealth in which a weak-minded person or lunatic is a party, any blood relative of such weak-minded person or lunatic may intervene as a party in interest with the same force and effect as if originally served in such case.”

Under section 2 of the Act of May 4, 1921, Lillie S. Harter, being a sister and blood relative of Miriam 0. Wagenseller, is entitled to intervene in the case of George W. Wagenseller v. Miriam O. Wagenseller, a proceeding for divorce, and the master should submit his notes of testimony and proceedings had before him to the inspection of the petitioner and her attorneys, and should afford her an opportunity to be heard with witnesses and other evidence and by her attorneys and counsel.

And now, Nov. 23, 1921, the petition of Mrs. Lillie S. Harter, praying the court to make an order requesting the master to submit his notes of testimony and proceedings had before him to the inspection of the petitioner and her attorneys and to afford her an opportunity to be heard, is granted, and the rule is now made absolute.


author: Swoope, Dep. Att’y-Gen.,

text:
    Commodities Act.

      Commodities — Packages — parking of packages — Acts of April 1, 1797, and July 24,1913.

    1. Under the Act of April 1, 1797, 3 Sm. Laws, 294, all packages of bread must be marked with the weight.
    2. Under the Act of July 24, 1913, P. L. 965, all other articles, not specifically mentioned in particular acts of assembly. If in package form, must be marked on the outside of the package in terms of numerical count, if such term of numerical count is applicable to the contents of the package, and will inform the purchaser of the package as to the quantity of the particular article therein contained.
    Attorney-General’s Department. Opinion to Hon. William B. McGrady, Chief, Bureau of Standards.
    Sept. 27, 1921.
   Swoope, Dep. Att’y-Gen.,

Your letter of recent date was received. You request an opinion from this department as to the interpretation of section 7 of the Act of July 24, 1913, P. L. 965, known as the Commodities Act, which section reads as follows: “If in package form, the quantity of the contents shall be plainly and conspicuously marked on the outside of the package in terms of weight, measure or numerical count: Provided, however, that reasonable variations shall be permitted; and tolerances and also exemptions as to small packages shall be established by rules and regulations made by the Chief of the Pennsylvania Bureau of. Standards.”

You state as a fact that, a number of commodities, such as bread, cakes, soap, etc., are put up in wrapped paper packages and' marked “One Loaf of Bread,” “One Cake,” “One Cake of Soap,” and that some of your inspectors claim that such goods should be marked to designate the net weight of the same, and should not be sold by numerical count.

As to bread, there is an old act of assembly in this State which requires that bread shall be sold by the pound avoirdupois. This is the Act of April 1, 1797, § 2, 3 Sm. Laws, 294. I cannot find that this act has ever been repealed. It is still in force, and the above cited section of the Act of 1913 does not necessarily repeal it. It would, therefore, follow that packages of bread should be marked with the weight.

As to other articles not specifically mentioned in particular acts of assembly, if in package form, this section of the Act of July 24, 1913, P. L. 965, provides that they must be marked on the outside of the package in one of three ways, to wit, in terms of weight, measure or numerical count. This requirement is intended to be applied with respect to the nature of the thing being sold. An applicable term should be used; one which will inform the purchaser. It would be no use to the purchaser if the only information on the outside of the package was that it contained “one cake of soap.” “One dozen of eggs” would be an applicable marking of a package, but “one dozen of potatoes” would give no information. Under the second clause of this section, the Bureau of Standards may adopt rules and regulations as to the marking of packages, and, where reasonable, may exempt small packages from this requirement.

You are advised, therefore, in answer to your inquiry, that under section 7 of the Act of July 24, 1913, P. L. 965, all articles, in package form, can be sold by numerical count, if such term of numerical count is applicable to the contents of the package, and will inform the purchaser of the package as to the quantity of the particular article therein contained.

From Guy H. Davies, Harrisburg, Fa.


author: Audenried, P. J.,

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

      City Commissioners — Power to employ architect to prepare plans and specifications for Municipal Court building — Acts of June 1, 1885, April 19, 1895, July 12,1918, and June 25,1919.

    1. Under clause 2 of section 3 of the Act of July 12, 1913, P. L. 711, creating the Municipal Court, the duty of providing proper accommodations for the court is imposed upon the City Commissioners, and they may, therefore, employ their own architect to prepare plans and specifications for the Municipal Court building.
    2. The duties thus imposed upon the City Commissioners are consistent with the duties imposed upon them by the Act of April IS, 1834, P. L. 539, and the system in existence before the passage of that act. The system was not affected by the Act of June 1, 1885, P. Xi. 37, 42, or the Act of June 25, 1919, P. L. 581, the former of which provides that public buildings in cities of the first class are to be constructed under the direction and control of the Department of Public Works; and the latter that plans and specifications for public buildings are to be made by the City Architect, or under his supervision, as these statutes apply only to municipal buildings, and the Municipal Court is a court of the Commonwealth and not of the municipality; and, hence, the construction of its court-house is not within the Acts of 1885 or 1919.
    3. As the City Commissioners, in constructing the court-house in question, act under the authority conferred by the Act of July 12, 1913, P. L. 711, it is unnecessary to obtain the approval of two successive grand juries and the Court of Quarter Sessions as a condition precedent to its construction as required for the erection of county buildings under section 10 of the Act of April 15, 1834, P. L. 539.
    4. Under the Act of April 19, 1895, P. L. 38, it is the duty of the City Commissioners to submit the plans, specifications and draft of the contract for the approval of the judges of the Courts of Common Pleas before entering into the contract for the construction of the building.
    Taxpayers’ bill to restrain alleged illegal payment of public money. C. P. No. 4, Phila. Co., June T., 1921, No. 8338.

      George G. Chandler and Owen J. Roberts, for plaintiffs.

      William T. Connor, for City Commissioners.

      Francis Shunk Brown and F. B. Bracken, for John T. Windrim.
    April 18, 1922.
   Audenried, P. J.,

It appears from the bill that by a series of ordinances the Council of the City of Philadelphia has appropriated large sums of money to the City Commissioners of Philadelphia to enable them to provide plans for a court-house for the use of the Municipal Court of Philadelphia and to begin the construction of that building. The bill avers also that these defendants have employed the defendant, John T. Windrim, as architect to prepare the plans for the court-house and to superintend the building of it, although he is not the official architect of the City.

On the ground that these appropriations are illegal, the plaintiffs, who are taxpayers of the City, pray that payment of the moneys so appropriated be enjoined. They allege that the proposed court-house is a public building; that in the case of a city of the first class (to which Philadelphia belongs) the law imposes on the Department of Public Works the duty of building all such structures, and requires that the planning of them and the supervision of their construction shall be committed to the City Architect, or, under certain circumstances, to a specially employed architect appointed by him, with the approval of the Mayor; and that, therefore, the delegation of this work to the City Commissioners and their employment of Mr. Windrim as architect are without lawful authority and would involve a misuse of the City’s funds.

The commissioners and Mr. Windrim have demurred to the bill. The demurrants insist that the legislation which assigns to the Department of Public Works in cities of the first class the duty of erecting public buildings does not apply to the contemplated court-house; that the task of providing suitable accommodations for the Municipal Court is imposed by law on the City Commissioners as representatives of the County of Philadelphia, and not on the City of Philadelphia; that there is no legal reason why the planning of the court-house and the superintendence of the work of building it should be left to the City Architect; and that, therefore, the case laid in the bill does not call for intervention by this court.

In order to decide properly the questions of law raised by the demurrers, it is first necessary to consider the peculiar administrative system which has been established for the government of Philadelphia and its people. This, like all institutions, is the result of growth and decay. No real institution was ever devised on the instant and established by a single stroke of the pen, no matter how able the minds engaged in the attempt. The government of Philadelphia is rooted deep in the past; and, however imperfect and clumsy it may seem, we may well question whether its very complexity does not afford a greater measure of protection for the persons and property of the people against ill-considered experiments and the passing fancies of the mutable many, always susceptible to the suggestion of the demagogue, than might reasonably be expected under an autonomous form of local self-government lacking in checks and balances. In times of popular excitement, the promptings of reason and justice are often unheeded.

Since the establishment of the Proprietary Government under Penn’s Charter, Pennsylvania has, for administrative purposes, been divided into districts known as counties. The Constitution of 1874 recognizes this arrangement, and imposes important restrictions on the power of the general assembly to meddle with it. To the inhabitants of these geographical areas certain governmental functions have from time to time been committed. In order to facilitate the performance of those duties, they are recognized as corporations, with authority to sue and be sued under a corporate title, viz., the names of their respective counties. Since 1724, their corporate powers have been exercised by officials known as commissioners, who are elected by the voters of the county. As compared with the part played in the public business by the other counties of the Commonwealth, that of the County of Philadelphia has, for a reason about to be mentioned, been much curtailed; but the county organization of the inhabitants of Philadelphia still exists and cannot be done away with until an amendment of the Constitution shall authorize its elimination.

For reasons of local interest, advantage and convenience, the people of the territory known as Philadelphia County are also organized as a municipality under the title of The City of Philadelphia. This corporation is now entrusted with, inter alia, certain administrative duties performed elsewhere (and formerly here) by the county. Speaking generally, the powers vested in the City are exercised in its name by the Mayor, who is its chief executive officer, and a body of representatives chosen by the electors of the several districts into which its territory is divided, and known as its Council.

In order to secure suitable provision for the education of their children, the inhabitants of Philadelphia are organized as a body corporate, known as the School District of Philadelphia. The public school system of the district is administered by a group of representatives selected by the judges of the Courts of Common Pleas established in Philadelphia, and known as The Board of Public Education.

Such in general outline are the principal agencies through which Philadelphia is governed. To make it possible for these agencies to perform the parts assigned to them in the scheme of local government, the Commonwealth has provided each with the means for obtaining the necessary money. To the school district is entrusted the power of taxation, which, however, is carefully limited, because the members of the Board of Education are not directly responsible to the electors at large. The City of Philadelphia enjoys the right to levy on all things legally taxable rates limited only by the patience of the voters. By the Act of Feb. 2, 1854, P. L. 21, the representatives of the County of Philadelphia were deprived of the right to raise money directly by taxation; but their requirements for the fulfillment of duties imposed on them by law must be supplied by the City, whose authorities may be compelled by mandamus to raise and appropriate in advance whatever sums shall be needed to carry on such public business.

These three public corporations stand in much the same relation to each other as would a church corporation, a benevolent society and a neighborhood social club, the members of each of which happened to be the same individuals. Unfortunately, however, their independence of each other has sometimes been forgotten, and this has tended to produce confusion. Thus, the so-called City Treasurer is in fact the treasurer of the county (Com. v. Oellers, 140 Pa. 457), but was, nevertheless, made by Act of June 1, 1885, P. L. 37, 44, head of a city department, and the Board of Public Education is required to elect him treasurer of the school district. The City Controller, although a county officer (see Taggart v. Com., 102 Pa. 354), is in like manner placed at the head of another department of the City administration, and he is annually elected controller of the school district. It has been solemnly ordained by the legislative branch of the City government that the City Commissioners (who, in spite of their official title, are county officers) shall, in addition to various specified duties, “perform such others as councils may from time to time prescribe.”

Notwithstanding such confusion of thought on the subject and the resulting anomalies, the three corporations above mentioned are separate and distinct agencies or instrumentalities of government, and the Commonwealth (as represented by the general assembly, which is, of course, subject to the limitations imposed upon it- by the Constitution) may make use of whichever of them it selects to effect any particular purpose.

In this connection, it is important also to refer to another subject about which there is widespread misconception. The courts through which, in Pennsylvania, justice is administered are local only so far as concerns their jurisdiction. The Courts of Common Pleas, the Court of Oyer and' Terminer and General Jail Delivery and the Court of Quarter Sessions of the Peace of the County of Philadelphia, for example, are not in any sense the judicial agents of the county, although they are sometimes called on to participate in the administration of county business. Nor is the Municipal Court of Philadelphia the City of Philadelphia in its judicial aspect, as is popularly believed. They are all the courts of the Commonwealth, notwithstanding the fact that their judges are chosen by the electors of a district whose boundaries happen to coincide with those of the city and county. The salaries of these judges are paid from the State treasury, and the duty of providing suitable places for their sessions rests primarily on the Commonwealth.

For three generations, at least, the State has delegated the function last mentioned to the several counties. By the Act of April 15, 1834, P. L. 537, which codified the law in relation to counties and townships, it was provided that it should be lawful for the commissioners of any county, having first obtained the approbation of two successive grand juries and of the Court of Quarter Sessions of such county, to cause to be erected at the seat of justice thereof, when occasion shall require, such building or buildings as may be necessary for the accommodation of the courts and of the several officers of the county. The Act of April 19, 1895, P. L. 38, recognized as well established the usage of committing to the County Commissioners the work of constructing such buildings, as had also the Act of April 24, 1879, P. L. 32.

In the case before us, it is contended on behalf of the plaintiffs that the court-house for which the Council of the City of Philadelphia has appropriated the money whose payment they ask to have restrained is a public building, and our attention is directed to the Act of June 1, 1885, P. L. 42, and to the Act of June 25, 1919, P. L. 581, as indicating by what public officials such buildings must be constructed.

By the act first mentioned it is provided (see section 1 of art. IV) that the construction, protection and repair of public buildings and structures of every kind for public use shall be under the direction, control and administration of the Department of Public Works of the City.

By the latter act it is provided, in section 3 of art. vx, that the Department of Public Works of the City shall have the construction, protection, maintenance, operation and repair of public buildings, bridges and structures of every kind of public use. In the 8th section of art. n it declares that it shall be the duty of the City Architect to prepare, draft and execute, or to supervise the preparation, drafting and execution of all specifications, drawings and plans for public buildings to be erected in the City and to be paid for by moneys appropriated by the City Council, except in cases where, on account of the magnitude or character of the work to be done, special architects are necessary in the joint opinion of the head of the department under the jurisdiction of which the work is to be done and of the City Architect, in which case such special architects shall be appointed by the City Architect with the approval of the Mayor, either in their discretion or after such competition as they may choose to arrange.

That the proposed court-house is a public building cannot be gainsaid. The great question in the case is whether or not it is such a public building as is referred to in the two acts above cited.

It is quite obvious that, in spite of the breadth of the language employed in them, these statutes do not refer to all public buildings. Manifestly, Federal custom-houses and post-office buildings and such State buildings as penitentiaries could not fall within either the category of “public buildings and structures of every kind for public use,” or that of “public buildings and structures of every kind of public use.” These words, therefore, are not nomina generalissirm. Their meaning is limited. • To what sense are they restricted?

The answer to this question, we think, may be inferred from the subject-matter of the two statutes. The Act of June 1, 1885, P. L. 37, is entitled “An act to provide for the better government of cities of the first class in this Commonwealth.” The Act of June 25, 1919, P. L. 581, is entitled “An act for the better government of cities of the first class of this Commonwealth.” The title of an act is part of it; it limits its scope, and is properly used in interpreting its words: Perkins v. Philadelphia, 156 Pa. 554. Both acts, therefore, relate to cities. The duties and powers to which they refer are those of a municipality in the strict sense of that term. The public works which they regulate are those within the ordinary scope of city administration. Neither act hints at the subject of the control of matters not ordinarily delegated to city authorities.

It may well be that in this era, when population tends so strongly toward concentration in towns, other cities besides Philadelphia may reach the first class of cities as defined by law without becoming coterminous in area with the counties in which they lie. It could not be inferred from anything in either of the two acts under consideration that such a city was intended to oust its county from the prossession or control of the county buildings, or be burdened by their care and maintenance. But if that meaning could not be imputed to these statutes in such a case, they are not to be so construed when applied to Philadelphia.

It has never heretofore been thought that the Commonwealth was precluded by the Act of June 1, 1885, from constructing by the hands of its own agents whatever public buildings it saw fit to erect within the limits of Philadelphia. By the Act of July 2, 1901, P. L. 601, provision was made for the establishment in every city of the first and second class of a house of detention for the reception of untried juvenile offenders, which was to be provided by a board of managers appointed by the Court of Oyer and Terminer and General Jail Delivery and the Court of Quarter Sessions of the Peace having jurisdiction in such city, and paid for by the County commissioners of the county containing the city for which such board of managers might be appointed. By the Act of April 3, 1903, P. L. 137, the county commissioners in each county of the Commonwealth were required to provide in their county a separate room or rooms or a suitable building to be used exclusively for the confinement of children under sixteen years of age in custody awaiting trial or hearing. The City Commissioners have acted under each of these statutes, and in neither instance has objection been advanced on the part of any one.

We are clearly of opinion that neither of the statutes on which the plaintiffs base their contention that the building intended for the use of the Municipal Court of Philadelphia must be erected under the management and control of the City’s Department of Public Works applies to buildings other than those intended for strictly City use, and that, therefore, the plans for the proposed court-house (which is not for municipal use) need not be designed by the City Architect or an architect specially appointed by him with the approval of the Mayor, or built under the direction of the department just mentioned.

The duty of constructing the court-house in contemplation is imposed specifically on the County Commissioners of the County of Philadelphia by the Act approved July 12, 1913, P. L. 711, entitled “An act establishing a court for the-County of Philadelphia; prescribing its jurisdiction and powers; providing for the service of its writs, process or warrants by the proper officers of the County or City of Philadelphia; regulating the procedure therein and appeals therefrom, and providing for the expenses thereof.” The second clause of section 3 of that statute reads: “It shall be the duty of the County Commissioners or other proper officers of the said county to provide proper accommodations for the holding of the said court at such times and places as the said court may decide, and the expenses of the same shall be defrayed out of the treasury of the County of Philadelphia.” This provision is in strict accord with the traditional custom of the Commonwealth in such matters. It is hardly necessary to point out that the words “or other proper officers” are redundant, since there are no other county officials available for such duty except the commissioners.

On behalf of the plaintiffs, it is argued that the provision just quoted from the act, establishing the Municipal Court of Philadelphia, was, in effect, repealed by the Act of June 25, 1919, P. L. 581, and that the duty of providing proper accommodations for that court was thereby shifted to the City’s Department of Public Works. This is supposed to be effected by the general language of section 3 of art. vx of the latter statute, which is quoted aboye. To impute such an effect to that section is, in our opinion, however, erroneous; for, as already pointed out, the Act of June 26, 1919, refers only to cities and what is ordinarily municipal business, and in that the construction of courthouses has never been included. Moreover, to read into the statute such an intendment would make it offend against section 3, art. m, of the Constitution, for its title fails to give notice of any such a purpose on the part of the legislature. It is, as was noted above, entitled “An act for the better government of cities of the first class of the Commonwealth of Pennsylvania.”

It has been suggested at bar, although not set up in the bill, that the action of the City Commissioners in engaging Mr. Windrim as architect to prepare plans for the proposed court-house is illegal, because the approbation of two successive grand juries and of the Court of Quarter Sessions of this county have not been obtained, which are required as a condition precedent to their authority for the erection of such a building by section 10 of the Act of April 16, 1834, P. L. 539. It is, we think, a sufficient answer to this objection to point out that the authority to build the court-house under consideration is directly conferred on the commissioners by the special Act of July 12, 1913, P. L. 711, and that it is, therefore, unnecessary to resort to the procedure to obtain it that is provided for by the general Act of 1834.

Our attention has also been directed to the Act of April 19, 1896, P. L. 38, the 1st section of which reads as follows: “Whenever the commissioners of any county are authorized and required to erect a court-house, jail or other county building, they shall submit the plans and specifications adopted by them to the judges of the Court of Common Pleas of the proper county for their approval, and, when it is obtained, they shall let the work by contract to the lowest and best bidder, after three weeks’ public notice in two newspapers published in the county, which contract or contracts shall be made subject to the approval of the said judges.”

It is urged by counsel for the plaintiffs that, if the Act of July 12, 1913, P. L. 711, conferred on the City Commissioners the power to erect the proposed court-house, the earlier act (just quoted) prescribes the manner in which that power shall be exercised. In this view we agree. In our opinion, the City Commissioners, before entering into a contract for the construction of the building, must submit for approval to the judges of the Courts of Common Pleas of this county the plans and specifications which may have been adopted for it, and, after advertising for bids on the work and awarding the contract to the lowest and best bidder, submit the contract for approval to the same judges. Since, however, this act requires that the plans and specifications must be submitted to the judges, it follows that such plans and specifications must first be prepared, and that the employment of an architect to prepare them for submission is proper and, in fact, absolutely necessary.

It seems to us to be quite clear that the contract made by the City Commissioners with the defendant, John T. Windrim, is lawful and that, so far as it provides for the preparation of plans for the building for the Municipal Court, the appropriation made by the Council of the City of Philadelphia is not illegal.

Inasmuch as the bill fails to aver an intention on the part of the City Commissioners to disregard any requirement of law, except so far as relates to the Acts of June 1, 1885, P. L. 37, and June 25, 1919, P. L. 581 (neither of which is, in our opinion, binding upon them), we have no right to assume that it is their purpose to enter into a contract or contracts for the building of the proposed court-house without fully complying with the Act of April 19, 1895. It will be time enough to invoke the aid of the court when an attempt is made to bind the county by executing a contract for the construction of the building in disobedience of the statute last mentioned.

We can see nothing improper as yet in any of the appropriations of money made by the City Council for the work of building, assuming, as we must, that they were made in anticipation that a proper contract will be made therefor in manner provided by law.

We hold that under the law the plaintiffs’ averments do not entitle them to the decree for which they pray; and from this it follows that their bill must be dismissed at their cost, so far as concerns the demurrants.


author: Ferguson, J.,

text:
    Commonwealth v. Hebard.

      Motor-vehicles — Rules of Fairmount Park Commission as to operation— Act of June SO, 1919.

    1. A rule adopted by the Commissioners of Fairmount Park prohibiting the operation of a motor-vehicle which emits from the exhaust or muffler offensive quantities of smoke or disagreeable odors is invalid, as the Commission, although created by legislative enactment, is merely an agency of the City of Philadelphia, and, hence, the rule is in conflict with section 28 of the Motor-Vehicle Act of June 30, 1919, P. L. 678, which provides, inter aKa, that no city shall thereafter adopt any rule, with certain exceptions, regulating the equipment, use or operation of motor-vehicles.

      Practice, J. P. — Violation of Park Commission regulations — Appeal to Quarter Sessiom — Acts of April H, 1868, and April 17, 1876.

    2. Since, by the Act of April 14, 1868, P. L. 1083, a violation of a rule of the Fairmount Park Commission is a misdemeanor, and since the magistrate treated the case at bar as a criminal proceeding, instituted in the name of the Commonwealth, by the Act of April 17, 1876, P. L. 29, an appeal lay from the judgment of the magistrate imposing the fine to the Quarter Sessions and not to the Common Pleas.
    Appeal from fine imposed for violation of regulation of Commissioners of Fairmount Park. Q. S. Phila. Co., March Sess., 1922, No. 16.

      George Wharton Pepper, for Park Commission; E. Hepburn, for defendant.
    April 20, 1922.
   Ferguson, J.,

The defendant appeals from a fine imposed upon him by a magistrate for the violation of a regulation adopted by the Commissioners of Fairmount Park. The regulation in question prohibits the operation of a motor-vehicle which emits from the exhaust or muffler offensive quantities of smoke or disagreeable odors.

Under section 21 of the Act of April 14, 1868, P. L. 1083, the Commissioners are authorized to ordain rules and regulations for the government of the park. Section 22 provides that “Any person who shall violate any of said rules and regulations, and any others which shall be ordained by the said Park Commissioners for the government of said park, not inconsistent with this act or the laws and Constitutions of this State and United States— the power to ordain which rules and regulations is hereby given to said Commissioners — shall be guilty of a misdemeanor, and shall pay such fine as maybe prescribed by said Park Commissioners.”

It is contended that any rule, including the one now in question, which may be ordained by the Park Commissioners, and which attempts to regulate the use and operation of motor-vehicles, is necessarily rendered invalid by the provisions of the Act of June 30, 1919, P. L. 678. That act is entitled “An act relating to and regulating the use and operation of motor-vehicles, . . . limiting and defining the powers of cities, boroughs, incorporated towns, townships and counties as to the regulation of the use and equipment of motor-vehicles, . . . providing procedure and penalties, etc.” The act deals with much particularity with the obligations and duties of persons operating motor-vehicles. Exact requirements are contained in it with reference to horse power, lights, licenses, weight and speed. It declares that certain persons may not receive licenses, and sets out the disquálifications. It prescribes the manner in which vehicles shall pass other vehicles and standing trolley cars and street crossings, and fixes the duty of drivers after accidents. It prohibits the operation of such vehicles without the engines being muffled, and provides that no muffler cut-out shall be used in certain localities. Many other provisions are contained in the act, but the above are sufficient to show the detail into which the legislature has seen fit to go in dealing with the subject.

Section 28 of the act provides: “It being the purpose of this act to provide a system or code of law regulating the use and operation of motor-vehicles throughout this Commonwealth, no city, borough, incorporated town, township or county shall hereafter adopt, maintain or enforce any rule, regulation or ordinance regulating the speed, equipment, use or operation of motor-vehicles, other than city or borough ordinances regulating the stopping and parking of vehicles, or the establishment of zones in which vehicles may park at night without lights as provided in section 20 of this act, the use of certain streets as one-way streets, or regulating the kind and weight of traffic on certain streets and in public parks, or the establishment of safety zones.”

The answer filed by the Commissioners of Fairmount Park asserts that the Fairmount Park Commission is a State commission and is not a city, borough, incorporated town, township or county commission, and, hence, the provision of the act prohibiting the adoption of regulations does not apply to them.

We cannot accept this answer as disposing of the question involved. Though created by legislative enactment, the Park Commission is no more than an agency of the City of Philadelphia. That municipality owns the land and maintains it with funds from its treasury, for the use, benefit and pleasure of its citizens. That part of the system popularly known as Fairmount Park is within the city limits. The language of section 28 is comprehensive and includes every sub-division of the Commonwealth that might attempt to adopt or enforce an ordinance, rule or regulation with regard to motor-vehicles. It is the plain purpose of the statute to prohibit local regulations that might serve to bring penalties upon drivers through ignorance of their enactment, and to make a uniform system binding in its obligations through the State. The legislative mind could hardly have anticipated that it would be contended that though a city by ordinance could not lawfully make regulations, yet an agency of that city maintaining a public park within its limits had that power. In section 2 of the pet the term “public highways” includes parks and squares. By its title, which must be read into the enactment, the statute limits the powers of the sub-divisions of the Commonwealth to make regulations; and by section 28 those sub-divisions are prohibited from adopting or enforcing any rules or regulations excepting as therein particularly mentioned, and public parks are referred to as participating in the privileges of the exceptions.

In view of these provisions, it is not reasonable to assume the legislature intended that a driver of a motor-vehicle, overtaken by a condition in the mechanism of which he may or may not be conscious, should, by reason of his entering the precincts of the park, become guilty of a misdemeanor, when five minutes earlier or later, while on a city street, he would be free from legal offence. It is not reasonable to assume that the legislature intended that a highway leading through a great domain like Fairmount Park should be governed by a system of rules on this subject differing from those governing other highways.

A regulation adopted by the Park Commission must be regarded as if made by the City of Philadelphia. Therefore, in our opinion, the one in question is invalid because its enforcement is prohibited by the Act of 1919.

The only other question involved in the case is as to whether or not the appeal should have been taken to the Court of Common Pleas. We are of opinion that since, by the Act of 1868, a violation of a regulation is a misdemeanor, and since the magistrate in this case considered the matter as a criminal proceeding, instituted in the name of the Commonwealth by the Act of April 17, 1876, P. L. 29, the appeal lies to the Court of Quarter Sessions. See Com. v. Rosenthal, 3 Pa. C. C. Reps. 26.

The appeal is sustained and the judgment of the magistrate imposing a fine is reversed.


author: Martin, P. J.,

text:
    Citizens Bank, a Corporation, v. Rand.

      Promissory note — Stock subscription — Valuable consideration — Affidavit of defence — Act of May 16,1901.

    1. Under the Negotiable Instruments Act of May 16, 1901, art. ii, § 25, P. L. 19t, providing that an antecedent or existing debt constitutes value, a promissory note given by the maker to a corporation for a part of his unpaid subscription to its capital stock is sustained by a valuable consideration.
    2. It is no defence to an action upon such a note that the corporation refused to deliver the stock until the note was paid, holding it as collateral; or that the corporation had failed to comply with the directions of the act of assembly, which authorized it to allot the shares to other shareholders in the event of the nonpayment of subscriptions, and if they did not take the stock, to sell it at auction after due public notice.
    Rule for judgment for want of a sufficient affidavit of defence. C. P No. 5, Phila. Co., June Term, 1921, No. 1694.

      H. Felix, for rule.
    Oct. 11, 1921.
   Martin, P. J.,

Suit was instituted on a promissory note executed by defendant to his own order, and endorsed by him, promising to pay $2604.38, “without defalcation, for value received,” at the Citizens Bank, on May 26, 1921.

The statement of claim avers that, having executed the note, defendant endorsed it for a good and valuable consideration and handed it to the plaintiff, and thereupon became liable to pay the amount of the note upon the due date, but, although it was presented for payment at the place designated, payment was refused

An affidavit of defence was filed, admitting the execution and delivery of the note by defendant to plaintiff, but alleging that there was no consideration for the note; that defendant had subscribed for shares of stock in the plaintiff bank, and paid certain instalments upon his subscriptions, and that the note was given for the balance of subscriptions unpaid, with interest. The affidavit avers that “the said defendant being so responsible under his subscription for the payment of $3000 for said shares of stock,” the stock had not been delivered to him, but the president of the bank represented that it was necessary to hold the stock as collateral for the indebtedness of the defendant on his subscription.

Defendant claims that he is not liable for the balance of his subscription, because the bank had failed to comply with the directions of the act of assembly which authorized the bank to allot the shares to other shareholders in the event of non-payment of subscriptions, and if those shareholders did not take the stock, to sell it at auction after due public notice.

A person who subscribes to the stock of a corporation becomes a stockholder as soon as the company has accepted his offer, and it is immaterial that no certificate representing the shares subscribed for has been made out or delivered to him: Keystone Wrapping Machine Co. v. Bromeier, 42 Pa. Superior Ct. 384.

Although the subscription to the stock may not have been presently payable in full, but by its terms was payable from time to time as called for by the defendant, as soon as the company was incorporated by the issuance of letters-patent the subscription becomes binding upon a subscriber; he thereby agrees to pay the par value of the shares subscribed at such time and in such amount as the directors may require: Schmitt, Rec., v. Kulamer, 267 Pa. 1, 6.

“Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value.” (Act of May 16, 1901, art. II, § 26, P. L. 194, 199.)

When the note was executed, defendant was indebted to the bank for the balance of his subscription when demanded. He executed the note promising to pay his indebtedness at the time stated in the note. His stock was held by the bank as collateral to secure payment of the note. When it is paid the stock should be surrendered to defendant.

Rule absolute.


author: Thompson, J., HENDERSON, J.,

text:
    Murphey’s Estate.

      Wills — Construction—Gifts over to testator’s legal heirs — Time at which beneficiaries are to be ascertained.

    Under a gift over by way of remainder to the testator’s “legal heirs in such portions and shares as they may be justly and legally entitled to according to the laws of the State of Pennsylvania,” the persons to take under the description are to be ascertained as of the time of the death of the testator, and not as of the time of the death of the last surviving life-tenant, in the absence of indications of a contrary intention of a clear and convincing character.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1896, No. 330.

      Frauds Shunk Brown and John Stokes Adams, for exceptants.

      Gill, Guckes and Shrader, contra.
    March 31, 1922.
   Thompson, J.,

The exceptions filed in this case require us to place a construction upon the following paragraphs of the will of testator:

“Seventh. I give, devise and bequeath the residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever the same may be situate, unto my executors, hereinafter named, in trust for the following uses and purposes, to wit: To pay the interest and income thereof unto the children I may leave surviving me, and the lawful issue of such of them as may be deceased leaving such issue, share and share alike, such issue of my deceased children, if any, however, taking only such share of said interest or income as his, her or their deceased parent or parents would have taken if living. Such distribution of interest or income to be made according to the number of my children I may leave surviving me, and of my children who may then be deceased leaving lawful issue, share and share alike, such child or children of my deceased child or children, if any, taking their parent or parents share only as aforesaid, share and share alike. From and after the death of any child or children I may leave surviving me, I direct that the share or part of said interest or income which theretofore had been payable to such child or children shall be divided among the lawful issue of such child or children so dying, share and share alike, until the death of the last survivor of my children.
“Eighth. I direct, order and will, if any of my children aforesaid and every of them, their and every of their heirs, executors and administrators, shall claim, demand, prosecute any action or suit for any claim or claims against me or my estate other than what I have so hereinbefore devised and given him, her or them, or any of them, then and in that case the several legacies and bequests hereby by me before given or intended to be given to him, her or them and any of them, shall cease and be void to all intents and purposes, anything to the contrary notwithstanding; and in that case I order, direct and will that the share which he, she or they would have inherited or taken, shall be divided and distributed among my other children aforesaid, and I do hereby discharge my children aforesaid and every of them, their and every of their heirs, executors and administrators, from the payment of every and all debts due and owing to me or my estate, whether verbal or in writing, upon any account whatsoever, without any abatement or deduction from or out of their legacies, before by me given or devised to them respectively in and by this my last will and testament.
“Ninth. From and immediately after the death of the last survivor of my children, all the residue of my estate of all kinds and wheresoever found, I desire and direct that it be divided and distributed among and between my legal heirs in such portions and shares as they may be justly and legally entitled to receive according to the laws of the State of Pennsylvania.”

The trust having come to an end by reason of the death of the last surviving child of testator, the question arises whether his estate shall be divided among his legal heirs ascertained as of the date of his death or at the date of the death of the last surviving child.

The auditing judge held that the heirs should be ascertained as of the date of the death of testator’s last surviving child (this excluding the share of one of testator’s children, Mary E. Stockton, who died Oct. 11, 1902, without issue), to which exceptions have been filed and the same are now before us.

This court, speaking through Gest, J., in Leech’s Estate [1 D. & C. 352], in an opinion filed Feb. 3, 1922, said: “It cannot be disputed that, as a general rule of construction, a testator who makes a gift in remainder to heirs, or next of kin, or to the persons who would take under the intestate laws, or gives the estate in accordance with the law, or the like, will be understood to intend those persons who would have so taken at the time of his death, and not at the time appointed for their taking. This is not a mere arbitrary rule, but is founded upon common sense, for a testator, in making such a provision, is, naturally enough, contemplating his own death as the period when the objects of his bounty should be ascertained; and, moreover, the persons thus entitled under the intestate laws have a statutory right, which should prevail unless it appears that the testator intended that others should take, and this contrary intention must, as the decisions show, be clear and convincing.”

This recognizes the rule oí construction laid down in Buzby’s Appeal, 61 Pa. 111, and the various modifications of the application thereof as set forth in Jennings’s Estate, 266 Pa. 60; Hildebrant’s Estate, 268 Pa. 132; Groninger’s Estate, 268 Pa. 184, and Fuller’s Estate, 225 Pa. 626.

It was argued strenuously that paragraph eight of the will of the testator indicated that the testator confined the gift to his children to that of a life estate only, in that said section provides that in the event of his children making any claim against him or his estate they should be deprived of the estate “hereinbefore” given them, which, at that point in the will, was a life estate, and that this indicates that all that the testator intended his children to have was the life estate so given them, although paragraph eight also contains the later statement that, in the event of any claim being made against him or his estate by his children, or any of them, “the share which he, she or they would have inherited or taken shall be divided and distributed among my other children aforesaid,” which seems to indicate that his children, and not his legal heirs surviving the latter, would “inherit” something more than the life estate previously referred to. By the terms of said paragraph, it is apparent that the testator had financial relations with his children, for in the latter part thereof he discharged them from any debts due and owing to him or his estate, and it was only in the event that his children made a claim against him or his estate that he was depriving them of the income which he had “hereinbefore” given them. He could not have thus intended to deprive them of any interest in the principal of his estate, for he had not yet (up to that point in paragraph eight) made any disposition thereof. Moreover, the phrase “the share which he, she or they would have inherited or taken shall be divided and distributed among my other children aforesaid,” might well have been testator’s way of otherwise disposing of the life estate “inherited,” or “taken,” by a child forfeiting his thereinbefore given life estate in the manner specified. Under these circumstances, we cannot say that the testator in this case has clearly and convincingly indicated that his legal heirs are to be ascertained at the death of the last survivor of his children rather than testator’s own death, and we prefer to adhere to the rule laid down in Buzby’s Appeal, 61 Pa. 111, and are of opinion that the estate of the testator should be distributed to his heirs ascertained as of the date of his death; and, therefore,

The exceptions filed to the adjudication of the auditing judge are sustained and the estate of testator is hereby directed to be distributed to the executors or administrators of his children living at the time of his death.

Lamorelle, P. J., did not sit.

HENDERSON, J.,

dissenting. — The question to be decided is, are the heirs to be ascertained as of the death of the testator or of the surviving life-tenant. In McKee’s Estate, 198 Pa. 255, the heirs at the death of the testator were excluded by inference merely, whereas, in this will, the testator forbids his children, their heirs, executors, administrators and assigns, from claiming any more of his estate “other than what I have so hereinbefore devised him, her or them, or any of them.” He had “hereinbefore” given them only life estates in the residue, and, hence, having excluded them by express words from participating in the remainder, the heirs are to be ascertained as of the death of his surviving child.

It has been suggested that “hereinbefore” should be construed as “herein.” I know of no authority for so doing. A word in a will may not be ignored until every effort fails to reconcile it with the other language.

I would dismiss the exceptions.