author: Kun, J.,

text:
    City of Philadelphia, to use of Union Paving Co., v. Watts.

      Municipalities — Streets—Paving—Assessment—Lien on abutting properties — Affidavit of defense — Sufficiency—Averment of original paving — Ordinance — Construction.
    1. In a scire facias on a municipal lien for paving, an affidavit which sets up as a defense that the paving was not an original one is insufficient, where it avers that the street was used as a public highway with a double line of car tracks on it, but there is no averment of how, or of what materials, the alleged original paving was made, or of any facts to indicate an acceptance of such work as original paving by the city, or any other facts to show that improvements made under an earlier ordinance were intended as an original paving.
    2. An ordinance which provides for resurfacing, so as to improve certain streets “as country roads" and that property owners shall not be relieved “from the cost of paving" said streets "as may be directed to be paved by ordinance,” shows an intent that the resurfacing shall not be considered as a first pavement.

      Scire facias sur municipal lien. C. P. No. 1, Phila. Co., June T., 1926, No. 1331, M. L. D.

      H. J. Horan, for plaintiff; C. L. Smyth, for defendant.
    July 9, 1928.
   Kun, J.,

The Council of the City of Philadelphia, by Ordinance approved March 19, 1925, directed the Director of Public Works to make a contract for the paving of Wyoming Avenue from Fifth Street to the Boulevard, and from Rising Sun Avenue to Oxford Branch of Pennsylvania Railroad, with refined asphalt and vitrified block gutters, and the ordinance provided, further, that the contractor “shall collect the cost of the paving from the owners of properties respectively fronting on said streets.”

In accordance with the provisions of this ordinance, the City of Philadelphia entered into a contract, after due advertising and competitive bids, with the Union Paving Company, and the Union Paving Company paved Wyoming Avenue between the points indicated and received, as part payment for their work, assessment bills against the properties fronting on the said street.

Among the bills turned over to the Union Paving Company was a bill for paving in front of the property located on the south side of Wyoming Avenue, 403 feet east of Front Street, the amount of the bill being $214. This bill was duly served upon the registered owner of the property, and, not being paid, a lien was filed and a sci. fa. was issued, to which the defendant filed the affidavit of defense which is now before the court.

The defendant has set up a single defense, to wit, that the paving for which the Union Paving Company is now attempting to collect was not original paving, and, therefore, the property owner is not liable.

To sustain the contention that it was not original paving, the defendant has averred very little in his affidavit of defense. He has stated in paragraph 2 that the claim is not “original paving.” This, of course, is a mere conclusion of law.

In the third paragraph of the affidavit of defense he avers “that the cart-way of East Wyoming Avenue was originally paved under the authority of councils by an Ordinance of June 28, 1894, a copy of which is hereto attached, and the actual work of paving said cartway was done under the direction of the duly constituted officers and agents of the City of Philadelphia, namely, the Department of Public Works. The said paving done under the provisions of said ordinance was an original paving laid and completed in compliance with said ordinance.” This is another conclusion of law.

There is nothing in the affidavit of defense to show of what material the paving of 1894 consisted, how it was laid, or anything to indicate the acceptance by the City of Philadelphia of the paving so done as an “original paving.”

The fourth paragraph of defendant’s affidavit of defense sets forth the opening of Wyoming Avenue for public use, and the fifth paragraph avers that the highway has been in continuous use as a public highway, with trolley tracks thereon, from 1894 until the date on which the work was done under the Ordinance of 1926. The mere facts that Wyoming Avenue was used as a public highway and that there were trolley tracks upon it, do not establish the conclusion of the defendant that the paving that was laid upon the street in 1894 was an “original paving.”

There is nothing averred in the defendant’s affidavit of defense from which it may be inferred that there was any intention on the part of the City to accept the paving laid in 1894 as the permanent paving of Wyoming Avenue. The Court of Common Pleas No. 3, March Term, 1926, No. 1877, M. L. D., in the case of City of Philadelphia, to the use of Union Paving Company, v. Mollie Zubrick, which does not seem to have been reported, had an affidavit of defense before it filed by the property owner, defendant therein, setting forth in great detail various conditions as the grounds which it was asserted constituted an acceptance by the City of the paving in 1894 of the same street, Wyoming Avenue, involved in the instant case.

Judgment was entered for an insufficient affidavit of defense. Judge Davis wrote a full opinion for the court, from which no appeal was taken, and the liens were paid. The authorities cited, Philadelphia v. Hafer, 38 Pa. Superior Ct. 382; Philadelphia v. Eddleman, 169 Pa. 452; Philadelphia v. Clark, 269 Pa. 513; Philadelphia, to use, v. Burk, 288 Pa. 383, fully supported the action of the court.

In the Hafer case, the court said: “A first pavement, therefore, in the legal sense, which exempts the abutting property owner from liability for any subsequent improvement, may be defined generally as one that is put down originally or adopted or acquiesced in subsequently by the municipal authority for the purpose and with the intent of changing an ordinary road into a street. It may be macadam or anything else. That is a matter of evidence only. If the purpose and intent be wanting, a mere surfacing of the road, however carefully or expensively done, will not be a paving, but if the intent and purpose are present or to be fairly inferred, then there is a paving, whatever the material may be.”

In the Burk case, the court said: “The City had kept it (Adams Avenue) in good condition and repair, maintained service thereon, and required permits from those desiring to make surface openings. The avenue was similar to other improved streets in the neighborhood. ... Nor does the fact that repairs were made to the old highway, curbing directed, street railways operated, or the furnishing thereon of facilities such as gas, water or light, sufficiently indicate that the early pavement was adopted by the City as an original paving. ... If the surfacing first put in place comes within the control of the municipality, the abutting owner is not relieved as a result, unless it appears that the construction was adopted or acquiesced in subsequently with the intent and purpose of changing the old road into a street. It is not sufficient that there be a recognition of it by mere user as a public highway by the municipality: Philadelphia v. Hafer, supra. ... It was stipulated that the avenue was ‘paved with macadam,’ and from this it is insisted that there was admittedly a prior and ‘original paving.’ Prima faene, a road in the City of Philadelphia so surfaced is not to be considered as coming within the legal meaning of a first pavement so as to relieve the abutting owner from liability' for the building of a highway adapted to the needs of the community when the work is undertaken: Philadelphia v. Eddleman, 169 Pa. 452. Municipal adoption and acquiescence cannot be assumed. If there were other facts indicating the condition to be as now urged by the appellant, they should have been set forth, for the burden is upon the property owner to present all matters necessary to show he is entitled to an exemption, and we must assume all relevant facts were stated. The averments which we find here are not sufficient to overcome the presumptions against the existence of a former city paving. . . .”

The averment in the fifth paragraph of the affidavit of defense that “the highway had been in continuous use as a public highway, with a double line of passenger railway tracks thereon, upon which said passenger railway had been continuously operated,” etc., does not involve the adoption of the road by the City as a paved street: Philadelphia v. Hafer, supra.

It was stated by the court at the argument on the original affidavit of defense that it was insufficient to prevent judgment. Leave was given defendant to file a supplemental affidavit of defense, in which the defendant seems to have abandoned the contention made as to the original paving of Wyoming Avenue in 1894, as set forth in the original affidavit of defense, and alleging that the work was done under the authority of an Ordinance of Dec. 28, 1895. It is alleged that, pursuant to said ordinance, a contract was made with one Shanley to furnish and spread and roll broken stone on the cartway; that the work was done, completed and paid for in 1896; that a contract for grading said highway was made, and it was opened and continued in public use for a period of about thirty years prior to the paving in 1926, made under the Ordinance of March 19, 1925, as above referred to.

The Ordinance of Dec. 28, 1895, however, under which it is alleged the “original paving” was done, contains an allotment, inter alia,, “for surfacing and resurfacing so as to improve them as country roads, $80,000, to be expended as follows: For resurfacing . . . Wyoming Avenue, from Pike to Fishers Lane, $5000 (Five Thousand Dollars),” and the further provision, “Provided, That the property owners shall not be released from the cost of paving the above streets as may be directed to be paved by ordinance.”

As stated in the case of Philadelphia, to use, v. Edmonds, 64 Pa. Superior Ct. 472: “If the work was done and paid for under the ordinance just cited (referring to an identical provision in an ordinance under consideration in that case), the intent of the City that such improvement was not to be considered a first pavement within the meaning of the law is clear.”

The rule for judgment for want of a sufficient affidavit of defense is made absolute.

NOTE.—In City of Philadelphia, to use of Union Paving Co., v. Zubrick, C. P. No. 3, March Term, 1926, No. 1877 (M. L. D.), the essential parts of the opinion of Judge Davis, above referred to, are as follows:

"The plaintiff filed a claim against defendant's premises, No. 408 East Wyoming Avenue, Philadelphia, for defendant’s share of the cost of certain paving of vitrified brick and granite block along Wyoming Avenue in front of defendant’s premises. The paving was authorized by Ordinance of Council approved March 19, 1925. The defendant denies that the said property is liable to assessment for the paving under the said ordinance, averring that Wyoming Avenue has been a public highway, in constant and continuous use, for over sixty years; that Wyoming Avenue was paved with a permanent paving known as macadam paving; that the said avenue was opened by Ordinance of Councils approved April 9, 1892, and the City adopted the then-existing macadam paving as a proper street paving; that, in 1894, the City of Philadelphia changed the grade of Wyoming Avenue, and in 1896 replaced the macadam surface of the highway; that the City, in enforcing the regulations for the installation of sewers, gas lines, electric lines, water-supply pipes and other municipal improvements, required that the macadam surface be relaid wherever broken for the purpose of making such house connections.
"The defendant contends that by reason thereof the City of Philadelphia has adopted the macadam surface as a first paving of Wyoming Avenue. The macadam surface of the said avenue, prior to its opening in 1892 and prior to the Ordinance of March 19, 1925, authorizing the paving with refined asphalt, vitrified brick gutters and granite block in the street railway track area, was laid and maintained by the Wyoming Improvement Association; that, for the reasons above set forth, the paving for which the Union Paving Company is now attempting to collect -was not an original paving; that, therefore, no claim can be made against the property for the cost thereof; that, by reason of the contract between the City of Philadelphia and the Frankford & Southwark Philadelphia City Passenger Railroad Company, under Ordinances of Councils approved June 28, 1894, and Nov. 27, 1899, and the Ordinance approved July 1, 1907, which contains an agreement between the City of Philadelphia and the Philadelphia Rapid Transit Company, relieving the transit company of paving, the City is liable for such paving and the defendant is not.
“The first question raised in the affidavit of defense, that the macadam surface of Wyoming Avenue laid and maintained by the Wyoming Improvement Association was a first paving, in view of the fact that the City exercised control and supervision over the installation of municipal improvements so as to amount to an adoption and acquiescence on the part of the City of such paving as a first paving, is negatived by the passage of the Ordinance of March 19, 1925, requiring a specific character of paving other than macadam. The controlling fact is the intention on the part of the City to adopt the macadam or any other character of paving as a paving. There is nothing in the Ordinance of March 19, 1925, nor in the Ordinance of April 9, 1892, providing for the opening of Wyoming Avenue, nor in the Ordinances of June 28, 1894, and Nov. 27, 1899, relating to the operation of passenger railways on city streets, nor the Ordinance of July 1, 1907, relieving the railway company of the cost of paving, which indicates that the City had acquiesced in and adopted the macadam road then existing on Wyoming Avenue as a paving: City of Philadelphia v. Clark, 269 Pa. 513. . . .”

Judge Davis then referred to Philadelphia, to use, v. Burk, 288 Pa. 383; Philadelphia v. Hafer, 38 Pa. Superior Ct. 382, and, after quoting freely from the opinions, continued as follows:

"In the instant case, the City of Philadelphia exercised no supervision over the original paving of Wyoming Avenue, nor in the maintenance thereof, except so far as related to the breaking of the surface for the making of house connections. That, of course, was in the interest of public safety.
“Considering all of the averments in the defendant’s affidavit of defense in the light most favorable to the defendant, we are of opinion that the affidavit of defense is not sufficient to defeat the plaintiff’s claim. There is no question of fact to submit to a jury, under the admissions in the affidavit setting forth the ordinances of council.
“Under the decisions referred to (Philadelphia v. Burk, supra, and Philadelphia v. Hafer, supra), the plaintiff’s rule for judgment for want of a sufficient affidavit of defense is made absolute.”


source: Caselaw Access Project

author: Lamorelle, P. J.,

license: Public Domain

text:
    Kelly’s Estate.

      Will — Construction—Ufe estate — Bight to income accrued but unused by life-tenant.

    A gift to a daughter in trust “to apply the net income accruing therefrom to her maintenance and support during her natural life” is a gift of all the income accruing during her lifetime, and any part of it not used belongs to the daughter’s . estate and not to the remainderman.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1909, No. 571.
    Hhndekson, J., Auditing Judge. — By my adjudication heretofore filed on Feb. 4, 1926, there was suspended unexpended income amounting to $4519.78, pending the appointment of an administrator of the estate of Louisa Kelly, the deceased life-tenant, to present a claim for such accumulated income. . . .
    The testatrix died on Jan. 31, 1908, and by her will directed as follows:
    “I give devise and bequeath the sum of Twenty-five thousand dollars ($25,000) to the Fidelity Trust Company of Philadelphia to be vested in them in trust for my daughter Louisa Kelly to collect all the income arising therefrom and after deducting their charges to apply the net income accruing therefrom to her maintenance and support during her natural life. Should she die before her brother W. F. Kelly this fund made in trust for her shall go absolutely to her brother W. F. Kelly or in case of his death before her to his wife or children if he should leave any.”
    The beneficiary of this fund died on Jan. 12, 1926; she was the daughter of the decedent, and at the time of the mother’s death was insane and so continued to the time of her death.
    . William F. Kelly, the brother, predeceased Louisa Kelly, leaving no issue but a widow, Edith Schorn Kelly, who claims this fund as the executrix of the deceased brother who was the residuary legatee. The personal representative of Louisa Kelly is the other claimant.
    Stripped of its verbiage, the gift is vested in the trustee “in trust for my daughter ... to collect all the income . . . and ... to apply the net income ... to her maintenance and support. . . .”
    Without more, this language would be sufficient to vest principal as well as interest in the daughter. The question arises, how far the subsequent gift over cuts this down? If the brother survived the sister, “this fund made in trust for her” was given to him, and if he did' not survive, then it was given to his wife if he left any.

      It is contended that this excess income was an illegal accumulation which, under the Act of 1853, fell into the residue.
    The record of the Pennsylvania Hospital which was placed in evidence shows this life-tenant to have been an inmate since 1888 and hopelessly insane. After providing for her care and maintenance, there was, over a period of seventeen years, accumulated the sum of $4509'.ll, or an average of about $250 per annum. It is argued that the phrase “apply the net income ... to her maintenance and support” necessarily implies a discretion in the trustee to accumulate, which is forbidden by the Act of 1853.
    I cannot follow this reasoning. The balance which has accumulated is merely an administrative balance, one justified by prudent management, especially provident in these times of mounting costs.
    The language above quoted from the will is amply sufficient to vest the entire income in the daughter, the expenditures for her maintenance to be directed by the trustee, so that the title to what is not used is in the daughter and must be awarded to her personal representative.
    Howell’s Estate, 180 Pa. 515, has been quoted contra. But the facts do not bear out any such application. Therein the will gave an annuity of $2500 and a fund was set aside to assure it. The surplus income undoubtedly belonged to the residuary legatees and was so awarded.

      Townsend, Elliott & Munson, for exceptions.

      William A. Wiedersheim, 2nd, contra.
    June 27, 1928.
   Lamorelle, P. J.,

Anna Maria Kelly, who died in 1908, survived by two children, a daughter, Louisa Kelly, and a son, W. F. Kelly, disposed of an estate aggregating some $65,000 by creating a trust for the daughter, who was non compos, and giving the rest of the estate (less a legacy of $200) to the son absolutely. The son died in the lifetime of the daughter; the latter is now dead, and the son’s widow has received the principal of the trust. She now claims the income on hand, which income is also claimed by the administrator of the daughter’s estate. The Auditing Judge has awarded this income to such administrator, and the exceptions question this ruling.

Had Anna Maria Kelly intended that the daughter should have no more than the sum actually expended on her behalf, she could have directed that out of income or of principal of her estate a sum or sums sufficient for the purpose should be used, or she could have set aside a sum with the proviso that the executor should use so much as in its discretion would be necessary. She did neither. She gave the sum of $25,000 to a trust company “to be vested in them” in trust for the daughter, with directions to apply the net income accruing therefrom to her maintenance and support for life. In event that she died before her brother “this fund made in trust for her” was to go to the brother; if she outlived him, upon her death, to his wife or children. This “fund” evidently meant the sum so given, to wit, $25,000. It could not embrace income, for all of the income was that of the cestui que trust. No discretion was given the trustee; the gift of income was as broad as that of principal: See discussion by Thompson, J., in Carlisle’s Estate, 30 Dist. R. 737. The fact that all was not used is beside the real question at issue. No intention is anywhere shown in the will to pass any unused income into the residuary estate. All net income was to be used for the daughter’s benefit; any not actually rjsed formed part of her estate and at her death intestate went to her next of kin through the course of administration. Had testatrix- provided that only so much of the income should be used as in the discretion of the trustee was deemed necessary, then there would! be force in exceptants’ position; but that is not this case.

As we are of opinion that the Auditing- Judge properly interpreted this clause of the will, no further elaboration is required.

All exceptions are dismissed and the adjudication is confirmed absolutely.

Gest and Van Dusbn, JJ., did not sit.


author: Koch, P. J.,

text:
    Blythe Township School Director’s Contested Election.

      Election law — Contested election — Bond—Petitioners and sureties — Acts of May 19,187U, and April 88,1899 — Jurisdiction.

      1. Under the Acts of May 19, 1874, P. L. 208, and April 28, 1899, P. U. 118, the bond required to be filed in an election contest must be signed by five petitioners and two sureties.
    2. If such bond is signed by seven petitioners, without showing on its face who are sureties, or that there are any sureties, the bond is invalid and the court has no further jurisdiction of the contest.
    3. In such a proceeding, parol evidence is not admissible to show that two of the seven signers were in fact sureties; nor is the bond amendable.
    Motion to dismiss petition to contested election. Q. S. Schuylkill Co.

      R. A. Freiler, for contestants.

      R. R. Koch, C. E. Berger and J. F. Mahoney, for respondent.
    April 30, 1928.
   Koch, P. J.,

The ground of the motion is that the petitioners “did not present to the court, within ten days of the filing of their petition, a bond signed by five petitioners and two sureties for the approval of the court, as is required by section 9 of the Act of May 19, 1874, P. L. 208, as amended by the Act of April 28, 1899, P. L. 118.”

The Act of April 28, 1899, P. L. 118, relates to contests of school directors and others, and says that “whenever a petition to contest an election in any of said cases shall be presented to the court, it shall be the duty of said petitioners, within ten days thereafter, to file a bond signed by at least five of the said petitioners in such sum as the said court, or any judge thereof during vacation, shall designate, with sureties to be approved by the said court or judge, conditioned for the payment of all costs which may accrue in said contested election proceeding, in case the said petitioners by decree of said court shall be adjudged liable to pay said costs, and if said bond shall not be filed as herein provided, the said petition to contest the election shall be dismissed.”

Upon its face the bond does not purport to have been signed by five petitioners and two sureties; it purports to have been signed by seven petitioners. It reads as follows:

“Know all men by these presents, That we, Michael V. Stiles, Sr., Thos. J. Hill, James D. Lewis, Charles Reynolds, Charles Krouser, William Devlin and John Tobin, of the Township of Blythe, County of Schuylkill and State of Pennsylvania, are jointly and severally bound unto the Commonwealth of Pennsylvania in the sum of One Thousand Dollars, lawful money of the United States of America, to be paid to the said Commonwealth, or its certain attorney, to which payment well and truly to be made, we do hereby jointly and severally bind ourselves and each of us jointly and severally for and in the whole, and each of our heirs, executors and administrators and every of them firmly by these presents. Sealed with our seals and dated the 7 day of December, A. D. 1927.
“Whereas, the above bounden obligors did on the 7 day of December, A. D. 1927, file their petition in the Court of Quarter Sessions of the Peace in and for Schuylkill County to contest the election of Richard Edwards to the office of School Director of the Township of Blythe for the term of six years.
“Notv the condition of this obligation is such, That, if the above bounden obligors shall well and truly pay, or cause to be paid, the costs which may accrue in said contested election proceeding, in case the petitioners by decree of said court shall be adjudged liable to pay said costs, then this obligation to be void, otherwise to be and remain in full force and virtue.
“And further, We, and each of us, do hereby confess judgment for the amount of the above bond and authorize the entry of judgment thereon.
Michael J. Stiles, SR. [Seal.]
Thos. J. Hill. [Seal.]
Jas. D. Lewis. [Seal.]
Charles Reynolds. [Seal.]
Charles Krouser. [Seal.]
William J. Devlin. [Seal.]
John Tobin. [Seal.]
“Signed, sealed and delivered in presence of us.
E. J. Spelyng, J. J. Rompano.”

Such a bond may be signed by any number of petitioners exceeding four, but it must be signed also by two sureties, and the bond should be in such form as to show upon its face who are the petitioners and who are the sureties. The contestants aver that Stiles, Hill, Lewis, Reynolds and Krouser are petitioners and that Tobin and Devlin are sureties, but the recital in the bond is that all the obligors are petitioners, and we cannot change the bond by evidence aliunde. Bonds of guardians, executors, administrators, trustees, public officers and others requiring sureties always show upon their face who are principals and who are sureties. But this bond does not purport to have any sureties whatever. It has, therefore, not been made in compliance with the law. Nor is the bond now amendable: Knoxville School Election, 274 Pa. 354; Moritz’s Contested Election, 256 Pa. 537. And, since it is not amendable, it cannot be changed so as to show who are petitioners and who are sureties, even though the evidence be ready at hand to show it. The bond must show upon its face who are primarily liable and who are mere sureties, and inadvertence in preparing the bond so as to show who are principals and who are sureties is fatal. In Moritz’s Contested Election, 256 Pa. 537, the bond was filed with the approval of the court, but one of the sureties had not sealed the bond, and the court allowed an “amended bond” to be filed nune pro tune to meet the objections urged against the first bond, and the contest was proceeded with. The contestant, one Stephen T. Tkach, was declared duly elected to the office of Township Commissioner of Plains Township in the County of Luzerne. The Supreme Court said: “If the bond filed by the petitioners was so far defective that it did not meet the requirements of the law, then, in refusing respondent’s motion to dismiss the proceeding, the court committed error, and the order and decree of the court must be reversed.” So the court below was reversed.

When the petition for this contest was presented on Dec. 7, 1927, the court directed “the petitioners to file a bond in the sum of One Thousand Dollars for the payment of costs, as required by law, with sureties to be approved by the Court.” Such a bond was necessary to give the court complete jurisdiction of the contest: Miller’s Contested Election, 27 Dist. R. 637. The court’s order required the bond to be prepared and signed conformably with the statute, but, through inadvertence, the order was not complied with, and thereby we have lost jurisdiction of the contest and may proceed no further.

And now, April 30, 1928, the motion is granted and the petition is dismissed, at the cost of the petitioners.

From M. M. Burke, Shenandoah, Pa.


author: Bechtel, P. J.,

text:
    Mangos v. Cronis et al.

      Wage claims — Rent—Priority—Aeis of May' 12, 1891, and June U, 1901.

    1. The Act of May 26, 1891, P. L. 122, which directs that rent shall be first paid out of proceeds of sale of personal property on demised premises, was repealed by the Insolvency Act of June 4, 1901, P. L. 404, but the Act of 1901 was held to be suspended by the National Bankruptcy Act of July 1, 1898, 30 Stat. at L. 544, which related to persons owing debts of $1000 or over.
    2. Where a landlord and employees of the defendant in an execution present claims against a fund raised by a sale of the defendant’s chattels, but there is nothing to show what sum the defendant owed, the court can make no order as to whether the rent or the wages claims shall have priority.
    Proceedings to distribute fund paid into court by sheriff. C. P. Schuylkill Co., July T., 1927, No. 24.

      W. C. Devitt, for plaintiff.

      James J. Gallagher and James H. O’Connor, for defendants.
    Dec. 12, 1927.
   Bechtel, P. J.,

In this case, Mike Kasko and Harry Hanges petitioned the court, setting forth, inter alia, that the defendants conducted a restaurant in Mahanoy City, Schuylkill County, Pennsylvania, under the name of the Presto Restaurant, in which restaurant the petitioners were employed as cook and waiter, respectively.

That by virtue of an execution issued by plaintiff for rent arrearages, a levy was made on the goods and chattels of the defendant by the Sheriff of Schuylkill County.

That before the sale under said execution, the petitioners filed with the sheriff wage claims in proper form, Kasko claiming the sum of $200 and Hanges the sum of $115.

That the goods and chattels of the defendant were sold for $460.

The sheriff refused to pay these claims for the reason that he was of opinion that the rent due was a prior claim to the wage claims.

Thereupon a rule was granted and the sheriff directed to pay the proceeds of the sale as aforesaid into the court for distribution.

The question before the court is, shall the wage claims be preferred to the rent claims. The Act of May 12, 1891, P. L. 54, provides, inter alia, that wage claims “shall be preferred and first paid out of the proceeds of the sale of such real 'and personal property.”

The Act of May 26, 1891, P. L. 122, directs that rent shall be first paid out of the proceeds of such property. The Act of May 26, 1891, supra, giving a preference to rent, has been repealed by the repealing clause at the end of the Insolvency Act of June 4, 1901, P. L. 404. This act, however, has been held to be suspended by the. National Bankruptcy Act of July 1, 1898, 30 Stat. at L. 544, and not to be operative as to the persons and subjects to which the Federal act applies: Potts v. Smith Manuf. Co., 25 Pa. Superior Ct. 206.

The Act of June 4, 1901, supra, subdiv. B, P. L. 404, enacts that: “Any natural person except a wage earner or a person engaged chiefly in farming or the tillage of the soil, any unincorporated company, any corporation engaged principally in manufacturing, trading, printing, publishing or mercantile pursuits, owing debts to the amount of one thousand dollars or over may be adjudged an involuntary bankrupt upon default or impartial trial, and shall be subject to the provisions and entitled to the benefits of this act.”

In the case at bar, there is nothing before us to disclose the amount owing by the defendants. It is impossible for us to tell, therefore, whether they come within the foregoing provisions or not. It has been held that the suspension of the Act of 1901 applies to and operates upon every part of the act and, therefore, on the repealing clause in question. It, therefore, follows that if the defendants are persons to whom the National Bankrupt Act relates, the fund in question should be awarded to the rent claim. If, however, the defendants are not persons to whom the Bankrupt Act applies, then the State act would be operative, giving the landlord [wage claims] a preference. As before stated, we cannot determine from the papers before us whether the act applies to the defendants or not. We, therefore, make no order in this case. Prom M. M. Burke, Shenandoah, Pa.


author: Landis, P. J.,

text:
    Gerhart v. Christ.
    No. 1.

      Mecharnos’ liens — Sufficiency of — Amendment—Act of June U, 1901.

    1. Under section 51 of the Act of June 4, 1901, P. L. 431, a mechanic's lien may be amended by striking- off part of the land covered by the original lien and by setting forth whether the plaintiff was a contractor or a sub-contractor.
    2. Amendments to mechanics’ liens are of right, saving intervening rights and excepting as otherwise provided by the act, and can be made at any time during the existence of the lien.
    3. A mechanic’s lien will not be stricken off because all items for materials furnished but the last item of the claim were furnished more than six months before the filing of the claim, as the last item, if shown to have been furnished under the contract, would save the lien.
    4. A substantial compliance with the statutory requisites is all that is necessary to validate a mechanic’s lien.
    Rules to strike off and to amend mechanic’s lien. C. P. Lancaster Co., Mechanic’s Lien Docket No. 9, page 172.

      Guy K. Bard, for lien and amendment; Charles W. Baby, contra.
    Oct. 8, 1927.
   Landis, P. J.,

On July 7,1926, plaintiff filed a mechanic’s lien for $2423.04 against a certain property owned by the defendant, located in the Township of Ephrata, for materials furnished in the construction of certain buildings. On June 28, 1927, Joseph T. Evans, trustee in bankruptcy of the defendant, presented his petition, asking that the lien be stricken off, and he rested his application upon the following grounds, namely: That, on July 7, 1926, when the said lien was filed, the right to file said lien had expired on Oct. 25, 1925, as to all items therein mentioned, amounting to $2420.95, and that, as to the last item therein mentioned, to wit, $2.09, the right to file a lien had expired on July 6, 1926; that the lien covered one cement block bungalow with a porch attached, a brick semi-bungalow with a porch attached, a frame garage and another frame building, which are alleged to have been located on two separate and distinct tracts of land, the one of which contains 6 acres and 57 perches, and the other one of which contains 19 acres and 77 perches; that one of the said bungalows was released from said lien on Nov. 5, 1926; that the lien as filed was a blanket lien, covering more than one tract of land with the improvements thereon erected; that the lien on its face shows that it is not filed in accordance with the law; and, lastly, that the lien does not state whether Harry M. Gerhart is a contractor or a sub-contractor, and, if a sub-contractor, no notice to file said lien was set forth.

By the 51st section of the Act of June 4, 1901, P. L. 431, it is provided that “any claim, petition, answer, replication, scire facias, affidavit of defense or other paper filed of record may be amended from time to time by agreement of the parties, or by leave of the court, upon petition for that purpose, under oath or affirmation, setting forth the amendment desired, that the averments therein contained are true in fact, and that by mistake they were omitted from or wrongfully stated in the particulars as to which the amendment is desired. Such amendments shall be of right, saving intervening rights; except that no amendment of the claim shall be allowed after the time for its filing has expired which undertakes to substitute an entirely different property from that originally described in the claim, or a wholly different party as the defendant with whom the claimant contracted, but the description of the property or the name of such defendant may be amended so as to be made more accurate, as in other cases of amendment. . . .”

On Sept. 19, 1927, the plaintiff asked to amend the lien as follows:

“The name of the contractor and party claimant is Harry M. Gerhart, of the Borough of Ephrata, County of Lancaster and State of Pennsylvania, and the name of the owner of the building and the lot appurtenant thereto, against which this lien is filed, is I. M. Christ.
“The amount or sum claimed to be due is $983.57, with interest from Jan. 7, 1926, and the kinds of materials furnished were lumber, cement, nails, bricks and other building materials, and the kinds and amounts of said materials furnished, together with the times when the same were furnished, are set forth and particularly described in the bill of particulars, hereto annexed and marked ‘Exhibit A’ and made a part hereof ($1500 has been paid on the original claim, reducing it to this amount).
“The locality of the building for and in the erection of which the said materials were furnished is in the Township of Ephrata, County of Lancaster and State of Pennsylvania. The structure is a brick semi-bungalow with a porch attached, measuring 26 feet in front, 34 feet in rear, with a depth from the front to the rear of 26 feet. On the one side is a wing built of eight feet, which accounts for the variance in the dimensions of the front and the rear. The said building is situated in the said township and is owned by the said I. M. Christ. The real estate on which the said structure is situated is described as follows, to wit: Beginning at a point along the middle of the Ephrata and Akron Road; thence by land of Amelia Buchen, south 27 degrees 26 minutes west 300 feet along the middle of the trolley road; thence along the middle thereof, north 62 degrees 34 minutes east 50 feet to a point; thence by land of S. G. Reinhold, north 27 degrees 26 minutes west 293 feet 51 inches to the middle of the Ephrata and Akron Road; thence along the middle thereof, south 72 degrees and 4 minutes west 50 feet and 85 inches to the place of beginning. Containing 43.59 perches.”

The original lien contains the following: “The locality of the buildings for and in the erection of which the said materials were furnished is in the Township of Ephrata, County of Lancaster and State of Pennsylvania. The structures are a cement block bungalow with a porch attached, a brick semi-bungalow with a porch attached, a frame garage, 18 by 20 feet, and another frame building, 16 by 26 feet, all situated in the said township and owned by the said I. M. Christ. The real estate on which the said structures are situated is described as follows: No. 1. All that tract of land situate in Ephrata Township aforesaid, bounded and described as follows, to wit: Beginning at an iron pin in the middle of a public road leading from Akron to Ephrata, a corner of other land of John W. Mink; thence by land of same, south 16 degrees 15 minutes east 23.44 perches to a point in the middle of Conestoga Traction Company trolley road; thence in the middle thereof, north 62 degrees and 38 minutes east 55.61 perches to a point in the middle of said track; thence by land of Henry Hoffman, north 22 degrees 45 minutes west 14.34 perches to a point in the middle of the said road; thence in the middle of said road, south 72 degrees 4 minutes west 52.95 perches to the place of beginning. Containing 6 acres and 57 perches of land.”

In both the original lien and the amendment, the land described is stated as having been the same which John W. Mink and wife, by deed dated Dec. 19, 1922, granted and conveyed to I. M. Christ, his heirs and assigns. By the amendment, a second tract, set forth in the statement, is stricken out, and it is claimed, and would appear evident, that the land as described in the amendment is only a part of the tract of 6 acres and 57 perches described in the original lien.

The petitioner takes the position that ostensibly the land set forth in the amendment is not the same as that in the original claim, and, therefore, it cannot, under section 51 of the Act of 1901, be amended; but if it is only a part of and included in the larger tract, I see no reason why, for the sake of certainty, the lien should not be amended in this respect.

The objection that it is not stated whether the plaintiff is a contractor or a sub-contractor is met by the amendment, and, in my judgment, such an amendment comes within the meaning of the Act of 1901.

The authority to allow amendments such as this seems to have been determined by the courts in Nagle v. Garrigues, 46 Pa. Superior Ct. 155; Vogel Co., Inc., v. Grape Products Co., 57 Pa. Superior Ct. 501, and Thirsk v. Evans, 211 Pa. 239. Amendments to mechanics’ liens are of right, saving intervening rights and excepting as otherwise provided by the act, and can be made at any time during the existence of the lien.

In this case, the lien says that “the time when said materials were furnished in the erection and upon the credit of the hereinafter described building, which is a new structure, was from the 17th day of August, A. D. 1925, to the 7th day of January, A. D. 1926, inclusive, all of which is set forth in the attached bill of particulars.” There is one item bearing date Jan. 7, 1926, and if this was a part of the contract and furnished under it, it may save the right to file this lien. We cannot, however, at this time, strike off the lien in the face of the above allegations. If no materials were furnished within the statutory period, it will be a defense on the trial against the whole of the lien.

In Birney v. Davis, 8 Del. 235, it was held that a mechanic’s lien was sufficiently definite as to time which averred that the material was furnished from December to January in a given year, said months being within the statutory period. In Bayer v. Reeside, 14 Pa. 167, it was decided that “a claim stating the amount for stone, mason-work, &e., and materials . . . done and furnished within the six months last past, to wit, between June 1, 1848, and April 1, 1849, is sufficiently definite as to time.” In Fourth Baptist Church of Philadelphia v. Trout, Johnson & Co., 28 Pa. 153, it was held that “when work and materials are done and furnished in the erection of a building under an entire contract, the building is chargeable with the contract price, if the lien is filed within six months from the consummation of the contract;” and that “the claim must not only state that the work was .done and the materials furnished within six months from the entry of the claim, but upon its face or by reference to some accompanying paper a date or dates must be given by which such allegation can be verified, and upon the trial, the evidence must establish the fact that the claim was filed before the six months allowed by the statute had expired.” In Rush v. Able, 90 Pa. 153, it was said: “All that is required is such certainty as will enable those interested to discover during what period the materials were delivered or the work done, so as to individuate the transaction. ... It has been more than once said we must not be hypercritical when scanning this species of lien and estimating its suificiency.” In Este v. Pennsylvania R. R. Co., 27 Pa. Superior Ct. 521, it was held that “while a mechanic’s lien is a purely statutory proceeding and compliance with the requirements of the statute is necessary in order to give it validity, this rule only applies to essential requirements. In determining what are such requirements, it should be borne in mind that a substantial compliance with the statutory requisite is all that is called for.” In Day v. Pennsylvania R. R. Co., 224 Pa. 193, it was held that “where, on the trial of a scire facias sur mechanic’s lien, the evidence is conflicting as to the date when the work was finished and completed, the case is for the jury.” See, also, Thaler v. Wilhelm Griesser Construction Co., 40 Pa. Superior Ct. 331.

We are, therefore, of the opinion that the rule to show cause why the mechanic’s lien should not be stricken off should be discharged, and that the rule to show cause why the mechanic’s lien should not be amended should be made absolute, and this is accordingly done.

Rule to show cause why mechanic’s lien should not be stricken off is discharged and rule to show cause why mechanic’s lien should not be amended is made absolute, and the amendment is allowed.

From George Ross Eshleman, Lancaster, Pa.


text:
    Gerhart v. Christ.
    No. 2.

      Mechanics’ liens — Sufficiency of — Designating claimant as a contractor.

    A statement in a mechanic's lien which avers that the materials were furnished by plaintiff on the basis of a verbal contract with defendant, sufficiently shows plaintiff was a contractor without the express use of the word “contractor.”
    Rule to strike off mechanic’s lien. C. P. Lancaster Co., Mechanics’ Lien Docket No. 9, page 277.

      Charles W. Baby, for rule; Guy K. Bard, contra.
    Oct. 8, 1927.
   Landis, P. J.,

In this case the plaintiff, on April 4, 1927, filed a mechanic’s lien for $1439.60 against the defendant. The lien was for labor and materials furnished upon the basis of a verbal contract entered into between the parties, plaintiff and defendant, on or about May 18, 1926. In the lien it is said that “the time when the said labor and materials were finished (furnished) in the erection and upon the credit of the hereinafter described buildings, was from May 18, 1926, to Dec. 7, 1926, inclusive, all of which was set forth in the attached bill of particulars.” The grounds and buildings against which the lien was filed were located in the Township of Ephrata, in this county.

Joseph T. Evans, trustee in bankruptcy of I. M. Christ, the defendant,' asked that the lien be stricken off: First, because the right to file a lien for the labor and materials therein set forth expired before the lien was filed; second, because the lien did not state whether A. L. Gerhart was a contractor or a sub-contractor, and if a sub-contractor, the lien did not set forth any notice of intention to file a lien; third, that the lien was not self-sustaining; and, fourth, that the lien on its face did not show that it was filed in accordance with the law.

So far as the first objection is concerned, we do not think that it at this time has any merit, and our reasons for so holding are set forth at some length in the case of Harry M. Gerhart v. I. M. Christ, Mechanics’ Lien Docket No. 9, page 172, in which case we have just filed an opinion. [See ante, page 813.]

So far as the second reason is concerned, it is stated in the lien that the labor and materials were furnished by A. L. Gerhart upon the basis of a verbal contract entered into with the said I. M. Christ. In our judgment, it was not necessary to use the word “contractor,” because, if he entered into a verbal contract with the defendant, it follows that he was a contractor. We are, therefore, of the opinion that there is no merit in this objection.

The third and fourth reasons need not be specifically discussed, because they are covered by the two former objections, and we think the case of Harry M. Gerhart v. I. M. Christ, above referred to, disposes of them.

The rule to show cause why mechanic’s lien should not be stricken off is, therefore, discharged. Rule discharged.

From George Boss Eshleman, Lancaster, Pa.


author: Chase, P. J.,

text:
    The Sandy Township School District v. The Falls Creek Borough School District.

      School law — Annexation of land — School property — Apportionment of indebtedness.

    1. Where land is taken from a township school district and annexed to a borough district, and there is no school real estate in the territory annexed, section 110 of the School Code of May 18, 1011, P. L. 309, relating to the apportionment of school property, does not apply.
    2. The act was intended to apply, and can apply in detail only, to cases where, as a result of the change in boundaries, school property is involved; if the change in lines results in transferring school property, then the value thereof must be taken into consideration.
    3. The words of the act "including funds and indebtedness” do not imply that funds and indebtedness are school property.
    4. The act does not mean that all school property, real and personal, in each of the districts affected must be valued and the funds and indebtedness of each taken into account in determining whether a part of the district in which there is no school property shall go out free of indebtedness incurred prior to the transfer.
    Exceptions to report of commissioners appointed to adjust indebtedness. C. P. Clearfield Co., Sept. T., 1927, No. 321.

      E. G. Boose, for plaintiff; W. N. Conrad, for defendant.
    Oct. 18, 1927.
   Chase, P. J.,

By virtue of the provisions of the School Code, the court appointed commissioners to adjudicate the property indebtedness between the above-named school districts. . The said commission found, inter alia, that the portion of the School District of Sandy Township which was annexed to the School District of Falls Creek Borough contained no real estate belonging to the said school district. However, in making the award as between the two districts, the commissioners allowed to the School District of Sandy Township $503.96, being .011 per cent, of the net indebtedness of Sandy Township School District. It is agreed by both districts that the findings of the commissioners as to this allowance were proper under the law. The commissioners then proceeded to take into consideration that there was no school property belonging to the school district within the territory annexed to the School District of Falls Creek Borough, and, taking into consideration that the valuation of the said Sandy Township School District was §125,000, concluded to allow the School District of Falls Creek Borough, by reason of an undue proportion of school property left in Sandy Township, a credit of §292.72, leaving a balance of $211.25 due to the School District of Sandy Township, and recommended to the court that the decree direct payment of this amount to the Sandy Township School District be made.

Exceptions were filed to the findings of the commission, alleging that it was unlawful for the said commissioners' to attempt to allow this credit to the Falls Creek Borough School District, based upon the undue proportion of the school property left in Sandy Township, and requesting that a decree of court directing the payment of $503.96, the proportionate share of the net indebtedness of Sandy Township School District, be paid by the said annexing district.

The single question raised under these exceptions is to be determined by section 110 of the School Code, which reads as follows: “Where any independent school district is abolished and its lands revert to two or more school districts, or where any land heretofore annexed to one school district is made a part of the district in which it is located, or where a new district is made by the creation of a new city, borough, township or independent school district out of one or more, or where the boundary-line of any district lines are changed by the changing of the boundary-lines of any city, incorporated town, borough, township or-independent school district, then in any such case the school districts to which the land has been annexed or from which land has been taken or which have been newly created shall make a just and proper adjustment and apportionment of all school property, real and personal, including funds as well as indebtedness, if any, to and among such school districts. The indebtedness of any independent school district hereby abolished, whose land is wholly within the boundaries of any school district hereby established, shall be assumed and paid and all its personal property acquired by such school district.”

The purpose of the section herein referred to was to secure an equitable distribution of the indebtedness by and between the districts affected by the annexation, and in an interpretation of this section that fact must be kept in mind.

In the instant case the learned counsel for the School District of Falls Creek Borough contends that the findings of the commission were an equitable determination of the additional financial burdens created by this annexation to the Falls Creek Borough School District. Reflection upon this proposition leads the court to the conclusion that the learned counsel is not correct.

Under the findings of the commissioners, taking into consideration the indebtedness of Sandy Township School District, and taking into consideration the assessed valuation of the annexed territory and the entire assessed valuation of the Sandy Township School District prior to the annexation, and finding the proper proportion of the assessed valuation that the annexed territory bears to the whole assessed valuation of the School District of Sandy Township prior to the annexation, and charging up to the annexing school district that percentage of the indebtedness that the assessed valuation of the annexing territory bears to the whole, is the only proper equitable determination of the indebtedness to be assumed. The fact that there was no school property in the annexed territory does not add any burden whatever to the annexing school district. Whatever indebtedness may exist as against the real estate of the school district must be paid by the school district in which the real estate is situated, so that there is no financial responsibility whatever on the part of the annexing district for this indebtedness. It cannot be said that there is any burden placed upon the annexing district of a financial character, in so far as the real estate applies, because of the fact that the annexing territory has the burden and financial responsibility of providing school facilities for the pupils who live within the annexing territory. It is true that there would be additional financial responsibilities added, but it is equally true that the property which is annexed to the school district must pay school taxes, which takes care of the additional expenses involved in the education of the children within the annexing- territory. When the contention is raised by the exceptant that this provision of the School Code does not provide for any adjudication of a disproportionate amount of the real estate being outside of the annexed territory, no doubt they had this proposition in mind, it being an attempt to lay down rules to secure a just and equitable adjudication between the parties in interest. It seems to the court that that is the reason that there has been no provision in the section governing this matter to take care of the situation complained of in this issue.

However, the counsel for the annexing territory claims that the provision under discussion is broad enough to include the issue involved here. We cannot so find under the language of that section of the act in question. That is the conclusion reached by Judge Carpenter in the case of School District of Miffiin Township, 65 Pitts. L. J. 489. In discussing the same proposition we have to meet in this issue, the learned court says as to this section: “It is manifest that it was intended to apply,, and can apply in detail only, to cases where, as a result of the change in boundaries, school property is involved. In a word, if a change in lines results in transferring school property, then the value thereof must be taken into consideration. The words ‘including funds and indebtedness’ do not imply that funds and indebtedness are school property. To hold that all school property, real and personal, in each of the districts affected must be valued and the funds and indebtedness of each taken into account in determining whether a part of the district in which there is no school property shall go out free of indebtedness incurred prior to transfer would lead to inextricable confusion and absurd results.” The fact that this provision of the School Code does not apply in cases, is silent as to the conditions which arise, as in this case, is an indication that the law is simply carrying out the policy that had existed prior to said School Code. . •

In the case of Munhall Borough School District v. Mifflin Township, 207 Pa. 638, the court therein held that the Act of June 24, 1895, P. L. 259, which act was in effect prior to the enacting of the provisions under consideration, contained no authority to find or decree a balance due to the outgoing or new district for any undue proportion of real estate and movable properties remaining in the old district. The Supreme Court, speaking in that case, stated as follows: “We have before us nothing more than the construction of a statute which by its terms, in so far as it relates to the subject-matter of the plaintiff’s claim, gives it no right to demand from the defendant payment for any excess of school property remaining with it after the lines of the new district were drawn.” And that is the law at the present time, the court, however, attempting to show that the law is a reasonable and fair one in determining the equities between school districts where territory has been annexed to one of the school districts.

In accordance with the finding of the law by the court, the exceptions of the Palls Creek School District are sustained, and the order and decree of court will be made in accordance with the findings of the law in this case.

It does not appear from the report of the commissioners who was at fault in not having this matter adjusted as between the two school districts without the requirements of a commission. However, from the contention on the part of the counsel for the School District of Palls Creek Borough, if that has been the contention of said school district, and the court can only assume that it has, the fault lies with the Palls Creek School District for failure to have this matter adjudicated as between the two school districts. Therefore, the costs should be paid by the said School District of Palls Creek Borough.

The exceptions to the commissioners’ report are hereby sustained and the following order of court made:

Now, Oct. 18, 1927, it is ordered and decreed that the School District of Palls Creek Borough pay to the School District of Sandy Township the sum of' $503.96, the amount due said Sandy Township School District by virtue of the annexation of territory from the said school district by the School District of Palls Creek Borough, together with the costs of this proceeding.

Prom John M. Urey, Clearfield, Pa.


author: Hirt, J.,

text:
    Doolittle v. Barr.

      Jurisdiction, J. P. — Trespass—Acts of July 7, 1879, and June 11, 1923.

    A justice oí the peace has jurisdiction in actions of trespass vi et arm/is to the extent of ?300. The Act of June 14, 1923, P. L. 718, does not repeal the Act of July 7, 1879, P. L. 194, but provides an additional remedy.
    Motion to strike off statement of claim. C. P. Erie Co., Sept. T., 1927, No. 455.

      Franklin B. Hosbach, for plaintiff; Enoch C. Filer, for defendant.
    Dec. 20, 1927.
   Hirt, J.,

The Act of March 22, 1814, P. L. 190, gives jurisdiction to justices of the peace in actions of trespass for injury to real or personal property, where the damages sustained do not exceed $100. The jurisdiction as to amount was increased to $300 by the Act of July 7, 1879, P. L. 194, but the justice has jurisdiction only where the injury is immediate and would be recoverable in the common law action of trespass vi et armis, and not such as are consequential and would be recoverable, if at all, in an action of trespass on the ease: Miller v. Snyder, 6 D. & C. 475; Sharp v. Boyer, 6 D. & C. 597.

Defendant attacks plaintiff’s statement of claim by motion to strike off, on the ground that plaintiff’s statement shows a demand of more than $100 in amount, contending that the justice’s jurisdiction is limited in cases of this kind to $100, under section 36 of the Act of June 14, 1923, P. L. 718. This Act of 1923 does not repeal the Act of July 7, 1879, and the apparent intention was not to modify the jurisdiction of justices generally in trespass eases under existing law, but to provide an additional remedy: Sharp v. Boyer, 6 D. & C. 597; Petros v. Crawl, 74 Pitts. L. J. 55.

The statement, however, is defective, in that plaintiff has failed to allege the items of damage with sufficient particularity.

Therefore, the rule granted Sept. 26, 1927, on defendant’s motion to strike off statement of claim, is now, Dee. 20, 1927, made absolute, with leave to plaintiff to file a new statement within fifteen days.

Prom Otto Herbst, Brie, Pa.


author: Alessandroni, J.,

text:
    Commonwealth v. Harris et al.

      Herman Becker, for petitioner.

      John Monaghan, District Attorney, and John H. Maurer, Assistant District Attorney, for Commonwealth.
    July 16, 1928.
   Alessandroni, J.,

This is a petition to require the District Attorney to return to Martin Cohn the sum of $500 deposited by him as bail for one Dorothy Harris, who was charged with keeping a bawdy-house. Nothing has been seen or heard of Dorothy Harris since Martin Cohn deposited the money and obtained her release. He now requests that the $500 be returned to him because at the time of the posting of the deposit, to wit, on Jan. 11, 1928, he was a minor, and produces a certificate from the Bureau of Vital Statistics showing that one Max Cohn was born on Oct. 28, 1908.

The petition of one who has entered bail in the usual form or deposited cash in lieu of bail, for the remission of the forfeiture and a setting aside of the judgment and execution after a breach of a condition of the bond, without averring at least that the defendant has been produced, is without any merit whatever. Even where the bail has produced the defendant for trial, after a breach, and the ease is finally ended, the remission of the forfeiture and setting aside of the judgment is not one of right, but in the sound discretion of the court. This petition might well be dismissed on the appearance of the record, the petitioner having failed to show any basis for relief. In view of the fact, however, that the question raised by the petitioner touching his minority may be raised in the future in a proper case, we have chosen to consider it.

The Act of May 12, 1921, P. L. 548, provided that in all criminal or quasi-criminal prosecutions, etc., in lieu of bail and recognizances with surety or sureties thereon required and approved by the court, the party or parties-required to give and enter said bail or recognizances are hereby authorized and allowed to deposit with the clerk of the respective court in which said prosecution or proceeding is pending the amount in which bail or recognizance is required in current funds of the United States, etc.

On March 19, 1925, the legislature amended section 1 of this act so as to read that the party or parties required to give and enter said bail or recognizances, “or any other person or persons in their behalf,” might make the deposit of cash bail

Under the provisions of the Act of 1921, the defendant was given the privilege of depositing cash in the place of entering a bond, which she would be required to sign as principal and another as surety. Any defendant, or some one acting in her behalf, might, under these acts, deposit cash in the sum required without the execution of a bond or recognizance in the usual form. This legislation provided another method for the temporary release of the prisoner and dispensed with the assumption of a contractual obligation by the defendant as the principal and the “bail” as the suretj.

Section 1 of the Act of 1925 simply allowed others to do what the defendant could not do for herself. The condition of that deposit, whether made by the defendant herself or by some one in her behalf, was that she would appear for trial; failing tó do that, the bail is forfeited to the Commonwealth. The cases cited by the petitioner establishing the invalidity of a minor’s contract have no application here. There was no contract of surety-ship between the Commonwealth and Martin Cohn. Under the law as we view it, the right to deposit cash bail is given only to the defendant. The language of the Act of 1925, providing that others may deposit it in her behalf, does not make the person depositing it in behalf of Dorothy Harris a surety.

There is another reason for refusing this petition. It is a well-settled rule of construction in Pennsylvania that when a statute confers an authority generally, it applies to every one, regardless of disabilities, unless expressly excepted. The words of the statute in question are general in their authority and except no classes, such as infants, married women, etc. The case of Williams v. Ivory, 173 Pa. 536, clearly establishes the proposition here illustrated. The court said: “When, therefore, the act extends its benefits to all persons, it must be held to confer capacity to make the necessary deed of assignment by which alone those benefits can be obtained. It is a perfectly familiar principle that a saving from the operation of statutes for disabilities must be expressed or it does not exist. A law general in its nature binds minors and femmes covert, and there is a multitude of statutes by which the rights of such persons are affected, although they are not specifically named.” See, also, Hunt v. Wall, 75 Pa. 413; Cochran v. Young, 104 Pa. 333; Broe v. Boyle, 108 Pa. 76.

Apart from the reasons already stated, it is not reasonable to suppose that in passing the legislation above referred to the lawmakers intended the cash deposit to be returned to one claiming to be a minor or under some other legal disability, particularly when the bail so deposited defeated the ends of justice in its ultimate effect.

For the reasons above stated, the petitioner should not be granted the relief prayed for.

And now, to wit, July 16, 1928, the petition is refused.


author: Martin, P. J.,

text:
    Jones v. Hudson et al.

      J. K. Nickolls, for plaintiff.

      C. O. Sowers, Gibbons & Whitaker and C. L. Comber, for defendants.
    July 5, 1928.
   Martin, P. J.,

A bill in equity was filed by plaintiff and answers were filed by the defendants.

Two hundred and thirty-seven interrogatories were filed by Jesse B. Hudson, one of the defendants, to be answered by plaintiff. Plaintiff moved to strike off the interrogatories. .

The Rules of Equity Practice adopted and to become effective Jan. 1, 1925, provide, in Rule 60, that “either party to suits in equity may obtain or require the production of evidence by commission, by letters rogatory, by depositions, by proceedings under the Act of Feb. 27, 1798, 3 Sm. Laws, 303, or by any other method recognized at law or in equity, or provided by statute now or hereafter enacted, in the same manner and with the same effect as upon the law side of the court; and either party may use the evidence taken, though it was obtained by his adversary.”

Rule 35 provides: “After a case has been duly commenced, the court, on cause shown, may order the defendant to produce, and permit plaintiff to make a copy of, any books or papers in defendant’s possession or under his control which are necessary to enable plaintiff to properly prepare his bill, or plaintiff may aver, to the best of his knowledge, information and belief, the substance of the books and papers of which he has not a copy, that he has not been able to procure the same, and pray that defendant be required to set forth the same in full in his answer. If, after notice of the order of the court requiring him to produce the books or papers, defendant fails or refuses to comply with it, he shall be liable as in other cases of contempt of court.”

Rule 53 provides: “Under the circumstances appearing in Rule 35, like proceedings may be taken to compel the opposite party to produce books and papers necessary for the proper preparation of answers and replications.”

Counsel for defendant claims the right to issue the interrogatories under Rule 91, which is as follows: “In all cases where these rules do not apply, the practice shall conform, as nearly as may be, to the practice in courts of law in regard to the particular matter; and in all other respects shall be regulated by the practice in equity prescribed by the Supreme Court of the United States, so far as the same may reasonably be applied, consistently with the local circumstances and local convenience of the county where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice;” and Rule 7 of the equity rules adopted by the Supreme Court of Pennsylvania, May 27, 1865, which provided that:

“Specific interrogatories to defendants shall not be included in the bill, but may be filed separately. In like manner, any defendant shall be entitled to file interrogatories to any of the plaintiff’s after he shall have put in his own answer to the bill. In either case, they may be filed at any time before the taking of testimony is begun, and shall be deemed, with the answers, part of the pleadings. By special order on notice, they may be filed after testimony has been taken, and answers required at such time as the court or a law judge may order. ... A copy shall be served on each party required to answer them, or his counsel, and an order of course to answer within ten days after such service, and on neglect to answer any interrogatory and serve a copy of such answer within that time, the plaintiff or defendant, as the case may be, shall be entitled to move for an attachment to compel an answer.”

There is no reference to the Rules of 1865 in the rules adopted May 30, 1924, under which the present proceeding is presented.

The preamble to the rules now in force declares that, “for the purpose of making the practice and procedure in equity conform as nearly as may be to the legislature’s requirements with regard to practice and procedure at law, it is ordered that on and after January 1, 1925, the Rules of Equity Practice in Courts of Equity in the Commonwealth of Pennsylvania shall be as hereinafter set forth.”

There is no mention of the right to file interrogatories.

In view of the extensive remedies afforded all parties to obtain information, including the right to call the opposite party for cross-examination, the discontinuance of the custom of appointing examiners and masters and requiring hearings before the court, it is not unreasonable to assume that interrogatories are no longer to be employed in equity practice in cases where the rules of practice now in force apply.

An examination of the interrogatories filed in this case discloses that they are in substance cross-examination of plaintiff upon averments of the bill; many are apparently irrelevant and should, in justice to plaintiff, be submitted to a competent tribunal to pass upon their competency if an objection is made. As there is ample provision for obtaining any information to which defendant is entitled, and no reason is assigned why the present rules do not apply, the motion to strike off the interrogatories should be allowed.

And now, to wit, July 5, 1928, it is ordered and directed that the interrogatories filed by defendant, Jesse B. Hudson, to be answered by plaintiff, are struck off.


author: Henderson, J.,

text:
    Miller v. West Penn Power Company.

      John Duggan, Jr., for plaintiff.

      E. J. McDaniel and Edward O. Tabor (of Pittsburgh, Pa.), for defendant.
    Sept. 12, 1927.
   Henderson, J.,

The plaintiff sues in assumpsit to recover the sum of $717 as a reasonable compensation for the use of certain electric wires, lines and poles of the defendant company over, across and on his land during a period of three and one-half years prior to the institution of the suit. At the trial, the following stipulation of facts for ease stated was agreed to by the parties and read into the record, viz.:

“And now, Oct. 13, 1926, it is hereby stipulated and agreed by and between the parties to this suit, through their counsel, that this case be submitted to the court upon the following statement of facts, together with testimony as to a reasonable rental for the poles mentioned in the statement, upon which the court shall base its conclusions of law and upon which the court is hereby authorized to enter its judgment, with the right reserved to either party to appeal from the decision of the court:

“On Oct. 20, 1902, by written contract, which is herewith offered and marked and identified as Exhibit ‘A,’ W. H. Graham obtained the grant of a right of way from George A. Hogg for the erection of forty-one electric poles across Hogg’s farm in Bullskin Township, Fayette County, Pennsylvania, for the purpose of conveying electric current for light, heat and power. Said agreement, after reciting that ‘for and in consideration of the payments, covenants and stipulations herein contained to be paid, kept and performed, it is mutually agreed between the parties, their heirs, administrators and assigns,’ recited that Hogg granted the said right of way for poles to Graham, with the right at all times to enter upon the property to keep the poles and lines in repair, and that Graham was to do the following things: (a) Pay to Hogg the sum of $1 upon the execution of the agreement; (b) pay $1.50 for each and every pole erected; (e) furnish electric light for domestic purposes to Hogg, his heirs and assigns, at one-half the rate charged in Connellsville; and (d) agree to pay the construction damages. The contract was signed and sealed by both parties. A receipt, signed by George A. Hogg, dated March 31, 1903, shows that $61 was paid by Graham to Hogg in pursuance of said contract. The electric pole line was erected and the West Penn Power Company, a public service corporation of Pennsylvania, engaged in the manufacture, sale and distribution of electric light, heat and power throughout western Pennsylvania, has used it continuously and openly since 1902 and is the present owner of all the rights which were granted by Hogg to Graham. A. Glenn Miller, the plaintiff here, is the successor in title 1 to Hogg of the land on which said pole line is built. Miller has never used electricity supplied by the power company. Four and a half years ago new poles were erected by the power company to replace the old line, and when that was done Miller demanded electric service from the West Penn Power Company at one-half of the Connellsville rate, on file with the Public Service Commission of Pennsylvania. This electric service was refused to Miller at the said one-half rate because of the passage of the Public Service Company Law of July 26, 1913, P. L. 1374, particularly section 8, article ill of said act, and its supplements. The plaintiff Miller brings this suit against the West Penn Power Company for what he terms ‘a reasonable consideration for the use and enjoyment of his property and for the privilege granted to the power company of maintaining its lines as aforesaid in and upon his property,’ to wit, for $5 per pole per year for a period of three and one-half years. If the court be of opinion that since the passage of the Public Service Act of 1913, hereinabove referred to, that it is unlawful for said defendant company to furnish to plaintiff electric power at a rate other than that prescribed by the tariffs on file with the Public Service Commission, and if the court be of opinion that said contract, hereinabove mentioned, was abrogated by said act, and that said plaintiff is not now entitled to recover anything as a rental for said right of way, .then judgment shall be entered in favor of the defendant non obstante veredicto. But if the court is of opinion that the plaintiff is entitled to a reasonable rental for the right of way and the use of the farm, then judgment shall be entered in favor of the plaintiff for whatever amount the jury shall say is a reasonable compensation for the right of way as herein-above mentioned.”

Testimony was then taken to determine the fair rental value of each pole on the property of plaintiff per year, and as to that fact the jury found the sum of $2.50 per pole per year to be a fair rental value, thus completing the statement of facts upon which we are asked to determine the right of the plaintiff to recover, and if entitled to recover, the amount. The defendant denies any liability to plaintiff under the law applicable to this statement of facts.

It is conceded by the plaintiff that the defendant company was clearly within its rights in refusing to furnish the plaintiff service under the agreement entered into in 1902 at one-half the rate charged in the City of Connellsville: Section 8, article III of the Public Service Company Law. The plaintiff also concedes the power of the State to enact such law. The question before the court may be stated thus: Is a defendant in possession of a right of way over plaintiff’s land by virtue of a contract, lawful when made, which provided, inter alia, for furnishing service to plaintiff at a reduced rate, in consideration of said right of way, liable for a reasonable rental to plaintiff for said right of way after the State by appropriate legislation has made it unlawful for the defendant to furnish plaintiff service at the rate set forth in the agreement? The plaintiff contends that the defendant is liable for a reasonable rental for the use of his land since he cannot have the electric current at the reduced rate, and that to deny him a reasonable rental therefor amounts to a confiscation of a part of his property, in that it permits the defendant to use his property without paying the full compensation agreed upon for the use of the land. We are of the opinion that this contention is unsound. For the grant of the right of way the grantor received the sum of $1 upon the execution of the agreement, $1.50 for each of the forty-one poles, or $61 in all, and the payment of damages caused by the construction and operation of the poles and line; the other part of the consideration — electricity at a reduced rate — was not furnished, as being in violation of the Public Service Company Law. This portion of the contract, by the enactment of the Public Service Company Law, was rendered null and void: Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467; V. & S. Bottle Manuf. Co. v. The Gas Co., 261 Pa. 523; Leiper v. B. & O. R. R. Co., 262 Pa. 328.

At the time the contract was entered into, it was valid and enforceable in all its parts, as in the case of Schaper v. Cleveland & Erie Ry. Co., 265 Pa. 109, which was a bill in equity to enforce performance of a written contract to sell roúnd-trip tickets and books of tickets at certain rates, where the Supreme Court, affirming a decree dismissing the bill, said: “The contract which the appellant would enforce was valid when made, but the parties entered into it subject to the power of the State to change the rates in the future in the exercise of its governmental authority.” And so, in this case, the parties contracted subject to the power of the State to change the- rates in the future “in the exercise of its governmental authority.” The answer to the question now before the court is found in the case of Subux'ban Water Co. v. Oakmont Borough, 268 Pa. 243, where, in an opinion by Mr. Justice Kephart, the court said:

“All public service contracts are viewed in the light of haviixg been made with an implied provision that the rate named therein is subject to change according to law so as to keep it reasonable and nondiscriminatory at all times, Pinney & Boyle Co. v. Los Angeles Gas & Elec. Co. (Cal.), L. R. A. 1915-C, 282, 287, where it is stated that ‘it will be conclusively presumed that the parties contracted in contemplation of the power of the proper board or tribunal to fix the rate in every case where such power exists and may have been thereafter legally exercised,’ citing Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, 34 L. R. A. (N. S.) 671; Seattle v. Hurst, 50 Wash. 424, 18 L. R. A. (N. S.) 168; Portland R. Light & P. Co. v. Railroad Commission, 56 Ore. 468; Knoxville Water Co. v. Knoxville, 189 U. S. 434; Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., 111 N. Y. 132, 2 L. R. A. 384. All the remaining provisions of the contract remain in full force as against the parties thereto: State v. Tampa Water Works Co., 56 Fla. 858, 874, 19 L. R. A. (N. S.) 183, 189, 190. Invalidity in part does not make the whole contract invalid, Winsor v. Com. Coal Co., 63 Wash. 62, 33 L. R. A. (N. S.) 63; Packard v. Byrd, 73 S. C. 1, 6 L. R. A. (N. S.) 547; Central N. Y. T. & T. Co. v. Averill, 199 N. Y. 128, 32 L. R. A. (N. S.) 494; the same rule was applied to a bill of lading where a part of it became invalid by operation of law, Whitnack v. C., B. & Q. Ry. Co., 82 Neb. 464, 19 L. R. A. (N. S.) 1011; and where passes have been declared illegal, the carrier which had agreed to give them in consideration of the granting of the right of way was permitted to retain the fruits of the contract, Cowley v. N. P. Ry. Co., 68 Wash. 558, 41 L. R. A. (N. S.) 559; the same rule was applied to a contract with a gas company: Birmingham, etc., Co. v. R. C. Pratt (Ala.), L. R. A., 1915-A, 1208.

“The-reason for this rule is simple, as shown by the many cases which hold that the change of a rate fixed by contract for the performance of service by a public utility company does not impair the obligation of the contract under the Constitution of the United States, and, if it did, the change would be unlawful: Pinney & Boyle Co. v. Los Angeles Gas & Elec. Co. (Cal.), L. R. A., 1915-C, 282, 287; Knoxville Water Co. v. Knoxville, 189 U. S. 434; New Orleans v. New Orleans Water Works Co., 142 U. S. 79; Wyandotte County Gas Co. v. Kansas, 231 U. S. 622; Benwood v. Public Service Comm., (W. Va.), L. R. A. 1915-C, 261, 273; Browne v. Turner, 176 Mass. 9; Union Dry Goods Co. v. Georgia Public Service Corp., 83 S. E. Repr. 946, 248 U. S. 372; Portland R. L. & P. Co. v. Portland, 200 Fed. Repr. 890; Bullard v. Northern Pacific Ry. Co., 10 Mont. 168; Southern Wire Co. v. St. Louis Bridge and Tunnel R. R. Co., 38 Mo. App. 191; Fitzgerald v. Grand Trunk R. R. Co., 63 Vt. 169; and see Foltz v. Public Service Comm., 73 Pa. Superior Ct. 24. The contract is simply modified or reformed so as to include for the time being the new rate fixed by law. The power to reform contracts of this kind was granted under the Act of 1874, giving- the courts jurisdiction over rates: Turtle Creek Borough v. Penna. Water Co., 243 Pa. 401, 408; and see a learned discussion of the effect of the Turtle Creek case in S. P. Ry. Co. v. S. V. Water Co., L. R. A., 1917-E, 680, 684.

“Our own cases and those from other jurisdictions throughout the United States hold the change in rates, so as to make them reasonable and nondiscriminatory, is not an impairment of the obligation of a contract to be performed by a public utility company. It is beyond the power of the contracting parties to fix the rates permanently, and the contract remains in full force and effect, binding on both parties as long as the obligation is unimpaired. See opinion of Chief Justice Brown, Scranton v. Public Service Comm., 268 Pa. 192, for a discussion of the theory upon which this principle rests.”

Further, from the testimony taken in the ease, it appears that the plaintiff became the owner of the farm over which the poles and line in question were erected about ten years after the Public Service Law was enacted and about twenty years after the original contract for the grant was executed. He, therefore, took the farm knowing that this particular feature of the contract was null and void. We, therefore, conclude that the plaintiff in this proceeding is not entitled to recover anything as a reasonable compensation for the use of his ground in lieu of the right to have electricity at the reduced rate, and, hence, judgment should be entered for the defendant.

Now, Sept. 12, 1927, upon and after due consideration, it is ordered that judgment be entered in favor of the defendant.

From Luke H. Frasher, Uniontown, Pa.


author: Moyek, Dep. Att’y-Gen.,

text:
    Transfer of Building and Loan Association Stock in Name of Decedent.
    May 2, 1928.
   Moyek, Dep. Att’y-Gen.,

You have advised this department that in a letter of Hon. George W. Woodruff, former Attorney-General, dated March 27, 1925, addressed to Hon. S. S. Lewis, then Auditor General, it was held by the Attorney-General that where the practice of a building and loan association is to require the executor or administrator of a decedent’s estate to transfer (or “retransfer,” as the term is used by some associations) to the association the certificates of stock, which were standing in the name of such decedent, for the purpose of cancellation before paying to the estate the amount due on said stock, sections 35 and 36 of the Act of June 20, 1919, P. L. 521, prohibit such transfer of stock to be made until the tax due the Commonwealth has been paid and a waiver or consent by you, as Auditor General, presented to the building and loan association, unless you consent thereto in writing prior to such payment. You now inquire whether, in the case where the practice of a building and loan association is to permit the cancellation or withdrawal of its stock without a formal transfer thereof to it, the executor or administrator of a deceased stockholder must likewise obtain from you, as Auditor General, a consent or waiver in writing and present the same to the association before allowing such stock to be withdrawn or canceled.

Section 35 of the Act of June 20, 1919, P. L. 521, provides, inter alia, as follows: “No executor, administrator or trustee of any decedent, resident or non-resident, shall assign or transfer any stock of any corporation of this Commonwealth . . . standing in the name of such decedent, . . . subject to the tax hereinbefore imposed, until such tax has been paid, unless the Auditor General consents to such transfer prior to such payment in manner hereinafter provided.”

Section 36 of said act provides, inter alia, as follows: “No corporation of this Commonwealth . . . shall transfer any stock of such corporation . . . standing in the name of a decedent, whether resident or non-resident, .... unless the Auditor General has filed with said corporation ... a certificate that the tax imposed by this act on the transfer of such stock has been fully paid, or otherwise consents thereto in writing. . . .”

I have read a copy of the letter of former Attorney-General Woodruff, referred to by you. I am in accord with the determination of the former Attorney-General that where the practice of a building and loan association requires the actual transfer to it by the executor or administrator of a decedent of stock standing in the name of the decedent, for the purpose of cancellation before paying to the estate the amount due on said stock, under the express terms of sections 35 and 36 of the Act of June 20, 1919, P. L. 521, such transfer or assignment of the stock of the building and loan association cannot be made until such tax has been paid, unless the Auditor General consents in writing to such transfer prior to such payment.

Under the question as you have propounded it in your letter, a different practice is followed by the building and loan association. The association allows the cancellation or withdrawal of its stock without a formal transfer thereof to it. The executor or administrator presents to the association the certificates of stock standing in the name of the decedent; the association pays to the representative of the estate the withdrawal value of said stock; requires said representative to sign a receipt, the form of which is usually printed on the back of the certificate, showing receipt of payment of the amount due on said certificate or certificates of stock, which are thereupon surrendered to said association and the executor or administrator makes acknowledgment in said receipt that said stock is surrendered to the association. This practice, followed by most building and loan associations, is in pursuance to the provisions of section 37 of the Act qf April 29, 1874, P. L. 73, which provides that any stockholder of a building and loan association “wishing to withdraw from said corporation shall have power to do so by giving thirty days’ notice of his or her intention to withdraw, when he or she shall be entitled to receive the amount paid in by him or her, less all fines and other charges; . . . upon the death of a stockholder, his or her legal representatives shall be entitled to receive the full amount paid in by him or her and legal interest thereon, first deducting all charges that may be due on the stock; no fines shall be charged to a deceased member’s account from and after his or her decease, unless his legal representatives of such decedent assume the future payments on the stock.” Under this provision, the legal representatives of a decedent are authorized to withdraw the stock of a building and loan association, in the name of such decedent and receive the withdrawal value thereof.

Several provisions of the Act of April 10, 1879, P. L. 16, also have to do with the withdrawal and cancellation of the shares of stock of building and loan associations. We deem it unnecessary, however, to discuss these provisions here.

It appears from the provisions of said Acts of 1874 and 1879 that the holders of the stock of building and loan associations, unlike the holders of stock of other corporations, have the right to receive from the association the withdrawal value of their stock without a sale and formal assignment and transfer thereof. His Honor Judge Fox, writing the opinion of the Dauphin County court in the case of Handler v. Harrisburg Mutual Loan Ass’n, just recently reported in the advance sheets of the Dauphin County Reports, volume 31, page 246, said (page 247) : “. . . If it is operating as a building and loan association, members under certain conditions as provided by the statute may withdraw their stock and receive money therefor. This is a power and privilege peculiar to building and loan associations and their members, but to no other corporation of our State.”

The withdrawal of stock from a building and loan association and the receipt of the withdrawal value thereof is not an assignment or transfer of said stock within the meaning of the provisions of sections 35 and 36 of the Act of June 20, 1919, P. L. 521.

You are, therefore, advised that in the case where a building and loan association permits the withdrawal or cancellation of its stock standing in the name of a decedent, without a formal transfer thereof to it, the executor or administrator of a deceased stockholder need not obtain the Auditor General’s consent to such withdrawal prior to the payment of transfer inheritance tax to which said estate may be subject.

Prom C. P. Addams, Harrisburg’, Pa.


author: O’Hara, Dep. Att’y-Gen.,

text:
    Annexation of Townships to Third Class Cities.
    Jan. 24, 1928.
   O’Hara, Dep. Att’y-Gen.,

We acknowledge receipt of the request of the State Council of Education to be advised on the following question: In proceedings for annexation of part of a township to a third class city, is the approval of the State Council of Education a prerequisite to a decree of annexation?

The Act of April 28, 1903, P. L. 332, is an act “for the annexation of any city, borough, township, or part of a township, to a contiguous city, and providing for the indebtedness of the same.”

The Act of July 11, 1923, P. L. 1047, is an act “providing a method of annexation of boroughs, townships, or parts of townships, to cities of the third class; regulating the proceedings pertaining thereto; and repealing inconsistent legislation.”

Section 10 of that act expressly repeals, so far as it relates to annexations to third class cities, the Act of April 28, 1903, P. L. 332, supra.

The Act of May 31, 1923, P. L. 473, is an act “authorizing the annexation to cities of the second class of portions of townships not exceeding one hundred acres in area and totally surrounded by said cities; and providing for the division of the assets and liabilities of said townships,” and by section 4 of that act, all acts and portions of acts conflicting with the provisions of this act are repealed.

The Act of April 7, 1927, P. L. 161, is an act “to amend section five of the act, approved the twenty-eighth day of April, one thousand nine hundred and three (Pamphlet Laws, three hundred and thirty-two), entitled ‘An act for the annexation of any city, borough, township, or part of a township, to a contiguous city, and providing for the indebtedness of the same,’ by requiring' approval by the State Council of Education as a prerequisite to the annexation of part of a township to a contiguous city.”

The title of the Act of 1927, P. L. 161, supra,, gives no notice of an intention to amend the Act of 1923, P. L. 1047, supra,, and only undertakes to amend section 5 of the Act of 1903.

The Act of 1903, supra, is not in effect as to third class cities, and it follows that no amendment thereof or supplement thereto can affect proceedings for annexation to cities of the third class. If it were the legislative intention to affect proceedings for annexation to cities of the third class, notice to that effect would have to be given in the title to the Act of 1927.

Article hi, section 3, of the Constitution provides: “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.”

The Act of May 31, 1923, P. L. 473,-supra, also provides a new procedure for the annexation by cities of the second class of portions of a township not exceeding 100 acres in area and which are totally surrounded by said city, and no reference is made in the Act of 1927, P. L. 161, supra.

We are of opinion, and so advise, that the consent of the State Council of Education is not a prerequisite to a decree for annexation to cities of the third class, and is not necessary where cities of the second class annex by ordinance portions of townships not exceeding 100 acres in area and totally surrounded by the annexing city. Prom C. P. Addams, Harrisburg, Pa.