author: Newcomb, P. J.,

text:
    McHugh et al., to use, v. James, County Treasurer.

      County funds — Interest—Fees and commissions on moneys due Commonwealth — Right of county treasurer to retain.

    1. The salary of a treasurer of a county of the third class is fixed by statute in accordance -with article xiv, section 5, of the Constitution, and the only compensation he can lay claim to for his services as such is the salary appointed by law, which, for constitutional reasons, cannot be increased during his term of office.
    2. The interest allowed by banks upon county funds deposited with them belongs to the county, not to the county treasurer, and if he had contracted for interest to be paid to himself, he would have been guilty of a misdemeanor.
    3. Nothing short of express designation of a county treasurer as an agent for the State pro Jiac viae would make it lawful tor him to receive any compensation for services in connection with the issuing of licenses, and any fees which he receives for such services, in the absence of unequivocal legislative authority, belong and are payable to the county.
    Taxpayers’ appeal from report of county controller. C. P. Lackawanna Co., March T., 1925, No. 169.

      O’Brien & Kelly, G. W. Ellis and II. L. Taylor, for plaintiffs.

      Knapp, O’Malley, Hill & Harris, for defendant.
    May 16, 1927.
   Newcomb, P. J.,

By formal pleadings the parties put the case at issue, whereupon, by paper filed, trial by jury was waived and the cause submitted for decision by the court, as provided by the Act of April 22, 1874, P. L. 109, and its supplements.

From the pleadings, evidence and arguments of counsel the following are stated as the undisputed

Facts.

1. For a term of four years expiring on the first Monday of January, 1926, defendant had served as the duly qualified and commissioned treasurer of this county. The issue is on the question of his liability to account for certain moneys — hereinafter .specified — which came to his hands by virtue of the exercise of his official functions during the third year of his term, to wit, the fiscal year of 1924.

'2. During all the time in question the county had been one of the third class, as defined by the Act of July 10, 1919, P. L. 887. Defendant was, therefore, “paid by salary” for his services as treasurer, as provided by statute in accordance with article XIV, section 5, of the Constitution.

3. During the year in question certain interest moneys came to his hands which had accrued on the sinking fund. This he accounted for. In addition to that, he received the sum of $5023.93 for interest on the general county funds. For this he did not account, nor was it charged to him by the controller. Hence, it is the subject-matter of one of the two claims for which surcharge is now sought. The other claim is for $4619.35, his receipts during that year in fees and commissions on moneys due the Commonwealth for various licenses issued by him. This fund he also retained unchallenged by either controller or commissioners.

4. The general funds of the county had been kept by defendant on deposit in thirty-six different banks, located in fifteen different munieipalitie"s. In each instance the deposit stood to his credit as a public official. Instead of crediting the interest to the account as it fell due, the banks remitted monthly by checks, in like form, to the order of “David James, County Treasurer.” The proceeds amounting to the figure first above mentioned went to his personal account; it has been retained ever since, and that is the interest money now in question.

5.The license fees and commissions at stake may be itemized as follows:

Dog Licenses $617.20
Hunting “ 1261.80
Fishing “ 1661.10
Mercantile (wholesale). 68.50
Mercantile (retail). 819.75
Billiard and pool ‘‘ 63.00
Brokers’ “ 98.00
Amusement “ 9.25
Restaurant “ 20.75
Total.$4619.35

6. Aside from a sweeping assertion of unbroken usage, defendant professes to justify his appropriation of the interest because it had been remitted to him directly by the banks without ever having been incorporated in his official deposit account.

7. For his right to the license fees and commissions he pleads statutory authority. The statutes invoked are respectively the following:

Dog licenses, May 11, 1921, P. L. 522; hunting licenses, May 24, 1923, P. L. 359; fishing licenses, May 16, 1921, P. L. 559, and July 8, 1919, P. L. 778; mercantile licenses, May 2, 1899, P. L. 184; billiard and pool licenses, May 25, 1907, P. L. 244; brokers’ licenses, May 7, 1907, P. L. 175; amusement licenses, May 20, 1913, P. L. 229; restaurant licenses, April 25, 1907, P. L. 117.

8. Defendant’s position seems to have had at least the tacit support of the controller and the commissioners. The latter officials are parties to the proceeding now only in a perfunctory way, because they were made so by process at the instance of the private citizens who took the appeal.

The facts are believed to warrant the following

Conclusions of law.

1. The interest money in question was the product of the public funds, to which it belonged as an increment. Defendant could not lawfully turn it to his own personal profit by the means adopted to keep it out of his official deposit account, nor by any other expedient whatsoever.

2. The only compensation to which he can lay claim for his services as county treasurer is the salary appointed by law. All and singular the fees and commissions which he collected by virtue of his functions in that official capacity must be deemed to have been collected for the use of the county.

3. To take any class of these collections out of that category, defendant has the burden of proof. The requirement can be met and satisfied only so far as he shows by unequivocal legislative authority that he made collection, not in his capacity as treasurer, but as the duly appointed agent of the Commonwealth, and that the fees and commissions had been distinctly awarded to him in consideration of such agency.

4. This he does in case of the item for hunting licenses, being the sum of $1261.80, the second item in the schedule set forth in the fifth conclusion of fact. His right to this item of fees is conferred by express legislative authority, to wit, by Act of May 24, 1923, art. iii, 309, P. L. 359, 367.

5. As to the other items of similar character scheduled in that conclusion, there was no such authority during the year in question. Eliminating the collection on hunting licenses, plaintiffs’ claim on that branch stands reduced from $4619.35 to $3357.55.

6. The issue is with plaintiffs, and the defendant must be held accountable for both the interest in question and the fees and commissions collected by virtue of his office as treasurer, to.wit: Interest, $5023.93; fees, etc., $3357.55. Total for 1924, $8381.41.

This should have been turned over by him at the end of that fiscal year. The county is, therefore, entitled to recover the same, with interest from Jan. 5, 1925.

Opinion.

Defendant’s duty to account can be enforced only through the annual settlement at the hands of the controller, who is the auditing officer. That audit being once filed becomes conclusive at the end of ninety days, unless appealed from in the meantime. The margin for an appeal by the taxpayers is limited to thirty days after the expiration of the first sixty days allowed to the commissioners for that purpose. One-half of defendant’s term went by without question. The third year would have gone the same way but for the intervention of private citizens. The nature of the defence taken would seem to warrant the inference that defendant is now claiming only that which he had theretofore been accustomed to retain without objection. It is quite useless to speculate on the subject; but it would be interesting — to say the least— to know why the other fiscal officers sanctioned such practice, especially in view of the fact that, so far as concerns the interest money, it had become a matter of common knowledge that their predecessors in office, together with the treasurer then in commission, had been at pains to have the question definitely settled by judgment of the highest court in the State in a case— hereinafter cited — which went up from this county for that specific purpose.

Neither the present commissioners nor controller has seen fit to take issue with defendant, who made answer that he is under no “legal nor moral liability” to account for the interest, as it belonged of right to him, first, because the banks had paid it to him by check, as above stated; and, second, because of a prescriptive right arising from usage.

On the score of “morals,” it may not be impertinent to keep in mind the terms of his‘official oath. He qualified at the start by solemnly swearing, among other things, as follows: “I will not knowingly receive, directly or indirectly, any money or other valuable thing for the performance or nonperformance of any act or duty pertaining to my office other than the compensation allowed by law.”

The compensation so allowed was a specific salary, which, for constitutional reasons, could not be increased during his term.

His counsel makes an attempt to justify his appropriation of the interest. He lays stress on the circumstance that the cases heretofore decided have had to do with interest which had been credited by the banks to the treasurer’s deposit account. Hence, he says, the interest here never became a part of the county funds.

Notwithstanding the high esteem in which counsel’s professional opinion is justly held, it is impossible to seriously entertain this proposition. Indeed, in the report of the case above referred to, which originated in this county, no such distinguishing fact appears. If present, it was disregarded. The essential point at issue was not that of the particular form of profiteering by the treasurer, but that of the subject-matter, which was interest money earned by the public funds. That is what was passed upon without waste of words, but in terms which afford no encouragement to the supposition in mind of counsel. What was there concisely said reflected a consciousness of the fact that there can only be one code of right and wrong. If it were right for defendant to take this interest money, he need resort to no indirection to get it. If not right, he could not make it so by a device to keep it out of the deposit account or by any other form of dissembling.

The banks were careful not to disguise the source of the funds which went to him by check. These were all to his order as “County Treasurer.”

This serves to bring into view, perhaps, the most sinister feature of the case. It deals, not with a single bank or a single payment, but with monthly checks from thirty-six banks scattered throughout the length and breadth of the county. It is inconceivable that it could have so happened spontaneously. Coincidence to that extent overtaxes one’s credulity. It can only be accounted for on the ground of a mutual arrangement between defendant and the banks.

That brings him face to face with the Penal Code, as stated in the like case of Lackawanna County v. Duffy, 248 Pa. 575. It was there said: “The funds upon which interest was allowed by the several banks did not belong to the appellant, and he could make no profit out of them. If he had contracted for interest to be paid to him, he would have been guilty of a misdemeanor: Act of March 31, 1860, § 63, P. L. 382. What he could not have done directly, public policy will not permit him to do indirectly.”

That is the law of this case, so far as concerns the interest money now in question. On the other branch little need be said.

The statutes invoked by defendant as authority for retaining the fees collected on mercantile, billiard and pool, brokers’, amusement and. restaurant licenses have already been passed upon adversely to his contention: Bachman’s Appeal, 274 Pa. 420. The same reasoning is applicable to defendant’s claim under Acts of May 11, 1921 (dog licenses), of May 16, same year, and of July 8, 1919 (fishing licenses). They are ineffective for defendant’s purpose, because they do not confer upon him the status of an agent for the Commonwealth. This is well illustrated in case of the Act of May 11, 1921, § 3, P. L. 522, which says: “The applicant shall also pay an additional fee of ten cents for the services of the county treasurer in issuing, recording and reporting said license to the Secretary of Agriculture and remitting fees and fines to the State Treasurer.”

If it be assumed that the intention was to give this fee to the treasurer for his own use, then pro tanto the act would fall under the ban of the Constitution. That section can only be sustained on the interpretation that would make the fee collectible for the use of the county.

The Fishing License Acts, whether of 1919 or of 1921, are subject to the same interpretation. Says the Act of May 16, 1921, 8, P. L. 559: “A county treasurer may collect for his own use for services rendered under this act the sum of ten cents to be paid by the applicant for a license,” etc. This, no doubt, had superseded the 1919 Act. Whether so or not, it would be of no advantage to defendant. The corresponding provision of the earlier act was section 9, and it is substantially in the same terms as section 8 of its successor of 1921. The legislature could give him nothing that would serve to increase his compensation for services as treasurer. That remains true even though it puts additional duties upon him. Nothing short of his express designation as an agent for the State pro hao vice would make it lawful for him to receive any compensation for services in connection with the issuing of any of these licenses.

Judgment.

The foregoing formal conclusions will be filed by the prothonotary, and at the expiration of thirty days after notice to the parties or their respective attorneys judgment to be entered against defendant in favor of plaintiff in the sum of $9654.88, unless exception shall have been taken in the meantime see. leg.

From John G. McAskie, Scranton, Pa.


source: Caselaw Access Project

author: Stock, J.,

license: Public Domain

text:
    Heiner v. Heiner.

      Affidavit of defense — Sufficiency of.

    1. An affidavit of defense is sufficient if it sets forth facts showing a substantial prima faoie defense.
    2. An affidavit of defense is not to be subjected to close technical examination as if it were a special plea demurred to.
    Motion for want of a sufficient affidavit of defense. C. P. York Co., April T., 1927, No. 11.

      W. W. VanBaman, for plaintiff and motion; M. S. Niles, contra.
    May 31, 1927.
   Stock, J.,

Plaintiff’s statement contains two causes of action. First, he claims to recover $300 which he alleges to have paid a third person on account of the consideration mentioned in an agreement to purchase real estate from said third person, which sum of money he alleges was subsequently appropriated by the defendant, his wife, and applied by her on account of the purchase price of the same real estate under a different agreement entered into subsequently between defendant and the same third person, which agreement was afterwards assigned by said third person to another.

Certain material allegations of this statement of cause of action are denied by the defendant in her affidavit of defense, and she further alleges: First, that plaintiff and defendant, as husband and wife, jointly entered into the original agreement as joint purchasers; secondly, plaintiff and defendant jointly paid the sum of $300 on account of the consideration of said agreement; and, thirdly, that the original agreement was rescinded owing to the mental illness of plaintiff and his inability to comply with his part of the agreement; and, fourthly, that the $300 paid on account of the original contract was mostly paid by defendant; and, lastly, that any equity plaintiff had had in the property by reason of payments made on account of said agreement had been lost by forfeiture for failure to comply with other terms of said agreement, which provided for stated instalment payments. This defense presents a clear issue of fact for determination by the trial court: First, as to who were the parties to the original contract; and, secondly, the respective rights of these parties under that contract.

The second cause of action is that the defendant sold an automobile belonging to plaintiff for the sum of $160, and appropriated said money to her own use. Defendant alleges that plaintiff did not own said automobile, and, hence, is not entitled to the proceeds of sale. Here again is a clear issue of fact for determination.

An affidavit of defense is sufficient if it sets forth facts showing a substantial prima facie defense. This was done in the instant case. The purpose of the pleadings in a case is to define the issue or issues to be determined by the trial court. This has been done sufficiently clearly. An affidavit of defense is not to be subjected to close technical examination as if it was a special plea demurred to.

And now, to wit, May 31,1927, the motion for judgment for want of a sufficient affidavit of defense is overruled and dismissed.

From Richard E. Cochran, York, Pa.


author: Landis, P. J.,

text:
    Lancaster County v. Young Women’s Christian Ass’n.

      Taxation — Exemption — Y. W. C. A. recreation camp — Constitution, art. ix, sect. 1 — Act of April 9, 1921, P. L. 119.

    1. Where a country farm property was conveyed to the trustees of a Young Women’s Christian Association, to he used in connection with their town plant as a summer home or camp for recreation, and is so used for members pf the association and also for guests and visitors, who are charged for meals and lodging, such charges and the produce of the land cultivated going for maintenance, and any deficit being paid by the association, the property is not a necessary adjunct to the association and is not exempt from taxation.
    2. Only property that is used directly for the purposes and iri the operation of a charity is exempt from taxation.
    Case stated. C. P. Lancaster Co., Feb. T., 1927, No. 86.

      J. Andrew Frantz, for plaintiff; Charles L. Miller, for defendant.
    April 16, 1927.
   Landis, P. J.,

On May 29, 1925, Mary S. Kepler conveyed to William F. Lebzelter, James Shand, John N. Hetrick, Charles A. Sauber, Walter A. Heinitsh, Charles L. Miller, G. Ross Eshleman, William W. Heidel-bangh, H. W. Prentis, Jr., Dwight L. Armstrong, Mary S. Kepler, Eva R. Appel and Helen S. Hartman, trustees of the Young Women’s Christian Association of Lancaster, Pennsylvania, a tract of land situated partly in Martic Township and partly in Conestoga Township, in the County of Lancaster, containing 106 acres and 141 perches, more or less. The conveyance was made subject to the following provision, to wit: “Subject, also, to the following restrictions and reservations: (1) The property hereby conveyed shall be used and maintained by grantees and their successors as a summer home or camp for the members of the Y. W. C. A. of Lancaster, Pa., and others, under rules and regulations from time to time adopted by the board of directors and boards of trustees of said association; and if at any time said property or any part thereof shall be sold, the net proceeds therefrom shall be held and used by grantees and their successors for a similar summer home or camp; but the purchasers shall not be accountable for the use of the proceeds of such sale or sales, grantees having full power and authority to sell and convey said property or any part or parts thereof in the exercise of their best judgment to accomplish the purposes of this deed of gift. (2) The rules and regulations for the use and conduct of said property from time to time adopted by the boards aforesaid shall at all times during the life of grantor be subject to her approval.”

How many acres of this tract are located in Martic Township is not definitely set forth in the case stated; but of the land there situated, it is said forty-one acres are woodland, twenty acres are farmland and six acres and twenty-one perches surround the residence. There has been assessed upon the said land in Martic Township the sum of $22.50, and the tax collector of that township has demanded payment of the same. The defendants have refused to pay, on the ground that the organization is a public charity and exempt from taxation. This is the proposition which now comes before us for decision.

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

The Act of April 9, 1921, P. L. 119, provides “that all churches, meetinghouses or other regular places of stated worship, with the ground thereto annexed necessary for the occupancy and enjoyment of the same, all burial-grounds not used or held for private or corporate profit, all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by the public or private charity: Provided, that the entire revenue derived by the same be applied to the support of, and to increase the efficiency and facilities thereof, the repair and the necessary increase of grounds and buildings thereof, and for» no other purpose; and all school-houses belonging to any county, borough or school district, all court-houses, jails, poorhouses and all other public property used for public purposes, with the ground thereto annexed and necessary for the occupancy and enjoyment of the same, be, and the same are hereby, exempted from all and every county, city, borough, township, bounty, road, school and poor tax; provided, that all property, real or personal, other than that which is in actual use and occupation for the purposes aforesaid, and from which any income or revenue is derived, shall be subject to taxation, except where exempted by law, for State purposes, and nothing herein contained shall exempt same therefrom; and provided, that all property, real and personal, in actual use and occupation for the purposes aforesaid, shall be subject to taxation, unless the person or persons, association or corporation, so using and occupying the same, shall be seized of the legal or equitable title in the realty and possessor of the personal property absolutely.”

It is agreed that the mansion-house and barn have been remodeled so as to convert the same into suitable buildings for a girls’ camp and lodge and recreation buildings. Since the conveyance of the property, it has been maintained and operated as a recreation camp for women and girls. Guests and visitors at the property are charged for their meals and lodging, .and the proceeds go towards the maintenance thereof. No distinction is made as to race or creed. It is stated that the deficit comes out of the treasury of the defendants ; but how much of a deficit there is, or whether there is any actual deficit, is not stated. This general allegation, therefore, can in no wise affect the present question. It is said that twenty acres of land are under cultivation, and that the woods and other grounds are used for outdoor camping, hikes, games and other recreational purposes; that the lumber is used to heat the lodge; that vegetables, fruits and other produce raised on the property are used in feeding the guests and visitors at the lodge, and the crops from the tilled land are fed to the horses used and necessary for the operation of the camp, save a small amount, which is sold and the proceeds used for the support of the camp; and that the entire revenue has been applied to the support of the lodge and camp, to its necessary repairs and to increase the efficiency and facilities thereof, and for no other purpose.

In Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, it was decided that the Women’s Christian Association of Philadelphia was an organization within the meaning of the Constitution and the Act of May 14, 1874, P. L. 158, and, as such, its buildings and grounds were not taxable, and that its character as such charity was not destroyed if to some extent it received a revenue from the recipients of its bounty. While there is some divergence in the authorities on this subject, this case, as far as this organization is concerned, may be said to be the law of the State. Under it, the buildings and grounds of the Young Women’s Christian Association of Lancaster are exempt from taxation, and such has been the view of the local authorities, for they have never subjected them to taxation. However, in White v. Smith, 189 Pa. 222, it is said: “No hard and fast rule adapted to the varying facts of the different cases could at once be confidently laid down. . . . One thing was clear at the start, no matter what was the legislative language, the exemption could not extend to any property not a ‘purely public charity.’ ” In this case, the court also said: “We will not open the road further in that direction, because both the Constitution and the statute obstruct it; and it is immaterial whether the courts break through or go around this obstruction; the end is the same.”

The present proposition is entirely different. The land and the buildings sought to be exempted are widely separated from those of the parent organization. They are not used in any respect in the same way. They may be for the improvement of those who use them in a physical and social way, but not only members of the organization but others who are permitted to do so and pay the price demanded may use these lands and partake of the advantage offered. The rules and regulations, however, which govern them must first have the donor’s approval as long as she lives.

Generally speaking, all land is subject to taxation, and an exception must be clearly established. In Pocono Pines Assembly v. Monroe County, 29 Pa. Superior Ct. 36, Rice, P. J., delivering the opinion of the court, said: “The Constitution does not, of itself, exempt any property from taxation; it merely authorizes the legislature by general laws to exempt, inter alia, ‘institutions of purely public charity:’ Donohugh’s Appeal, 86 Pa. 306. Amongst the subjects of exemption specified in the Act of May 14, 1874, P. L. 158, are ‘associations or institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity.’ We entertain no doubt that an association or institution founded, endowed and maintained for the object set forth in the appellee’s charter, and that exclusively, is an association or institution of learning within the meaning of the act. But when an association or institution seeks exemption, it must be in fact a purely public charity; it is not sufficient that the object of the association as set forth in its charter is to establish and maintain such an institution. If it ceases to be that on which it depends for exempton, the property at once becomes subject to taxation:” White v. Smith, supra. In Church of Our Saviour v. Montgomery County, 10 W. N. C. 170, it was decided that “a parsonage, although erected on the church lot, was not exempt from taxation;” and in Thiel College v. Mercer County, 101 Pa. 530, that college buildings, under the. facts of that case, were not exempt. In Pennsylvania Hospital v. Delaware County, 169 Pa. 305, it was held that “property which is not used directly for the purposes and in the operation of a charity, but for profit,'is not exempt from taxation; and the devotion of the profit to the support of the charity will not alter this rule;” but where the farms, in actual operation as such, with livestock and the various crops, are part of the attraction and usefulness for curative purposes of the hospital, that property which is used directly for the purposes and in the operation of the charity is exempt, though it may also be used in a manner to yield some return and thereby reduce the expense.

The Young Women’s Christian Association of Lancaster is a corporation of the first class. Its buildings are located in the City of Lancaster. Its purpose, as defined by its charter, is: “Improving the physical, social, intellectual and spiritual condition of young women.” It falls under that class of cases which the Constitution designates as “institutions of purely public charity,” and is embraced within the provision of the Act of 1921 which covers “institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by the public or private charity.”

In Elmwood Home v. Smith, 45 Pa. C. C. Reps. 659, it was held that “while an incorporated home for the maintenance of delinquent children, supported by public and private contributions, is generally exempt from taxation, it is not so on a portion of a farm owned by it and cultivated, not necessary for the occupancy and enjoyment of the buildings in which the children live.” In Sisters of the Blessed Sacrament, 38 Pa. Superior Ct. 640, it was held that “a charitable corporation, organized to promote the education of Indian and Negro children and to train teachers for that service, is subject to taxation for land owned by it and used solely for tillage and pasturage in order to provide food for the inmates of the institution, if it appears that the endowment of the corporation is such that the food supplied by the farm could be procured from other sources of income.” In Mercersburg College v. Poffenberger, 36 Pa. Superior Ct. 100, it was decided that “if the surplus income of a school over cost of maintenance is derived from payments made by students, the institution cannot be said to be maintained by public or private charity, even though the surplus be used to enlarge the institution by the purchase of additional lands and the erection of additional buildings — particularly if it be not shown that without such enlargement the institution could not be maintained.” In Christian Association of the University of Pennsylvania v. City of Philadelphia, 75 Pa. Superior Ct. 516, it was decided that “property of a charitable institution which is not used directly for the purpose and in the operation of the charity, but for profit, is not exempt from taxation, and the devotion of the profit to the support of the charity will not alter the result. The property which is used directly for the purpose and in the operation of the charity is exempt, although it may also be used in a manner to bring some return and thereby reduce expenses.” In Friends’ Boarding Home of Bucks Quarterly Meeting v. County Commissioners of Bucks County, 80 Pa. Superior Ct. 475, it was held that “a home for aged persons, the charter of which declares its object to be to provide ‘a home for aged and infirm Friends and Friendly people of limited means,’ is not a ‘purely public charity.’ ” The whole subject, in all of its ramifications, has been lately fully discussed by Stewart, P. J., in Young Men’s Christian Ass’n v. City of Easton, 3 D. & C. 562, and in Board of Home Missions and Church Extension of the Methodist Episcopal Church v. Philadelphia, 266 Pa. 405.

Here, it is not said, in the case stated, whether any part of the income derived from the property’s maintenance and operation as a recreation camp for women and girls goes into the treasury of the Young Women's Christian Association of Lancaster, nor are we told how much, if any, money is paid out by that association for the maintenance of this property. All that is stated is that “continuously since its acceptance of said property defendant has maintained and operated it as a recreation camp for women and girls, it being used daily throughout the summer months, and principally over week-ends during the balance of the year,” and that “guests and visitors at the property, known as Kepler Lodge, are charged for their meals and lodging, all the proceeds going towards the maintenance thereof, and the deficit, if any, coming out of the treasury of the defendant.”

Therefore, under the authorities as we have read them, this property is not exempt from taxation, and we accordingly, under the terms of the case stated, enter judgment in favor of the plaintiff for the sum of $22.50.

Judgment for plaintiff. From George Ross Eshleman, Lancaster, Pa.


author: HiRT, J.,

text:
    Commonwealth v. Baldwin et al.

      Statutes — Legislative power — Cannot be delegated — Department of Labor — Criminal law — Constitutional law — Act of June 2, 1913.

    1. The power to make a law cannot be delegated by the legislature to any other body or authority. A statute cannot be made to comprehend the rules and regulations that may be promulgated from time to time by a department of government for the enforcement thereof.
    2. A misdemeanor cannot be created by rule of the Industrial Board of the Department of Labor and Industry under the Act of June 2, 1913, P. L. 396.
    Rule to quash indictment. Q. S. Erie Co., Nov. Sess., 1926, No. 40.

      Orson J. Graham, Assistant District Attorney, for Commonwealth.
    S'. Y. Rossiter and Marsh & Eaton, for defendants.
    April 14, 1927.
   HiRT, J.,

The indictment in this case charges violations of the Act of June 2, 1913, P. L. 396. This act creates the Department of Labor and Industry, and, within that department, an industrial board of five members with power to make rules and regulations. Section 14 prescribes a standard for the protection of workmen and defines the powers of the industrial board as follows: “Section 14. All rooms, buildings and places in this Commonwealth where labor is employed, or shall hereafter be employed, shall be so constructed, equipped and arranged, operated and conducted, in all respects, as to provide reasonable and adequate protection for the life, health, safety and morals of all persons employed therein. For the carrying into effect of this provision and the provisions of all the laws of this Commonwealth, the enforcement of which is now or shall hereafter be entrusted to or imposed upon the commissioner or Department of Labor and Industry, the industrial board shall have power to make, alter, amend and repeal general rules and regulations necessary for applying such provisions to specific conditions and to prescribe means, methods and practices to carry into effect and enforce such provisions.”

The penalty for violation of the provisions of the act is prescribed in section 16 as follows: “Section 16. Every person who violates any of the provisions of this act or any of the rules or regulations of the industrial board, or who resists or interferes with any officer or agent of the Department of Labor and Industry in the performance of his duties in accordance with the said rules and regulations, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be punished by a fine of not more than $100, or by imprisonment not exceeding one month, or both, at the discretion of the court.”

The indictment in question contains ten counts. The first count charges that “defendants did unlawfully use lumber in the construction and erection of scaffolds in the erection of a building ... in the City of Erie, which said lumber was not sound and free from strength-reducing defects, having therein knots of greater size than that consisting with absolute safety, and thereby did violate” Rule No. 164, Section B, of the Industrial Board of the Department of Labor.

The remaining counts charge that defendants in the erection of a scaffold violated nine other rules of the industrial board which are quoted in the indictment and which, in substance, require that guard-rails and toe-boards shall be provided on the outer edges and ends of the platforms of all types of scaffolds 10 feet or more above the ground; that the principal members of scaffolds shall be rigidly and securely sway-braced; that poles or uprights shall be at least 3 inches by 4 inches in cross-section; that poles or uprights shall be spaced uniformly and parallel with the wall and not more than 7 feet 6 inches apart; that the splicing of poles when necessary shall be in a manner prescribed by the rule; that ledgers shall be not less than 11 inches in thickness and 10 inches in width and that they shall be long enough to extend over two consecutive pole spaces; that putlogs shall be rectangular in cross-section not less than 3 inches by 4 inches and shall be long enough to project over the ledgers 6 inches; that at least one putlog shall be securely fastened diagonally across the corner of a scaffold; that pole scaffolds shall be firmly and adequately braced to prevent swinging from the building.

The indictment does not follow the language of the act and in the first count imposes a higher duty upon an employer than that fixed by the statute. Section 14 requires “reasonable and adequate protection” for the safety of workmen. The first count charges the failure to erect a scaffold of material in kind “consistent with absolute safety.” Absolute safety is not demanded by the act. The remaining counts, also, do not charge failure to conform to the standard of safety required by the statute, but, on the contrary, charge violations of rules of the board, and for this reason the indictment is fatally defective.

The acts of the board in attempting to create misdemeanors by rules are an exercise of legislative authority which, by the Constitution, is exclusively vested in the general assembly. The power to make a law, i. e., “a rule of conduct prescribed by the supreme power of the State commanding what is right and prohibiting what is wrong,” cannot be delegated to any other body or authority: Locke’s Appeal, 72 Pa. 491; Com. v. Quarter Sessions, 8 Pa. 391; Parker v. Com., 6 Pa. 507; Case of Borough of West Philadelphia, 5 W. & S. 281. “The law must be complete in all its terms and provisions when it leaves the legislative branch of the government, and nothing must be submitted to the judgment of the electors or other appointee of the legislature except an option to become or not to become subject to its requirements and penalties:” O’Neil v. Insurance Co., 166 Pa. 72. The legislature cannot inject bodily into the same statute all of the rules and regulations that might be from time to time promulgated by the proper department of the government for the enforcement thereof: Com. v. Dougherty, 39 Pa. Superior Ct. 338. The language of. the act contradicts the suggestion that the rules of the board are purely executive or administrative, for the act provides that a violation of a rule shall constitute a misdemeanor, punished by fine or imprisonment.

In this age of wide industrial development and expansion, where labor is employed under an infinite number of varying conditions, the legislature cannot prescribe in detail the form of construction, equipment or appliances necessary for the protection of workmen under all conditions, but it can, and has, prescribed a standard of safety for the protection of labor, and a rule of the industrial board can be effective only when the violation of the rule constitutes a failure of the employer to conform with the standards prescribed by the act. The gravamen of the offense, however, is the failure to conform with the statute and not the violation of the rule, and the offense should be so charged.

The authorities cited on behalf of the Commonwealth (Com. v. Frederick & Lambrecht, 18 Phila. 505; Com. v. Shafer, 32 Pa. Superior Ct. 497; Jermyn v. Scranton, 186 Pa. 595, and there are many others to the same effect) refer to delegation of legislative power to municipal corporations to which a contrary principle applies. “Cities and boroughs are State agents instituted for the purpose of local government, and it is competent for the legislature to delegate to the municipal authorities the power to make such rules and regulations as may be necessary to secure within the municipal limits the purpose of their organization:” Com. v. Shafer, supra. A reason for this exception is stated in Parker v. Com., 6 Pa. 507 (521).

And now, to wit, April 14, 1927, the rule granted Nov. 22, 1926, on motion to quash, is made absolute.

From Otto Herhst, Erie, Pa.


author: Copeland, P. J.,

text:
    Union Trust Company v. McCarthy.

      Judgments — Name of defendant — Correction—Sdre facias — Lien—When effective.

    A judgment entered against James McCarthy is not a lien against property held by defendant in the name of James J. McCarthy, and where a scire facias is issued for the purpose of correcting the name, the judgment becomes a new one as to James J. McCarthy and becomes a lien only after judgment is entered on the scire facias and not as of the date of issuing the scire facias.

    Exceptions to sheriff’s schedule of distribution. C. P. Westmoreland Co., Aug. T., 1926, No. 87.

      Marker & Rial, for exceptant; C. C. Walthour, contra.
    April 29, 1927.
   Copeland, P. J.,

The property of the defendant was sold by the sheriff on the fieri facias at the above number and term and a schedule of distribution was filed by him on Sept. 14, 1926, to which certain exceptions were filed. Just one question arises out of these exceptions to the sheriff’s distribution, and that is whether a lien is given priority by reason of the issuing of a scire facias upon a judgment or from the date that judgment is taken on the scire facias; or, in other words, does the lien date from the issuing of the scire facias on a judgment or from the date judgment is taken on the scire facias? ,

The Safe Deposit & Trust Company entered judgments against James McCarthy at No. 193, November Term, 1925, on Sept. 16, 1925, in the sum of $416, and at No. 194, November Term, 1925, on the same date, in the sum of $787. The Merchants Trust Company of Greensburg entered judgment against James McCarthy at No. 305, November Term, 1925, in the sum of $1755, and on Feb. 10, 1926, issued a scire facias to No. 78, May Term, 1926, against James McCarthy, alias dictus James J. McCarthy. On Feb. 12, 1926, the Safe Deposit & Trust Company issued a sdire facias on the judgment entered at No. 193, November Term, 1925, at No. 202, May Term, 1926, against James McCarthy and James J. McCarthy, and on the same day likewise issued a scire facias on the judgment entered at No. 194, May Term, 1925, to No. 203, May Term, 1926, against James McCarthy and James J. McCarthy.

At the time these judgments were entered, the record title to the property was in the name of James J. McCarthy, and it will be noticed that all these judgments originally were entered against James McCarthy.

In Stark v. Lamberton, 282 Pa. 219, the Supreme Court decided that where a judgment debtor has one Christian name, an index of the judgment by the initial of his Christian name followed by his family name is sufficient to bind the land of the defendant and establish the priority of the lien of the judgment. But where the judgment debtor has a middle name, the omission of the middle name is fatal.

This case was decided in 1925, after the judgments against James McCarthy were entered, and caused the respective plaintiffs in the judgments involved in this case, before the court, which, as we said, were against James McCarthy, to issue scire facias so as to make these respective judgments liens on the property of James J. McCarthy, who was the same person as James McCarthy. When it came to the distribution, the sheriff awarded the fund for distribution to the respective judgments' according to their priority in issuing the writ of scire facias to revive. This, the exceptant contends, is erroneous, and insists that the distribution of the funds in the sheriff’s hands derived from the sale of James J. McCarthy’s property should be made according to and as the judgments were secured against James J. McCarthy.

With this contention in the exceptions we quite agree, but we have had great difficulty in finding some authority in this State to back up our opinion in this respect, for the reason so little bearing, either directly or indirectly, upon the question with which we now are confronted has been said.

It is to be noticed from the record in this case that the writs of scire facias in these cases were not issued because the lien of judgments were about to expire, but were issued in order to bring the same person on record but in his right name.

We find in 24 Ruling Case Law, 666, this language:

“The writ of scire facias, so called from the use of these words therein, is a writ founded on some matter of record, as a recognizance or judgment, etc., on which it lies to obtain execution or for other purposes, as to repeal letters-patent, hear errors, etc. . . . The adoption of the common law of England by the several states of this country is generally considered to have included the right to pursue the remedy by scire facias, since the English statutes relating thereto were in force prior to the Revolution. . . .
“The writ of scire facias is used both as an original writ to obtain a judgment where none has before existed and as a writ in execution or continuation of a judgment previously entered. In the former case, it is clearly a new action, but in the latter, though it is attended with some of the qualities of an action, it is but a mode of obtaining execution in an action that has already terminated in a judgment. Thus it is generally held that a scire facias to revive a judgment is not an original process, but is merely a continuation of an action, a step in the enforcement of the original judgment.”

We find in 3 Troubat & Haly Practice, 2513, this language: “The courts have a discretionary power to direct a scire facias to issue, by special order, in certain cases falling within the reason of the law on which this writ is founded.”

On page 2512, we find:

“A scire facias, in our practice, is a writ, usually founded on some matter of record, as a recognizance or judgment, or on a mortgage or mechanic’s lien (by act of assembly), though not a record, requiring the person against whom it issues to show cause why the plaintiff should not have advantage of such record, mortgage or lien. Although in some respects considered as a new action in regard to a record, because the defendant may plead thereto, and because a release of all actions or executions is a discharge to it, yet, in general, it is a judicial writ which, from its form and the nature of the proceedings under it, must issue from the court where the record remains. . . .
“Where the object of the scire facias is to obtain execution on a judgment or recognizance, etc., it is called a writ of execution; when issued against bail, against pledges in replevin, on a mortgage, mechanic’s lien, to repeal letters-patent, or the like, it is, in fact, an original proceeding; but when issued to revive a judgment, or upon the death, marriage or bankruptcy, etc., of parties, or on a judgment in debt on bond, or on a judgment quxmdo, etc., against an executor, it is but a continuation of the original action.”

In Scott et al. v. Waynesburg Brewing Co., 256 Pa. 158 (page 163), it is said: “The object in issuing the scire facias is not to obtain a new lien, but to continue an existing one. . . . The judgment on the scire facias is not, as the court erroneously supposes, a new judgment giving vitality only from that time, but it is the revival of the original judgment, giving, or rather continuing, the vitality of the original judgment, with all its incidents, from the time of its rendition. ... In England, the judgment on the scire facias is that the original judgment be revived. Here, the amount of the debt is ascertained and judgment given for the sum due; and this unfortunate departure from precedents has given rise to the erroneous notion in the minds of some members of the profession that judgment on the scire facias is a new and distinct judgment and not, as it really is, nothing more than the revival of the original judgment, the sum being ascertained for which execution is issued. If we pay any regard to precedents, the execution ought always to be issued on the original judgment and not, as is sometimes ignorantly done, on the judgment on the scire facias, an irregularity which ought never to have been tolerated by the courts. But, notwithstanding this deviation from the usual practice, it has never yet been imagined that the law was fundamentally changed.”

In Cathcart v. Potterfield, 5 Watts, 163, we find this language in the syllabus: “The period from which the lien of a judgment runs is not from the return of the scire facias, but from the date of the judgment of revival.”

And in a per curiam opinion in that case, it was said: “The point in contest was determined in the case of Meason’s Estate, 4 Watts, 341, where it was held that the period of five years runs not from the return .of the scire facias, but from the judgment of revival — a decision that rules the point raised here.”

Prom the decision in Stark v. Lamberton, 282 Pa. 219, it can safely be said that the entry of a judgment against James McCarthy alone did not make the lien of that judgment against the property of James J. McCarthy, and that the only way a lien could be had against the property of James J. McCarthy would be by entering a judgment against him or by issuing a scire facias on the judgment already entered, naming James J. McCarthy along with James McCarthy, being one and the same person, and after the service of that scire facias and after judgment had been taken upon it. The issuing of a scire facias on the judgments to which we heretofore have referred was not to continue an old lien of a judgment against James McCarthy, but it was to get a judgment against James J. McCarthy, and, therefore, it must follow that a judgment against James J. McCarthy was not had until it was taken on the scire facias. It would have been an entirely different thing if the scire facias had been issued against James McCarthy to revive or keep alive a judgment already against him. Then the lien would have dated back from the date of the original judgment if the scire facias were followed to a judgment. But if there was no lien against James J. McCarthy, the mere issuing of a scire facias mentioning his name did not create a judgment on his property. The only way that a valid lien was created against his property was when the judgment was taken on the scire facias which brought him into court. Prom this view of the case, it readily is to be seen that the funds in the hands of the sheriff shall be distributed in accordance with the priority of the mortgages and judgments against James J. McCarthy as originally entered and in accordance with the priority of the dates of the judgments as taken on the scire facias issued on judgments entered against James McCarthy.

And now, to wit, April 29, 1927, after argument and after due and careful consideration, it is ordered, adjudged and decreed that the exceptions filed on Sept. 24, 1926, by F. Murray Campbell, the use-plaintiff, in the judgments in this court to No. 193, November Term, 1926, and No. 194, November Term, 1926, be, and the same hereby are, sustained, and the sheriff is directed to make distribution of the funds realized from the sale of the property of James J. McCarthy, now in his hands, in accordance with this opinion and decree, and that the costs of these proceedings be paid out of the funds in his hands in this case. Prom William S. Kial, Greensburg, Pa.


author: Wilhelm, P. J.,

text:
    Harner’s Estate.

      Lunacy — Sale of lunatic’s real estate — Jurisdiction—Act of May 28, 1907.

    1. The original .petition for sale of a lunatic's real estate must, under the Act of May 28, 1907, P. L. 292, be presented in the county -where the committee of the lunatic was appointed. If the court of such county grants leave to sell, then the Common Pleas Court of the county where the real estate is situated may, upon petition, make the necessary order of sale.
    2. In such case, the Orphans’ Court of the county in which the real estate is situated has no jurisdiction to order the sale of real estate of the lunatic’s estate.
    Petition to sell interest of lunatic in real estate. O. C. Schuylkill Co.

      J. E. Sones, for petitioner.
    May 2, 1927.
   Wilhelm, P. J.,

This is the application of John Timmes, committee of Joseph Harner, a lunatic, for an order authorizing him as committee of the estate of said lunatic to join with the other parties in the sale of real estate described in the petition.

It appears from the petition that John Timmes was appointed committee of Joseph Harner, lunatic, by the Court of Common Pleas of Northumberland County.

The Act of May 28, 1907, P. L. 292, gives to the Court of Common Pleas, in eases of weak-minded persons, jurisdiction to appoint a guardian for insane and feeble-minded persons, and section 6 of said act gives to the Court of Common Pleas full power over the estate of an insane or weak-minded person to decree the sale of real estate where it is to the best interests or advantage of the ward that the sale be made; and when said real estate is situated in another county and the court shall be satisfied of the propriety of the sale of real estate not within its jurisdiction, it shall be lawful for such court to make an order or decree authorizing such guardian to sell. Thereupon it shall be the duty of the Court of Common Pleas of the county wherein such real estate so designated is situated, upon petition, to make an order for the sale of said real estate as the court appointing said guardian by its said order shall designate.

It appears, therefore, under said act of assembly, that this petition should not have been presented to this court, but should have been presented to the Court of Common Pleas of this county as the act directs: Nash’s Petition, 23 Dist. R. 814.

For the reasons stated above, the court declines to grant the prayer of the petition.

Prom M. M. Burke, Shenandoah, Pa.


author: Maetin, P. J.,

text:
    In re Widening of Sansom Street.

      Road law — Widening of street — Time for assessment of damages — Action by the municipality — Action by the owner.

    1. The mere change of the lines of a street on the city plan, so as to provide for the future incorporation therein of some of the property along the street, is not such an appropriation, taking or injury as will entitle the land owner to damages without some further action by himself or the city.
    2. In such case, the city may formally provide for the making of the proposed improvement by the widening of the street and the taking of private property, in which event the owner’s right to damages accrues; or the city may, by some unequivocal act, hasten the time for the assessment of damages where the whole improvement is considered as one undertaking, and the municipality acquires title to a part of the land covered by the improvement and condemns other portions and starts making the improvements.
    3. The owner himself may advance the time when his damages may be assessed by some unequivocal act or by acceptance of the act of the city, such as tearing down the property upon the land proposed to be taken by the municipality and the improvement of the remaining- portion of his land in conformity with the proposed appropriation by the municipality; the mere preparation of plans for a new building not conforming to the act of the city is not sufficient.
    Petition of Joseph Caplan for appointment of viewers to assess damages. C. P. No. 5, Phila. Co., Sept. T., 1927,

      Sundheim, Folz & Sundheim, for petitioners.

      John M. Hutchinson, Assistant City Solicitor, for City.
    Feb. 9, 1928.
   Maetin, P. J.,

The petition asks for the appointment of viewers to assess damages for the alleged taking, injury or destruction of private property by the City of Philadelphia. The petition is opposed by the City upon the ground that there has been no legal taking or injury or destruction of petitioner’s property.

The petition avers, inter alia, that Joseph Caplan is the owner of the property situate at the southwest corner of Fifteenth and Sansom Streets, in the City of Philadelphia, having acquired title thereto on June 5, 1928, with a frontage of sixteen feet on Fifteenth Street and extending sixty-four feet along Sansom Street; that the City of Philadelphia, by ordinance duly enacted on July 7, 1926, provided for the revising of the lines and grades of Sansom Street, and streets intersecting therewith, from Broad Street to Twenty-second Street, so as to make Sansom Street of a width of fifty-three feet by widening it thirteen feet on the south side; and providing, further, that after the confirmation and establishment of said lines it should not be lawful for any owner, tenant or builder to erect any new building or buildings on the south side of Sansom Street between Broad and Twenty-second Streets, or to rebuild or alter any building or buildings now erected on the south side of said Sansom Street, between the said streets, without providing for such building or buildings to recede so as to conform to the lines established for the width of fifty-three feet and for arcading said building or buildings so that the fronts thereof above the arcade shall extend thirteen feet northward from the south building line of said street as by the ordinance authorized and directed to be established. The said arcading is to have a clear head-room of at least sixteen feet over and above the curb elevation, etc.; that, on Oct. 18, 1926, the line of said Sansom Street, between Broad Street and Twenty-second Street, was revised by the duly constituted authorities of the City of Philadelphia in conformity with the provisions of said ordinance; that the said property of petitioner has erected thereon an old residential building, now converted and used for business purposes; that the widening of said Sansom Street will take thirteen feet of its Sansom Street depth, leaving the petitioner only three feet on the first or ground floor, part of which is a party-wall, so that there will only be remaining a depth of approximately two and one-half feet available for improvement on the first or ground floor or for access to the upper floors of any building to be erected upon said premises; that the present building on said premises is unprofitable and that the carrying charges greatly exceeded the income for the years 1924, 1925, 1926 and 1927; that in May, 1927, the petitioner had prepared plans and specifications for the erection of a new six-story building on said premises, with provision for stores on the first floor and offices on the upper stories; that on June 17, 1927, petitioner applied to the Bureau of Building Inspection of the City of Philadelphia for a permit for the erection of the building according to said plans and specifications, which permit was refused on Aug. 14, 1927, because said plans were not in conformity with the Ordinance of July 7, 1926.

The petitioner claims that, under section 8, article xvi of the Constitution of Pennsylvania, and acts of assembly in pursuance thereof, he is entitled to have his damages assessed at this time and before any taking of actual possession by the city or any passage of an ordinance providing for the formal widening of said Sansom Street.

The answer of the City of Philadelphia admits most of the material aver-ments of the petition, but denies any taking of or injury to petitioner’s property, and asks that the petition be dismissed.

The City of Philadelphia admittedly has not yet passed any ordinance providing for the widening of Sansom Street or the taking of petitioner’s property, and while admitting the rule of law to be that in the taking of or injury to private property by a municipality the time for the assessment of damages accrues when the ordinance to open, take the property or increase the width of the street is formally passed, the petitioner contends that he is within the exceptions to this general rule, in which it has been held by our courts that the appropriation may be complete or the injury may be suffered and damages may be assessed prior to the passing of such formal ordinance.

In Philadelphia Parkway, 250 Pa. 257, referring to and citing with approval the earlier cases, among which are District of the City of Pittsburgh, 2 W. & S. 320; Forbes Street, 70 Pa. 125; Whitaker v. Phœnixville Borough, 141 Pa. 327; Plan 166, 143 Pa. 414; Bush v. McKeesport, 166 Pa. 57; South Twelfth Street, 217 Pa. 362, holding “that the mere plotting of a street upon the city plan, without anything more, does not constitute a taking of land in the constitutional sense so as to give an abutting owner the right to have damages assessed, the theory being that the marking of a new street upon the city plan is nothing more than an expression of intention to take the land when occasion arises for opening the projected street as a public highway,” it was noted (in the Parkway case) that ten years having passed since the beginning of the undertaking without an ordinance to open, during which time some lands were condemned along the Parkway, properties were purchased in other cases, improvements were made and work done on parts of the boulevard at a cost of $5,000,000, which were unequivocal acts upon the part of the city indicating an intention to open and complete the Parkway, the right of the property owners to have their damages assessed had ripened. These acts of the city, together with the fact that the whole parkway must be regarded as one entire improvement, led the court to conclude that the appropriation was complete and the property owner was entitled to his damages. While there is some suggestion in this decision that the general rule applied especially to the plotting of streets through unimproved land, it was pointed out that there was no disposition on the part of the Supreme Court to depart from the well-established rule: “As to ordinary cases relating to laying out, opening, widening, extending and grading streets, lanes and alleys, the settled rule relied on by the city as to the time of the taking and as to when the trespass, if any, was committed, still remains in full force and effect.” It was pointed out that exceptions to the general rule are recognized in Volkmar Street, Philadelphia, 124 Pa. 320, and Whitaker v. Phœnixville Borough, 141 Pa. 327.

In the earlier case of Philadelphia v. Linnard, 97 Pa. 242, an act of assembly provided for the widening of the south side of Chestnut Street in Philadelphia; there was no actual taking at the time of assessing the damages, but it was held that when the land owner had torn down her old building and was preparing to erect a new one in conformity with the street as widened by the act “the city took part of the land for public use and is liable to make compensation to the owner;” and in In re Chestnut Street, 118 Pa. 593, under an ordinance passed in 1884, authorizing the revision of the city plans by making Chestnut Street of a width of sixty feet and providing that “after the confirmation and establishment of said line, it shall not be lawful for any owner or builder to erect any new building or to build or alter the front of any building now erected without making it recede so as to conform to the lines established for the width of sixty feet,” the owners rebuilt in conformity with the new law and asked for viewers to assess damages. Held, that “the plotting of the street upon the city plan so as to conform to the new line interferes with no one in the use and enjoyment of his property until he comes to rebuild. . . . When the property owner does so rebuild, he must recede five feet. It is then that he is injured, if injured at all, and it is then that his land is taken for public use and he is entitled to have a jury assess the damages.” City v. Linnard, supra, was approved in this case.

Under these authorities, our conclusion is that the mere change of the lines of the streets so as to provide for the future incorporation therein of some of the property along said street is not an appropriation, taking or injury so as to entitle the land owner to damages, without some further action upon the part of the city or upon the part of the land owner. The city may formally provide for the making of the proposed improvement by the widening of the street and the taking of private property, in which event the owner’s right to damages accrues, or the city may by some unequivocal act hasten the time for the assessment of damages where the whole improvement is considered as one undertaking and the municipality acquires title to a part of the land covered by the improvement and condemns other portions and starts making the improvement. Thus can the damages along the whole of the proposed improvement accrue and become assessable; or the owner himself may advance the time when his damages may be assessed by some unequivocal act or by acceptance of the act of the city, such as tearing down the property upon the land proposed to be taken by the municipality and the improvement of the remaining portion of his land in conformity with the proposed appropriation by the municipality, as was done along Chestnut Street at the time of its being widened.

The petitioner contends that in the preparing of the plans for the new six-story structure upon his property he has advanced the time for the assessment of his damages, but the error in this position lies in the fact that his action is not an acceptance of the act of the city by the proposal tc erect in conformity with the proposed widening of Sansom Street, but is in direct contravention of the ordinance and the proposed appropriation by the city. His action is clearly distinguishable from Philadelphia v. Linnard and In re Chestnut Street, supra, in which the owners improved their property in conformity with the action of the city, and when they did this they relinquished a portion of their property which was in no way available for their own use.

The act of petitioner in preparing plans and specifications for a six-story structure, including stores on the ground floor, is not a relinquishment to the city of the portion of his land which it proposes some day to take for the widening of Sansom Street. In view of the mandate of the ordinance prohibiting the erection of buildings excepting in conformity thereto, as well as the Act of Dec. 27, 1871, § 3, P. L. (1872) 1390, providing that buildings shall not be erected within the lines of a plotted street, and if they are, such buildings shall be removed at the expense of the owner without any damages being paid therefor upon the street being opened, a building erected in accordance with the proposed plans would have to be torn down without recompense therefor.

The court being of the opinion that petitioner is not entitled to have damages assessed at this time:

Now, to wit, Feb. 9, 1928, the prayer of petitioner is refused and the petition dismissed.


author: McDevitt, P. J.,

text:
    Sipp v. Philadelphia Life Insurance Company.

      Insurance — Representation as to age — Adjustment of age clause — Table of figures for different ages — Act of June 23, 1885.

    1. Where a life insurance policy for $3000 taken out prior to the Act of June 23, 1885, P. L. 134, stated that the age of the insured was fifty years at the date of the policy, in an action on the policy, an affidavit of defense which averred that at the date of the policy the insured was in fact sixty-five years old, that the company had used at all times a fixed certain rate of premiums, that the amount of the premium actually paid upon the policy would have purchased at the time of the issuance of the policy the face amount of insurance of $1585 at the age of insured at sixty-five years, and that the company was ready and willing to pay that amount, is sufficient.
    2. In such a case, the defendant was not required to attach to its policy its schedule of rates and the amount of purchasable insurance for the premiums paid at any possible age in order to avail itself of the defense set up under the misstatement of age adjustment clause in the policy.
    3. The incontestability clause does not preclude defenses based on other provisions in the policy; such other provisions must be given concurrent effect with the incontestability clause.
    Rule for judgment for want of sufficient affidavit of defense. C. P. No. 1, Phila. Co., March T., 1925, No. 1910.

      R. V. Bolger, for plaintiff!; R. Duane and E. J. Boughton, for defendant.'
    Jan. 27, 1928.
   McDevitt, P. J.,

This matter came before the court on a rule taken by the plaintiff for judgment for want of a sufficient affidavit of defense. The action pending is based upon a standard life insurance policy in the sum of $3000.

The death of the insured is alleged to have occurred on March 7, 1919, in New York City. According to the docket entries, summons was not issued until March 6, 1925, six years after the death. The defense raised is that when the policy was written, the age of the insured was stated to be fifty years and the premium for the amount of the insurance written was fixed and based on that representation; that the insured was at that time in fact sixty-five years of age; that the defendant would have insured the decedent at that age, hut the amount of insurance which the premium paid would have purchased at the alleged correct age of sixty-five years, if then stated, would have been $1585 and not $3000, the amount stated in the policy, which was based on the representation that the decedent was then fifty years of age; that defendant stands ready to pay said sum of $1585, less deduction of $423 advanced to the insured as a loan on the policy.

Defendant claims the right to set up this pro tanto defense upon the misstatement of age clause contained in the policy, which is as follows: “If the age of the insured has been misstated, the amount payable hereunder shall be such a sum as the premium actually paid would have purchased at the correct age.”

The plaintiff contends that, in view of the provision in the policy that it shall be incontestable after a year and because the policy did not contain a schedule of the premium rates at the alleged correct age, the defense set up is unavailable because of the provision in the policy: “A copy of the written and printed application for this contract is attached hereto. This policy and application therefor, taken together, constitute the entire contract.”

Plaintiff relies on some statements of the Superior Court in the case of Mitchell v. Pennsylvania Mutual Life Ins. Co., 90 Pa. Superior Ct. 426. An examination of that case discloses, however, that the portion of the opinion relied upon was merely an obiter dictum of the court entirely unnecessary for the determination of the matter in controversy, which had already been determined in favor of the plaintiff in that case upon another ground not present in this case.

It was contended by the defendant in that case that the policy sued on was void because it was the rule and custom of the defendant company not to insure any one over the age of sixty years. The insured was alleged to have been sixty-five years when the policy was written. After alleging that “said policy was void,” defendant added, as a makeweight, that at most the amount payable under said policy on the basis of the alleged correct age of the plaintiff therein amounted to a certain sum stated, being less than the amount stated in the policy.

The Superior Court affirmed a judgment in favor of the plaintiff by the court below in the following language (page 429) : “The learned court below entered judgment for the plaintiff for the amount of the policy for want of a sufficient affidavit of defense, holding that as the affidavit alleged that sixty years was the insurable age limit of the company and so the premiums paid could not have purchased any insurance at the true age, it did not involve a mere matter of reduction, but a contest of the entire amount, which the clause relating to incontestability prohibited. No reference was made in the opinion to the averment in the affidavit that, under the clause relative to misstatement of age, the amount which would be payable under the policy was $445.85 and no larger amount could be due the plaintiff.”

It is clear that the decision of the Superior Court rests on the ground that it involved “the contest of the entire amount, which the clause relating to incontestability prohibited,” an obviously correct conclusion.

The Superior Court, however, went on to suggest that effect would not be given by the courts to the “adjustment of age” clause in such a policy tmless there were included in it tables of figures which would inform the insured or the beneficiary how much insurance the premium paid would have purchased at the correct age. A fuller consideration of the question seems to lead to another result.

Obviously, to meet the suggestion of the Superior Court, a policy would have to contain a table of figures for every other age than the one given in the application, because the company could not know in advance what might ultimately be determined to be the correct age of the insured in any case in which that fact were brought in question.

In the Mitchell case, the Superior Court said, at the end of its opinion (page 429) : “The clause' in the affidavit of defense which alleged this amount to be $445.85 is not based on the policy, nor on the company’s established premium, and is, accordingly, of no effect and insufficient to prevent judgment.”

It is apparently with that in mind that the court went on to say that the company could not go outside the policy “to some other source or some other company” to calculate the insurance which the premium paid would have purchased at the insured’s correct age.

In the instant case, the affidavit of defense sets forth “that defendant had and used at all times its fixed certain rates of premiums; that the amount of the premium actually paid upon the policy herein sued upon would have purchased from defendant, at the time of said application and issuance, a policy, otherwise identical with the policy herein sued upon, for the face amount of insurance of $1585, at the age of the insured of sixty-five years.” The question is whether, in such a situation, a company having fixed certain rates of premiums as well for the stated age of the insured as for the alleged correct age of the insured, it may not, under the “misstatement of age” clause in the policy (now a compulsory provision), be permitted to show the amount of insurance which would have been purchasable at the alleged correct age or whether this (now compulsory) provision in an insurance policy is to be unavailing to insurers unless they attach to their policies rates and amounts of insurance purchasable for every conceivable age.

At the time the policy in the instant case was written, Jan. 6, 1911, the Act of June 23, 1885, P. L. 134, was in force. Section 2 of the act provided:

“Section 2. Whenever it shall be made to appear that a wrong age has been given in good faith in any application for a policy of life insurance the company shall not be required to pay the face value of the policy, but such sum as the premium paid would have purchased at the applicant’s real age at the time of effecting the insurance.”

By the Act of June 1, 1911, P. L. 581, the inclusion of a misstatement of age provision to provide for the payment of an adjusted amount of insurance, based on the correct age, was made mandatory. Thereafter, the appropriate clause of the Act of 1911 was incorporated verbatim in the General Insurance Law of Pennsylvania by the Act of May 17, 1921, P. L. 682, 721. The Act of 1885, in force at the time of the writing of the contract in the instant case, fixed the policy of the State so as to take an innocent misstatement of age out of the general class of misrepresentations which would void a policy and substitute an entirely new system, whereby the insurance company was deprived of a total defense on the one hand and afforded a measure of relief on the other; that is, it provided for an equitable adjustment based on the facts.

It is the opinion of this court that the right of the defendant insurance company to set up a defense pro tanto on an age adjustment basis was given by the Act of 1885 without regard to the inclusion of the provision for such a right in the policy itself, although the age adjustment clause was contained in the policy written by the defendant company in the instant case, anticipating the compulsory requirement for the inclusion of such a provision by the Act of 1911.

The plaintiff’s contention cannot rest on the incontestability clause. It was held in the Mitchell case, already cited, and it has been held in many other cases in this and other jurisdictions, that the incontestability clause does not preclude defenses based on other provisions in the policy. It has been held that other provisions in the policy must be given concurrent effect with the incontestability clause: Stark v. Union Ins. Co., 134 Pa. 45; Brady v. Prudential Ins. Co., 168 Pa. 645; Hall v. Mutual Reserve Fund Life Ass’n, 19 Pa. Superior Ct. 31; McCreighton v. American Catholic Union Ins. Co., 71 Pa. Superior Ct. 332; Hearin v. Standard Life Ins. Co., 8 Fed. Repr. (2nd) 202; Mack v. Connecticut Life Ins. Co., 12 Fed. Repr. (2nd) 416; 271 U. S. 687; Myers v. Liberty Life Ins. Co., 257 Pac. Repr. 933.

The remaining question is whether the clause in the policy that it and the application therefor taken together “constitute the entire contract,” precludes defendant from a defense pro tanto under the misstatement of age clause in the policy, unless, as contended by the plaintiff, there is attached to the policy the premium rates and the purchasable amounts of insurance according to those rates for every conceivable age of the insured other than the one given, so that the policy would include a statement of the precise amount of insurance which the premium paid would purchase according to whatever age might eventually be found to be the correct age of the insured. This seems to us to be such an extraordinary contention that we cannot sustain it. The support of such a contention would result in a requirement that every policy issued must have attached to it practically the rate book of the company. There seems to be nothing in reason or in the law to support any such contention. The Act of 1921, section 410, sets forth the provisions required to be inserted in a life insurance policy, and in sub-section “e” thereof provides for the misstatement of age clause without any requirement whatsoever for the inclusion of a table of rates and the amount of insurance purchasable at every age other than that given; whereas in sub-section “j” there is the specific requirement for the inclusion in policies of a table showing in figures the loan value, options available under the policy and other data therein referred to, obviously on the basis of the date given by the insured at which the policy was written, and not on the basis of every other conceivable age. Certainly, the requirements were not more exacting when the policy in the instant case was written prior to the Acts of 1911 and 1921. As already pointed out, the Act of 1885, in force when the policy in this case was written, provided for the adjustment of the amount of insurance, based on the correct age of the insured, without regard to any provisions therefor in the policy itself, although in this ease the policy included such a provision, inserted as a matter of business policy by the defendant.

The contention of the defendant in this case finds support in the decision in the case of Doll v. Prudential Ins. Co., 21 Pa. Superior Ct. 434, although the precise question was not raised therein. In some respects, it is a stronger case in support of the defendant’s contention. An examination of the record in that case discloses that the policy there did not contain any formal provision in the body thereof for an adjustment of the insurance on the correction of the stated age. However, under “Schedule,” at the end of the policy, it was stated in the third column as follows: “Sum insured on the above terms and subject to correction for misstatement of age, $150.” In another policy with a similar notation, the amount of the insurance stated was $110. The affidavit of defense averred that the insured made a mistake in giving her age, the insured having been of a certain other and increased age at the time the policies were written, and denied its liability for the sums respectively of $150 and $110, but admitted its liability for $72.80 on one policy and $67.60 on another policy, in accordance with the calculation and adjustment made on the basis of the amount of insurance that could have been purchased by the premiums paid at the insured’s alleged real age at the time of effecting said insurance. These latter sums were not mentioned in the policies. The court below entered judgment for the plaintiff on the ground that the company was liable for the amount indicated by the numerals in the policies, and that to permit a correction by the defendant under the statement noted in the schedule would be to violate the incontestability clause. The question that the company was obliged to go outside the policy, to wit, to its schedule of premium rates, to ascertain the amount of insurance which would have been purchasable at the real age of the insured was not raised in the case. There was no contention made that it could not do so. The Superior Court held that the lower court erred, and reversed the judgment, awarding a procedendo with the following clear statement: “Here the defendant company says to the plaintiff in effect: ‘You have a valid policy; we are liable under it according to its terms. These terms require the amount to be paid by us to be determined on the basis of the true age of the insured. This amount we stand ready to pay.’ ”

The contention of the defendant finds further support in another case which is more directly in point—McCarthy v. Pacific Mutual Life Ins. Co., 178 Ill. App. 502. This was an action on an accident policy insuring a man as a tailor. The company claimed the injury occurred while he was a farmer, and relied, to decrease the amount of' liability, on a provision in the policy: “If the- insured is injured in an occupation or exposure classified by this company in its latest manual as more hazardous than that stated in the schedule of warranties, the company’s liability shall be limited to such proportion of the principal sum or other indemnity as the premium actually paid will purchase at the rate fixed by the company for such more hazardous occupation or exposure.”

The plaintiff contended that the latest manual of the company not being part of the policy could not be considered and demurred to this defense. He relied on two statutes, one dealing with life insurance and providing that the policy, together with the application, should constitute the entire contract, and the other dealing with accident insurance and providing that the policies should state the agreement on their face.

The court held that a reference to the manual, that is, its established rates, for the purpose of ascertaining the amount of indemnity due on the basis of the established liability, would in no way violate the provision in the policy that it and the application should constitute the entire contract.

We conclude that the defense set up by the defendant in this case is not an attempt to assert a breach of warranty or a violation of the contract whereby the company would be relieved of its contractual obligation. It is an affirmative defense pro tanto set up under the misstatement of age adjustment clause in its policy, and it is available to the defendant because, according to its affidavit of defense, it had its fixed and certain rates and premiums showing the amount of insurance which would have been purchasable under the policy by the insured at her alleged correct age of sixty-five years. It is the opinion of the court that defendant was not required to attach to its policy its schedule of rates and the amounts of purchasable insurance for the premium paid at every possible age in order to avail itself of the defense set up under the misstatement of age adjustment clause in its policy.

Rule for judgment for want of a sufficient affidavit of defense is discharged.


author: Gest, J.,

text:
    Morton’s Estate.

      Taxation — Inheritance tax — Wills—Power of appointment — Blending of estates.

    Where a will contains a general reference to a power of appointment in the testator and also contains a direction, to pay debts, the appointed estate is blended with the testator's own estate, and is taxable.
    Appeal from assessment of inheritance tax. O. C. Phila. Co., April T., 1927, No. 1146.
    Van Dusen, J., Auditing Judge. — This is an appeal from the assessment by the Register of inheritance tax on. property which the decedent appointed by his will pursuant to a power given by the will of his mother. At the audit of the mother’s estate the fund was awarded to the son’s executors, and all questions of tax were deferred to the audit of their account. That'audit came before me and I awarded tax. When exceptions were heard by the court in home, it was the opinion that the question could be raised only by appeal from the Register. Hence, this proceeding, which has also come before me.
    In the light of the full arguments now made, I have reconsidered the question very carefully; but I can come to no different conclusion from that which I had before.
    By the will of his mother, Julia V. W. Morton, and in case he left no issue (which he did not), Robert Pearsall Morton had a power of appointment to be exercised by will. He opened his will with the following recital:
    . . hereby disposing of, in addition to my individual estate, any estate or interest over which I have testamentary power of appointment, and in particular exercising the power of appointment which I have under the will of my mother, Julia V. W. Morton.”
    He then directs payment of debts and funeral expenses, and proceeds to the residuary clause as follows:
    “I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed of whatsoever nature and kind and wheresoever situate, unto my wife, Emily M. Morton, absolutely and in fee, in case she be living at my decease.”
    If the decedent blended the appointed estate with his own, it is liable to tax.
    The answer to this question has been made simple by Com. v. Morris, 287 Pa. 61. The test there is said to be whether testator “has treated the two estates as one for all purposes and manifested an intention to commingle them generally.” Now, the Morris will merely referred to the power in the preamble in language as general as any that could be used, and did not mention it thereafter; so that both estates were disposed of in the same way by the same words. Blending was the result. The same result is to be found in Stokes’s Estate, 20 W. N. C. 48; Kates’s Estate, 282 Pa. 417; Twitchell’s Estate, 284 Pa. 135. McCord’s Estate, 276 Pa. 459; Forney’s Estate, 280 Pa. 282, and Howell’s Estate, 4 D. & C. 526, reach the same conclusion, but the will in each case contained specially significant language, which made the conclusion inescapable; and they are not helpful in a simple case.
    My only difficulty arises from Hagen’s Estate, 285 Pa. 326. That case (like Haven’s Estate, 5 D. & C. 494), as I understand it, turned on the fact that the will did not direct the payment of debts, which was regarded as significant against blending. The perplexing fact is that, so far as the report and opinion show, the Morris will also did not direct the payment of debts. Both the Hagen and Morris wills seem to me to be alike, each containing a general reference to the power. Yet opposite conclusions were reached and the opinion of the Supreme Court shows no consciousness of any conflict between them. (Curiously enough, the Morris will, when inspected in the paper-books, is found to contain a peculiarly-worded direction to pay “legal claims.”)
    My conclusion as to the present state of the law is that while no blending will result where the power is not mentioned and is exercised only by force of the statute (Huddy’s Estate, 236 Pa. 276; contra, Finn’s Estate (No. 2), 18 Dist. R. 408), a blending will result from mere mention of the power where there is a direction to pay debts (Com. v. Morris, Stokes’s Estate, Twitchell’s Estate, Kates’s Estate), but not where the direction is omitted (Hagen’s Estate, Haven’s Estate). Of course, special language may emphasize the blending (McCord’s Estate, Forney’s Estate, Howell’s Estate), or may deny it by showing that the appointed estate is to be kept separate (Haven’s Estate; Dohan’s Estate, 3 D. & C. 182).
    This will contains a general reference to the power and a direction to pay debts. The appointed estate is blended with the individual estate, and is taxable.
    The appeal is dismissed.
    Exceptions were filed to the adjudication.

      Malcolm Lloyd, Jr., for exceptions.

      Abraham Berkowitz (Charles S. Schofield with him), contra.
    Feb. 17, 1928.
   Gest, J.,

We have considered the question raised by these exceptions with the aid of the able arguments presented on both sides, and have concluded that the judge who presided at the hearing of the appeal correctly found that the appointed estate was subject to taxation. This case is ruled by Com. v. Morris, 287 Pa. 61, between which case and the present we see no real distinction and we need not dwell upon the points of resemblance. So far as concerns a direction by the donee for the payment of debts, the direction in the present case is explicit, while in Com. v. Morris the donee directed “the payment of any debts or legal claims which I may have contracted by agreement with any person relating to my estate or otherwise.” Hagen’s Estate, 85 Pa. Superior Ct. 123, affirmed in 285 Pa. 326, on the other hand, is different. Aside from the fact that the donee in the latter case made no provision in his will for the payment of his debts, which, though relevant, is not essential, the opinion of the Superior Court notes that the donee did not direct that the estate, over which he had the power of appointment, should be disposed of as part of his estate generally, but as part of his residuary estate. The opinions of both the appellate courts show that the case of McCord’s Estate, 276 Pa. 459, did not apply.

The exceptions are dismissed and the decree dismissing the appeal from the assessment is affirmed.

Henderson, J., did not sit.