author: Schaeffer, P. J.,

text:
    Commonwealth v. Corporal Realty Company et al.

      William F. Knauer, Special Deputy Attorney-General, and Thomas J. Baldrige, Attorney-General, for Commonwealth.

      Samuel E. Bertolet and Charles W. Matten, for Israel Liever.

      Charles W. Matten, for Max Hassel and Thomas Betz.
    June 6, 1928.
   Schaeffer, P. J.,

Findings of fact.

1. That the plaintiff, the Commonwealth of Pennsylvania, filed its bill in equity on Feb. 24, 1928, under the provisions and pursuant to the authority granted by section 7 of the Act of March 27, 1923, P. L. 34, and section 18 of the Act of Feb. 19, 1926, P. L. 16.

2. That service of the said bill in equity was made on Feb. 25, 1928, upon the Reading Brewing Company and the Prudent Products Company by posting three copies of the said bill upon the premises described in the said bill; and upon Israel Liever by handing him three copies on Feb. 27, 1928; and upon Mendel Gassel, alias Max Hassel, on April 2, 1928.

3. That no service of the said bill in equity was made upon Abe Serisky, alias A. J. Kline, William Moeller or Herbert Goslyn.

4. That on March 31, 1928, upon petition, the bill was amended to include as party defendant Thomas Betz.

5. That on Feb. 28, 1928, the- appearance of Samuel E. Bertolet was filed for Israel Liever; on March 9, 1928, the appearance of Charles W. Matten was also filed on behalf of Israel Liever; on April 11, 1928, the appearance of Charles W. Matten was filed for Max Hassel; and on April 30, 1928, the appearance of Charles W. Matten, together with acceptance of service of three copies of the bill in equity, was filed on behalf of Thomas Betz.

6. That the said Corporal Realty Company, one of the defendants and the owner of the record title of the property described in the bill in equity, is not registered as a corporation with the Secretary of the Commonwealth or the Auditor General of the Commonwealth of Pennsylvania, and that it is not registered in the office of the Secretary of the Commonwealth or the office of the Prothonotary of Berks County, as provided in the provisions of the Fictitious Names Act of June 28, 1917, P. L. 645, as amended.

7. On May 1, 1928, upon petition, service of the said bill in equity upon the Corporal Realty Company was directed by having the sheriff post copies of the same in a conspicuous place on the premises described in the bill, together with a copy of the order for service, and by serving a copy of the same upon any person found in or upon the premises.

8. That on May 1, 1928, in compliance with the said order of the court, the said sheriff served the said bill in equity upon the Corporal Realty Company by posting three copies thereon on the most conspicuous part of the premises described in the bill in equity.

9. That on Feb. 28, 1928, an answer was filed on behalf of Israel Liever, one of the defendants.

10. That a preliminary hearing was had on March 10, 1928; and that a final hearing was had on May 29, 1928, at which time defendants Liever, Hassel and Betz were represented by cotmsel.

11. That on June 1, 1928, no answer to the bill having been filed by the Corporal Realty Company, Max Hassel or Thomas Betz, a decree pro confesso was entered by the plaintiff.

12. That the said Corporal Realty Company is the owner of the premises upon which the brewery is located, which premises are described as follows: “All that certain brewing plant formerly owned and operated by the Reading Brewing Company, situate on the southeast corner of South Ninth Street and Little Laurel Street, in the City of Reading, more particularly described as follows: Beginning at a point on the building line at the southeast corner of South Ninth and Little Laurel Streets and thence extending south along the east side of South Ninth Street one hundred sixty-seven feet, more or less, to a point a corner of property of George W. Green, thence extending east along the same at right angles to South Ninth Street one hundred fifteen feet, more or less, to a point, the middle of a stone retaining wall, thence extending north along said stone retaining wall sixty-seven feet and six inches to a point in the stone retaining wall, also a corner of George W. Green’s stable building; thence extending east along the said stable building by a line making an interior angle of two hundred seventy degrees seventeen minutes, twenty-seven feet to a point; thence extending north by a line making an interior angle of eighty-nine degrees forty-three minutes, ten feet to a point, thence extending east by a line making an interior angle of two hundred seventy degrees seventeen minutes, twenty-six feet eight inches to a point, thence extending north by a line making an interior angle of eighty-nine degrees forty-three minutes, twenty-nine feet one and three-fourths inches to a point on the south face of a concrete retaining wall; thence extending east along the same north thirty-six feet five and three-eighths inches to a corner of said wall, thence extending along the eastern face of said retaining wall fifty-eight feet four and five-eighths inches to the south building line of Little Laurel Street, thence extending west along the same two hundred two feet one and three-eighths inches to the place of beginning.”

13. That the defendants, Mendel Gassel, alias Max Hassel, and Thomas Betz are the proprietors, operators and reputed owners of the business conducted on the said premises described in the said bill in equity.

14. That the defendants, the Corporal Realty Company, Mendel Gassel, alias Max Hassel, and Thomas Betz, on April 7, 1927, and on Feb. 15, 20, 21, 1928, by their servants, agents and employees, were conducting and maintaining the premises and plant described in the said bill as a place where intoxicating liquor was manufactured, sold, offered for sale, bartered, furnished, possessed and transported in violation of the Act of March 27, 1923, P. L. 34, and as a common nuisance, as defined in section 6 of the said act.

15. That the defendants, the Corporal Realty Company, Mendel Gassel, alias Max Hassel, and Thomas Betz, on April 7, 1927, and on Feb. 15, 20, 21, 1928, by their servants, agents and employees, were conducting and maintaining the premises and plant described in the said bill in equity as a place where alcoholic liquid, as defined by section 2 (paragraph c) of the Act of Feb. 19, 1926, P. L. 16, was manufactured, produced, distilled, developed or used in the process of manufacture, without permit of the Pennsylvania Alcohol Permit Board, in violation of the said Act of Feb. 19, 1926, P. L. 16.

Conclusions of law.

1. That the premises situated and described as follows, to wit, “All that certain brewing plant formerly owned and operated by the Reading Brewing Company, situate on the southeast corner of South Ninth Street and Little Laurel Street, in the City of Reading, more particularly described as follows: Beginning at a point on the building line at the southeast corner of South Ninth Little Laurel Streets and thence extending south along the east side of South Ninth Street one hundred sixty-seven feet, more or less, to a point, a corner of property of George W. Green, thence extending east along the same at right angles to South Ninth Street one hundred fifteen feet, more or less, to a point, the middle of a stone retaining wall, thence extending north along said stone retaining wall sixty-seven feet and six inches to a point in the stone retaining wall, also a corner of George W. Green’s stable building; thence extending east along the said stable building by a line making an interior angle of two hundred seventy degrees seventeen minutes, twenty-seven feet to a point; thence extending north by a line making an interior angle of eighty-nine degrees forty-three minutes, ten feet to a point, thence extending east by a line making an interior angle of two hundred seventy degrees seventeen minutes, twenty-six feet eight inches to a point, thence extending north by a line making an interior angle of eighty-nine degrees forty-three minutes, twenty-nine feet one and three-fourths inches to a point on the south face of a concrete retaining wall; thence extending east along the same north thirty-six feet five and three-eighths inches to a corner of said wall, thence extending along the eastern face of said retaining wall fifty-eight feet four and five-eighths inches to the south building line of Little Laurel Street, thence extending west along the same two hundred two feet one and three-eighths inches to the place of beginning,” owned by the Corporal Realty Company, on which there is erected a brewery, managed, conducted and operated by the defendants, the Corporal Realty Company, Mendel Gassel, alias Max Hassel, and Thomas Betz, were and are and are hereby declared to be a common nuisance within the meaning of section 6 of the Act of March 27, 1923, P. L. 34, and section 18 of the Act of Feb. 19, 1926, P. L. 16.

2. That the plaintiff, the Commonwealth of Pennsylvania, is entitled to a permanent injunction enjoining and restraining the defendants, the Corporal Realty Company, Mendel Gassel, alias Max Hassel, and Thomas Betz, their officers, agents and servants, and all other persons, from manufacturing, selling, offering for sale, bartering, furnishing, possessing upon, or transporting from, the premises described in the third paragraph of the bill in equity, which are the same premises described in the foregoing paragraph, any intoxicating liquor, alcohol or alcoholic liquid contrary to the provisions of the laws of the Commonwealth of Pennsylvania.

3. That the plaintiff, the Commonwealth of Pennsylvania, is entitled to a decree ordering the aforesaid nuisance to be abated, and the aforesaid brewery, plant and other buildings upon the lot or piece of ground above described shall not be occupied or used for one year.

4. That the plaintiff, the Commonwealth of Pennsylvania, is entitled to a decree perpetually enjoining and restraining the defendants, the Corporal Realty Company, Mendel Gassel, alias Max Hassel, and Thomas Betz, from unlawfully manufacturing, selling, bartering, furnishing, possessing and transporting intoxicating liquor, alcohol or alcoholic liquid contrary to the provisions of the laws of the Commonwealth' of Pennsylvania at any place within the County of Berks.

5. That no property rights exist in the defendants in the property possessed and used by the defendants on said premises in violation of the Act of March 27, 1923, P. L. 34, and its supplement, the Act of Feb. 19, 1926, P. L. 16. The Commonwealth of Pennsylvania is entitled to a decree ordering that the same shall be deemed contraband and forfeited to the Commonwealth of Pennsylvania and forthwith destroyed or removed.

6. That the costs of this proceeding shall be paid by the defendants, the Corporal Realty Company, Max Hassel and Thomas Betz.

And now, to wit, June 6, 1928, the prothonotary is directed to enter a decree nisi in accordance with the foregoing decision and forthwith to give notice thereof to the parties or their counsel of record, sec. reg.

From Charles K. Derr, Reading*, Pa.


source: Caselaw Access Project

author: Fine, J.,

license: Public Domain

text:
    Bloom v. Bloom.

      James R. Scouton, for libellant.
    July 19, 1928.
   Fine, J.,

The libellant seeks a divorce on the ground of desertion. The subpoena was served upon respondent personally on Dec. 16, 1926, in Scranton. Personal service of master’s notice of hearing was duly made upon respondent in Montrose, Susquehanna County. Respondent did not file answer to the libel nor did he appear at master’s hearing.

The master recommended that a decree a. v. m. be granted the libellant.

Proof of service of final notice discloses the respondent was personally served with said notice in Hallstead, Susquehanna County.

We have carefully perused and scrutinized the- record and we find the following

Facts.

1. The libellant, aged forty years, and the respondent, aged forty-three years, were married in Scranton on Sept. 11, 1918, by Rev. Herman Geisen. The libellant immediately before marriage resided at Laketon, Luzerne County, and the respondent at Hamilton, of the State of New Jersey.

2. That the present residence of the libellant is Laketon, Luzerne County, Pa., and the last known residence of the respondent was No. 28 Isabelle Street, Binghamton, N. Yi

3. That the libellant and the respondent have lived apart since September, 1924.

4. That the respondent did, on Sept. 22, 1924, wilfully and maliciously desert the libellant and absent himself from the habitation of the libellant without any just or reasonable cause, and that such desertion hath been persisted in for two years and upwards.

Discussion.

Respondent is a carpenter, shiftless and markedly lazy. He applied himself to his trade only when it pleased him. At no time did he recognize his marital obligation, and he consistently failed to provide for the maintenance and support of his wife. The respondent may be termed an “odd job man,”\ that type of physical structure which ultimately and inevitably comes, by request, to the Domestic Relations Court — there to be, as surely as his arrival, the most cankerous pest in the solution of the many social problems devolving upon that court.

It is axiomatic such man marries an industrious and bread-bringing wife — ■ dutiful to the extreme; loyal even to error; vine-clinging to the point of apparent idiocy. When the vagabond husband tires of such enslaved spouse, as he usually does, and leaves the domicile, then the mystic cloak enshrouding the wife is removed, and she gives exercise to good sense and judgment for the first time since the mental lapse immediately preceding the plighted troth.

We are, therefore, clearly satisfied from the evidence that the respondent deserted the libellant and is entitled to a divorce, unless (1) there is collusion between the parties, or (2) unless the Act of May 17, 1921, P. L. 899, applies to service in actions in divorce.

1. The service of the subpcena and notices on the non-resident respondent, when visiting Scranton, Montrose and Hallstead, may create suspicion of collusion, but it is suspicion merely, as the testimony does not show collusion within the meaning of the law on that subject. The respondent possessed a roaming propensity, which, together with other evidence, justifies us in concluding there was no collusion in this action.

2. Does the Act of May 17, 1921, P. L. 899, require service of all process in divorce actions to be made by the sheriff?

The said act, entitled “An act regulating service of process from the Courts of Common Pleas or other courts of record, and extending the territorial jurisdiction thereof in certain eases,” provides:

“Section 1. That in all cases wherein any cause, subject-matter, property or interest is within the- jurisdiction of any Court of Common Pleas or other courts of record, and one or more of the parties in interest therein resides beyond the limits of such jurisdiction but within the Commonwealth, the authority and jurisdiction of courts shall extend to all rules, notices, and orders necessary in the course of procedure to be served upon the party or parties residing beyond such jurisdiction and within the Commonwealth. In such cases, any and all process issuing out of the court having jurisdiction of the subject-matter shall be directed to the sheriff of the county, who shall leputize the sheriff of the county wherein such person resides, who shall make service thereof in the same manner and with the same force and effect as if the person had been served within the county wherein the process originated.

“Section 2. This act shall not apply to the writ of summons.”

The Act of March 13, 1815, P. L. 150, prescribes the mode of serving a subpcena in divorce. There is nothing in the act, either by its express terms or by necessary implication, which requires a service by the sheriff. The subpoena is not directed to him, but to the respondent, and it may be served by any one. No special authorization so to do is required from the court of ■original jurisdiction: Fillman’s Appeal, 99 Pa. 286.

The provision of the Act of 1815 authorizing personal service “on the said party, wherever found,” has not been changed by any of the many amendatory or supplementary acts of assembly regulating divorce actions. The words '‘wherever found” were held to mean “anywhere within the Commonwealth,” and cannot be construed to give a court of this State extraterritorial power to bring within its jurisdiction the person of a citizen and resident of another state: Ralston’s Appeal, 93 Pa. 133.

It is well settled the subpoena runs throughout the State and may be served on the respondent wherever he may be found. As the Act of 1921 was passed for the purpose of “extending the territorial jurisdiction thereof (Courts of Common Pleas) in certain cases,” it is difficult to conceive any legislative intent to apply the provisions of this act to divorce actions, thereby impairing the jurisdiction which Courts of Common Pleas theretofore had. Under the existing laws, a non-resident within this State may be served with the subpoena by any person. The Act of 1921 limits the service of process “upon the party or parties residing beyond such jurisdiction (Court of Common Pleas) and within the Commonwealth,” and restricts the mode of service of the process, in that it “shall be directed to the sheriff of the county, who shall deputize the sheriff of the county wherein such person resides, etc.,” to make service of the process. By the terms of the Act of 1815 and supplements, the subpoena is directed to the respondent, not to the sheriff.

“Extend” is defined by the Standard Dictionary as, “To make larger in space, time, or scope; carry out farther than the original point or limit; enlarge or lengthen the bounds or dimensions of; lengthen; widen; enlarge; amplify.” To extend implies an intent not to qualify the laws then existing, but rather to enlarge, lengthen or widen the scope of them.

The act did not extend the territorial jurisdiction of Courts of Common Pleas in divorce actions, nor, as we construe it, was it the intent of the legislature to have its provisions apply to such actions. The evident intent of this enactment was to extend the authority of the courts to actions where certain rules or notices might necessarily be required to be served on residents of other counties in the State, as, at the time of the passage of this act, there was ample provision made for service of summons, writs and bills in equity and subpoenas in divorce. There was not, for instance, sufficient authority for service of rules on heirs in actions concerning real estate. There is nothing in the act which applies to original process, except in the 2nd section, as follows: “This act shall not apply to the writ of summons.”

We are of the opinion that the said act does not apply to the service of subpoena in divorce, or to any rules, orders or notices incident to such litigation.

We, therefore, conclude as a matter of law:

1. That the respondent did, in violation of his marriage vows, wilfully and maliciously desert the libellant and absent himself from her habitation without any just or reasonable cause for a period of two years and upwards.

2. That there was no collusion between the parties.

3. That service of subpoena and all notices was proper, the Act of May 17, 1921, P. L. 899, not applying to actions of divorce.

Accordingly, we do hereby sentence and decree that Miriam Bloom be divorced and separated from the nuptial ties and bonds of matrimony heretofore contracted between her, the said Miriam Bloom, libellant, and the said Ployd Bloom, respondent. From Frank P. Slattery, "Wilkes-Barre, Pa.


author: Davison, P. J.,

text:
    Commonwealth ex rel. District Attorney v. Bitner.

      Edmund C. Wingerd, for writ.

      A. J. White Hutton, John W. Holce and Isaac I. Wingert, contra.
    Aug. 24, 1928.
   Davison, P. J.,

On June 12, 1928, a suggestion for a writ of quo warranto was filed in the above matter and said writ was allowed by the court on that day, returnable to the first Monday in July, 1928. This writ was directed to said defendant to show by what authority he exercises or claims to have, hold and enjoy the office of Tax Collector of the Borough of Chamhersburg, in said County of Franklin.

On June 30, 1928, said respondent, George H. Bitner, filed a motion to quash said writ, and on July SO, 1928, a stipulation was filed with the court, by which it was agreed by counsel for both parties to said action that the pleadings so filed should be considered and accepted by the court as information and answer, wherein is raised for determination the sole question whether the election for Tax Collector of the Borough of Chamhersburg in the year 1927 was authorized by law, and if the court concludes as a matter of law that said election for tax collector was authorized, then the present quo warranto proceeding to be dismissed, but, if the court concludes said election was unauthorized, then a judgment of ouster to be entered, both parties reserving the right to file exceptions to the court’s findings and conclusions and to appeal.

The only question then to be decided in this proceeding is the single one, “Was the election for Tax Collector of the Borough of Chamhersburg held in the year 1927 authorized by law?” The court, under these circumstances, does not have before it any question of the proper procedure in this matter or any other questions, but only the single one as above agreed upon. There are no disputed facts, and they may be stated as follows:

At the municipal election of 1925, John U. Boyd was elected Tax Collector of the Borough of Chamhersburg for a regular term of four years, which term would have expired the first Monday of January, 1930, and his successor would have been elected at the municipal election of 1929. Said John U. Boyd died on Sept. 4, 1926, and on Dec. 6, 1926, the Town Council of the Borough of Chamhersburg took action for the appointment of Paul D. Tarner as tax collector of said borough, and said Paul D. Tarner entered upon his duties as such tax collector. This action of the town council was taken under the Act of May 8, 1923, P. L. 171.

At the primary election for the year 1927 the names of candidates for nomination for Tax Collector of the Borough of Chamhersburg appeared on the official ballots and were regularly voted for and said George H. Bitner received the highest number of votes cast for candidates on the Republican ticket and was certified by the election officers as nominated for said office. At the municipal election for the year 1927 the name of George H. Bitner, Republican, and John L. Etchberger, Democratic and Prohibition, appeared as candidates for “tax collector,” and said George H. Bitner was returned by the election officers of said Borough of Chambersburg as elected to that office and received the certificate as such. No term was set forth on said official ballots for said office.

On March 20, 1928, a suggestion for a writ of quo warranto, “Commonwealth of Pennsylvania ex relatione Paul D. Tarner v. George H. Bitner,” was filed and the writ was allowed. This writ was directed to said George H.. Bitner to show by what authority he exercised said office of tax collector. A motion to quash said writ was filed by said respondent, and on April 27, 1928, said writ was dissolved and said proceedings dismissed by the court. This action was taken because the court held said Paul D. Tarner, the relator, had no title or claim to the said office and, therefore, had no standing to contest the title of said George H. Bitner to said office.

The Town Council of the Borough of Chambersburg and the Chambersburg School District have refused to deliver their respective tax duplicates for the year 1928 to said George H. Bitner, pending disposition of said writ allowed June 12, 1928. The County of Franklin has delivered to him the duplicate for the collection of 1928 county and State taxes.

It is contended by the relator that the election for tax collector in 1927 must have been held under the provisions of the Act of May 8, 1923, P. L. 171, which act provided that in case of a vacancy in the office of tax collector the borough council should fill such office and that such appointment should be until the next municipal election, at which election a collector should be elected for four years, but that this act was specifically repealed by the General Borough Act of 1927, P. L. 519, and that, as the latter act, in section 850, provided for the election of a borough tax collector in 1929 and every four years thereafter, there was no authority for the election of a tax collector for any term in 1927, and, hence, that there being no authority for the election, it is a nullity.

On the other hand, the respondent urges on us that the election was properly held and he is entitled to the office of tax collector by reason of his having been chosen to that office at such election. His contention is that by the Act of June 25, 1885, P. L. 187, the people of each borough and township were authorized to elect a collector of taxes each year; that this section of said act was amended by the Act of June 6, 1893, P. L. 333, by the provisions of which a tax collector was to be elected for three years; that the Act of 1893 being repealed by the General Borough Act of 1927, the 1st section of the Act of 1885 is now the law, and that, by applying to that act the amendments of section 3 of article VIII of the Constitution of Pennsylvania and the schedule for the adjustment of terms, the term provided for in that Act (1885) is automatically extended to two years, and that the election held in 1927 for said tax collector was authorized by the provisions of that act.

This position of the respondent was argued most ably by his counsel, but we are not able to agree with it. Prior to the passage of the Act of 1885, there was no provision in the law for the Borough of Chambersburg to elect a tax collector, but such officer was appointed. By the Act of 1885, the provisions of section 1 of which were as follows: “That the qualified electors of each borough shall, on the third Tuesday of February of each year, elect a collector of taxes, whose term shall commence on the first Monday of April next after his election,” said borough was authorized to elect a tax collector for a one-year term beginning the first Monday in April. By the Act of 1893, which is as follows, in section 1, “That the qualified electors of every borough shall, on the third Tuesday of February after the passage of this act and triennially thereafter, vote for and elect one properly-qualified person for tax collector, who shall serve for three years and shall give a bond annually approved by the court,” and which repealed all parts of acts inconsistent therewith, the said section 1 of the Act of 1885, being inconsistent, was repealed, and the Act of 1893 provided the only law for the election of a tax collector in said borough, and this for a three-year term. By the amendment to section 3 of article viii of the Constitution (1909) (1913), it was provided “that all elections for . . . borough . . . officers for regular terms of service shall be held on the municipal election day, namely, the Tuesday next following the first Monday of November in each odd-numbered year.” By the schedule to the amendments to the Constitution of 1909, it was provided “that no inconvenience may arise from the change in the Constitution of the Commonwealth, and in order to carry the same into complete operation, it is hereby declared that:

“In the case of officers elected by the people, all terms of office fixed by Act of Assembly at an odd number of years shall each be lengthened one year, but the Legislature may change the length of the term, provided the terms for which such officers are elected shall always be for an even number of years.

“The above extension of official terms shall not affect officers elected at the general election of one thousand nine hundred and eight; nor any city, ward, borough, township or election division officers whose term of office under existing law end in the year one thousand nine hundred and ten.

“In the year one thousand nine hundred and ten the municipal election shall be held on the third Tuesday of February as heretofore; but all officers chosen at that election to an office the regular term of which is two years, and also all election officers and assessors chosen at that election, shall serve until the first Monday of December in the year one thousand nine hundred and eleven. All officers chosen at that election to offices the term of which is not four years, or is made four years by the operation of these amendments or this schedule, shall serve until the first Monday of December in the year one thousand nine hundred and thirteen. All justices of the peace, magistrates and aldermen chosen at that election, shall serve until the first Monday of December in the year one thousand nine hundred and fifteen, after the year nineteen hundred and ten, and until the Legislature shall otherwise provide, all terms of city, ward, borough, township, and election division officers shall begin on the first Monday of December in an odd-numbered year.

“All city, ward, borough, and township officers holding office at the date of the approval of these amendments, whose terms of office may end in the year one thousand nine hundred and eleven shall continue to hold their offices until the first Monday of December of that year.

“All judges of the courts for the several judicial districts, and also all county officers, holding office at the date of the approval of these amendments, whose terms of office may end in the year one thousand nine hundred and eleven, shall continue to hold their offices until the first Monday of January, one thousand nine hundred and twelve.”

The Act of March 2, 1911, P. L. 8, was passed to carry into complete operation the amendments to the Constitution, and provided for the extension of terms of public officers, which included all officers elected by vote of the people, until the first Monday of January in the next even-numbered year after the expiration of their term.

We have, therefore, the Act of 1893 providing for a tax collector to be elected for a three-year term at the February election of 1894 and triennially thereafter; the amendment to the Constitution of 1909 applied to that act and the election date changed to the first Tuesday after the first Monday of November in each odd-numbered year; the term of office changed and was extended by the schedule to the amendments from three to four years and the time for expiration fixed at the first Monday of December after said election; and by the Act of 1911 said expiration was fixed at the first Monday in January after election. These various changes in the law applied to the office of tax collector in the Borough of Chambersburg; hence, the term of John U. Boyd was for four years, beginning the first Monday of January, 1926.

The act of assembly in force at the time of the death of said John U. Boyd, providing for the filling of a vacancy in the office of tax collector, was the Act of May 8, 1923, which provided as follows, in section 1:

“Be it enacted, etc., that if any vacancy shall occur in the office of tax collector, after any borough election, by reason of the erection of any new borough ; or if the duly qualified electors of any borough shall fail to elect a tax collector; or when a tax collector that has been elected shall fail to qualify, or shall fail or neglect to perform the duties of such office, or shall neglect to give bond on or before the fourth day of the term of quarter sessions ensuing his election; or if any other vacancy shall occur by death, resignation or otherwise, the borough council of the borough, in which such vacancy exists, shall fill such office by appointing, by resolution, a suitable person, resident of the district in which such vacancy exists. Such appointment shall be until the next municipal election, at which election a collector shall be elected for four years.”

This act provided for the election of a successor in case of vacancy, at the next municipal election after said vacancy occurred, for a term of four years, clearly recognizing that as the term of ofiiee for an elected tax collector. If that act had not been repealed, there would have been no question as to the proper procedure in the instant case; but the General Borough Act of 1927, in section 3301, repealed said Act of 1923, and as this act went into effect on July 1, 1927, the repeal of the Act of 1923 was effective before the primary and municipal elections of 1927, and there was no authority in it for an election of tax collector in 1927. The respondent recognizes this, and, as the Act of 1893 was also repealed by said General Borough Act of 1927, and as that act provided for an election of tax collector at the municipal election of 1929 for a four-year term and makes no provision for any election for said office' before that time, he is driven to attempt to rely on said Act of 1885 for authority for an election of tax collector for a two-year term. The Act of 1893 having been repealed and the Act of 1927 not providing for any election for tax collector until 1929, we are left without any authority for an election for a tax collector until that time, unless it is authorized by the Act of 1885. No legal election can be held without authority, either constitutional or statutory, for the same, and, therefore, unless we have authority for the election held in 1927, it must be held to be a nullity, and, under the stipulation filed in the instant case, the respondent must be ousted from said office. As has been said, the only authority claimed to exist by the respondent is the Act of 1885, and, in order to have it apply so as to authorize said election, we must' apply to it the amendments to the Constitution, the schedules and the acts of assembly heretofore referred to changing, amending and extending said term of office, but when said amendments, schedules and acts of assembly were passed said Act of 1885 had been repealed and the Act of 1893 was in force, and they were applied to that act and its terms were extended and changed thereby. Now it is contended that the Act of 1885 again becomes the law by the repeal of the Act of 1893 by the Act of 1927, and that we should apply these changes and extensions to that act. To argue that the Act of 1885, not revived until 1927, should have applied to it the amendments of 1909 and the schedules thereto and the Act of 1911, when all had heretofore been applied to the Act of 1893, is, to our mind, to state a proposition which falls of its own weight. The extensions and changes of terms having been applied to the office of tax collector under the act then in force cannot now be called into force to affect an act then dead, and, if revived at all, not until 1927.

If, therefore, said Act of 1885 again becomes the law by the repeal of the Act of 1893, it becomes such as it stands on the statute books, unaffected by the amendments to the Constitution, the schedules thereto and the various acts of assembly, to carry the same into effect, and, as such, it is repugnant to the law as to time of election of a tax collector, term of office and time when said term begins, and could not be reconciled to the constitutional and statutory changes made since its passage. We are, therefore, compelled to hold that the Act of 1885 could not, even if now the law, have authorized the election of a tax collector in 1927.

In addition to the reasons for holding said Act of 1885, even if now in force, was no authority for the election of a tax collector in 1927, we have the provision of section 103 of the General Borough Act of 1927, which is as follows: “The repeal by this act of an act'of assembly, or part thereof, shall not revive any act or part thereof heretofore repealed or superseded.” Section 1 of the Act of 1885 was repealed by the Act of 1893, as inconsistent therewith, and under the terms of the Act of 1927 the repeal of the Act of 1893 would not revive said section 1 of the Act of 1885, and, hence, that act cannot be relied upon as authorizing an election in 1927 for a tax collector for any term, as it is not again made the law by repeal of the Act of 1893. It is true that the Act of 1927 only specifically repeals two sections of the Act of 1885, but this has no significance in the matter at bar, as we are only concerned with section 1 of said act, and if it is not revived, the other sections can avail nothing to the respondent in his contention that that act authorized an election for tax collector in 1927.

As there is no authority for said election under said Act of 1885 and no other act furnishing such authority, we are constrained to hold that the election for Tax Collector of the Borough of Chambersburg in the year 1927 was not authorized by law.

That the term of tax collector was made four years by the amendments to the Constitution and schedules thereto seems to us too plain to need discussion, and, therefore, we can find no authority whatever for an election in 1927 for a two-year term so as to expire at a time to comply with an election in 1929, as provided for by said General Borough Law. The term being fixed at four years, no one can be elected for any other time unless some law so provides, and as we know of none, we cannot agree with the contention that there should be ,an election in 1927 for a two-year term. The argument that the election of 1927 was not for the purpose of filling an unexpired term but fox-electing a successor for a new teirn of office, which term could not extend beyond the first Monday of January, 1930, because of the provisions of the Act of 1927 for an election in 1929, does not impress the court at all. There was an nnexpired term of John U. Boyd, being filled partially by Paul D. Tarner, who was, at least, de facto tax collector, and with a balance of the term, after the expiration of Tamer’s occupancy, to be filled by some authority; but nowhere can we find such authority for an election in 1927 for said two years or any other time.

It was also urged on us that section 850 of the General Borough Act is unconstitutional, but we cannot agree with that contention, and under the law applicable to the case at bar, we do not deem it necessary to discuss our reasons for so holding. Even if said section of that act was unconstitutional, there would be no authority for an election of tax collector in 1927.

We are, therefore, of the opinion that the election for Tax Collector of the Borough of Chambersburg held in the year 1927 was not authorized by law, and, therefore, under the terms of the stipulation filed in said matter a judgment of ouster against said defendant must be entered by the court. As the court has previously held that Paul D. Tarner is not entitled to the said office of tax collector, and now holds that said George H. Bitner is not entitled to the same, it is now decided that a vacancy in the office of Tax Collector of the Borough of Chambersburg exists and has existed since the municipal election of 1927.

Now, Aug. 24, 1928, judgment of ouster from the office of Tax Collector of the Borough of Chambersburg is hereby entered against George H. Bitner, the respondent. Costs of this proceeding to be paid by said respondent.

From King Alexander, Chambersburg, Pa.


author: Fleming, P. J.,

text:
    Emerick v. Braucht.

      N. B. Spangler and Iwan Walker, for plaintiff.

      Ellis L. Orvis and W. D. Zerby, for defendant.
    Aug. 15, 1928.
   Fleming, P. J.,

This matter arises from the trial of a feigned issue between the parties. The plaintiff, George H. Ernerick, was the owner of a farm at Potters Mills, this county, and on or about April 1, 1921, leased the farm to Roland Zettle. At the same time and subsequently, the plaintiff became surety for the said Zettle, both on notes and in other ways, in a desire to help Zettle secure equipment for farming.. The said Zettle was also indebted to the defendant, Dr. H. S. Braucht, by way of an unpaid note upon which the defendant was an endorser and which he was subsequently required to pay. It appears that in the fall of 1921, Zettle became embarrassed and made a bill of sale to the plaintiff covering practically everything that Zettle possessed. Defendant issued execution upon judgment entered on the note of Zettle, and a levy was made upon the property in question. Plaintiff filed notice of ownership, and after the requirements of law had been fulfilled, this issue was framed and tried before the late Judge Quigley on Dec. 10, 1923. A verdict was rendered in favor of the plaintiff, and we have before us for disposition the defendant’s motion for a new trial. We have omitted to say that, subsequent to the making and delivery of the bill of sale by Zettle to the plaintiff, Zettle remained on the farm for a considerable period of time, it being the contention of the plaintiff that he was there merely as a “laborer.” Plaintiff further contended that the making of the bill of sale terminated the lease previously made, and that, after such date, he, the plaintiff, had been in entire control of the management and operation of his farm.

From defendant’s brief and from the argument of defendant’s counsel, only one question appears to have been seriously raised to support the motion for a new trial. It is contended that the testimony of the plaintiff and of Mr. Zettle indicates that there was a stipulation for a reservation from the sale of the property after payment of his debts and that debts were paid for which there were no provisions in the transfer. In Betz v. Rockey, 69 Pa. 71, the court found that it was the intent of the parties to reserve to the vendor part of the stock. The Supreme Court, speaking in this ease, states what is admittedly the rule under such facts as follows: “But while an insolvent debtor may make an absolute sale of his property in payment of his debts, he cannot reserve any portion of the property or its proceeds for his own benefit and advantage; and if he stipulates for such reservation, it will render the whole transaction fraudulent and void.” But we do not find from the bill of sale itself, and evidently the jury did not find from the testimony, that any such reservation was made in the instant case. The bill of sale provides at the conclusion thereof that “the said Emerick agreeing to give to me an itemized statement of the actual amount paid by him and when paid.” It was explained, and evidently believed by the jury, that, at the time of the making of the bill of sale, it was necessary to approximate some of the items of indebtedness due by Zettle to the plaintiff and that such provision was inserted so that Zettle might know definitely what obligations had been canceled when such exact amounts were ascertained.

It is clear that a man may prefer one creditor over another if he sees fit to do so, and the mere fact of such preference will not invalidate the transaction in the absence of an allegation, and proof of fraud: Schimmel et al. v. Cohen, 275 Pa. 118, 120, 121; Smith v. Keener, 270 Pa. 882; Snayberger v. Fahl, 195 Pa. 336; Shibler v. Hartley, 201 Pa. 286. Mr. Justice Mitchell, in Werner v. Zierfuss, 162 Pa. 360, cited by the defendant, says: “. . . it may be considered as the established result of our cases that if a creditor takes a judgment, or conveyance, or payment in any form, to secure an actual debt, the transaction will be valid against other creditors, although he knew (1) that the effect would be to postpone the others; (2) that the debtor intended it to have that effect; and (3) although he took it to aid that intent as well as to protect himself. The criterion is not the effect but the fraudulent intent. Without that, the transaction cannot be impeached.” It is also held in the above-cited case, and affirmed in Shibler v. Hartley, 201 Pa. 286, that where there is an actual debt, the jury cannot be permitted to infer a fraudulent intent from the mere fact of payment or preference given to it. We fail to find anywhere in the record in the instant case a denial of the fact that Zettle was indebted to the plaintiff; in fact, there appears to be no valid dispute and the plaintiff has clearly testified to this fact and has not been contradicted.

The adequacy of the price paid by the plaintiff has been questioned. In Assigned Estate of Bossart, 11 Pa. Superior Ct. 100, it has been held that while a grossly inadequate price is evidence of fraud, yet, if the parties, though mistakenly, believe that the price is a fair one, their act is not fraudulent. Again, in Goddard, Hill & Co. v. Leopold Weil & Co., 165 Pa. 419, 422, and in Adams v. Hitner, 140 Pa. 166, 171, we find that mere inadequacy of price is not sufficient ground for the inference that a sale was not absolute and unconditional. It is a matter proper for the consideration of the jury in connection with the other facts in the case. Gross inadequacy of price, standing alone as the only fact established, might justify such an inference, but the inadequacy must be taken from all facts and the conclusion be drawn from all of them. In the instant case, while a variance appears between the appraisement and the actual consideration, such variance is in an amount explainable by the lack of true standards available to the appraisers, and often occurs in cases of this kind. There is no convincing evidence of gross inadequacy here, nor has such been seriously pressed. The jury had such evidence as there is before them and it is presumed considered the same in connection with the other testimony.

The question of delivery of possession was for the jury in this case where the relation of the parties and the uses of the property were to be considered: Northrop v. Finn Construction Co., 260 Pa. 15; Garretson v. Hackenberg, 144 Pa. 107; White v. Gunn, 205 Pa. 232-3; McCullough v. Willey, 200 Pa. 172; Goddard, Hill & Co. v. Leopold Weil & Co., 165 Pa. 419; Rucker v, Spicer, 269 Pa. 451; Bowersox v. Weigle & Myers, 77 Pa. Superior Ct. 367; Little v. Fearon, 49 Pa. Superior Ct. 634; Reinninger v. Spatz, 128 Pa. 524.

In Werner v. Zeirfuss, supra, cited by the defendant, Mr. Justice Mitchell says: “It may be said as a general rule that to impeach the payment or securing of an actual debt there should be evidence tending to show either, first, some other advantage or benefit to the debtor beyond the discharge of his obligation, or, secondly, some other benefit to the creditor beyond mere payment of his old debt; or, lastly, some injury to the other creditors beyond mere postponement to the debt preferred.” We find none of these happenings to exist in the case under consideration.

In conclusion, we would say that there is no evidence of a reservation or a secret trust for Zettle in this case. The plaintiff had a legal right to take the property of Zettle for an antecedent debt. The consideration, if not adequate, was not grossly inadequate. The question of fraud has been properly submitted to the jury and they have found that no fraud in fact existed. We feel, after a careful reading and study of the testimony, that the court would have been warranted in finding that no fraud in law existed. It is not necessary to take up each reason and discuss it separately. Taken as a whole, the reasons embody the questions which we have discussed. That the charge of the court was inadequate cannot avail here, for there is nothing on the record to show that the defendant requested the court for a more specific charge. The bona fides of the transaction between plaintiff and Zettle has been fully and fairly established. A retrial could avail the defendant nothing. He has been fully and fairly heard and the triers of fact have pronounced “no fraud.” We are of the opinion from the record that no fraud in law has been shown.

And now, Aug. 15, 1928, motion for a new trial is dismissed.

Prom S. D. Gettig, Bellefonte, Pa.


author: Lamorelee, P. J.,

text:
    Harmstad’s Estate.

      George G. Chandler and Robert T. McCracken, for exceptant.

      R. M. Remick (Saul, Ewing, Remick & Saul with him), contra.
    March 12, 1929.
   Lamorelee, P. J.,

The exceptions raise a question of the interpretation of the will of George R. Harmstad, deceased, so far as the rule against perpetuities relates thereto. The Auditing Judge has decided that the remainder over to a class violates the rule and has accordingly awarded the fund to the next of kin as of the date of the death of testator. In this we find no error.

The will created a trust for Ann Jane Brown for life. Upon her death the estate was to be continued in trust for the longest liver of the children of two brothers of testator then living (except one named child), and upon the termination of the trust testator gave the property absolutely to all the children and issue of all his said nephews and nieces, such issue taking their parent’s share, excepting and excluding from the gift the children and issue of one named niece.

Viewing the situation as of the death of testator, it was possible, for example, the longest liver of the nephews and nieces might be a nephew or niece who was unborn at the death of testator; that the trust might endure for more than twenty-one years after the death of Ann Jane Brown; and that the nephews and nieces unborn at the death of testator might have had children born to them more than twenty-one years after the death of Ann Jane Brown. Other examples might be given where ultimate remaindermen could not be ascertained within a life or lives in being and twenty-one years thereafter, but one is sufficient.

It is, however, most earnestly contended that at the death of Ann Jane Brown there were living nephews and nieces; that the remainder interest vested in them, and as it vested at the death of Ann Jane Brown, the rule against perpetuities was not violated; and that it was immaterial that such ultimate remainder might thereafter be opened in order to permit other members of the class to share therein before the vesting in enjoyment.

The ultimate remainder is to great-nephews and nieces and their issue per stirpes, and it is possible that survivorship at the death of the longest liver of the nephews and nieces was annexed to the gift. The argument assumes that it was not. Be that as it may, the contention cannot be sustained. The purpose of the rule against perpetuities is to prevent an estate from being inalienable for more than a life or lives in being and twenty-one years thereafter, but, as already indicated, it might not have been possible to ascertain one or more of the ultimate remaindermen within the time limit, and if this contingency had occurred it would not have been possible to alien the property within the time limit.

It might also be added that where there is a limitation to a class and some of the class cannot be ascertained within the time limit while others can, the whole limitation'fails. See Coggins’s Appeal, 124 Pa. 10.

The rule, what is meant by “class,” by “vested remainders,” etc., is discussed in Gray on Perpetuities (3rd ed.), § 110 A, 205 A and 972; also in Coggins’s Appeal, supra, and in Wickersham’s Estate, No. 1, 261 Pa. 121. The rule is tested by possible and not by actual events. Judged by this standard, the exceptants’ claim is without merit.

The exceptions are accordingly dismissed and the adjudication is confirmed absolutely.

Van Dusen, J., concurs in the result.


author: Ferguson, P. J.,

text:
    Leonard v. Horlacher & Company et al.

      J. Y. Scott, for claimant; Samuel S. Herman, contra.
    April 9, 1929.
   Ferguson, P. J.,

This is an appeal from the Workmen’s Compensation Board. A claim for compensation was made on behalf of Joseph Leonard, brother of Thomas Leonard, deceased. The referee found that claimant, a minor, was to some extent dependent upon his brother, and by stipulation filed it was agreed that the brother did not stand in loco parentis to claimant and claimant was not a member of his household. Compensation was awarded at the rate of $3 per week from Nov. 22, 1927, until May 8, 1935, upon which latter date claimant will have attained the age of sixteen years, making a period of 389 weeks and one day.

An appeal having been taken to the Compensation Board, the award of the referee was affirmed.

The sole controversy in this case is whether or not claimant should receive compensation for 300 or 389 weeks. In other words, should the compensation continue from the end of the period of 300 weeks until the time he attains the age of sixteen years?

We are of opinion that compensation can be allowed only for a period of 300 weeks.

The intention of the legislature, as expressed in section 307 of the Workmen’s Compensation Act, is clear. In the case of death, if there be no widow, children shall be entitled to compensation. A child may be a descendant, a stepchild or an adopted child, or one to whom the deceased stood in loco parentis if a member of decedent’s household. If there be no children nor parents, then a brother or sister is entitled if to any extent dependent on decedent. Whether a child or brother, the compensation is allowed only if and while the child or brother is under the age of sixteen. It is a distorted construction to hold this to mean that compensation is to be paid until the beneficiary is sixteen years old. This clause of the act has no relation to the time during which payments are to continue. It refers rather to the period in life in which a claim for compensation may be made.

Later in the section appears the provision as to the time during which compensation shall run. It there appears that, with respect to all beneficiaries, and this naturally would include a widow, parent, child or brother, the compensation shall be paid for 300 weeks, with the special provision as to children that it shall continue after said period until the child is sixteen years of age. The act declares what is meant by the word “children.” The claimant cannot be said to be in that class. It follows that he is entitled to compensation only for the period of 300 weeks.


author: Reno, P. J.,

text:
    Kutz’s Adoption.

      Charles M, Bolich, for petitioner; Dallas S. Gangewer, for respondent.
    Sept. 17, 1928.
   Reno, P. J.,

I believe that, normally, children should live with and be reared by their natural parents, and, therefore, I sincerely regret that the law does not permit me to revoke this adoption.

The court had jurisdiction of the petition to adopt, and, therefore, the new status thereby created cannot be stricken down because of the regret of a parent who had consented thereto: Young’s Adoption, 259 Pa. 573. Nor can I believe that any fraud was practiced upon the parents. Both are intelligent persons and they had the petition for adoption in their possession for a considerable time before they signed it and thus had full opportunity to acquaint themselves with its contents. And if, as Mr. Kutz says, Baum told him that a prosecution would be instituted for the support of the child if the adoption papers were not signed, the circumstance is explained by the. fact that Baum then had custody of the child and indeed had custody from its birth and before the marriage of its parents. It is understandable that if Baum was to support the child, he should wish to have his custody confirmed by adoption proceedings.

I have given careful consideration to the evidence concerning the manner in which the child is being reared and I have also made an investigation. I learned that Baum’s testimony to the effect that wine was given to the child by direction of a physician is true, and, however greatly I question the advisability of this, I cannot censure Baum for following a physician’s advice. But, assuming that the other charges were true, and! cannot now say whether they are true or false, I do not understand that the failure to rear the child properly is a ground for revoking the decree of adoption. Evidence of this character might induce a court to award custody of the child to the natural parents upon a writ of habeas corpus, but it cannot be employed to revoke the adoption proceeding.

Now, Sept. 17, 1928, the petition to revoke the decree of adoption is denied and dismissed.

Prom Edwin L. Kohler, Allentown, Pa.


author: Shull, P. J.,

text:
    Cope v. Merwine, County Treasurer, et al.

      C. H. Rhodes, for plaintiff; Coles Price, for defendants.
    Nov. 26, 1928.
   Shull, P. J.,

This matter comes before the court after bill is filed and preliminary injunction issued. The defendants appear d. b. e., as provided by Equity Rule No. 29, and demur to the jurisdiction of the court in this case.

In disposing of this matter on this demurrer, the court must accept as established every allegation of fact in the bill contained. As we view this matter, it falls within the principle enunciated by the Supreme Court of Pennsylvania in the case of Isett v. Meehan, 232 Pa. 504. Like that case, it is not a proceeding against the Commonwealth of Pennsylvania, but is against the Game Commissioners of the Commonwealth of Pennsylvania in their official capacity. It is not to enjoin them from discharging any official duty imposed upon them by the statute, but it is to prevent them from doing what is to be regarded as a mere ministerial act under the general powers and discretion conferred upon this commission by the Legislature- of Pennsylvania.

If, in the performance of such ministerial act, they defy the statutory directions and limitations with which the legislature has seen fit to surround the exercise of their discretion, and when, by proceeding as they propose, they would, for a period of fifteen days, authorize a veritable army of men with high-powered rifles, which propel a bullet a distance of a mile or more, to come within the bounds of the county in which this court has jurisdiction and unduly subject residents and travelers in the community to the dangers necessarily incident thereto, and subject property owners to the annoyance and damage of a multitude of trespasses on their property and the expense and trouble of hiring private guards to prevent such trespasses, and to a multitude of actions at law, both civil and criminal, which would necessarily result from such actions, and all within the jurisdiction of this court, and all of which would be brought about through the issuing by the County Treasurer of Monroe County, at the instance of the Board of Game Commissioners of Pennsylvania, what purport to be such licenses to hunt deer without visible antlers — surely the imminence of such conditions should and would, in our opinion, give to this court jurisdiction to prevent the distribution of such purported licenses, unless, by reason of a valid statute of this Commonwealth, this commission has authority of law to impose such conditions on this community. If they have statutory authority so to do, then, to our mind, clearly this court has no jurisdiction; if the law makes this a part of their official duty and not a mere ministerial act, we, of course, have no jurisdiction; and if the law places this ministerial act within their discretion, and if they have strictly observed the statutory requirements in exercising that authority, then, again, we would have no jurisdiction.

We do not feel that it could be contended that this is a part of their official duty as imposed by statute, but it could be and is contended that it is among the discretionary powers conferred on them by the statute. If to do the thing which this Game Commission proposes to do would have been within the authority of the legislature to authorize by statute, then from the sweeping authority conferred by the statute upon the Board of Game Commissioners, this board would have a legal right to decree it, if, as we have said, they have observed the conditions of the statute, and, in that instance, this court would not have the authority'to review their discretion, though we are of the opinion that even such discretion might be reviewed by the Court of Dauphin County. It would not be seriously contended that even the sweeping authority conferred by the legislature on this Game Commission could by any stretch of the imagination give to'this commission authority the legislature itself did not possess. Time was when it was fully and clearly recognized that a legislature could not delegate its authority to legislate, but in these days of commissions and bureaus that principle of government seems to have become almost a myth, though legislatures are still to some degree limited by constitutions, and these same constitutions, to the same degree, would limit the rules and regulations of bureaus and commissions.

While, to the mind of this court, there may be some question as to the constitutionality of some of the sections of the act relied on in this proceeding, we are, however, not passing on that question at this time.

The questions of law involved in this demurrer must necessarily be passed on in disposing of the question now before us.

The respondents in this case contend that they are acting by virtue of the authority conferred on them by sections 506 and 511 of what is commonly called “The Game Code.” Let us first analyze these sections:

Section 509 of the Game Code, as it is now in force, is section 1 of the Act of May 14, 1925, P. L. 752.. This section is wide in its scope, inasmuch as its subject is game birds, game animals and fur-bearing animals. Its scope is wide both in the subject-matter it includes and in the sweeping authority it confers on the Board of Game Commissioners to deal with such birds and animals. Deer without visible antlers are not game and have not been game in the State of Pennsylvania for a considerable number óf years. Neither are they fur-bearing animals within the common meaning of that term, nor within the legislative intent. Deer without visible antlers were not intended to be included within the provisions of section 509; for when, in the same acts of assembly, viz., the Act of May 24, 1923, § 5Í1, P. L. 359, and again in the Act of May 14, 1925, § 3, P. L. 752, the legislature see fit to treat in one and the same section game birds, game animals and fur-bearing animals, and then in another and distinct section make separate and distinct provisions relative to deer without visible antlers, the conclusion that the legislature intended to segregate them from any general class of game or wild animals is irresistible, and that the legislature actually did so is manifest when we are confronted with section 511 of the Game Code. Consequently, section 509 has no application whatever to the matter before us, and we need not consider it in determining the question before us.

Section 511 was intended to apply to deer without visible antlers, which is the subject of this controversy, and is the only section of this act it is necessary for us to consider. Section 511 does not confer upon this commission autocratic, arbitrary power and authority to declare an open season on deer without visible antlers. Under that section, they have power to do so only on information, not rumors or gossip, but information' that would satisfy an ordinarily reasonable person of the necessity for such action through the existence of some particular reason for reducing their number; and, further, even when such reason exists, then must this Game Commission comply with the requirements of the statute in authorizing the killing of such deer. This statute is, of course, in derogation of the common law and must be strictly complied with if it is to place in operation the things contemplated in it. Section 511 provides that deer without visible antlers may be killed during “a special season of such length as the Board may deem advisable either prior to or following the regular open season for male deer.” The regular open season for killing male deer is a well-recognized period. The meaning of that, to the mind of the court, is so clear that it is hardly subject to argument. It means, and can mean only, that period of the year during which, by the existing statutes of this Commonwealth, the season of killing of male deer is open. This would not, in the opinion of this court, be affected one iota by the fact that the Game Commission may, under certain conditions, temporarily close such season. It would still remain the regular open season in the statute. This particular period of the year was, withheld by the legislature from the authority of this Game Commission, but in this instance the period designated by the Game Commission for a special season on deer without visible antlers is the very period covered by the statute as the regular open season, and this, under the law, the Board of Game Commissioners may not do. As we have said, when the legislature delegates authority to a commission or board, the right to exercise that authority depends upon a strict compliance with the conditions under which such authority is delegated, and the presumption relative to delegated authority is always against any grant of power other than that which is clearly expressed and shown by the act of assembly which makes such delegation of power and authority; and, as we have said, such statutes must be strictly complied with and must be strictly construed.

Has the Game Commission complied with the conditions which would legalize under the licenses which are about to be issued by the County Treasurer of the County of Monroe the killing of deer without visible antlers? They have chosen a season which the legislature has specifically withheld from them and again the statute under which they are acting provides that one desiring a special license “shall also apply to and obtain from the board at Harrisburg a special deer license.” From the facts in this bill, we must conclude that no such application was made by any one of the persons to whom the Board of Game Commissioners are now proposing to have the County Treasurer of Monroe County issue what purport to be special licenses.

Under the act of assembly, the County Treasurer has absolutely no authority to issue special licenses. He is not by the act of assembly made an arm of the Game Commission in this instance as he is made an arm relative to the issuing of regular hunting licenses. It is contended on behalf of the Game Commission that the County Treasurer is acting as its agent, but the County Treasurer, like the Game Commission itself, is a mere statutory creature and has only such authority as is specifically designated to him by act of assembly, and we are not conversant with any act of assembly which would permit a county treasurer as an official to act as agent for any one or anything; and, as the licenses the Game Commission proposes to issue are licenses, which on their face show they are issued by the County Treasurer, they are not such licenses as could be issued under the authority of the act of legislature governing this Game Commission. Notwithstanding the fact that we hold the Board of Game Commissioners has not placed itself within the operation- of the law and that they cannot at the time proposed issue special hunting licenses, we realize that that fact would not of itself give to this court jurisdiction over the Game Commission; but when they manifest their intention of having issued within the County of Monroe, by its County Treasurer, licenses which are not authorized by law and are doing it under the name of the Board of Game Commissioners of the Commonwealth of Pennsylvania, and when such action will result in flooding this county, for a period of fifteen days, with a veritable army of men, armed with high-powered rifles, who, under the color of authority of such illegally issued licenses, will hunt and shoot at doe throughout the length and breadth of the county, thereby subjecting both residents and travelers to the risks necessarily incident to flying bullets and at a time other than a legal hunting season, and when they further subject the property owners in this county to the trouble and expense of hiring private patrolmen to protect their property against trespass and damage and face the residents and property owners, as well as the courts of this county, with the expense and burden of pursuing a multiplicity of law suits, both criminal and civil, which will certainly follow such invasion of the county, private rights are invaded, serious and irreparable damage is threatened and will be suffered and these purported licenses being within the County of Monroe, their issuance not being a part of the statutory duty of this commission, nor even within their discretion, they not having complied with the law, we feel that this court does have jurisdiction to restrain their issuance by the County Treasurer and by the Board of Game Commissioners of the Commonwealth of Pennsylvania, or by any one else who might undertake to issue such licenses and bring about such condition within the county without the authority of law.

This court having jurisdiction, the exceptions are, therefore, dismissed.

Prom C. C.»Shull, Stroudsburg', Pa.


author: Landis, P. J.,

text:
    Michael v. Kirchner.

      Harold G. Ripple and Charles W. Eaby, for plaintiffs.

      William C. Rehm and Willis G. Kendig, for defendant.
    July 7, 1928.
   Landis, P. J.,

The accident out of which the present suit arose occurred on Jan. 26, 1926, about 5 o’clock in the afternoon. The day was clear and it was yet daylight. A truck belonging to the defendant and driven by his employee came southwardly along Duke Street, and when it got to Dauphin Street, which is an intersecting street running east and west, it made a left-hand turn and struck little James Y. Michael, a boy about three or four years old, on the crossing. He was about three feet from the curb. It was testified by witnesses for the plaintiffs that the truck came down Duke Street, and a trolley car also came down and turned at Dauphin Street, and that the truck, while not going very fast (fifteen or twenty miles an hour), struck the boy. The only questions arising are whether there was sufficient evidence to sustain the verdict and whether a certain amendment made to the pleadings on the trial should have been disallowed.

The accident happened at a street crossing on South Duke Street over Dauphin Street. The law as to the duty of the driver at a street crossing is laid down in Parznik v. Central Abattoir Co., 284 Pa. 393. Frazer, J., in delivering the opinion of the court, said: “It was the duty of the driver, as stated in a number of recent decisions of this court, to be highly vigilant in approaching the crossing and to maintain such control of his truck that on the shortest possible notice it could be brought to a standstill and thus avoid injuring pedestrians: Virgilio v. Walker, 254 Pa. 241; Anderson v. Wood, 264 Pa. 98.” In Rosenthal v. Philadelphia Phonograph Co., 274 Pa. 236, it was held that “vehicles have the right of way on the portion of the highway set apart for them; but at crossings all drivers, particularly of motor-vehicles, must be highly vigilant and maintain such control that on the shortest possible notice they can stop their cars so as to prevent danger to pedestrians.” In Schweitzer v. Quaker City Cab Co., 269 Pa. 293, it was said: “The jurors might well have found, as they no doubt did, that, since the accident happened at a street crossing, defendant’s chauffeur did not have his automobile under the control which the rules of law and reasonable care required at such a point.”

In an action to recover damages for personal injuries, the case is for the jury where the issue is one of fact as to the exact manner in which the plaintiff was struck by, or came into collision with, the defendant’s automobile: Sweeney v. Floyd, 90 Pa. Superior Ct. 14. And on a motion by defendant for judgment non obstante veredicto, the testimony should not only be read in the light most advantageous to plaintiff, all conflicts being resolved in his favor, but he must be given the benefit of every fact and inference of fact pertaining to the issues involved which can reasonably be deduced from the evidence: Mountain v. American Window Glass Co., 263 Pa. 181. See, also, Dunbar v. Preston, 285 Pa. 502; Scalet v. Bell Telephone Co., 291 Pa. 451. Therefore, under the facts of this case, it is clear to me that, in view of the evidence presented on behalf of the plaintiffs, it could not have been withdrawn from the jury. No objection has been made as to the manner of the submission to the jury.

It was objected on the trial that the parent could recover no damages because the child was permitted to be unattended on the public streets. In Dattola v. Burt Bros., Inc., 288 Pa. 134, this same question was discussed. It was there said: “Parents are presumed to do their duty, and the mere fact that a child of tender age is momentarily found alone in a public street does not as matter of law establish the contrary. The mere happening of an accident neither proves negligence nor contributory negligence. Knowingly to permit a small child to wander unprotected upon city streets is want of care; but here the record is barren of any evidence of such permission. The presence of a child upon the street may be the result of parental negligence or in spite of its vigilance, and, in the absence of any explanation, a court cannot declare it the former. The question of parental care, or the lack of it, is one of fact and usually for the jury.” Upon the trial of the present case, that question was, I think, fairly and fully submitted to the jury, who were told that, if the boy “got out with her (the mother’s) assent, or remained out unattended for a considerable time after she saw him on the street, that would be contributory negligence which would prevent the father from recovering in this case.”

In the original statement, it was averred that the defendant’s delivery truck “was standing on Dauphin Street, with the rear end of the truck towards Duke Street;” that “when the said James Y. Michael was going over the crossing on Dauphin Street, the driver of defendant’s truck, negligently and without warning, started the truck backward at a rapid and excessive rate of speed, and struck the said James Y. Michael.” As the trial proceeded, it was ascertained that this was not the manner in which the accident happened. Thereupon the plaintiffs moved to amend their statement so that it might read that “the defendant, by his servant or employee, carelessly, recklessly and negligently made a left turn at Dauphin and Duke Streets intersection at a high and improper manner, at an illegal rate of speed, without warnings, and in so doing ran down and injured James Y. Michael, one of the plaintiffs, a child three years old, while on the Dauphin Street crossing.” The court allowed the amendment, under objection made by the defendant, and the case then proceeded. I think the amendment was properly made. It did not introduce a new cause of action, and that is the test. In Rochester Borough v. Kennedy, 229 Pa. 251, it was held that “a plaintiff may amend his declaration at any time during the trial, provided only that he does not introduce a new cause of action.” In Doyle’s Estate, 291 Pa. 263, it is said: “Likewise, amendments to permit the correction of jurisdictional defects in the pleadings are permitted. . . . Such alterations of pleadings or parties are to be liberally allowed, unless there be a resultant change in the cause of action.” See, also, Nevin v. Catanach, 264 Pa. 523. In Armstrong & Latta v. City of Philadelphia, 249 Pa. 39, it is said: “An amendment which merely introduces an additional element of damages drawn out of the same circumstances may be allowed at any time, as it does not introduce a new cause of action.” In Jackson v. Gunton, 26 Pa. Superior Ct. 203, Rice, P. J., delivering the opinion of the court, said: “The cause of action is the particular matter for which the suit is brought, and when the object of an amendment is not to forsake this, but to adhere to it and effect a recovery upon it, it is the duty of the court, when the merits of the case cannot otherwise be reached, to permit the amendment. ... In actions ex delicto, the rule is the same. The foundation of the complaint laid in the declaration must be adhered to, although the mode of stating that complaint or setting out the circumstances and consequences of the injury may be varied by amendment: Knapp v. Hartung, 73 Pa. 290.”

In my judgment, this case was properly tried, and I see no good reason for granting this motion. The motion for judgment for defendant non obstante veredicto is, therefore, overruled. Motion overruled.

Prom George Ross Eshleman, Lancaster, Pa.


author: Henninger, P. J.,

text:
    Commonwealth v. Miller.

      Charles H. Miller, District Attorney, for Commonwealth.

      Charles C. Crowell, for defendant.
    Aug. 15, 1928.
   Henninger, P. J.,

Defendant was convicted of unlawfully, dishonestly and corruptly performing his duties as member and captain of Troop “B” in the organization of State employees known as the State Highway Patrol. He asks for a new trial, contending that he was not, at the time the act was performed upon which the charge is based, such an officer or employee as is criminally accountable for unlawful, dishonest and corrupt performance of duty. He raised the question by motion to quash the indictment and again by request for binding instructions. No exceptions were taken to our refusal to quash the indictment, and the question is now before us on a motion for new trial.

In 1923, the State Highway Commissioner of the Commonwealth of Pennsylvania appointed 385 men, including defendant, to the office or position of State highway patrolmen, whose duty it was to patrol the highways of the State and cause the arrest and prosecution of all violators of the motor-vehicle and motor-title laws. Defendant, among others, accepted the position and assumed the duties thereof. The highway patrolmen did not subscribe to the oath required by the Constitution of the State. They arrested on sight. It seems that no such authority had been conferred upon them. The authority for their appointment is found in the Act of Assembly approved May 24, 1923, P. L. 425, and the Act approved June 14, 1923, P. L. 718; the first act being the Motor Title Act and the second the Motor Vehicle Act, the first regulating the ownership and the second the operation of motor-vehicles. The State Highway Patrol was appointed for the purpose of carrying out and enforcing the said acts, their supplements and amendments, the motor-vehicle laws. There is no dispute as to what their duties were. Defendant testified that they were to make informations against violators of said laws. They were paid by the State of Pennsylvania. By the 10th section of the Act of 1923, they are referred to as “officers designated by the Highway Department.”

The State Highway Commissioner, after appointing this large body of men, organized them for work by dividing them into troops, placing each troop under the command of a captain, and the entire organization under the command of the Superintendent of the State Police. The troops were divided into companies, stationed at various points in the State, each under the command of a corporal. The entire organization was placed under military or semi-military discipline. Private and officer were required to obey implicitly and without question the orders of his superior officer. The troops were designated “A,” “B” and “C.” The headquarters of Troop “B” was located at Greensburg, Pennsylvania. Defendant was appointed captain of Troop “B” in 1926. One of the companies of Troop “B” was stationed at Butler, Pennsylvania. R. S. Anderson was appointed corporal thereof. During the month of August, 1927, and for a long time prior thereto, the defendant was captain of Troop “B,” R. S. Anderson was corporal, and George E. Manning was a private patrolman in the Butler company.

On Sunday, Aug. 28, 1927, while Private Manning was patrolling the highway leading from Pittsburgh to Butler, he arrested one N. S. Vidal, Jr., on the charge of operating a motor-vehicle within the county of Butler while under the influence of intoxicating liquor, took him to a doctor for examination, who pronounced him under the influence of intoxicating liquor, and gave Manning a certificate stating that fact. Manning then delivered Vidal to the county jail. On Monday morning, Aug. 29, 1927, Manning took Vidal from the county jail to the office of Alderman Phillips, a duly constituted committing magistrate in and for the County of Butler, and there subscribed and swore to an information charging said Vidal with the offense of operating a motor-vehicle within the County of Butler, Pennsylvania, on Aug. 28, 1927, while under the influence of intoxicating liquor. Alderman Phillips issued a warrant thereon, delivered the warrant to a duly constituted constable, who served it on said Vidal by placing him under arrest. Vidal then waived a hearing and was committed to jail to await trial in the Court of Quarter Sessions. Manning had no arresting power, and possibly the original arrest on Aug. 28th was illegal, but that arrest is not involved in this case. It was Manning’s duty to make the information against Vidal, as he did, and upon which Vidal was legally arrested and committed for trial. After Vidal was committed to jail, on Aug. 29, 1927, an attorney from Pittsburgh, one of the Assistant District Attorneys of Allegheny County, called on the committing magistrate and obtained an order granting a hearing, notwithstanding the waiver, and fixing it for Wednesday evening, Aug. 31, 1927. The attorney then inquired of Corporal Anderson, in charge of the company of State highway patrolmen at Butler, for the name of their superior officer, and learned that the defendant, stationed at Greensburg, was such officer. On Tuesday, Aug. 30, 1927, the said attorney, through his friend and associate, another Assistant District Attorney of Allegheny County, applied to the defendant as the superior officer of the members and officers of the Butler company, and as the captain of Troop “B,” State Highway Patrol, for a favor, to wit, the release of the said Vidal from the said charge because of his friendship with the first referred to assistant district attorney. Defendant granted the request, called up Corporal Anderson at Butler and ordered the release of Vidal from the charge of operating a motor-vehicle while under the influence of intoxicating liquor. The order was obeyed, as it was Corporal Anderson's and Private Manning’s duty to do. The information was withdrawn. Vidal was released. He became, and yet is, a fugitive from justice. The appeal was made to the defendant for Vidal’s release, and the request was granted and the order issued by the defendant on the sole ground of friendship and favoritism. Vidal was ordered released by the defendant when it was defendant’s duty to order and assist in his prosecution. Defendant was an officer of the Commonwealth and not in position to grant favors. To do so was a plain violation of duty, an unlawful, dishonest and corrupt performance thereof, constituting at common law a criminal offense. Such action on the part of an officer or employee of the State injuriously affects public society, the public policy and the public economy of the State. Defendant was a law-enforcing officer. It was his duty to enforce the laws against all who operate a motor-vehicle within the Commonwealth of Pennsylvania while under the influence of intoxicating liquor. He was charged with the duty of causing informations to be made. It was his duty to order those under him to make the necessary information and prosecute the case. He was doubly an officer in this organization within the ordinary and proper meaning of that term.

Any person who holds an office or position of confidence and trust dealing with public affairs or exercising public or governmental authority is criminally liable for neglect, refusal or dishonest and corrupt performance of duty at common law. A person employed to protect society by enforcing the criminal laws, who accepts the employment and unlawfully, corruptly or dishonestly performs his duty by either giving or selling favors, so that favorite persons escape while friendless ones are punished, is criminally amenable at common law.

“All such crimes as affect public society are indictable at common law. The test is not whether precedents can be found in the books, but whether they injuriously affect the public policy and economy:” Com. v. McHale, 97 Pa. 407, 410.

The act charged against defendant injuriously affects public society. Favoritism in the enforcement of law is a deadly governmental poison. Nothing will so discredit a government and cut so deep into the confidence of its people or furnish a surer or shorter route to anarchism than favoritism in the administration of criminal law. No greater injury can be inflicted upon a republic than for its law-enforcing officers to sell or gratuitously grant favors in law enforcement. Impartial law enforcement is essential to stable government. Equality before the law is the bulwark of a republic. The boasted declaration that all men are created equal goes for naught if those in authority do not enforce the law impartially. Favoritism by law-enforcing officers stands upon no higher ground than bribery and extortion.

Defendant, in consideration of friendship, has traded official favor, thereby encouraging the commission of crime and disgracing the law that he was employed to, and agreed to, enforce. Webster defines an office as a special duty; a trust; a charge; a position conferred by the exercise of governmental authority, for a public purpose, and an officer as one charged with a duty; one who holds a position of authority or command. Anderson’s Dictionary of Law defines a public officer as one who has some duty to perform to the public. The case of United States v. Patrick, 54 Fed. 338, 349, defines an office as a public employment. The case of Richie v. Philadelphia, 225 Pa. 512, defines a constitutional officer as one who exercises public functions and is clothed with some power of sovereignty. Defendant is not a constitutional officer. Many officers are not, viz., policemen, captain of police, overseers of the poor, school directors, etc., yet they are officers amenable criminally for malfeasance in office: Com. v. Norris, 87 Pa. Superior Ct. 61; Com. v. Wilson, 30 Pa. Superior Ct. 26; Com. v. Saulsbury, 152 Pa. 554; Com. v. Brown, 23 Pa. Superior Ct. 470.

In the case of Com. v. Evans, 74 Pa. 124, it was held that a person appointed to collect particular claims was a public officer and amenable at common law for extortion. There is no reason why an officer should be amenable criminally for extortion and not for malfeasance in office, which is defined to be the doing of an act which an officer should not do; evil conduct or illegal deed.

The common law has sufficient power to punish as a misdemeanor any act which directly tends to injure the public, injuriously affect public health, comfort or morality, obstruct or pervert public justice, or the administration of government: 16 Corpus Juris, § 23, page 65.

Defendant’s act comes within this definition. It is not of much importance whether he is a constitutional or a non-constitutional officer. “In general, it may be said that any officer, whether Federal, State or municipal, and every person occupying an official or a quasi-official position, may be guilty of extortion at common law:” Com. v. Saulsbury, 152 Pa. 554, 560.

This applies with equal force to malfeasance in office. Defendant holds an official or quasi-official position, such as imposes criminal liability for malfeasance. He is criminally liable at common law for his unlawful, dishonest and corrupt discharge of duty.

Defendant contends that he is not amenable to the criminal law because he has not subscribed to the oath that the Constitution requires. This is no defense: Com. v. Evans, 74 Pa. 124.

Defendant further contends that he is not amenable to the criminal law because he did not have arresting power. This contention is not tenable. The act charged against defendant does not involve the arrest. Defendant is charged with ordering the release of a person who was lawfully arrested and held for court.

Defendant further contends that he is not amenable to the criminal law because the State Highway Commissioner had no authority to appoint him captain over Troop “B,” with power to command his fellow-officers. With this contention we cannot agree. He accepted the position and is not in position to question the appointment. We are of opinion that when, by law, the State Highway Commissioner was empowered to appoint a body of men to enforce the motor-vehicle laws, it carried with it the power to organize them in such manner and form as would, in his opinion, effectively accomplish the end intended. It is incidental to the power granted, and the appointment of captains over the troops was a valid exercise of power conferred. If, however, it is not, it does not leave the defendant in any better position. It was still his duty to prosecute violators as a State highway patrolman in common with Anderson and Manning. If he aided, assisted and abetted them in an unlawful, corrupt and dishonest performance of duty, he is guilty equally with them, for he who aids, assists or abets another in the commission of a crime is himself guilty of the crime.

A careful review of the testimony in this case in the light of all the circumstances convinces us that the defendant’s position is untenable, and it follows that a new trial must be denied.

Now, Aug; 15, 1928, motion for new trial refused, defendant directed to appear in court on Monday, Sept. 3, 1928, at 10 o’clock A. M., for sentence. An exception to this order is noted for the defendant.

From Thomas H. Greer, Butler, Pa.