author: Cummins, J.,

text:
    In re Appointment and Fixing of Salary of Controller's Clerks by Salary Board.

      Meyer Goldfarb, for appellant; Norman E. Clark, for appellees.
    March 12, 1928.
   Cummins, J.,

This is an appeal by the county controller from the action of the salary board, first, in refusing him a field clerk, and, second, in refusing an increase of salary to another clerk.

This case involves the determination of the correct relation and proper functioning between the board of county commissioners and the office of county controller; it involves, likewise, a novel situation. Stripped of all its legal technicalities, it simply amounts to this: The county commissioners are authorized by law, as the county's fiscal agents, to make her contracts, to spend her money; to check these expenditures is the duty of the county controller; incident to the making of an effectual check, the controller is required to collect and keep a record of all data showing all moneys received and expended by the county; to make possible such a check, the legislature makes it the duty of the salary board to supply the controller with sufficient clerks; and the county commissioners, constituting a majority of the salary board, challenge the controller’s right to send a field clerk out into the county for the purpose of making an actual check on the county’s expenditures made in improvements, and consequently have denied the controller a clerk for that purpose; they say, first, that the controller is a mere ministerial officer, with no discretionary powers; that he may add up vouchers and claims, but that behind these he cannot go; second, that, even if he has any such power, that he alone can personally exercise it; that he could not be assisted therein by a clerk or clerks; third, that the Court of Common Pleas is without jurisdiction to review their action, it being alleged that the act of assembly authorizing an appeal therefrom is unconstitutional; and, fourth, that if the court has jurisdiction, it is limited to cases where it is affirmatively shown that thfe county commissioners have acted in bad faith.

The commissioners’ first contention that the controller is but a ministerial officer, a book-keeper who can verify the figures and calculations appearing on vouchers and claims, but that he cannot go behind these, is untenable. To so hold would utterly destroy the office of county controller as an effective check; the controller would become but an adding machine, a rubber stamp. This was not the intention of the legislature; it expressly provided otherwise. It is provided by section 8 of the Controller’s Act (the Act of May 6, 1909, P. L. 434), “that [the controller] shall scrutinize, audit and decide on all bills, claims and demands whatsoever. . . . He may, if he deems it necessary, require evidence by oath or affirmation of the claimant, and otherwise [than by affidavit], that the claim is legally due and the supplies or services for which payment is claimed have been furnished or performed. . . .” Even “the word [audit itself] implies the exercise of judicial discretion, and . . . is generally extended to include investigation, weighing of evidence and deciding whether items should or should not be included:” 6 Corpus Juris, 847, 848. Under said section 8, the controller, in passing on claims, may not only audit (which itself includes investigation), but, where he deems it necessary, he may require evidence of its legality and correctness by the claimant’s oath, and otherwise, i. e., by such other inquiry and investigation as he may deem best, which certainly would permit of an actual check-up or investigation being made by the controller himself, his deputy or clerk.

Moreover, section 15 of the Controller’s Act also expressly gives to the controller all powers which were vested in county auditors under the Act of April 15, 1834, P. L. 537; and the powers of county auditors were not merely ministerial: Runkle v. Com., 97 Pa. 328.

That a county controller is not a mere ministerial officer, but that he has full discretionary powers in passing upon the legality and correctness of claims against the county, has now been squarely decided by the Superior Court in the recent case of Com. ex rel. v. Woodward, County Controller, 84 Pa. Superior Ct. 124, wherein Gawthrop, J., at page 129, clearly points out that the authorities relied upon by the appellees in this case (Com. ex rel. v. Tice, 272 Pa. 447; Vare v. Walton, 236 Pa. 467) involved only ministerial duties of the city controller, and are, therefore, without application. And see Douglas v. McLean, 25 Pa. Superior Ct. 12; Com. v. George, 148 Pa. 463, 469.

Where bills are presented for labor or materials, the county controller does, therefore, have authority to investigate such claims in order to enable him to exercise his judicial discretion in passing upon their legality and correctness. Is the collection of such data such a duty as may be performed by a clerk? This is the second question raised by appellees.

The Act of March 31, 1876, § 7, P. L. 13, 15, provides that “the county commissioners and county controller . . . shall be and they are hereby constituted a board . . . whose duty it shall be to meet together, from time to time, as they may be required by any of the officers whose salaries are established by this act [including the office of county controller], for the purpose of ascertaining and determining the number of deputies or clerks required for the proper dispatch of business by each of such officers, and for fixing the salary of each of said clerks and deputies. . .” [See Act of May 21, 1879, P. L. 72, and the Act of July 5, 1883, P. L. 182]; and section 14 of the Controller's Act provides that “the controller may appoint a deputy controller and such other clerks as may be necessary, whose salaries shall be fixed by the commissioners and the controller, as provided by section 7 of the Act of March 31, 1876.”

The provisions of these two acts must be read together, and only to the extent that they are absolutely inconsistent does the latter repeal the former: Com. ex rel. v. Ruggles et al., 280 Pa. 568, 570, 571; Graham v. Philadelphia, 88 Pa. Superior Ct. 250, 255-258. The Act of 1909 authorizes the controller to appoint such clerks as may be necessary, but this is not inconsistent with the provisions of the Act of 1876, which provides that this necessity shall be determined by the salary board. Reading, then, these two acts together, the proper practice is for the salary board to determine, first, the number of the controller’s clerks; and, second, their salaries; and then, after this has been done, the controller fills these clerkships by appointment. Now, appellees contend that one who would go out to where improvements are actually being made by the county and there collect data as to materials furnished and labor done would not be a clerk within the meaning of these acts of assembly; and if this were true, then it would, of course, follow that appellant would not be entitled to the “field clerk” contended for.

As was said by Mr. Justice Pell in Mulholland v. Wood, Brown & Co., 166 Pa. 486, 490, “the original meaning of the word clerk has become so enlarged that in modem usage it may [even] include a salesman in a retail store.” So we have sales clerks, mail clerks, time clerks, pay clerks, bank clerks, stock clerks, cost and indictment clerks (by the Act of April 18, 1919, P. L. 83), judicial clerks (by the Act of March 2, 1927, P. L. 3), and so on ad mfinitvm; and their duties vary greatly, depending on the nature of the work of the employer who engages them or the duties of the public official who appoints them. To be a clerk, it is unnecessary that the employee dr appointee be engaged in an office or that he always be at a desk. Whether one is a clerk depends upon the nature of the duties which one performs, not where he performs them. A mail clerk on a train, a pay clerk or a time clerk are common examples of clerks who do not spend their time in an office or at a desk.

But an official clerk is not one who has the authority to perform the same functions as the official appointing him (Maginnis v. Sehlottman, 76 Pa. Superior Ct. 124, 127, affirmed in 271 Pa. 305), nor one trained as an expert in some particular field, e. g., a civil engineer: Bedford v. Rosser et al., 283 Pa. 345, 348. A clerk to a public official is ordinarily one who, as an amanuensis, book-keeper, scrivener, secretary or accountant, ministerially aids a public official in the discharge of his official duties: 11 Corpus Juris, 841; Bedford v. Rosser et al., 283 Pa. 345, 348. It is the duty of the controller to collect and make a complete record of the data showing all receipts and expenditures of the county (which duties are purely ministerial and could be discharged by clerks), and “to scrutinize, audit and decide on all bills, claims and demands whatsoever against the county,” which latter duties constitute an exercise by the controller of his official discretion. The Act of 1876 requires the salary board to give to the controller “the number of deputies or clerks required for the dispatch of business” incident to his office. That the controller’s duties dischargeable by clerks consist of his ministerial duties we have no doubt. We are satisfied that the county controller, in checking and passing upon claims rendered for supplies or labor, can go beyond the bills rendered therefor; that he has full authority and that it is his duty to know whether the quantities of material for which payment is claimed were actually delivered; whether those whose names appear on the county pay-rolls are in fact engaged in doing county work for the hours claimed; and that the amounts of fines remitted by justices of the peace to the county treasurer are in fact correct. The actual making of such a cheek does not require the work of an expert, nor involve an exercise of discretion, but, instead, involves only the ministerial duty of collecting and compiling data necessary to enable the controller to properly exercise the official discretion vested in him; this clearly a controller’s clerk, under the Acts of 1909 and 1876, can do, and for the purpose of distinguishing him from the other clerks of that office he might be conveniently called a “field clerk.”

Under the evidence, it is clear that the controller in this county has never had a field clerk; that check-ups outside of his office have as yet not been made; and that an additional clerk will be necessary if this work is to be done is evident from the testimony of the county engineer. We, therefore, conclude that the county controller is entitled to the additional clerk for which he has asked. We believe, however, that the salary board, and not the court, should in the first instance fix the salary of such additional clerk.

The appellees’ contention that the portion of section 7 of the Act of 1876 giving to an officer the right of appeal to the Court of Common Pleas is unconstitutional, for the reason that it imposes upon the court other than judicial duties, cannot be sustained. In this very case the court has been required to pass upon both issues of fact as well as issues of law; and this would be true, we believe, in any appeal which might be taken. For almost fifty years the constitutionality of this provision, so far as we can find, has never been questioned. See Com. ex rel. v. Paine, 207 Pa. 45; Com. v. Mann et al., 168 Pa. 290; Taggart v. Com. ex rel., 102 Pa. 354. The contention that the court is, upon appeal, without jurisdiction to act, except where it affirmatively appears that the commissioners have acted in bad faith, is without merit. See Bedford v. Rosser et al., supra. In fact, it is but fair to the county commissioners in this case to say that we are satisfied that they have acted in good faith, but have been misled1 by the case of Com. ex rel. v. Tice, supra, and other kindred authorities; but this situation has now been cleared up by the late case of Com. ex rel. v. Woodward, County Controller, supra, so that further misunderstanding growing out of an apparent conflict of the authorities mentioned should not arise.

As to the action of the salary board in refusing to raise the salary of another clerk in the controller’s office, it is sufficient to say that it did not appear by the weight of the evidence that the salary fixed was inadequate or less than that ordinarily paid for service of a similar nature.

Both judges have conferred on the legal propositions herein involved and concur in the conclusions reached.

Decree.

And now, to wit, March 12, 1928, the county controller is allowed an additional clerk to those allowed him by the salary board, whose salary is to be fixed by that board; the salary of the other clerks as allowed by the salary board to remain as heretofore fixed by that board.

From Harry D. Hamilton, Washington, Pa.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    Hess’s Estate.

      Boyd Lee Sphar (of Ballard, Spahr, Andrews & Ingersoll), for appellants.

      J. Lee Patton, for Register of Wills, agent for the Commonwealth.
    Nov. 3, 1928.
   Thompson, J.,

This appeal comes before me because the State Appraiser, appointed by the Register of Wills, included in his appraisement for inheritance tax purposes, not only the individual estate of Alice Hess, the testatrix, but also the portion of the estate of her father, David M. Hess (who died Sept. 3, 1907), over which she had a general power of testamentary appointment.

By her will, the testatrix, after directing the payment of her debts and funeral expenses, gave a specific legacy and several pecuniary legacies aggregating $14,000, of which the specific legacy and $11,000 are given to others than lineal descendants of David M. Hess; and by the seventh item of her will, gave all the rest, residue and remainder of her estate, real and personal, to her two sisters (also daughters of David M. Hess), Mabel Davis Hess and Lilian D. Royal, the appellants.

By the eighth item of her will, she provided as follows:

“Eighth. I direct that all the'taxes upon my estate and on all legacies under this my will either state or federal shall be paid out of the principal of my estate. And I further direct that the legacies and bequests in this my last will shall be charged upon my interest in the estate of my deceased father, David M. Hess, over which I have a right of testamentary disposition under his last Will and Testament, and I hereby exercise this right over the portion of his estate now held in trust for me by the substituted Executors under the last Will and Testament of David M. Hess.”

As appears from the petition for citation, the testatrix’s net individual estate was appraised at $1685.95 (the difference between inventory, $8109.92, and debts, etc., $6413.97), the balance of $127,514.94 being the appraised value of the appointive estate, real and personal. The assessment of tax on the combined estates is $13,261.87, and the Commonwealth justifies its claim on the ground that her will shows testatrix’s intention to blend the two estates for all purposes and to dispose of both as her own. On the other hand, the appellants contend that the will shows no intention of blending the two estates, and that all that the Commonwealth is entitled to is tax on $11,000 at 5 per cent, and at 10 per cent, on $1685.95, the balance of testatrix’s individual estate.

What, then, was the intention of the testatrix to be gathered from her whole will?

As clearly appears from the will, the testatrix, in express terms, exercised her power of appointment at least as to the pecuniary legacies. She expressly charges them upon her interest in the estate over which she had the right of testamentary disposition. Her own estate was thus subject only to the payment of her debts and expenses and the specific legacy; and she gives the residue to her sisters.

Following this, she charges the tax upon the legacies and bequests, whatever that may include, upon the residue of her individual estate, whether sufficient to pay the same or not. The legacies of $11,000, given to strangers, are, under any circumstances, liable to tax, and likewise the balance of testatrix’s individual estate, before diminution by payment of the tax on $11,000. But the $11,000, being charged upon the estate of David M. Hess, is, however, liable only to a 5 per cent, tax; and, therefore, as to the excess charged thereon, the appeal is sustained; while, as to the imposition of the tax of 10 per cent, on the balance of testatrix’s individual estate, the appeal is dismissed.

It is contended, however,'on behalf of the Commonwealth, that the estate of David M. Hess, in excess of the sum of $11,000, is also subject to tax, on the ground that the testatrix so blended the two estates as to show an intention to dispose of both as' her own.

It is obvious that, if the balance of the estate of David M. Hess does not pass under the residuary clause of the will, as defined by the testatrix herself in the subsequent direction that the legacies and bequests in her will shall be charged upon her interest in the estate of her deceased father, the testatrix did not in terms dispose of such balance at all, but its disposition results from operation of section 11 of the Wills Act of June 7,1917, P. L. 403. The testatrix directs that the “legacies and bequests” in her will be paid out of her father’s estate; and this language is perhaps broad enough to include the balance of her father’s estate. But whether the disposition of such balance results from the operation of the Act of 1917, or whether the testatrix intended to dispose of it by the residuary clause of her will, the conclusion, it seems to me, must be the same.

In Mitchell’s Estate, 7 D. & C. 387, the testator directed payment of his debts and expenses, but the appointment became effective by operation of the Act of 1917, and it was held that “it does not follow that because the donee of a power has subjected the appointed estate to his debts, he thereby intends to make it his own for all purposes, including the payment of legacies and the tax thereon. The direction to pay debts may, indeed, be a factor in the solution of the problem, but it is not decisive: Haven’s Estate, 5 D. & C. 494; Hagen’s Estate, 85 Pa. Superior Ct. 123; 285 Pa. 326.”

The intent to blend the appointive estate with a donee’s own must be plainly expressed or clearly implied: Hagen’s Estate, 85 Pa. Superior Ct. 123. The Commonwealth argues that such implication arises from the fact that the testatrix, after directing the payment of her legacies out of the appointive estate, directed the tax thereon to be paid out of her individual estate. Ergo, she knew that estates were liable to tax, and must have known that, if the two estates were so liable, her individual estate would not be sufficient to pay it. But must the testatrix not also have known that, in so far as she appointed her father’s estate to his lineal descendants, there would be no tax, and that her estate would be amply sufficient to pay the tax on gifts to strangers? It seems to me, therefore, that the effort to ascertain testatrix’s intention is not advanced by considering either of these possibilities or probabilities.

As I view the matter, the testatrix’s mind never contemplated the question of blending the two estates and disposing of both as her own; that her direction to pay tax out of her estate was merely to relieve the taxable legacies therefrom; and that, by the provisions following the residuary clause of her will, having disposed of the balance of her individual estate, her sole intention was to dispose of her father’s estate; and, having carved out the pecuniary legacies, to dispose of the balance to the same persons to whom she had given the balance of her own estate; in other words, that the balance of the appointive estate should follow the same channels of distribution designed for the residue of her own estate: Hagen’s Estate, supra.

The persons to take her individual estate are lineal descendants of the donor of the power in question, and not liable to tax.

Entertaining this opinion, the appeal from the assessment of any further tax is sustained.

And now, Nov. 3, 1928, it is ordered and decreed that the assessment of transfer tax be modified by the imposition of collateral inheritance tax at 5 per cent, on $11,000; at 10 per cent, on $1685.95, with interest to date of assessment from the time they respectively became due; and that, as to the balance of the tax, the appeal be sustained.


author: Lewis, J.,

text:
    The Colonial Trust Company v. Morse et al.

      Harry Shapiro, for plaintiff; Frank A. Harrigan, for defendant.
    Nov. 10, 1928.
   Lewis, J.,

The defendant, J. H. Lorimer, sets up as defenses to this action against him as endorser of a promissory note: First, that the note having been executed and delivered Dec. 22, 1924, with his endorsement thereon, and no demand for payment having been made upon the maker until June 30, 1926, he, as accommodation endorser, was discharged from liability; and, secondly, that plaintiff should have collected the amount of the note from the maker’s interest in an estate which had been assigned to plaintiff as collateral.

While our conclusion upon the first defense renders any consideration of the second unnecessary at this time, it is to be noted that the affidavit of defense contains no averment that plaintiff’s failure to pursue the collateral has resulted in any loss. For all that appears, it may still be available. There can, however, be no doubt as to plaintiff's right to proceed on the note: Marquardt’s Estate, 251 Pa. 73, 76.

Plaintiff concedes, as it necessarily must, that if the instrument sued on were negotiable, the delay in presentment for payment would discharge the accommodation endorser. The note in this case, however, contains a warrant of attorney to confess judgment against the maker “as of any term,” and since this includes entry of judgment before maturity, the instrument is nonnegotiable: Volk v. Shoemaker, 229 Pa. 407; Milton National Bank v. Beaver, 25 Pa. Superior Ct. 494. The provisions of the Négotiable Instruments Law are, accordingly, inapplicable: 5 Uniform Laws, Annotated, 12.

The argument is, therefore, made that, since the note is not negotiable, neither the law merchant nor the Negotiable Instruments Act applies; that the legal effect of defendant’s endorsement was to make him liable as a guarantor of the instrument, and as such he was not entitled to have the instrument presented for payment within the usual reasonable time. The statement in 3 Ruling Case Law, 1172, would seem to support this contention: “The requirement of presentment as understood in the commercial law applies only to instruments governed by that law, that is, negotiable instruments; it has no application to non-negotiable instruments. In an action upon a non-negotiable promissory note by an assignee thereof against his assignor, it is not necessary for the assignee to show diligence against the maker, and the want of diligence is no defense to the plaintiff's right to recover. The indorser is not entitled to the usual privilege of an indorser of negotiable paper. He stands in the relation of a principal, and not surety, to his indorsee, and has no right to insist upon a previous demand of the maker and notice of non-payment.”

In the same volume, however, we find (page 1220) : “The liability of the indorser of a non-negotiable instrument is not contingent upon demand of payment and notice of dishonor. One who writes his name on the back of a non-negotiable note is liable as guarantor or maker to the holder thereof, and is not entitled to have the instrument presented for payment when due or to be given notice of non-payment. While some diversity of opinion has existed on the point, the law has become well settled that a promissory note payable on demand, whether with or without interest, is due forthwith; it is not a continuing security on which an indorser remains liable until actual demand; but, to charge the indorser, payment must be demanded of the maker within a reasonable time, and notice of such demand and of non-payment given to the indorser.”

The authorities are quite at variance regarding the liability of irregular endorsers, no distinction being drawn in some states between instruments which are negotiable in character and those which are not, the presumptive liability of endorser being the same in either case: 8 Corpus Juris, 59. The same authority states: “In still other states, including Pennsylvania, it seems that there is no presumptive liability, but that his relation depends on the agreement under which his indorsement is made.”

In Lang v. Fegenbush, 2 Phila. 20, Judge Hare’s opinion sustains the above statement of law: “The endorsement of a note which wants words of negotiability has no definite or legal import and depends for its effect on the circumstances under, and the consideration for, which it is given. Hence, it raises no presumption either for or against the endorser and makes the question of his liability one of mere fact, to be decided upon all the evidence in the cause, as in ordinary cases of guaranty. . . . Full justice was, therefore, done to the defendant in the present instance by instructing the jury that his endorsement alone would not make him answerable to the plaintiff and that his liability depended on whether his intention was to enable the maker to obtain credit from the payee and whether the latter gave credit on the faith of the endorsement.” See, also, Leech v. Hill, 4 Watts, 448.

Here the defendant admits that he endorsed the note “as an accommodation endorser for the maker,” whereupon plaintiff advanced to the maker $2000, the face amount of the note.

In 8 Corpus Juris, 59, we find it stated regarding non-negotiable instruments :

“The general rule is that demand of payment of the maker or notice of dishonor is not necessary to fix the liability of the indorser to the indorsee where such a liability exists, since the rules of the law merchant concerning notice apply to none but strictly commercial instruments. And this is so although he writes the word ‘indorser’ after his signature.

“On the other hand, the contrary rule has been laid down in a few states, including Arkansas, Indiana, Minnesota, Tennessee and Vermont. And in California it is held that if the indorsement shows an intent to treat the same as an indorsement of a negotiable note, demand on the maker of the nonnegotiable note is necessary.”

Cited as supporting the general rule given above is the early case of Jordan v. Hurst, 12 Pa. 269, but that case was quickly repudiated in the cases next cited.

A careful study of the opinions in McKinney v. Crawford, 8 S. & R. 351; Brenzer v. Wightman, 7 Watts & S. 264; Patterson v. Todd, 18 Pa. 426; Tyler v. Young, 30 Pa. 143, has led us to the conclusion that we cannot enter judgment against defendant at this time. Consideration of the same cases by President Judge Simonton in Harrisburg National Bank v. Moffitt, 10 Dist. R. 22, convinced him that there could be no recovery against an accommodation endorser of a negotiable promissory note, payable on demand, where the holder failed to make formal demand of payment upon the maker within a reasonable time. See, also, McCormick v. Armstrong, 19 Dist. R. 23. It is rather a technical rule that makes the note in this case nan-negotiable, and we see no reason, on principle, why the defendant should not be entitled to the same rights as he would have if the note had been negotiable, unless, of course, it can be shown that his undertaking was in fact broader than that of accommodation endorser. Plaintiff has averred in its statement of claim that the defendants orally agreed to guarantee the payment of the note. In Leech v. Hill, 4 Watts, 448, it was said: “If the defendant stood in the light of a guarantor, then, according to the opinion of this court in Gibbs v. Cannon, 9 S. & R. 198, the plaintiff was not subject to all the duties of a holder of a note towards an indorser.” The language of the court in the Leech case would appear to be very much in point here and would indicate that the defendants must be viewed as sureties or guarantors. In that case, however, the note was payable a specified time after date.

Some confusion in thought exists in the decisions from a failure to distinguish between the necessity for demand of payment and notice of dishonor to establish the liability of the endorser and the necessity of a demand for payment upon the maker within a reasonable time in order to charge the endorser. See 8 Corpus* Juris, § 737, page 525. Thus in Joyce’s “Defenses to Commercial Paper” (2nd ed.) it is stated broadly that “in case of non-negotiable notes, demand is not necessary to charge the indorser. . . .” (page 1065).

While the endorser may be chargeable from the inception of his undertaking, we have concluded that the holder of the note is not without some duty to him regarding the time within which the instrument, payable on demand, must be presented to the maker for payment. Altogether, the matter is not free from doubt, and we are disposed to let the matter go to trial to ascertain whether any additional light can be thrown upon the agreement of the parties at the time the loan was granted.

The rule for judgment is accordingly discharged.

NOTE. — Paragraphs 2 and 3 of syllabus are by the Court. — Ed.


author: Martin, P. J.,

text:
    Bell v. City of Philadelphia et al.

      Mercer L. Lewis, for plaintiff; Joseph P. Gaffney, for defendants.
    Aug. 22, 1928.
   Martin, P. J.,

A petition was filed by Alexander Bell, alleging that on or about March 17, 1917, he passed the Civil Service examination and entered the service of the City of Philadelphia as a police officer, and was assigned to the 28th and other police districts of the city; that on March 17, 1926, a letter from the Civil Service Commission notified him that his petition for reinstatement had been refused, and that-the decision was final, which was the first official notice he received that he had been discharged from the Police Department. The petition further alleged that on about Aug. 17, 1923, while off duty, he was arrested, charged with attempted burglary, and was suspended and ordered for trial before the Civil Service Commission upon charges of conduct unbecoming an officer, with the specification that at 1.30 A. M. on Aug. 3, 1923, while off duty, he was seen acting in a suspicious manner in the neighborhood of 15th Street and Girard Avenue by Patrolman Henry J. Hoy, who had been attracted by his suspicious action in the 1400 block of Girard Avenue, and when accosted by the patrolman at No. 1508 Girard Avenue, while trying to force or remove a front window screen, he disclosed his identity to the patrolman, but refused to answer, after repeated inquiries, as to the reasons for his improper actions; that- on Aug. 28, 1923, he was brought to trial upon the charge, and the case was held under advisement awaiting his trial in court, he having been arrested and indicted; that on Oct. 9th he was tried in the Court of Quarter Sessions, charged with attempted burglary; and after all the witnesses the Commonwealth produced had been heard, petitioner was found not guilty and fully exonerated by the judge and jury; that he had remained suspended since Aug. 4, 1923; that after his acquittal in the Court of Quarter Sessions, he immediately demanded reinstatement to his position as patrolman from which he had been suspended, and continued the demand by letter and otherwise until June, 1924, when he was advised that a rehearing would be granted on June 24, 1924; that he and his witnesses appeared before the Commission on that date for the purpose of the rehearing, but he was refused the privilege of testifying, or offering any testimony, or of having any of his witnesses heard, and after the witnesses for the prosecution were heard, the meeting was adjourned and the matter held under advisement; that petitioner heard nothing further for several months, but continued to demand that he be given an opportunity to be heard; that on May 5, 1925, he received a letter from the Commissioners stating that their records showed he had not filed with the Commission a formal petition requesting a reinstatement, and if he was still desirous of being reinstated, it would be necessary for him to file with the Commission at once a formal petition in affidavit form, sworn to before a notary public, and that no rehearing would be granted until such a petition was filed; that immediately upon receipt of this communication petitioner filed with the Commission a formal petition, notwithstanding he had never been discharged and was still under suspension, the Commission still holding his case under advisement, and from the time he filed the petition on May 5th he was never given a rehearing, nor permitted to produce proof of his right under the Civil Service Act to be returned to'the Police Department; that he has been “dropped” from the service of the Bureau of Police; that no charges have been filed against him since the charge set forth upon which he was acquitted in the Court of Quarter Sessions; that he was suspended on the same charge pending his trial in court, and since the trial he has been given no rehearing with the right to be heard in his own defense or to produce his witnesses before the Civil Service Commission in any proceeding arising out of his dismissal from the service of the Bureau of Police; that since his association with the Bureau of Police and Department of Public Safety he has served in various police districts and faithfully performed his duties in accordance with the rules and regulations of the bureau and in compliance with the law; that he believes and avers that he has been illegally and unlawfully removed from the service of the Bureau of Police, Department of Public Safety, and that he is now and has at all times been ready and willing to perform his duties and obligations as a police officer, and that he has been and is being unlawfully and illegally deprived of his right to perform said duties by the action of the director in refusing to continue him in the service of the Bureau of Police, and he is unlawfully being deprived of his right to fill the position of patrolman in the Bureau of Police, or to perform the duties and to receive the pay, and that he is without adequate and specific remedy at law.

The petitioner prays that an alternative mandamus be directed to the Civil Service Commissioners to show cause why they should not restore to the Civil Service list the name of petitioner as patrolman in the Bureau of Police, and for an order certifying that petitioner is entitled to the office of patrolman, and directing the Director of Public Safety to show cause why he should not forthwith designate petitioner as patrolman and assign him to duty, and to the Mayor of the City of Philadelphia to show cause why he should not see that petitioner is designated as patrolman in the Bureau of Police and assigned to duty.

A rule was granted. A return was filed on behalf of respondents, in which it was averred that on Aug. 17, 1923, charges were preferred against petitioner, charging him with conduct unbecoming an officer on Aug. 4,1923; that he was suspended on Aug. 6, 1923, notified of the charges made against him, and a hearing was held, at which he was present and represented by counsel, by the Civil Service Commission, on Aug. 21, 1923, when and where, after he took the stand and testified and presented witnesses, he was found to have been guilty of conduct unbecoming an officer — in peeping into the bedroom of a woman after midnight — and the Director of Public Safety was directed that petitioner be separated from the service as of Sept. 15, 1923. Notice to this effect was sent to the director on Sept. 17, 1923, and the petitioner was notified that on Sept. 15, 1923, he was discharged from the service as a police officer. It is averred in the return that no official notice to petitioner was required, as he had personal knowledge of all that transpired in his case. It is admitted that petitioner was tried in the criminal court on the charge of attempted burglary and acquitted, but it is averred that his acquittal did not exonerate him of the charge of conduct unbecoming an officer, in so far as the proceeding before the Civil Service Commission was concerned, and that he was discharged from the service when convicted of the charge of conduct unbecoming an officer. It is admitted that demand had been made by petitioner for reinstatement, and averred that the Civil Service Commission, within their judgment and legal right, after he personally appeared before the Commission, did not consider him a proper person to be reinstated as a patrolman, and, therefore, refused.to reinstate him. It is denied that the matter was held under advisement, and averred that it was finally determined on June 24, 1924, and the Director of Public Safety notified on June 28, 1924. It is further averred that at the time the formal petition for a rehearing, referred to in the petition for the mandamus, was filed, petitioner had already been discharged; that he was not under suspension, and the Commission had finally determined his case as of Sept. 15, 1923. It is averred that the charges against him were properly presented, a hearing held and a determination reached before the Civil Service Commission, and that on Aug. 21, 1923, petitioner was found guilty of conduct unbecoming an officer, and on Sept. 15, 1923, he was separated from the service. It is denied that petitioner served faithfully and performed his duty in accordance with the rules and regulations while in the Bureau of Police, and averred that his conduct was such as-to meet with the disapproval of his superior officers, and that he was an unsatisfactory officer in the service of the city. It is further averred that the action of the Civil Service Commission was legal and lawful, and that the petitioner has not been deprived of any of his rights, and that he has no complaint against respondents which, in either law or equity, has a basis for interference by the court.

The case proceeded to a hearing. Petitioner testified that he passed the Civil Service examination on March 17, 1917, commenced his employment as a patrolman in the Police Department of the City of Philadelphia, and that he was arrested on a charge of burglary and suspended on Aug. 4, 1923.

He was asked by his counsel: “You were charged with breaking and entering, or attempting to remove a screen at No. 1508 Girard Avenue; did you attempt to remove any such screen at No. 1508 Girard Avenue?” to which he-responded, “No, sir.” The record of the specific charge tried before the Civil Service Commission, in which petitioner was charged with conduct unbecoming an officer, was placed in evidence on behalf of petitioner.

Counsel for respondents placed in evidence the entire record of the trial by the Civil Service Commission, including the evidence.

It was argued on behalf of petitioner that he having been acquitted in the Court of Quarter Sessions of the charge of attempted burglary, the Civil Service Commission had no authority to try him on the charge of conduct unbecoming an officer. He may have been guilty of conduct unbecoming an officer, although he was not guilty of attempted burglary. He was tried in the Court of Quarter Sessions for attempted burglary and acquitted of that charge; the criminal court did not pass upon a charge of conduct unbecoming an officer. The Civil Service Commission tried him upon the latter charge and found him guilty, after a hearing in which he was present with his witnesses and represented by counsel. The proceedings were regular in every detail.

This court will not review in mandamus proceedings the exercise of discretionary powers vested in the Civil Service Commission to try issues arising out of the charges that were made against the petitioner and tried by the Commission.

The' findings of the Civil Service Commission are final and conclusive: McCoach v. Philadelphia, 273 Pa. 317; Com. v. Philadelphia, 273 Pa. 332.

And now, to wit, Aug. 22, 1928, the rule for peremptory mandamus is discharged.


author: Hicks, J.,

text:
    Commonwealth ex rel. Radzievich v. Davis and Minersville Borough Council.

      J. F. Mahoney and David Bechtel, for plaintiff.
    J. A. Noecker and Roger Prosser, for respondents.
    April 23, 1928.
   Hicks, J.,

On Jan. 13, 1928, the relator presented his petition for a writ of alternative mandamus, directed against the Chief Burgess, Secretary and Members of the Town Council of the Borough of Miners-ville, in which he alleged that he was duly elected a member of the Town Council of the Borough of Minersville on Nov. 8, 1927, duly certified and returned as such by the proper election officers, of the 4th Ward, in which he resided, and duly qualified by taking the oath of office as required by law. He further stated that he attended the organization meeting of the town council on the first Monday in January, 1928, with his certificate of election and his oath of office, the latter being filed with the secretary of the council; that he attended the next regular meeting of the town council on Jan. 5, 1928, when he presented his certificate of election, but was refused enrollment as a member of the town council and permission to participate in the proceedings of that body; that he had been greatly wronged and injured and deprived of the rights and privileges of a member of the town council, and that he was without other adequate and specific relief at law. A writ of alternative mandamus was directed to issue. A return was made by the defendants to the writ of alternative mandamus, in which the election of the relator to the office of councilman in the 4th Ward of the Borough of Minersville is not denied, alleging that no certificate of election was presented and that the refusal of the respondents, members of the town council, to admit the relator as a member was based solely upon the allegation that, after the election of the relator and before the organization meeting of the town council, he removed from the ward in which he was elected, which worked his disqualification and precluded him from taking his seat as a member of council. It was for this reason, the respondents allege, they refused the admission of the relator to their body. To this return of the respondents the relator filed a traverse, in which he denies his removal from the 4th Ward, in which he was resident when elected, reiterates his election and qualifying for the office, and alleging the presentation of the certificate of election and the filing of the oath of office, together with his demand for permission to be enrolled and participate in the deliberations of the town council, averring the refusal of the members of council to seat him.

Testimony was taken, from which it fairly appears that there are only eleven members of council in the Borough of Minersville acting, and that no one is claiming the office to which the relator claims title. It is uncontradicted that the relator presented himself on the first Monday in January, 1928, at the organization meeting of the Town Council of the Borough of Minersville and also at the first regular meeting held on Jan. 5, 1928, and that he filed with the secretary of the town council his oath of office, taken before a notary public. From the testimony, it is also fairly deducible that he had with him, at both meetings, his certificate of election and that it was passed around and discussed by at least some of the members at its first regular meeting on Jan. 5, 1928. In the pleadings filed in this case, the justification given by the respondents — eleven out of twelve members of the town council — for refusing to seat the relator is his alleged disqualification to sit as a member of the town council because, after his election in November, 1927, from the 4th Ward, he removed, in December, 1927, to the 3rd Ward of the borough. There is no question in this case concerning the election of the relator from the 4th Ward, the legality of his election, or that he did not qualify by taking the oath of office, or that he did not have a certificate of election. The fundamental proposition in this case, which is underlying, is whether the town council of a borough may refuse to enroll a member newly elected and participation in the deliberations of the body, there being no question as to the fact or legality of his election, because he removed from the political division in which he was elected and which he was to represent between the time of his election and the beginning of his term of office.

In considering whether mandamus is the proper remedy to direct the town council to admit the relator, it is of interest to repeat that it is admitted by the attorneys for the respondents that no one is in possession of the office claimed by the relator and that there is no adverse claimant. This is shown both by the pleadings and the admission of counsel for the respondents.

Where there is no adverse claimant or officer in possession, mandamus lies to compel the admission to one having an undisputed or a clear legal prima facie title to the possession of the office and to the performance of its duties: 26 Cyc., 257.

In the case of Com. ex rel. Giombetti v. Conroy et al., 21 Lacka. Jurist, 46, Edwards, P. J., quotes from High’s Extraordinary Remedies ch. 11, § 47, as follows: “In determining the extent to which the courts may properly interfere by mandamus with questions relating to the title to and possession of public offices, it is necessary to recur to an important principle, frequently asserted throughout these pages, and which may be properly termed the controlling principle governing the entire jurisdiction by mandamus. It is that in all cases where other adequate and specific remedy exists at law for the grievance complained of, the writ of mandamus is never granted. Applying this principle to cases where relief has been sought to determine disputed questions of title and possession of public offices, the courts have almost uniformly refused to lend their aid by mandamus, since the remedy by information in the nature of a quo warranto is justly regarded as the most appropriate and efficacious remedy for testing the title to an office, as well as the right to the possession and exercise of the franchise. And the rule may now be regarded as established by an overwhelming current of authority, that where an office is already filled by- an actual incumbent, exercising the functions of the office de facto and under color of right, mandamus will not lie to compel the admission of another claimant, nor to determine the disputed question of title. In all such cases, the party aggrieved, who seeks an adjudication upon his alleged title and right of possession to the office, will be left to assert his rights by the aid of an information in the nature of a quo warranto, which is the only efficacious and specific remedy to determine the questions in dispute. And whenever it is ápparent on the face of the pleadings, that the issue presented involves a determination as to the person properly elected to an office, or entitled to exercise its functions, the writ of mandamus will be withheld.”

Mr. Justice Trunkey, in the case of Fire Insurance Co. v. Com., 92 Pa. 72, says: “A mandamus, though a prerogative writ and demandable of right in a proper case, will be granted only in extraordinary cases where there would be otherwise a failure of justice. We have used mandamus only as a process in the last resort; never where there was a specific remedy.” We find, also, in the ease of Com. v. Commissioners, 37 Pa. 277, a clear statement of the function of a writ of mandamus by Thompson, J.

There are many cases where the principles stated in the foregoing texts have been applied in a practical way. In Caffrey v. Caffrey, 28 Pa. Superior Ct. 22, it was held that mandamus will not lie in favor of a person claiming the office of school director where another person is actually in the office and is recognized as a director by the other members of the board; the remedy being by quo warranto. In the ease of Com. ex rel. v. Gibbons, 196 Pa. 97, it was held that where there was no contest as to a school director’s original seat under a valid election, but only as to the legality of his ouster, the remedy of'the director is by mandamus to prevent his further unlawful exclusion; and the remedy by quo warranto against the person chosen to succeed him does not apply. See, also, Hatton v. Brooks et al., 21 Dist. R. 817.

The broad rule has been laid down that where any one has been unlawfully kept out or dispossessed of an office to which he is entitled, mandamus lies to admit or to restore him; that is, where the relator is shown to hold a prima fade and uncontested title to an office, a writ or mandate may be issued to put him in possession of the office: 18 Ruling Case Law, § 178, page 254. The proper remedy of the candidate rejected by the council is a writ of mandamus against the members of the council to compel them to recognize and accept him as a member thereof: 19 Ruling Case Law, § 185, page 885.

The relator’s title to the office is uncontested; no one claims his office, and it is admitted that he was legally elected; at least, no issue is raised upon this point in the pleadings. It is true the respondents in their argument urge, for the first time in the ease, that “the old member continues to serve,” that the town council refused to admit him because he disqualified himself by removal from the ward in which he was elected, and that, therefore, until he is admitted, there is no vacancy — thus creating a contest by the relator for an office held by a “hold-over member,” and, hence, mandamus does not lie, but rather quo warranto. This reasoning is based upon the Act of March 22, 1927, P. L. 53, which provides: “That any officer of any municipal corporation of this Commonwealth, who hereafter may be, or heretofore has been, elected or appointed, and having qualified, shall hold said office until his successor is elected or appointed, and duly qualifies.” This position is fallacious because it omits to note that the relator was- elected and did qualify by taking the oath of office, and if he cannot retain the office, it is because he disqualified himself by removal; and if he did remove, a vacancy was created in council by the very act of his removal (Com. ex rel. Gast v. Kelly, 255 Pa. 484), which vacancy council must fill (section 901, The General Borough Act of May 4, 1927, P. L. 519), and which vacancy is unfilled, and the Act'of March 22, 1927, P. L. 53, does not apply. This was recognized in this case, since the “old member” is not serving and is not participating in councilmanic deliberations. A statutory provision for holding over does not give a claim to office to one whose term has been terminated by the qualification of a successor, if such successor dies before his term begins. In such case, there is a vacancy in the office which should be filled in the proper way: 29 Cyc., § 2, page 1399. And death creates no more certain a vacancy than an admitted removal.

No one being now in possession of the office sought by relator, his title being uncontested and no question raised as to the legality or fact of his election, and the only question involved being an alleged disqualification arising since election, upon which respondents base their right to refuse him admission to the possession of his office, mandamus is the proper remedy: Com. v. Fleming, 23 Pa. Superior Ct. 404. It is by the public expression through the ballot-box that title is derived to an elective office, and the relator, it is not denied, obtained title to the office of Councilman in the 4th Ward of the Borough of Minersville through the suffrage of the people therein resident.

Before discussing the final proposition in this case, even though the prolixity of the opinion might be charged as an affectation of learning, but because these matters have been argued by counsel for respondents, and the matter is important, something will be said about the certificate of election which the relator, it is alleged by them, has not formally filed with the secretary of council.

The pleadings in this ease exhibit conclusively that the only reason for refusing relator a seat in the borough council was his alleged removal from the ward in which he lived at the time of his election and which he was elected to represent. There is an inferential denial that he presented his certificate of election to the secretary of council, but no denial that he had one, and a fair inference from the testimony is that he had his certificate of election at the meeting of Jan. 5, 1928, the first regular meeting of the newly-organized council. Rev. A. R. Fiske, president of council, testified that he did not recall that the relator said he had a certificate, but that he did hear Mr. Phalen, one of the councilmen, say that he had, and heard the members discuss the certificate. When asked whether he saw a paper passed around that purported to be a certificate of election and referred to as such, he said: “I think it was. I think there was two or three of them looked at that paper.” The chief burgess, Ross Davis, also testified that he heard relator say that he had a certificate of election at the meeting of Jan. 5, 1928, but did not see it. The oath of office of the relator was filed with the secretary at the organization meeting. In this connection, it might be stated that only one of the new members presented a certificate of election, according to the testimony of the chief burgess.

The presentation or filing of a certificate of election by a newly-elected member of a borough council is not made a prerequisite to taking possession of his office. - His right to the office grows out of the fact that he was lawfully elected thereto (Com. v. Fleming, 23 Pa. Superior Ct. 404, 410), and if • his election at the organization meeting is questioned, then the certificate of election is the only evidence admissible at the organization of the body (Com. v. McAllister, 24 Pa. C. C. Reps. 96), and it is conclusive for that occasion and purpose: People v. Fornes, 175 N. Y. 114, 67 N. E. Repr. 216. But in this case it is tacitly admitted that he was lawfully elected from the 4th Ward; refusal to seat him being based upon his alleged removal from the ward after election and before the organization of council. The General Borough Act of May 4, 1927, § 803, P. L., 519', provides: “Certificates of election of all borough officers shall be filed among the records of the borough.” No other utterance on this subject is found in this act. One to whom a certificate of election has been issued is regarded as prima facie entitled to the office: Com. ex rel. Ross v. Baxter, 35 Pa. 263. Further, a person having the required certificate of election to membership in a city council is presumably a member-elect thereof, and has the right to have his name placed on the council roll and to participate as a member: Com. v. Philadelphia, 9 Dist. R. 257; Com. v. McAllister, 24 Pa. C. C. Reps. 96; at least until his election is investigated and set aside: Com. v. Philadelphia, supra. And it might be added In the words of Com. ex rel. Gast v. Kelly, 255 Pa. 475, 482, “his prima facie right as the successful candidate at the November election being assented to, the non-production of a proper certificate showing that fact, so far as the present controversy is concerned, is immaterial. ‘It is by the public expression . . . through the ballot-box that title is derived to an elective office; the certificate of the board of canvassers is merely evidence of the person to whom the majority of votes was given. The certificate may, indeed, be conclusive in a controversy arising collaterally, or between the person holding it and a stranger, but when this proceeding is instituted in the name of the people, it loses its conclusive" character and becomes only prima facie evidence of the right:’ Brightly’s Leading Cases on Elections, 435, quoting from People v. Cook, 8 N. Y. 67. See, also, McCrary on Elections, § 374. Moreover, in this case the borough council did not refuse to receive the relator because he had not presented a proper certificate of election, but for quite a different reason.”

It is admitted in this case by both sides to the controversy that the relator presented his oath of office to the secretary, who filed it at the organization meeting. This was a prerequisite with which he complied and is in compliance with section 1002 of The General Borough Act, supra, which provides: “Before entering upon the duties of their office, the councilmen shall take and subscribe an oath or affirmation . . . [which] shall be entered upon or filed among the records of the borough.” Where an official oath is required, the taking of such oath is necessary to the legal possession of the office: Howells v. Morris, 25 Dist. R. 946. Therefore, he should have been seated, unless his alleged removal from the ward precluded it, which fact of removal council was legally authorized to pass upon preliminarily before seating or excluding him.

This leads to the question whether the town council could legally refuse him the possession of his office, to which he was newly elected, because of his alleged disqualification through removal from the ward after his election and prior to the organization of the council.

Or, to put the proposition in another fashion, could the town council of a borough legally declare to a newly-elected member seeking admission, “you were legally elected; you have a certificate of election; you have qualified by taking the required oath, but we have decided that you have moved out of the ward which elected you; therefore, we will deny you a seat in council.” In support of this proposition, respondents cite Com. ex rel. Quirk v. Lally, 10 Phila. 507, which was a mandamus action against a borough tax collector by one elected borough treasurer, commanding the former to pay to him the money collected as taxes. After election, the borough treasurer moved out of the borough. He qualified by taking the oath of office. Pershing, J., dismissed the writ of alternative mandamus because the borough treasurer lost his right to the office by his removal. This case is inapplicable because the borough treasurer was not seeking to gain possession of his office, as in the instant case, but was seeking to exercise the rights and incidents of an office of which he had possession, and the exercise of which he was rightfully denied because of a legal disqualification. Thus, in the instant case, if the council had admitted relator, as they should have done, and it was found in a proper proceeding that he had disqualified himself by removal from the ward, the relator could not legally exercise the rights of a councilman and his very act of removal would have created a vacancy in the office. The same may be said of the cases of Com. ex rel v. Yeakel, 13 Pa. C. C. Reps. 615; Com. ex rel. v. Lynn, 5 Northamp. Co. Repr. 394. On the other hand, the writer agrees with the law contained in the citations urged by respondents, that the loss of the qualifications necessary to make one eligible for a public office will result in the forfeiture of the office, and that the loss of the qualification of residence creates a vacancy which the council need not adjudicate and can at once fill as provided by law: 29 Cyc., page 1380, par. J; State ex rel. Johnston v. Donworth, 105 S. W. Repr. 1055; State ex rel. Forestell v. Otis, 230 Pac. Repr. 414, citing Throop on Public Officers, par. 425; Mechem on Public Officers, par. 438. However, all this is not apropos, since council preliminarily, in the instant case, before admitting a newly-elected member who had qualified, adjudicated the question of alleged loss of qualification of residence and denied him possession of his office for that reason. And the citations do not support this action.

The case of Com. ex rel. v. James, 214 Pa. 319, is cited by respondents as sustaining their action in excluding the relator. We do not so understand it. In the syllabus of the case it appears: “Where a person claiming that the office of councilman of a borough had been vacated by reason of the removal of the member from the borough has his own name placed upon the official ballot by some method not prescribed by law, and at the ensuing election his name is voted for by a majority of the electors, he cannot maintain mandamus against the councilmen to compel his admission to office; and this is the case although the petition for mandamus was not filed until there was an actual and admitted vacancy in the office created by the resignation of the previous member.” Mr. Justice Elkin, on page 323, says: “In the case at bar, the relator had no legal right to the office, the enjoyment of which he seeks to compel by mandamus, and, under the rule stated, this is the end of his case. There was no vacancy to be filled at the February election in 1905, and his certificate of election is a nullity and conferred no rights on him.” And on page 324: “The rights of relator, whatever they be, are derived from his so-called election in February and must be determined under conditions as they existed at that time. If he had no rights, then he acquired none subsequently; if he had rights derived under that election, he continued to enjoy them, irrespective of what Margargle did later [resigned in May following the February election]. He must stand or fall by the conditions existing when he received his certificate of election under which he claims the office. At that time the proper remedy to determine the title to the office as between the relator and Magargle was by quo warranto. ...” A perusal of that case leads irresistibly to the conclusion that the lower court was reversed upon the ground that quo wwrranto was the proper remedy and not mandamus and was based entirely upon the absence of title to the office in the relator and the occupancy of the office which he claimed by a duly elected member at the time that the relator was elected by the popular vote through the wrongful placing of his name upon the ballot. But in the instant case, no such question arises. The fact and legality of the election of the relator are not questioned at all and no one was in possession of the office under any color of right at the beginning of the relator’s term of office or at the time that these proceedings were instituted and the hearing had.

No case is presented by the respondents sustaining the proposition that the council was legally justified in refusing to seat the relator because the council alleged he had lost his residence qualification.

The relator was elected to council by the electors of the 4th Ward of the Borough of Minersville, and, therefore, had title to his office, was armed with a certificate of election which was at least prima facie evidence of the title to his office, had qualified by taking the statutory oath, which was filed with the council prior to his request for possession of his office, and he was, therefore, legally entitled to exercise its functions, allegations touching his residence qualifications notwithstanding, until his disqualification was determined by another tribunal with judicial powers: Com. ex rel. Horr v. McAllister et al., 24 Pa. C. C. Reps. 96. No warrant can be found in law for any borough council in this State passing upon the qualifications and election returns of its own members preliminarily to seating them. Section 901 of the General Borough Act, supra, provides for the filling of a vacancy by council caused by removal from the ward, but nowhere does the act give to the council the power to decide, in a contested case, whether a removal actually has taken place. Council may, in the orderly and efficient administration of municipal affairs, act upon the assumption that a vacancy exists by reason of a removal and fill such vacancy, subject always to the review of the courts whether a removal actually took place with the consequent vacancy. Then the contest, however, would be between the appointee of council and the member whose residence qualification was alleged to have been lost. That is not this case, however.

Two decisions rendered by this court are in point and decisional of the question, both of which are unreported, as far as the search of the writer could develop. In the case of Joseph Shuppas v. William Landers, President, and Edward Hanney, Secretary, No. 226, July Term, 1910, a petition for a writ of alternative mandamus was presented for the issuance of a mandamus against the respondents commanding them to administer the oath of office to the relator, newly elected school director in Norwegian Township, under the Act of June 25, 1895, P. L. 284. Respondents contended that he was refused for the reason “that he was not eligible to the office, being of the age of but twenty years, and, therefore, he could not qualify and become a member of the board.” (Italics are that of the writer.) Bechtel, J., declared: “There is no contention here but that the plaintiff received a majority of the votes cast; nor is there any dispute that he presented himself at the proper time and place with the proper certificate of election, seeking to be admitted as a member of this school board. ... We are of the opinion that the subscribing to the oath of office, together with the presentation of the certificate of election in the manner followed out in this case, rendered this plaintiff a member of this school board, and that it was the duty of the school board to receive him as such member, under this state of facts, and question his right to the holding of the office in the manner pointed out by law, if it was desired so to do.” The relator had taken the required oath before a justice of the peace which was deemed sufficient and the administration of the same by the president or secretary unnecessary, so, holding that the relator “is already a member,” the mandamus was refused.

In the case of Evan Jenkins et al. v. Martin Kelly et al., No. 2, March Term, 1914, decided by this court and unreported, the complainants and respondents represented rival factions of the town council of Minersville. Evan Jenkins and George Young, two of the complainants, presented themselves-at the proper time and place with their credentials in the shape of certificates of election signed by the judge and inspectors and their oaths of office and sought to participate in the transaction of the business of the council. This, council refused to permit them to do, claiming that as their terms of office were not designated, they were not properly elected. Bechtel, J., held: “With this contention we have nothing to do at present. The fact that they had, each of them, a certificate of election, properly signed, and an oath of office, proper in form and administered by a proper official, in our opinion, constituted them de facto councilmen from the ward which they sought to represent and entitled them to their seats in council. There was nothing more that they were required to do, and our attention has not been called to any authority which confers upon the town council the right to go behind those returns and to determine whether or not these parties were properly elected and entitled to their seats in this body. There is a method prescribed by law by which all this may be questioned, which method may be pursued if it is thought proper so to do . . . at the proper time and in the proper manner.”

Prom the foregoing, the court is of the opinion that the relator should have been received as a member by the town council, received his certificate of election, he having qualified by taking his oath, which was filed with the secretary and permitted him to participate in the councilmanie deliberations. Council had no right to refuse him his seat because of an alleged loss of residence qualification preliminarily adjudicated by it. If he had disqualified himself by removal from the ward, that matter was for decision at another time, in another fashion and in the manner provided by law. And in reaching its conclusion in this case the court has not considered any evidence adduced at the hearing on the contested question of removal and does not now in this action determine whether relator did or did not remove from the ward. It might be said, however, that if relator does not have a bona fide residence in the ward in which he was elected, he cannot serve, even though seated. And nothing herein contained shall be construed as prejudicing any right or person in any proceeding hereafter brought properly1 presenting the loss of relator’s qualification through removal from the ward and the consequent forfeiture of his office.

And now, April 23, 1928, it is ordered and directed that a peremptory mandamus issue forthwith against the defendants, the town council of the Borough of Minersville, commanding them to place the name of the relator,» Stanley Radzievich, upon the roll, to allow him to take his seat as a member of said town council, and to exercise all the rights and privileges of a member of said body until the expiration of his term of office, unless removed therefrom by legal and proper means. The costs of this proceeding to be paid by the defendants.

Prom M. M. Burke, Shenandoah, Pa.


author: Stevens, J.

text:
    Berks County v. Stroble et al.

      Charles W. Matten, for plaintiff; Rothermel & Monger, for Stroble.

      Harry W. Lee, for St. Clair and Garhammer.

      William A. Witman, Jr., for McKinney and Zawidski.

      David Sharman, for Bowman; Leonard G. Yoder, for Simmon and Reiss.

      Luther C. Schmehl, for Melchior and Frederick Ziwicky and Snyder.

      Lloyd M. Schaeffer, for Goheen; Thomas K. Leidy, for Greath.
   Stevens, J.

Findings of fact.

This bill was filed by the County of Berks for the purpose of securing the distribution among the various claimants of a reward offered by it for the arrest and conviction of the men implicated in the murder of Jonathan Klopp in September, 1924.

1. On the early morning of Sept. 26, 1924, three negroes, Brue, Grinage and Crocker, while engaged in the commission of a burglary, murdered one Jonathan Klopp at his home in Heidelberg Township, Berks County, about fifteen miles distant from the City of Reading.

2. The County of Berks, acting by its Board of Commissioners, offered a reward of $500 “for the arrest and conviction of the men implicated in the murder,” which offer was given publicity through the public press. This reward was offered on the same day on which the murder was committed or on the following day, Sept. 27th.

3. On the afternoon of Sept. 27, 1924, one of the murderers, Brue, was arrested under the following circumstances: Melchior Ziwicky, his son, Frederick, and Edwin F. Snyder saw Brue walking along a road, and, sus-, pecting him to be one of the murderers, they telephoned to police headquarters at Reading. As a result, Chief of Police Harry H. Stroble, Jr., City Detective Peter J. Zawidski and Traffic Mechanic Charles Bowman went to the neighborhood where the negro had been seen. They, together with a number of others, including Irwin J. Simmon and Henry B. Reiss, who were armed with weapons provided by Jacob M. Greath, began to search the neighborhood. The search continued until Brue appeared in the sight of Stroble, who thereupon fired a shot at him and commanded him to halt, which he did. Zawidski, Bowman, Simmon and Reiss came up quickly from the rear and prevented Brue from getting away while Stroble climbed over a wire fence. Stroble then took Brue in charge and brought him to Reading.

4. Upon the arrest of Brue, he disclosed certain information which caused Captain of Police Hayes McKinney to station Patrolman Edward B. Gar-hammer at Seventh and Walnut. Streets, Reading, to be on the lookout for the other two murderers, Crocker and Grinage, furnishing him with descriptions of the men. On Sunday evening, Sept. 28, 1924, Patrolman Garhammer arrested Crocker, one of the murderers, and took him to police headquarters.

5. Pursuant to certain information as to the whereabouts of the third murderer, Grinage, in Philadelphia, City Detective John H. St. Clair and Captain Hayes McKinney went to Philadelphia and there arrested Grinage and brought him to Reading.

6. All three of the parties so arrested, viz., Brue, Crocker and Grinage, were subsequently tried and convicted of murder and executed. They were the only persons implicated in the murder.

7. All of the claimants to the reward were willing to act as witnesses for the Commonwealth, and those called upon by the district attorney did so act and aided in securing the conviction of the murderers.

8. The claimants, Wellington Dreibelbis, Melchior Ziwicky, Frederick Ziwicky, Edwin F. Snyder and George Goheen, while they may have furnished valuable information leading to the arrest of some of the murderers, did not arrest or take part in the actual arrest of any of them.

Discussion.

In this case we are really concerned only with the distribution of the reward for the arrest of the murderers, they having subsequently been convicted. Several substantial legal objections might be urged to the right of certain of the claimants to participate in the distribution. The County of Berks raises no such objections, but seeks an equitable distribution. There is no one else in a position to object save those interested in that portion of the reward allotted to those participating in the arrest of Brue. As to that portion, there can be no tenable objection to the right of the city police to share in the reward.

Conclusions of law.

(ci) Under the wording of the reward, the offer is for the “arrest and conviction” of the men implicated in the murder. Consequently, no portion of the reward is payable to those who merely furnished information leading to their arrest and conviction.

(b) There having been but three persons implicated in the murder, and all having been arrested and convicted, one-third of the reward should be paid to the person or persons who participated in the actual arrest of each of the murderers.

(c) The claimants, Wellington Dreibelbis, Melchior Ziwicky, Frederick Ziwicky, Edwin F. Snyder and George Goheen, are not entitled to any part of the reward offered.

(d) The $500 reward offered for the arrest and conviction of the murderers should be distributed as follows: One-third to those participating in the arrest of Brue: To Harry H. Stroble, Jr., Peter J. Zawidski, Charles Bowman, Irwin J. Simmon and Henry B. Reiss, jointly, $166.67; one-third to those participating in the arrest of Crocker: To Edward B. Garhammer, $166.67; one-third to those participating in the arrest of Grinage: To John H. St. Clair and Hayes McKinney, jointly, $166.66.

(e) Each of the parties to this action shall pay his own printing costs, witness fees and costs of subpoenaing his witnesses. The docket costs shall be paid by the plaintiff.

And now, Dec. 5, 1927, the prothonotary is directed to enter a decree nisi in accordance with the foregoing decision, and forthwith to give notice to the parties or their counsel of record, sec. reg.

Prom Charles K. Derr. Reading, Pa.


author: Sayers, P. J.

text:
    Watson v. South Penn Telephone Company.

      H. C. Sayers, for plaintiff; C. W. Waychoff, for defendant.
   Sayers, P. J.

After the certiorari in this case was filed, exceptions were filed to the record of the justice and a rule was issued on the defendant to show cause why the judgment should not be reversed and the proceedings before the justice set aside.

An answer to the rule and exceptions was filed by plaintiff, in which it was objected that the exceptions to the record were not signed by an officer for defendant corporation, nor had any person on behalf of defendant made the affidavit that such exceptions were “not filed for purposes of delay, but because it is believed they raise questions requiring the action and decision of the court in order to prevent injustice,” as required by section 1, rule 25 of the rules of this court.

The affidavit for the certiorari sets forth that the application for the writ was not made for the purpose of delay, but because it is believed that the proceeding before the justice is unjust and illegal and will oblige the defendant to pay more money than is justly due plaintiff.

The exceptions to the record should have been accompanied by an affidavit made by an officer of the corporation, as required by the above-recited court rule, and it would be better to have the exceptions signed by an officer of the defendant corporation. The objection to the defendant’s exceptions will be overruled, because the affidavit filed with the praecipe for certiorari is substantially the same in form and substance as the affidavit required to be filed with the exceptions by the above rule of court, and the exceptions to the record will be reviewed on their merits. The first objection to the record is that it does not show the date upon which the hearing was held nor the hour thereof. The record shows that the summons was issued and served on May 7th, and was returnable between 1 and 2 o’clock P. M. on May 13, 1926, and it appears that a hearing was held upon that day and at that hour, although the record does not specifically set forth that fact. The record discloses that “defendant before beginning trial entered objection to the jurisdiction of the justice of the peace for reason that action is for consequential damage. Parties appear.”

We think the record is sufficient to show that the hearing was had at the hour and date set forth in the summons.

“It needs no citation of authority to sustain the principle that every fair presumption consistent with the record will be made in favor of proceedings before a justice of the peace. On certiorari, no presumption of want of jurisdiction will arise from mere informality in the statement of the cause of action, and the Act of March 20, 1810, section 22, provides that proceedings before a justice of the peace shall not be reversed for informalities where the record shows a due issuance and service of process and the giving of judgment on the date fixed by the process:” Brazinski v. Gardner, 75 Pitts. L. J. 262.

In proceedings before justices, every fair presumption is to be made in their favor by the court: Moore v. Gochly, 7 Lanc. Law Rev. 161. There being nothing in the record to the contrary, it is' presumed that the hearing was held on the day and hour set forth in the summons.

The second exception is to the effect that the record does not fairly state the cause of action. The parties appeared and defendant objected that the justice had no jurisdiction for the reason set forth above, and the record immediately thereafter continues as follows: “Plaintiff appears and claims the sum of $4.42 damages incurred by reason of being deprived of use of telephone lines owned or operated by defendant. Defendant admits amount of damage and also that plaintiff was denied use of lines. Defendant denies responsibility for damages, and, due to the fact that plaintiff had refused to pay for a former message to the amount of fifty (50) cents, had a right to deny use of telephone lines.”

The damages claimed by the plaintiff in this case, as disclosed by the record, evidently grew out of a contract relation between the parties, express or implied, and a claim for damages for breach-of contract. The court would have jurisdiction of such an action if the claim did not exceed $100.

The law on this subject is set forth in Murphy v. Thall, 17 Pa. Superior Ct. 500, 502: “Case and assumpsit are sometimes concurrent remedies, and a complainant may elect which he will adopt, yet if the subject of the action is based and dependent upon the existence of a contract, express or implied, the suit will be attended by all the incidents of an action ex contractu so far as jurisdiction is concerned. When the action is for the violation of a duty necessarily springing from contract alone, the action is quasi ex contractu, though the gravamen be laid in tortious negligence for breach of the duty. In Livingston v. Cox, 6 Pa. 360, Mr. Justice Bell, who spoke for the court, quoted with approval the language of Sir James Mansfield in Weall v. King, 12 East, 452: ‘The form of the action cannot alter the nature of the transaction, though the non-performance of that which is originally contract may be made the subject of an action of tort, the foundation of that action must still be in contract.’ When the action springs simply from tort, and is not dependent upon any contract relation or course of dealing between the parties and the injury is consequential, it lies not within the statutory jurisdiction of a justice of the peace. When the plaintiff’s claim is founded upon a contract, other than those specifically excepted by the statute, and does not exceed the amount limited, it is within the jurisdiction of a justice of the peace, whether the action be in assumpsit or in case for a breach of duty imposed by the contract: Hunt v. Wynn, 6 Watts, 47; McCahan v. Hirst, 7. Watts, 175; Todd v. Figley, 7 Watts, 542; Conn v. Stumm, 31 Pa. 14; Reeside’s Executor v. Reeside, 49 Pa. 322; Zell v. Dunkle, 156 Pa. 353.”

This same law has been affirmed in the later cases of Birkhead v. Ward, 35 Pa. Superior Ct. 235; Seldomridge v. Gibble, 49 Pa. Superior Ct. 498, and Steward v. Renner, 87 Pa. Superior Ct. 411.

In the case of Moore v. Gochly, supra, the court, speaking of what appeared on the face of the record, says: “It cannot be assumed that the trespass appearing on the face of the alderman’s transcript is trespass on the case where the. damage would be consequential.” It must, therefore, be assumed that the above record discloses a contract relation between the plaintiff and the defendant, either express or implied, and that the plaintiff claims damages due him for a breach of duty owed him by the defendant, which is a public service corporation. The record of the justice indicates conclusively that, in the opinion of the justice, the suit was not for consequential damages, but for damages growing out of a breach of contract, express or implied. If the language used, though technically and verbally inaccurate, does, by every reasonable intendment, show a cause of action for which suit may be brought before a justice of the peace, the jurisdiction should be sustained: Young-blood v. Folkner, 2 Kulp, 429.

For this reason, the second exception is refused, and likewise the fourth and fifth exceptions, which set up that the justice had no jurisdiction because the action was for consequential damages.

The third exception is that “the record does not show judgment against the defendant, the South Penn Telephone Company, for any amount whatever.” The judgment entry is: “And now, May 22, 1926, judgment for the plaintiff rendered in the sum of Three and 92/100 ($3.92) dollars.”

“We need hardly stop to say that a judgment in favor of the plaintiff, without more, is a judgment against the defendants named in and served with process, unless there is something on the record to show that one or more of them is excepted:” Rockwell v. Tupper, 7 Pa. Superior Ct. 174, 177. A judgment similar in form to the one.in this case was entered in Jacobs v. Krajewski et al., 25 Dist. R. 295. See, also, Burns et al. v. Drury, 18 Dist. R. 971, and Evans v. Brown, 19 Dist. R. 22. The third exception is, therefore, dismissed.

The sixth exception is that “the record does not show any day or hour certain set for the rendition of said decision or judgment;” the seventh exception that “no notice of the rendition of said judgment of May 22, 1926, was given the defendant;” the eighth exception that “the transcript does not show that the rendition of said judgment of May 22, 1926, was in any way called to the attention of the defendant;” and the ninth exception that “the transcript does not show that the decision of the justice was rendered within ten days after the hearing.”

The transcript does show that the summons was returnable on May 13, 1926, between the hours of 1 and 2 o’clock P. M., and that a hearing was had, pursuant to the summons, at the time and place where the parties appeared, and at the close of the hearing the record shows an entry, “Decision reserved.”

The transcript shows that the decision of the justice was entered within ten days after the hearing, the hearing being on May 13th, and judgment entered on May 22, 1926. It does not show any continuance from the date of the hearing on May 13, 1926, to any fixed time at which judgment would be rendered, except as implied by law that it would be entered within ten days. It is contended on the part of the plaintiff, on the authority of Black v. Black, 12 Dist. R. 424, that “the Act of March 22, 1877, P. L. 13, providing that justices of the peace and aldermen shall ‘render judgment in any cause or causes pending before them within a period of ten days after all the evidence in said causes shall have been heard,’ and also providing for a fine of $100 upon failure to comply with the act, is directory merely, and a judgment entered by a magistrate after the ten days have elapsed is valid and not affected by his neglect of duty.'”

In that case, it appeared that although the justice entered judgment ten days after the date of his hearing, he informed defendant’s counsel of the entry of the judgment upon the day in which it was entered.

In Boyd v. Ward, 10 Pa. C. C. Reps. 9, the court held: “If a justice reserve his decision until an hour certain and fail to render judgment at the time fixed or to make a further order in the case, a party, after waiting a reasonable time, may depart, assuming that the justice will take the ten days allowed by Act of March 22, 1877, or that he will give special notice of his decision if it be entered sooner. Under such circumstances, the time for appeal runs from the end of the ten days or from the date of notice of the judgment, if such notice be given before the ten days expire.”

In the case of Hirsh v. Dluge, 8 D. & C. 109, it was held that where a justice of the peace reserves his decision without making an adjournment of the case to a day and hour certain, a judgment subsequently rendered without notice to the parties will be reversed on certiorari.

When the justice made the general entry “Decision reserved,” counsel for defendant knew that decision must be rendered in ten days thereafter, and he needed no further notice to that effect.

In Hoffner v. Kottka, 2 Pearson, 360, the court held: “The justice was bound by that statute to give judgment within ten days. His proceeding was equally erroneous under the old law, on which the new is no improvement, but rather the reverse. After hearing a case under the Act of 1810, the justice is required to give judgment publicly, or, on failure so to do, he must publicly adjourn the cause to a day certain. And if from any reason the judgment cannot then be rendered, he must notify the parties to appear before him on a day certain to hear his judgment. Any other action is erroneous and likely to lead to great injustice.”

The better opinion is that where a justice of the peace reserves his decision generally, the time for appeal or certiorari should run from the end of the ten days, or if the decision is given within the ten days, from the time notice of such decision is given. The defendant has not been prejudiced by the action of the justice in this case. The decision was entered on May 22, 1926, and the certiorari was entered on June 11th, and the defendant, consequently, was not deprived of any legal right he had by the failure of the justice to give notice of the date he entered judgment in this case.

The last exception sets forth that the record does not show that judgment was publicly rendered for the plaintiff.

In Snyder v. Carfrey, 54 Pa. 90, it was held that the judgments of a justice have been publicly given is to be presumed from the public character of the officer. He pronounces his judgments in his office, and they are public. “The record need not disclose that the judgment was publicly rendered:” Mowery v. Mertz, 15 Dist. R. 346.

Order. — And now, Dec. 19, 1927, proceedings are affirmed, the exceptions to the record are overruled and dismissed, and the rule to show cause is discharged, at the cost of the defendant.

Prom S. M. Williamson, Waynesburg, Pa.