author: Saylor, Dep. Att'y-Gen.,

text:
    Investment of Trust Funds by Trust Companies.
    May 6, 1930.
   Saylor, Dep. Att'y-Gen.,

We have your request for an opinion as to whether a trust company may invest trust funds in its possession in:

(a) A first mortgage on real estate in this Commonwealth securing a collateral form note, and

(b) Participation certificates issued against first mortgages on such real estate securing collateral notes.

Section 41 (a) 1 of the Act of Assembly approved June 7, 1917, P. L. 447, as amended from time to time, and finally amended by the Act of April 26, 1929, P. L. 817, provides as follows:

“When a fiduciary shall have in his hands any moneys, the principal or capital whereof is to remain for a time in his possession or under his control, and the interest, profits, or income whereof are to be paid away or to accumulate, or when the income of real estate shall be more than sufficient for the purpose of the trust, such fiduciary may invest such moneys ... in first mortgages on real estate in this Commonwealth, securing bonds or other obligations not exceeding in amount two-thirds of the fair value of such real estate; ... or in trust certificates, issued by a trust company organized under the laws of this Commonwealth, certifying that the holders thereof are respectively the owners of undivided interests in deposits, with such trust company, of securities in which trust funds may be invested under the preceding provisions of this clause. . . .”

It appears that the act, as amended, authorizes fiduciaries to invest funds in their possession in “first mortgages on real estate in this Commonwealth, securing bonds or other obligations not exceeding in amount two-thirds of the fair value of such real estate.” Clearly, a collateral form note, that is to say, a promissory or judgment note, secured by collateral, therein referred to, comes within the category of “other obligations.”

The act, as amended, also provides that such funds may be invested “in trust certificates, issued by a trust company organized under the laws of this Commonwealth, certifying that the holders thereof are respectively the owners of undivided interests in deposits, with such trust company, of securities in which trust funds may be invested under the preceding provisions of this clause.” Such deposits of securities may include a collateral form note or notes secured by first mortgages of the character referred to in the section, which mortgages are made a part of the deposit along with the note or notes they secure.

The opinions of this Department of May 10,1926 (Trust Companies’ Investments of Trust Funds, 8 D. & C. 202); Dec. 10,1926; Feb. 8, 1927; April 26, 1927 (Trust Companies’ Investments, 9 D. & C. 335), and Aug. 10, 1927, given in response to your requests for advice on somewhat similar phases of the same question, are referred to in connection with your present inquiry.

You are, therefore, advised that it is legal for a trust company to invest trust funds in a first mortgage of an individual or individuals on real estate in this Commonwealth securing a collateral form note given by an individual or individuals, and in participation certificates issued by a trust company organized under the laws of this Commonwealth against deposits with it of such mortgages securing such notes.

From C. P. Addams. Harrisburg, Pa.


source: Caselaw Access Project

author: Barnett, P. J.,

license: Public Domain

text:
    Commonwealth v. Esterbrook et al.

      Luke Baker, for Commonwealth; O. W. Wickersham, for defendants.
    March 29, 1930.
   Barnett, P. J.,

The verdict establishing the guilt of the .defendants was so clearly demanded by the evidence that discussion of the first and second reasons for new trial would be superfluous.

The complaint of the third and fourth reasons is that in its charge to the jury the court gave undue emphasis to the evidence for the Commonwealth. After consideration of the charge in the light of the evidence, we are not convinced that this criticism is just. It is doubtless true that the charge as a whole leans in the direction of conviction, but before it is held on that account to be prejudicial to the defense, the evidence must be considered. When in instructions to the jury evidence is discussed, .the comment should be a fair reflection of the evidence. If there is a strong preponderance on either side, it is not the duty of the court to discount the one or exaggerate the other side in order to present to the jury the false appearance of an evenly balanced case. The only proper purpose of commenting upon the evidence is to assist the jury in the correct appraisal of the testimony, and with this purpose in view, the court may and should point out weaknesses, inconsistencies and contradictions, on the one hand, or elements of strength on the other. This is what was done in the portions of the charge criticised in these reasons. The court, without impropriety, might have gone further and pointedly expressed its opinion of the evidence. “A judge may rightfully express his opinion respecting the evidence, and it may sometimes be his duty to do it, yet not so as to withdraw it from the consideration and decision of the jury:” Kilpatrick v. Com., 31 Pa. 198, 216. See Porter v. McIlroy, 4 S. & R. 436, 442; Johnston v. Com., 85 Pa. 54, 65; Fredericks v. Northern Cent. R. R. Co., 157 Pa. 103, 129; Com. v. Martin, 34 Pa. Superior Ct. 451, 462; Com. v. Goodelman, 74 Id., 526, 528. If more time was devoted to discussion of the testimony of the Commonwealth’s witnesses than to that of witnesses for the defense, it was because the story of the crime was developed by the former, while the latter was limited to admissions of some and denials of other facts proven by the Commonwealth. See Com. v. Martin, supra; Com. v. Lenhart, 40 Pa. Superior Ct. 572, 587.

The statement made in the fifth reason, that the jury were instructed “that the Commonwealth had satisfactorily shown, and by legal evidence, the falsity of the alleged representations set forth in the indictment,” is not borne out by the record. At the conclusion of its reference to the testimony relating to this question, the court said, “so that it seems to me that, if Mrs. Hoover’s testimony be accepted as true that these declarations were made to her by Esterbrook and Zinn, there should be little hesitation over the question as to whether, if so made, they were actually false,” but the question of their falsity was left to the jury. In the argument and brief of counsel for defendants there is suggested no reason for any hesitation on the part of the jury to find that the statements, if made, were false.

In the examination and testimony of certain witnesses called to prove the reputation of the defendant Zinn for honesty and fair dealing, and of other witnesses called by the Commonwealth in rebuttal, reference was made to Zinn’s connection with the settlement of an estate. An offer to prove by Zinn that he had been guilty of no wrongdoing in his management of this estate was overruled for the reason that the offer related to a collateral matter mentioned incidentally by the character witnesses. No exception was taken to the ruling and counsel for defendants withdrew the question. We think the seventh reason, which now complains of this ruling, is without merit.

The eleventh reason offers what is alleged to be after-discovered evidence as ground for a new trial. In his testimony-in-chief, the defendant Ester-brook stated as the motive for his trip to Wila, where he saw Mrs. Hoover, the prosecutrix, that he had a note for collection and was seeking the debtor. He said the note was for “$340 and something,” made by H. M. Brightbill and payable to one Simpson. The note was not produced at the trial and apparently no effort was made to find it until the noon hour of the day the testimony was heard. Zinn, in his testimony, did not mention this note. Now the defendants produce a note signed by Isabel Brightbill and H. M. Brightbill for $37.50, payable to G. G. Robinson. Assuming that this is the note referred to by Esterbrook, and that he was mistaken as to the amount and the name of the payee, it would have been admissible in evidence only as slight corroboration of Esterbrook’s explanation of his mission to Wila; its existence was known to the defendants and apparently it was in Zinn’s possession long prior to the trial, but no search was made for it until after the trial had begun; it is hardly conceivable that its production on a retrial of the case would have the slightest influence upon the verdict, except that it might be used with damaging effect in the cross-examination of Esterbrook. The offer lacks every essential of after-discovered evidence.

Of the remaining reasons filed with the motion for new trial, none seems to require discussion and none is sustained.

The trial began Aug. 6, 1929, and was concluded the following day. Because of an unusual delay in the transcription of the testimony and the illness of the defendants’ counsel after the notes of testimony were filed, the present motion was not argued until March 15, 1930. On Feb. 15th an additional reason — the sixteenth — was filed in support of the motion, alleging that J. McClellan Leinaweaver, one of the jurors before whom the case was tried, had failed to disclose a relationship between himself and Mrs. Hoover, the prosecutrix, which, if disclosed, would have been ground for challenge to the favor. No affidavit of the truth of the facts set forth in the reason was attached to it and no proof of them has been offered, except that to the brief of counsel, submitted at the argument, there are attached a copy of a letter, dated Feb. 8th, addressed by defendant’s counsel to Leinaweaver, inquiring whether he was related to Mrs. Hoover, and the original letter of Leinaweaver in reply. The letter reads as follows:

“Newport, Pa., Feb. 11, 1929.

“Wickersham & Wickersham,

“Harrisburg, Pa.

“Gentlemen. Dear Sirs. In reply to your request, will say I was one of the jurors sitting in the case of Commonwealth against Zinn and Esterbrook. In regard to being related to Mrs. Hoover, I don’t consider myself any kin to her. Her brother was married to my daughter. But according to the evidence given in the trial, I would have done just the same if I would have been an entire stranger to Mrs. Hoover. Hoping this explanation will be satisfactory, I remain, Yours truly,

“J. McClellan Leinaweaver,

“R. D. No. 1, Newport, Pa.”

Without stopping to consider the obvious dangers involved in setting aside the verdict of a jury upon evidence of this character, but assuming the truth of all the facts stated in Leinaweaver’s letter, they do not, in our opinion, require the granting of a new trial.

The jurors were not examined upon voir dire. After twenty-four jurors had been called, and while counsel were proceeding to make peremptory challenges, defendants’ counsel rose and asked, “Are any of the jurors called related to Annie G. Hoover, the prosecutrix in this case?” There was no answer; the challenges were completed and the jury sworn. More than six months after the conclusion of the trial, and long after the present motion would under ordinary circumstances have been disposed of, the letter of juror Leinaweaver reveals that his daughter is the wife of the brother of the prosecutrix. Whether or not this fact was known to the defendants or either of them when the trial began, we are not informed. One of the defendants, Zinn, had lived all his life — fifty years or more — in the small Borough of Newport, within a few miles of which resided the juror in question and Mrs. Hoover. However this may be, there was no deception practiced by the juror, who says in his letter, “I don’t consider myself any kin to her,” the prosecutrix. As was said in Miley v. Lebanon Nat. Bank, 1 Pearson, 541: “It is fair to presume that the juror did not understand the question as applying to affinity, but merely to consanguinity.” If the affinity had been made known in time, probably the juror would have been excused without objection by the Commonwealth, but it does not follow that because of the affinity the defendants would have had the right to demand his rejection. It is true they might have challenged the juror propter affectum, but “this may be either a principal challenge, or to the favor. A principal challenge is such where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favor: as, that a juror is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party’s master, servant, counsellor, steward or attorney, or of the same society or corporation with him; all these are principal causes of challenge, which, if true, cannot be overruled, for jurors must be omni exceptione majores. Challenges to the favor are where the party hath no principal challenge, but objects only some probable circumstances of suspicion, as acquaintance and the like; the validity of which must be left to the determination of triers, whose office it is to to decide whether the juror be favorable or unfavorable:” 3 Blackstone’s Comm. 363. “Affinity or alliance by marriage is a principal challenge, and equivalent to consanguinity where it is between either of the parties, as if the plaintiff or defendant marry the daughter or cousin of the juror, or the juror marry the daughter or cousin of the plaintiff or defendant, and the same continues or issue be had. But if the son of the juror hath married the daughter of the plaintiff, this is no principal challenge, but to the favor; because it is not between the parties. . . . Challenge concluding to the favor is, when either party cannot take any principal challenge, but showeth causes of favor, which must be left to the conscience and discretion of the triers upon hearing their evidence, to find him favorable or not favorable:” Coke Upon Littleton, 157 b, quoted in Wirebach v. First Nat. Bank, 97 Pa. 543, 552. In that case the juror was second cousin to the husband of a daughter and legatee of J. C. Wirebach, deceased, whose executor was the defendant. The challenge was held to be to the favor. In Rank v. Shewey, 4 Watts, 218, a juror was challenged on the ground that his sister was the wife of a nephew of the plaintiff. The Supreme Court said: “The challenge was made as a principal challenge, and not to the favor of the juror. If it had been made on this latter ground, this connection between the sister of the juror and the nephew of the plaintiff below, together with proof of other circumstances of great intimacy between the plaintiff and the juror, would doubtless have been sufficient to have satisfied the triers who would have been appointed by the court to decide the matter, that the juror called was not free from a disposition to favor the plaintiff below, or was not omni exceptione major. But the challenge was made on the ground that the juror was of kin to the plaintiff, and within the degree that excluded him. TKfe court, however, did not think so, and clearly they were right, for there was no degree of kindred whatever existing between them.” A principal challenge “is triable by the court, the presumption of bias arising from the facts disclosed; and [a challenge] to the favor is where the bias or favor is to be found as a fact:” Cummings v. Gann, 52 Pa. 484, 487.

We conclude from these authorities that when a juror is challenged to the favor, because of an affinity not amounting to a principal challenge, no presumption of bias flows from the existence of the affinity as it does from the relationship which would warrant a principal challenge, but the burden is on the challenging party to prove the actual existence of bias by showing “circumstances of great intimacy” between the opposing party and the juror, or other facts sufficient to satisfy the triers or the court that the juror is not impartial. In other words, affinity, not amounting to cause for principal challenge, while it warrants counsel in challenging to the favor, is not of itself adequate to require the court or triers to sustain the challenge. Alone it does not present a prima facie case of bias.

The evidence offered with this reason for new trial — the letter of juror Leinaweaver — not only fails to show a prima facie case of bias, but for such “probable circumstances of suspicion” as it exhibits it carries its own antidote in the juror’s statement that he did not consider himself related to the prosecutrix and had not been influenced as a juror by the existing affinity. The evidence affords no sufficient reason to set aside the verdict. Even a blood kinship, well within the ninth degree, unknown at the trial, may be shown by circumstances to have been innocuous and rejected as a reason for new trial. In Traviss v. Com., 106 Pa. 597, the defendant was convicted of murder in the first degree. It was discovered after the verdict that the mother of one of the jurors was a cousin of the mother of the murdered woman, but it appeared that the juror himself at the time of the trial was ignorant of the relationship. The trial judge, refusing to grant a new trial on this ground, said: “[The juror’s] judgment could not have been affected, even insensibly, by a circumstance of which he had not the slightest knowledge.” The Supreme Court, although it quoted this remark with approval, affirmed the judgment on a broader ground, which was stated (page 607) in language pertinent to the question now before us: “If the fact of relationship had been known and brought to the attention of the court before the juror was sworn, he doubtless would have been excused or successfully challenged for cause; but it was unknown to the court as well as the counsel on both sides, and the juror, after being examined in the usual manner, was accepted and sworn. The time to challenge is before the juror is sworn; if not exercised then, the right is waived. That waiver may be relieved against when the party affected has been intentionally misled or deceived by the juror or the opposite party; but it is not even pretended there was anything of the kind in this case.” See, also, Com. v. Penrose, 27 Pa. Superior Ct. 101, 112; Com. v. Thompson, 4 Phila. 215; Eggleston v. Smiley, 17 Johns. (N. Y.), 133. Parties and the court can afford to be liberal in the matter of challenges while the jury is being selected, but a very different question is presented when, after the trial, counsel seek to nullify a verdict for a cause which reasonable diligence should have disclosed in time to have rendered it harmless. The time to be meticulous in respect of the selection of jurors is before, not after, the trial. See Trial by Jury, Moschzisker, § 120. Cases cited by counsel for defendants as inconsistent with the foregoing conclusions are at least not entirely so. In Miley v. Lebanon Nat. Bank, 1 Pearson, 541, “the plaintiff knew of the relationship, and should have mentioned it.” In Caldwell v. Kumerant, 20 Pa. C. C. Reps. 608, there was a close blood kinship, the juror's mother being a sister of the plaintiff’s grandmother.

And now, March 29, 1930, the motion for new trial is overruled and dismissed; the defendants are ordered to appear forthwith for sentence.

Prom J. N. Keller, New Bloomfield, Pa.


author: Per Curiam, Lamorelle, P. J.,

text:
    Sadler’s Estate.

      Albert A. J. Cohcm, for exceptions; David Wallerstein, contra.
    Sept. 19, 1930.
   Per Curiam,

The court being evenly divided, these exceptions are dismissed, and the adjudication is confirmed absolutely.

Lamorelle, P. J.,

dissenting. — I am of opinion that the learned Auditing Judge erred in rejecting the application of Anna Sadler to function as co-trustee and in awarding the principal of the estate to Charles Sadler as sole trustee.

This ruling, which is at variance with the original ruling, is based solely upon the learned Auditing Judge’s interpretation of a paper which at a later hearing was offered in evidence.

The original ruling was correct; the later one is not.

No testimony was offered to show under what circumstances the paper was signed. We must, therefore, rest on this paper alone. I quote:

“Philadelphia, January 6th, 1927

“To William J. Campbell, Register of Wills, Philadelphia

“I, Anna Sadler widow of Rufus E. Sadler and one of the executors named in his will and testament, do hereby renounce my right to Letters Testamentary upon the said estate and request you to grant same to Charles A. Sadler as the sole executor and trustee.

“Witness my hand and seal the day and date above written,

“Witness Anna Sadler [Seal]

“W. C. Couley.”

What was the purpose of this writing? It is a well known fact that the Register of Wills will not grant letters testamentary to one executor when more than one are named, unless those others renounce their right to act. That is all that the widow did; she renounced her right to letters testamentary and no more. The rest of the paper is surplusage. The Register neither appoints trustees nor discharges them. He is concerned alone with the grant of letters of administration or testamentary; his ruling on these subjects is within his original jurisdiction, and, personally, I doubt very much whether a renunciation of the right to act as trustee filed with the Register of Wills would have any binding effect or even act as an estoppel. The request to the Register “to grant the same,” i. e., letters of administration, to Charles A. Sadler as the sole executor and trustee had no legal force or effect, because when Anna Sadler, the widow, renounced her right to letters testamentary, the Register was bound to issue them to the remaining named executor, and be it here noted the request is not to grant letters testamentary to Charles A. Sadler as sole executor and sole trustee at all, and as I understand the ruling of the learned Auditing Judge and the opinion of this court, it is that this word “trustee” must mean something, and that something is that the “devoted wife” (words used by testator) is to be ousted because in a paper not addressed to this court, but to some one else and for an entirely different purpose, a word which at best is ambiguous, is to be interpreted as a renunciation of her trusteeship, when in that very same paper she confines herself to a renunciation of her rights as executor; for that was the only question before the Register of Wills.

What might be the effect of this paper if the estate was left to the executors in trust is not for our consideration, because the appointments were separate and distinct. Again I quote, this time from the will: “All that I have I leave to my Trustees (hereinafter named) in trust for the following purposes to wit: To turn over the net proceeds in quarterly dividends (oftener if possible) of the estate to my wife, Anna. ... At the death of my devoted wife, all is to go to my nephew, Rufus Noel Sadler, son of Francis W. Sadler. My executors and Trustees are to be my wife, Anna, and brother, Charles A. Sadler.”

As I understand the law, a renunciation may be recalled at any time and a named trustee may insist on his right to act. This is everyday practice in our courts, and I have grave doubt that when the only objection comes from the acting trustee he should be heard at all. Testator surely had some object in view when he, after giving his wife all of the income, appointed her a co-trustee; she was more interested in the income than was any one else, and the fact that the co-trustee objects to her cooperation is the very reason, in my judgment, why she should be allowed to withdraw her renunciation, if renunciation it is, which I, of course, do not for a moment concede.

In Devlin’s Estate, 19 Dist. R. 431, a trustee filed an accounting in order that he might withdraw, and an award was made to a substituted trustee; afterwards, when an application was made for appointment of a substituted trustee, the former trustee filed an answer saying that he had changed his mind. Said Judge Penrose in dismissing the petition: “It is true that he filed an account with the intention, as he then asserted, of asking for his discharge; but he subsequently changed his mind — as he had a right to do — and now declares that he will continue to act. There is no -allegation that he has been guilty of misconduct or that he is in any way incapaciated. Petition dismissed.”

Can it be doubted that an account duly sworn to, a petition addressed to an Auditing Judge, also duly sworn to, should be as effective as is Anna Sadler’s renunciation, not of her right to act as trustee but waiving her letters testamentary only? I for one do not doubt. As the widow did not withdraw as trustee at all, and as the Register of Wills had no authority to pass on the question, why distort the paper she signed by attributing to it a meaningless meaning — meaningless because it has no relation to the purpose of the paper, which was to allow the Register of Wills to ignore her in granting letters testamentary.

I would sustain the exceptions.

Stearne and Sinkler, JJ., concur in this dissent.


author: Martin, P. J.,

text:
    Anderson v. Reading Company.

      Edwin A. J. Blank, for plaintiff; William Clarke Mason, for defendant.
    Aug. 12, 1930
   Martin, P. J.,

This is an action of trespass brought by the plaintiff against the defendant, on behalf of herself and two minor children, Lenora Anderson and William Anderson, for damages by reason of the death of her husband, William Anderson, by accident, on Feb. 14, 1925, due to the alleged negligence of the defendant. Trial was had and a verdict directed for the defendant on the ground that plaintiff had failed (1) to establish negligence on the part of defendant, and (2) failure to show how the deceased happened to fall.

Plaintiff has moved for a new trial on the ground that the trial judge erred in giving the jury binding instructions for a verdict in favor of defendant. The other reasons filed on the motion before us go to matters that are not for the consideration of the court, in view of the fact that the verdict as directed by the court is a question of law.

Had the evidence been submitted and had the jury taken a view favorable to the plaintiff from all the testimony and inferences to be drawn therefrom, they might have reached the following conclusions: That the deceased was, on Feb. 14, 1925, at about 10.30 P. M., walking northeastwardly on Gurney Street, in the City of Philadelphia, on the brick sidewalk on its northeasterly side, along which is an excavation twenty-five feet deep, the property of defendant. At the bottom of this excavation are defendant’s railroad tracks, running parallel with said Gurney Street. There were no guard rails along this excavation with the exception of a short wooden fence, about twelve feet long, which connected to a short iron fence attached to the bridge, which is a continuation of Somerset Street, crossing the sunken railroad tracks of the defendant. Somerset Street intersects the said Gurney Street. From the end of this wooden fence there was a space of about six feet to a telegraph pole adjacent to the brick sidewalk. This space was at the axis of the curve of the brick pavement and was the place where the decedent was last seen, and at this point the excavation came to within a few inches of the brick pavement, when there was an incline of about eighteen inches and then about a twenty-five per cent, fall, ending at the bottom of the excavation along which the defendant’s railroad tracks were located about twenty-five feet below the surface of the street. The decedent was traveling on the pavement and preceding him were a man and woman together, and then a woman to the rear of him, making four people in all. These people were not far apart. That the night was dark and there was a drizzling rain and the lighting was not very good. That the deceased, who preceded the woman, disappeared as she cried out, “My God, a man just fell over this bank,” and was no longer on the pavement, but was a few seconds later heard groaning near the railroad track. A few minutes afterwards he was picked up near the bridge abutment, bleeding, muddy and his clothes covered with mud and blood, and was found near the level of the railroad tracks “like a man breathing his last,” and was recognized as the decedent. He was taken to the hospital and found to have a fractured skull, and the next day he died of a compound compressed fracture of the vault of the skull.

No one saw the decedent actually fall from the pavement to the tracks below. There is no evidence how he fell.

The first question to be determined is, Was there evidence to justify the submission to the jury of the issue as to the negligence of the defendant?

The evidence is undisputed that there was no guard rail between the wooden fence and the telegraph pole, a distance of about six feet, and at that point the bank of the railroad cut was within a few inches of the pavement and from that point gradually tapered along the westerly side of the pavement going south, to wit, in a “V” shape, the distance expanding going south.

The plaintiff’s statement of claim sets forth in paragraphs three, four, five and six, as follows:

“3. Plaintiff named above avers that on or about the 14th day of February, 1925, there existed abutting the north side of Gurney Street, in the City of Philadelphia, a sidewalk adjacent to the tracks of the Reading Company, the defendant named above, upon which pedestrians for a long period of time, with full notice to the defendant, passed back and forth in an easterly and westerly direction.

“4. Plaintiff avers that the defendant above named, by its agent, servants and employees, for a long time prior to the occurrence hereinafter related, permitted said sidewalk to be unguarded without the erection of a post, fence or warning and could have and should have had notice of the dangerous and unsafe condition of the same at this point.

“5. Plaintiff avers that on or about the 14th day of February, 1925, William Anderson, husband of the plaintiff named above, was lawfully passing eastwardly on Gurney Street and about turning to go approximately north on Somerset Street when owing to the unguarded condition of the street at this point and without neglect on his part slipped and fell down the embankment between the bed of the railroad depressed below the level of the street and the aforesaid street, fracturing his skull and receiving other injuries resulting forthwith in his death.

“6. Plaintiff further avers that the aforesaid was caused solely by the negligence of the Reading Company, the defendant named above, and was not contributed to by any negligence on the part of the plaintiff.”

The statement sufficiently charges the defendant with negligence in that it “permitted said sidewalk to be unguarded without the erection of a post, fence or warning and could have and should have had notice of the dangerous and unsafe condition of the same at this point.”

It is the duty of the defendant company so to guard its cut adjacent to the highway as to protect it for the safety of persons or animals rightfully at or near it, and its failure so to do is negligence and renders it liable to a person who, without fault on his part, is injured as a result thereof.

“If the owner of land makes an excavation thereon adjacent to a highway or so near as to make the use of the highway unsafe or dangerous, he will be liable to a traveler who, while using ordinary care, falls into it and is injured:” 45 Corpus Juris, § 285, page 860.

“An owner of land may be liable to another person entering without permission where he makes changes in his land so close to a public highway as to put in danger a traveler who mistakes the course of the highway and, without fault on his part, inadvertently strays from it:” 45 Corpus Juris, § 282, page 859.

“The rule is well settled, as is shown also in the earlier note on this question in 26 L. R. A. 686, that an abutting property owner who makes an excavation on his premises so near an existing highway as to render travel thereon unsafe is liable for consequent injuries to one traveling on the highway who is himself in the exercise of due care. This rule is supported by uniform authority:” L. R. A. 1918 A, page 850.

“No person is at liberty to construct, maintain, or suffer a dangerous excavation on his premises in close proximity to a public way by which those lawfully using the public way and in the exercise of proper care may receive injuries therefrom:” Racine v. Morris, 136 N. Y. App. Div. 467, 121 N. Y. S. 146.

“A person responsible for a dangerous place or instrumentality must guard, cover, or protect it for the safety of persons or animals rightfully at or near it, and his failure to do so is negligence, rendering him liable to a person who, without fault on his part, is injured as a result thereof:” 45 Corpus Juris, § 295, page 869.

“The rule, as to responsibility of a landowner to passersby for excavations or other dangerous conditions on his property, deducible from a review of the authorities in this and other jurisdictions, is stated in our own case of Gramlich v. Wurst, 86 Pa. 74, where, quoting from Hardcastle v. South Yorkshire Ry. Co., 4 Hurl. & Nor. 67 (2 Bohlen’s Cases on Torts, 199), possibly the recognized leading case on the subject, we said: ‘When an excavation is made adjoining to a public way, so that a person walking on it might, by making a false step, or being affected with sudden giddiness, fall into it, it is reasonable that the person making such excavation should be liable for the consequences. . . .’ ” Hildebrand v. Director General, etc., 270 Pa. 86, 90; Grier v. Sampson, 27 Pa. 183; Grogan v. Pennsylvania R. R. Co., 213 Pa. 340.

“Prom the record it appeared that on the night of December 24, 1915, plaintiff’s wife was killed by falling over the edge of a culvert or bridge into a ravine below. At the time of the accident plaintiff was walking ahead of his wife, and there was no eye-witness of her fall, nor was there any evidence as to how the accident actually happened. Along the edge of the bridge or culvert there was a rail with but a single stringer, over or under which a person might fall or slip. There was evidence that a boardwalk existed more than four feet inside the rail. . . . The night was dark and the road was muddy:” Seamann v. Mifflin Township, 266 Pa. 56; verdict and judgment for plaintiff.

As to there being no eye-witness to the actual falling of the decedent, it is not essential where the proof may be furnished by the circumstances themselves, the test is whether they are such as satisfy reasonable and well-balanced minds that the accident resulted from the negligence of the defendant.

It is the duty of plaintiff “so to picture or describe the facts as to enable the jury to visualize the occurrence and form an independent judgment thereon:” Mack v. U. S. Gypsum Co., 288 Pa. 9, 11; Allen v. Willard, 57 Pa. 374; Tucker v. Pittsburg, etc., Co., 227 Pa. 66; Ferry v. Phila. R. T. Co., 232 Pa. 403; McManamon v. Hanover Township, 232 Pa. 439; Madden v. Lehigh Valley R. R. Co., 236 Pa. 104; Dannals v. Sylvania Township, 255 Pa. 156; Reardon v. Smith, 298 Pa. 554; Seamann v. Mifflin Township, 266 Pa. 56.

Plaintiff’s testimony was as follows: “A. I saw four people, a man and a woman, and a man then, and another woman, and they were walking ahead of us on Gurney Street, going east. I did not pay any more attention to these people, only casually looked at them. I started talking to my brother-in-law again, and all of a sudden I heard a woman scream. We looked up and ran. She said, ‘My God, a man just fell over this bank.’ I said to my brother-in-law, I said, ‘What will we do?’ He said, ‘Let us go down.’ I said, T am game, if you are.’ So we went down the bank. When we got to the bottom we found this man lying on his face on the bottom of the bank. . . . Q. Mr. Thompson, these people that you saw walking ahead of you — will you just state as to what position they were on the pavement when they were ahead of you? Where was the man and woman you testified? A. They were just going over the bridge. Q. And then who came next? A. The man. [This being the decedent.] Q. And then who came after him? A. The woman. Q. Was that the woman — is that the young girl you mentioned, the last one? A. It is. Q. So that the young girl was between you and the young man? A. Yes, sir. Q. The question has already been asked you — did you actually see the man fall yourself? A. No; I did not see him actually fall. Q. You did not see him actually fall? A. No, sir. Q. You heard somebody shout something? A. A woman. Q. A woman shouted, ‘My God, . . .’ A. There is a man fell down the bank. Q. Then you immediately went up to the place? A. Yes; the man was gone. Q. The man was gone? A. He was not there.” (Testimony, pages 11, 12 and 13). See Exhibit No. 1.

“Q. Did you see this man before he went down? A. Yes, sir. Q. Where was he? A. Yes; I saw the man there. Q. Are you sure it was the man that went down? A. It must have been, because afterwards he was not there. Q. How do you distinguish him from the man that was walking ahead with the woman? A. Because he was a little short man. Q. The younger one? A. No; the other people.” (Testimony, page 19.)

“Q. Had you known the man before that you found at the bottom of this gulley? A. Never saw him before in my life. Q. I show you a photograph and ask you to tell us what that is? A. That is the man that was laying in the hospital. Q. Is that the man that you picked up out of the gully? A. Yes, sir.” (Testimony, page 23.)

The jury could fairly visualize the accident as hereinbefore set forth. There could be no other cause nor inference but that the decedent slipped, or was ill, or had a fainting spell and fell from the pavement into the cut. In any event the defendant would be liable. The decedent was on Gurney Street pavement near the axis of the turn where the street enters the bridge; he was not on the bridge, but at or near the point where there was no guard rail.

There was no other traffic at or near the decedent except two people a short distance in front of him about to enter the bridge, and a woman who screamed, who was to his rear. The strong probability is that the accident occurred by decedent falling over the unguarded embankment, and thus came to his death, as no other reasonable theory is there to account for his death and none suggested by the evidence: Madden v. Lehigh Valley R. R. Co., 236 Pa. 104.

There was no testimony to rebut the presumption that the decedent exercised due care such as a prudent man would do, so that the question of contributory negligence does not appear in this case.

We conclude that there was enough in the evidence to justify the submission of the issues to the jury and that error was committed in giving binding instructions for the defendant.

And now, Aug. 12, 1930, the motion of plaintiff is sustained, the verdict of the jury is set aside, and a new trial is granted.


author: Reno, P. J.,

text:
    Trexler v. Trexler.

      Calvin E. Arner, for plaintiff; Edwin K. Kline, for defendant.
    Oct. 6, 1930.
   Reno, P. J.,

On Oct. 1, 1926, Clarence D. Trexler and Perma E., his wife, executed and delivered to Milton C. Trexler a mortgage for $4200, covering premises owned by the mortgagors as tenants in common. Subsequently, Milton C. Trexler assigned the mortgage to Emma K. Trexler, who has instituted a sci. fa. thereon, naming Perma E. Trexler as defendant, Clarence D. Trexler having died meanwhile. The defendant, by her affidavit of defense, seeks to set off against plaintiff’s claim upon the mortgage the sum of $1876, which is one-half of the principal and interest due upon a judgment note given by Milton C. Trexler to Clarence D. Trexler on Nov. 1, 1923. Defendant contends that as one of her husband’s heirs, the other being a minor child, she is entitled to one-half of the note and that she can set it off against the demand upon the mortgage.

Of course, plaintiff took the assignment of the mortgage subject to any equities existing between the original parties; and this familiar principle permits a mortgagor to set off claims against the mortgagee acquired by the mortgagor prior to the assignment or notice thereof: Geiger v. Peterson, 164 Pa. 352; Carmalt v. Post, 8 Watts, 406; Rider v. Johnson, 20 Pa. 190. Defendant acquired her claim by her husband’s death on March 31, 1929, which she alleges was prior to notice of the assignment. So that, as far as that aspect of the case is concerned, she would be entitled to a set-off, provided, of course, that at a trial she could show that the claim was acquired before notice of the assignment.

But the answers to the larger and more important questions here involved defeat her right to the use of the judgment note as a set-off. She is attempting to use in her individual capacity a claim which is an asset of her husband’s estate and has apparently not been distributed, and, therefore, action upon it must be in her name as administratrix. This, however, is not necessarily fatal; for it has been said that the principle which requires mutuality of demand for the allowance of a set-off is satisfied not only when there is a right of action upon the claim by the defendant, but also when the defendant has a right of property in the chose: Cf. Solliday v. Bissey, 12 Pa. 347; Wolf v. Beales, 6 S. & R. 242; Hunter v. Henning, 259 Pa. 347. Hence, we would experience no great difficulty in looking beyond the form to the substance of the thing, and, finding that defendant was in fact and in law the owner of one-half of the claim, permit her to use it as a set-off.

But when that has been sanctioned, the fact still remains that she is attempting to use an obligation payable to herself and a minor child. The cases hold that when a note is owned by two persons, one owner may, with the express assent of the other, use it by way of set-off in a suit brought against one owner: Smith v. Myler, 22 Pa. 36; Jack v. Klepser, 196 Pa. 187; Cochran v. Cutter, 18 Pa. Superior Ct. 282; Hibert v. Lang, 165 Pa. 439; Gerber v. Meredith, 160 Pa. 102; Mower v. Reverting Fund Assurance Ass’n, 1 Pa. Superior Ct. 170. It follows that defendant’s right to use the note as a set-off is dependent upon the express assent of the co-owner, her minor daughter. Her assent is not alleged in the affidavit of defense and in the nature of things is probably not securable. Yet, as the cases indicate, this is an indispensable requisite; for, although the proportions in which the owners hold the debt may be established by testimony, still the express assent of the owners to its use as a set-off must likewise be shown. And if this is required when the owners are sui juris, it certainly cannot be omitted when one is a minor.

We have not lost sight of plaintiff’s contention that the judgment upon the note was entered irregularly, that is, having been entered after the death of Clarence D. Trexler, was entered without a suggestion of the death of the payee and without substitution of his administratrix as plaintiff. However that may be, the debt still subsisted and the claim evidenced by the note might have been used as a set-off, even if the judgment upon it was not valid: Cf. Mower v. Reverting Fund Assurance Ass’n, supra.

Now, Oct. 6, 1930, the rule for judgment for want of a sufficient affidavit of defense is made absolute; and the prothonotary shall, upon plaintiff’s prsscipe, enter judgment for the principal, interest and commission due upon the mortgage.

Prom Edwin L. Kohler, Allentown, Pa.


author: Groff, J.,

text:
    Conoy Township Auditors’ Report.

      Charles W. Baby, for appellant.

      Zimmerman, Myers & Kready, for school directors.
    April 19, 1930.
   Groff, J.,

In this matter B. L. Landis, C. H. Charles and C. E. Charles, three citizens and taxpayers in Conoy Township, which constitutes a fourth class school district, have appealed from the report of auditors of that district for the school year ending July 1, 19291, filed in the Quarter Sessions Office of Lancaster County on Sept. 7, 1929, in which they seek to surcharge the members of the school board with the following items:

“1. Amount paid to treasurer.......................... $300.00
2. Amount paid for fuel............................. $1019.00
3. Amount paid for new buildings.....................$14805.50
4. Amount paid for heat, light and plbg............... $248.12”

On the argument of the case, we understand that the surcharges asked for in items 1 and 4 were not pressed. We think that item 3 was disposed of by the Act of Assembly of March 28, 1929, P. L. 92. That act, in our opinion, permitted the directors to pay for the new buildings which we had formerly restrained them from paying. [See 41 Lanc. Law Rev. 93.] That leaves one item enumerated and appealed from to be disposed of, namely, “2. Amount paid for fuel $1019.00.”

It is contended by the appellants that this is covered by section 617 of the Act of May 18, 1911, P. L. 309, as amended by the Act of July 10, 1919, P. L. 889.

In the case of White et al. v. Moore et al., 288 Pa. 411, in paragraph 3 of the syllabus, it is said:

“Coal is not included in ‘school supplies’ of the second class within the meaning of section 706 of the Act of May 18, 1911, P. L. 309, so as to bring it within section 708 of the Code requiring public advertising where the amount purchased exceeds $300 in value.”

The Supreme Court then reversed the court below in removing school directors because they had not asked for bids in their purchase of coal.

The evidence in this case discloses that the board of school directors have only limited capacity for the storage of coal in their school houses, and that at no time had they purchased coal to the value of $300. The undisputed evidence is that their location compels them to purchase coal from the nearest and only dealers in their neighborhood, no others being located in the vicinity of these schools except the merchants from whom they did purchase.

We feel that they acted in good faith and within the law. We, therefore, dismiss the appeal, at the costs of appellants. Appeal dismissed.

Prom George Ross Eshleman, Lancaster, Pa.


author: MacNeille, J.,

text:
    Walnut and Quince Streets Corporation v. Mills et al.

      Walter Biddle Saul, for plantiif.

      G. Coe Farrier, Assistant City Solicitor, and Samuel S. Herman, lor defendants.
    May 15, 1930.
   MacNeille, J.,

This matter was heard on a bill in equity filed by the Walnut and Quince Streets Corporation, owners of premises located at the southeast corner of Walnut and Quince Streets, in the City of Philadelphia, upon which plaintiff has erected a theatre, known as the Forrest Theatre, asking for a restraining order directed against William B. Mills, Superintendant of. the Department of Public Safety, John Frederick Lewis et al., constituting the Art Jury of the City of Philadelphia, and the City of Philadelphia, enjoining them from interfering with the completion, erection, maintenance or lighting of a marquise erected over the sidewalk in front of the premises referred to.

Upon presentation of the bill and supporting affidavits, the chancellor granted the preliminary injunction prayed for, fixing the security to be entered, and appointed a time for the preliminary hearing, which was held on May 2, 1928, and continued.

Under the preliminary order, the plaintiff was permitted to use and light the part of the marquise already erected, but not to finish or paint it. On March 2, 1929, the chancellor made an amended order, under which the police department was enjoined from interfering with the completion, painting or finishing of the marquise, without prejudice to: the rights of the city or any parties to the bill.

The moving of the electrical sign complained of, as erected in violation of the city ordinance, to a position in compliance therewith, was ordered by the chancellor.

The material facts necessary for the adjudication of this controversy are not in dispute and are admitted in the pleadings. In the answer the defendants asked for affirmative relief, and to this a reply was filed by the plaintiff.

The chancellor makes the following

Findings of fact:

1. The plaintiff, the Walnut and Quince Streets Corporation, is a corporation organized and incorporated under and by virtue of the laws of the State of Pennsylvania, having its principal office and place of business in the City of Philadelphia.

2. The said corporation plaintiff is the owner of a plot of ground, situate at the southeast corner of Walnut and Quince Streets, public highways in Philadelphia, upon which is erected a theatre, known as the Forrest Theatre.

3. Before the erection of the theatre mentioned, the plans for its construction, including plans for the erection of a marquise or canopy over the sidewalk along the Walnut Street front of the theatre, were approved by the Department of Building Inspection of the City of Philadelphia, and a permit therefor was duly issued by the Department of Public Safety, Bureau of Building Inspection, and, in addition, a permit was issued by the Bureau of Highways for the erection of a marquise in accordance with the ordinances of council in such case made and provided, which permit was subject to the approval of the Art Jury of Philadelphia.

4. The marquise erected in front of the said theatre extends along the entire Walnut Street frontage of the building. It is built of steel girders and roofed with material other than the wire glass required by the rules of the Board of Highway Supervisors and the ordinance of City Council of Philadelphia.

5. On or about April 2, 1928, the plaintiff corporation submitted to the Art Jury of the City of Philadelphia its plans and design for! the erection of the marquise in front of its theatre, which submission was referred to a committee of the Art Jury, which committee reported adversely on the submission, and that report was ratified and approved at a stated meeting of the Art Jury held on April 27, 1928, which action was duly communicated to the plaintiff.

6. On April 19, 1928, the city solicitor notified the plaintiff that the Art Jury had disapproved the design and location of the marquise in question and demanded the discontinuance of further work thereon and the removal of such parts of it as had already been erected.

7. Following the notice to plaintiff from the city solicitor, the Superintendent of Police of Philadelphia notified the plaintiff that the completion of the marquise would not be permitted, warning plaintiff that if an attempt were made to light the electric lights illuminating the marquise the persons responsible would be arrested.

8. Plaintiff subsequently submitted to the Art Jury an amended plan for the marquise, which plan was disapproved by the Art Jury, certain modifications and changes being submitted by the jury, such as the reduction of the frontage covered by the marquise to the central arch, which would protect the center entrance to the theatre. No design in accord with this suggestion was ever submitted by plaintiff to the Art Jury.

9. An ordinance of Council of Philadelphia, approved June 2, 1921, forbidding the erection of awnings, etc., over the public highways, was amended on May 17, 1923, to permit the erection of canopies and marquises, of metal and glass, and among the rules and regulations adopted by the Board of Highway Supervisors to carry into effect the aforesaid ordinances was No. 4, which prescribes that the roof of such canopy or marquise shall be constructed of wire glass set in a metal frame, and No. 8, which provides that applications approved by the Board of Highway Supervisors are subject to the provisions of the Act of Assembly of June 25, 1919, as to approval by the Art Jury of Philadelphia.

10. By ordinance approved Dee. 31, 1919, page 541, City Council enacted that “the jury shall have and exercise all of the powers given by article II, section 11, of the Act of June 25, 1919.”

Discussion.

The plaintiff in this case admittedly violated the provisions of the Act of Assembly of June 25, 1919, P. L. 581, known as the Charter Act, which, in article II, section 11, provides for a board or commission to be known as an Art Jury; setting forth the personnel comprising it and the necessary qualifications of the appointees, together with the functions to be performed by the jury in passing upon all works of art. In article II, section 11, sub-section “e,” of the aforesaid act, it is provided as follows:

“The approval of the jury shall also be required in respect to all structures or fixtures belonging to any person or corporation which shall be erected upon or extend over any highway, stream, lake, square, park or other public place within the city, except as provided in this act. . . . Nothing requiring the approval of the jury shall be erected or changed in design or location without its approval. If the jury fails to act upon any matter submitted to it within sixty days after such submission, its approval of the matter submitted shall be presumed.”

The plaintiff also admittedly violated the Ordinance of Dec. 31, 1919, page 541, by which the City Council of Philadelphia exercised the rights given it under the aforesaid act.

The plaintiff attempts to justify its action in failing to comply with the statute and resulting ordinance by contending that sub-section “e” set forth above is unconstitutional and that the Art Jury has acted in a discriminatory manner in permitting other property owners to maintain structures above the sidewalk without the approval of the Art Jury.

The constitutionality of the act is attacked on three grounds: (a) That the legislature has laid down no definite standards or rules for the guidance of the Art Jury, and, therefore, there is a denial of due process under both the state and Federal Constitutions; (b) that the Art Jury is a “special commission” performing a municipal function; (c) that its duties are to regulate aesthetics Which, since the legislature does not possess the power to do so, it cannot delegate it.

In order to determine whether there is any merit to the plaintiff’s contention, we must first ascertain what the section in question regulates, for if it is a property right of the plaintiff, then there is considerable merit to the contention, while if the act deals with a license or privilege given by the city, the situation is entirely different.

At common law there was no right to encroach upon or extend into a public highway, and every such encroachment constituted a nuisance and the municipality had the right to abate such a purpresture or encroachment without specific legislation being required. The Act of March 11, 1789; § 2, 2 Sm. Laws, 462, gives the City of Philadelphia authority to use and control its property the same as an individual, and from the Act of 1838 down to the present the legislature has repeatedly authorized the regulation of nuisances by municipalities such as the one under consideration, regardless of the degree or extent of the encroachment, and one who asserts the right to maintain any structure encroaching upon any part of the highway must show his authority therefor, either from legislative grant or municipal license authorized by statute. See Reimer’s Appeal, 100 Pa. 182.

In the case of Lenon v. Porter, 65 Pa. Superior Ct. 94, the following language is used by the court:

“The right of passing along or over a public highway has connected with it certain incidents which are essential to the proper enjoyment of it, such as light and air and view. If abutting owners had the right to cover it over so as to shut out the light from above, its enjoyment would not only be greatly interfered with, but it might often be rendered dangerous and practically useless. He who asserts a right to maintain any structure extending over any part of a public street must show legislative authority therefor or municipal license authorized by statute: Reimer’s Appeal, 100 Pa. 182. It is clearly within the power of the legislature to at any time prohibit the maintenance by owners of abutting property of any structures connected with their buildings extending over public streets, and this power they may delegate to municipalities, to be exercised within the municipal limits.

“When the City of Philadelphia makes one regulation with regard to the erection and maintenance of awnings over the sidewalks, that does not exhaust the power conferred upon it by the Act of 1838, for that statute provides that the city may make ‘such and so many rules and regulations as to the councils may seem expedient.’ Regulations which were wise and proper in 1838 might, by the growth of the city and increased traffic upon the streets, become wholly inadequate and inexpedient. The power remained in the city to change the regulations with regard to awnings and awning posts, or to prohibit the maintenance of any such structures, and when an ordinance under which an awning was authorized is repealed, the owner ceases to have any authority for his intrusion upon the public street. The appellants do not question these general principles, but they contend that the regulations now in question are invalid because they apply only to South Street. Their contention, if correct, would leave the municipal authorities powerless to ordain a regulation applicable to a street where peculiar conditions rendered such regulation necessary for the public convenience and the maintenance of good order, unless at the same time such regulation was made to apply to streets where its enforcement would not only be unnecessary but burdensome and inconvenient.”

It is, therefore, apparent that no attempt is made in the act to interfere with the exercise of any natural or vested right in private property. It empowers a coordinate branch of the municipal government to exercise control and supervision in cases of encroachment upon municipal property, and while there are no restrictions upon the exercise of the jury’s discretion, nor specific standards or criteria set up for its guidance, no one can be heard to complain of the manner in which a municipality is permitted to control and regulate the use of its property, particularly when the privilege of encroaching upon a highway is asked by private citizens or corporations, permission being a matter of grace and not of right. Were this an attempt to regulate the use of private property it would clearly be in violation of the rights of the property owner and unconstitutional. See Bryan v. City of Chester, 212 Pa. 259.

In this connection, it is interesting to note that the section of the act, the constitutionality of which is now being attacked, was before the Superior Court in the case of Nierenberg v. R. C. Maxwell Co., 76 Pa. Superior Ct. 295, and that in this case the constitutionality was not even questioned. Judge Keller uses the following language in construing this act, which clearly limits its application so that no property rights can be involved:

“We are not favorably impressed with the proposition that, under existing legislation, the approval of the art jury is required in respect to structures and fixtures placed wholly on a private owner’s property and not erected upon or extending over any highway, stream, lake, square, park or other public place within the city, or that the phrase ‘upon . . . any highway,’ as used in clause (e) of section 11, article II, of the Act of June 25, 1919, P. L. 581, is equivalent to ‘upon any property fronting on any highway,’ any more than the use of almost the same phrase in clause (d) of that section with reference to works of art has anything to do with statuary, paintings, stained glass windows or mural decorations erected or placed on the grounds or in the houses of private owners of land fronting on any highway belonging to or under the control of the city. It seems to us that the words ‘erected upon’ and ‘extending over,’ used in said clause in connection with ‘any highway ... or other public place,’ have a correlative meaning and refer to a structure or fixture erected so as to occupy part of the highway on the surface or just out over it above.”

This case is clearly distinguishable from the case of Humphreys v. Schofield et al., 14 D. & C. 127, in which Judge Stern recently held that the Ordinance of Jan. 30, 1923, which provides that no buildings shall be erected or altered until the location and plans have been approved by the Commissioners of Fairmount Park is unconstitutional. That ordinance attempts to regulate private property rights, while the act and ordinance in this case have nothing to do with private property rights, except the property rights of the municipality, and under what circumstances they shall be surrendered in the form of a privilege to abutting property owners.

The case of Yick Wo v. Hopkins, 118 U. S. 356, cited by the plaintiff in support of its contention that there is a denial of due process, is- clearly distinguishable from this case. In that case an ordinance of the City of San Francisco declared it to be unlawful to carry on a laundry business within the confines of the city without the consent of the supervisors, unless the building in which the business was conducted was constructed from brick or stone. The Supreme Court of the United States declared the ordinance unconstitutional, being in violation of the 14th Amendment; but the court, in its opinion, pointed out the distinction between the case at bar and those where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns or places where liquor is sold, where one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because the fact of fitness is submitted to the judgment of an officer and calls for the exercise of a judicial nature. In Locke’s Appeal, 72 Pa. 491, 498, it was said by Agnew, J.: “What is more common than to appoint commissioners under a law to determine things upon the decision of which the act is to operate in one way or another? . . . Take the case of granting a license to keep an inn and sell liquor. The judge determines whether the license is necessary, and if not necessary, the law says to the applicant, ‘No license.’ The law takes effect just as the judge determines, yet who says it is the court that legislates? . . . The true distinction, I conceive, is this: The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. . . . Half the statutes on our books are in the alternative, depending upon the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said the exercise of such a discretion is the making of the law.”

Nothing but a clear violation of the Constitution — a clear usurpation of power prohibited — will justify the judicial department in pronouncing an act of the legislature unconstitutional and void.

The constitutionality of an act of assembly cannot be tried by the motives and designs of the lawmakers, however plainly expressed. If the act itself is within the scope of their authority, it must stand: Powell v. Com., 114 Pa. 265; Mutual Film Corp. v. Breitinger, 250 Pa. 225 (1915).

The distinction is clear between the exercise of the right to conduct a lawful business, which right is undoubtedly property within the meaning of the amendment, and an application for a permit to erect a structure which would be illegal without such permission as constituting a nuisance.

In the case of State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 59 So. Repr. 294, the following language was used:

“It is universally recognized that the act of engaging in the sale of intoxicants may be wholly forbidden and that a license to engage in the traffic in liquors is a privilege merely revocable at the will of the supervisor granting power; that there is in it no element of property right or vested interest of any kind. Being so, it may be a necessary consequence that rules of law protective of vested rights are without influence in respect of such a privilege. It would seem to be axiomatic that even one who is, as he conceives, wrongfully denied participation in a matter of mere privilege or who is discriminated against in his effort or desire to enjoy that privilege with another no better entitled, has no firm basis of complaint unless the law of the creation of the privilege and governing the selection of its beneficiaries brings him within its protection and should and does control the authority to which the selection is committed. In other words, it would seem that the selection of the beneficiaries of a mere privilege not involving a matter of right may be committed to the discretion of a body created for that purpose, and so without impinging upon any vested right of one who desires to enjoy the privilege or from whom it was in the discretion of the body withdrawn.”

To the same effect are the cases of State v. Gray, 61 Conn. 39, 22 Atl. Repr. 675; Brown v. Stubbs, 128 Md. 129, 97 Atl. Repr. 227; Rizzo v. Douglas, 201 N. Y. Supp. 194; Lane v. Whitaker, 275 Fed. Repr. 476.

That no right of appeal is provided for from the decision of the board is immaterial. In the case of Mutual Film Corp. v. Breitinger, 250 Pa. 225, where this objection was raised with reference to the statute creating a board of censors for motion pictures, the following language was used: “It is further objected that the statute provides no appeal from the determination of the tribunal. But in such cases the right of appeal on other than constitutional grounds may be conferred or withheld at the discretion of the legislature. . . . Were this not expressed in the act, it would none the less be implied, at least so far as pertains to any violation of rights guaranteed by the 14th Amendment: Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 547.”

Plaintiff’s contention that unrestricted authority may be abused is best answered in the following language from the above cited case, adopted from the ruling of the United States Supreme Court in the case of Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (232 Pa. 141):

“And in determining whether the constitutional rights of a party have been affected by a state statute, the courts will presume, until the contrary is shown, that any administrative body to which power is delegated will act with reasonable regard to property rights.”

In addition to that, the names of the members that constitute the Art Jury should be sufficient to put to rest any fears on the part of the plaintiff of any abuse of authority. The danger to the public and the adjoining property owners of an unbridled liberty to erect any construction over the highways are far greater than any danger likely to accrue from an abuse of discretion on the part of the Art Jury.

It is also argued by the plaintiff that the Art Jury is a “special commission,” exercising control over municipal property and performing municipal functions, and is, therefore, prohibited by article ill, section 20, of the State Constitution, which provides: “The General Assembly shall not delegate to any special commission, private corporation or association any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.”

The Charter Act of 1919 created for cities of the first class a form of government, setting up the necessary and proper municipal bodies and bureaus. The legislature embodies in the act the Art Jury as one of the agencies of municipal government with distinct authority and powers. That act constitutes the charter under which the municipal functions of the City of Philadelphia are exercised and in no way can be considered to be such special legislation as would violate the section of the Constitution quoted.

In Moll v. Morrow, 253 Pa. 442 (1916), cited in support of the plaintiff’s contention, the Act of June 27, 1913, P. L. 638, creating a special board to supervise public morals in the Department of Public Safety of the City of Pittsburgh, was declared unconstitutional as violating article III, section 20, in establishing a special agency for a special and limited purpose. The court said: “There is no question that the legislature can establish almost any form of government it pleases and that it may subdivide municipal functions, create departments, bureaus and other agencies and change them. But the question is not determined by what might have been done. There has been created for cities of the second class a form of government. This bureau is alien from it in every characteristic.” Here the court clearly distinguishes special acts creating new branches of municipal government from an act granting a charter to a municipality such as the Charter Act of 1919, in which the Art Jury is established as a distinct element in the governmental structure.

The contention that the Art Jury cannot regulate sesthetics is also without merit. In the first place, while this may be true as to private property, there certainly does not seem to be any good reason why, when a privilege is granted, it cannot be surrounded with such limitations as were done in this case. In addition to that, it is apparent from the decisions cited above that at common law and from that time until the present the law has regarded the rights of the public to the unobstructed use of the street — to light and air and sunshine — as a valuable right, and that any encroachment on it was considered a nuisance, without reference to the question as to whether the structures were physically safe in construction or against fire hazard, and that any board which is entrusted with the stewardship of this valuable right has a very important function to perform. That the sesthetic is combined with this only adds to the importance of their work.

In Kerr’s Appeal, 294 Pa. 246, 250, it was held that: “While a zoning ordinance cannot be sustained merely on sesthetic ground, that may be considered in connection with questions of general welfare. See Sundeen v. Rogers (N. H.), 141 Atl. 142.”

In addition to that, the magnitude of the right to be protected is immaterial.

In the case of Breisch v. Locust Mountain Coal Co., 267 Pa. 546, it was held: “So it has been held that injunctions to restrain encroachments on highways, though they should be granted with care, will, when public rights are invaded, be granted. In such case, no question of the amount of damage is raised, but simply the one of the invasion of a right: Reimer’s Appeal, 100 Pa. 182, 187. A nuisance per se, when public in its character, may, upon information by the Attorney-General or at the suit of a municipality, be enjoined: Mint Realty Co. v. Wanamaker, 231 Pa. 277, 279.”

The failure to enforce this ordinance in other cases can have no bearing on the decision in this case.

In Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355, 373, it was specifically held that “failure to enforce an ordinance furnishes no reason for not enforcing it under proper conditions.”

Moreover, the court’s right to review the Art Jury’s discretion in this matter is limited. In Kerr’s Appeal, 294 Pa. 246, Mr. Justice Walling, citing from the Federal case of Nectow v. City of Cambridge, 277 U. S. 183, in discussing the zoning ordinance, uses the following language: “A court should not set aside the determination of public officers in such a matter unless it is clear that their action has no foundation in reason and is a mere arbitrary or irrational exercise of power, having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.”

In the case of Summerhill Borough v. Sherbine, 88 Pa. Superior Ct. 419, it was held that: “Any occupation of the property inconsistent with the public right is a nuisance and no length of time will legalize a public nuisance: Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318; Breisch v. Locust Mountain Coal Co., supra,, page 552.”

Conclusions of law.

1. At common law, any extension into a public highway was a nuisance and was prohibited, and this is still the law except where modified by statute.

2. Statutes granting rights to erect any structure extending over a public highway create privileges and do not create property rights in the individuals to whom the rights are given.

3. The Art Jury is vested with duties involving the protection of public property, in addition to matters of aesthetic taste, and its duties do not conflict with the duties of other bureaus of the City of Philadelphia.

4. Sub-section “e,” section 11, article II, of the City Charter Act of 1919, P. L. 581, conferring upon the Art Jury power over all structures erected over highways, is valid and constitutional, as is the ordinance passed by Council of Philadelphia in pursuance thereto as of Dec. 31, 1919.

5. The marquise erected in this case on the Walnut Street front of the Forrest Theatre did not comply with the ordinance of the Council of Philadelphia, approved June 2, 1921, as amended on May 17, 1923, in that the roof was not constructed of wire glass set in metal frame, and in that the approval of the Art Jury of Philadelphia was not obtained.

6. Failure to enforce this ordinance in other cases has no bearing on the instant case.

7. Any occupation of public property inconsistent with the public right is a nuisance and no length of time will legalize it.

8. The plaintiff is not entitled to the relief sought by it, and its bill should, therefore, be dismissed.

9. The defendants are entitled to the afSrmative relief sought by them.

Decree nisi.

And now, to wit, May 15, 1930, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

1. The plaintiff’s bill in equity is dismissed.

2. The plaintiff, the Walnut and Quince Streets Corporation, its officers, agents and tenants, are permanently enjoined from maintaining and using the present marquise over the sidewalk of Walnut Street in Philadelphia in front of the Forrest Theatre, and are directed to remove the said marquise, said injunction and removal to commence within forty-five days, unless before the expiration of this period the said Walnut and Quince Streets Corporation obtains the approval of the Art Jury to a modified plan of the existing marquise, in which case the plaintiff shall remove the portions of the existing marquise not incorporated into the revised and approved plan.

3. The plaintiff, the Walnut and Quince Streets Corporation, its officers, agents and employees, are permanently enjoined from erecting any other marquise, unless it is approved by the Art Jury of the City of Philadelphia, and unless it complies with the existing laws and ordinances.

4. The plaintiff is directed to pay the costs of this suit.

The prothonotary is directed to notify the parties or their counsel of the filing of the above adjudication, and that, unless exceptions thereto be filed within ten days, the decree nisi shall be taken as and for the final decree in the cause.


author: Jones, J.,

text:
    Vavrek et al. v. Virusky.

      Frank P. Slattery and Peter P. Jurchak, for plaintiffs.

      G. J, B'ruger and A. H. James, for defendant.
    Feb. 24, 1930.
   Jones, J.,

An alternative writ of mandamus was issued against Antonia Virusky, the supreme president of the Ladies’ Pennsylvania Slovak Roman and Greek Catholie Union, upon the petition of more than two-thirds of the subsidiary branches thereof, commanding her to issue a call for a special convention of the union as required by its constitution. The answer to the writ contained a full and explicit denial of the material allegation that two-thirds of the branches had requested her to call the convention, raising an issue of fact to be decided by a jury.

Upon trial before a jury, when the testimony closed and the parties agreed that there was no disputed fact, the court directed the jury to return a special finding that more than two-thirds of all the branches of the union requested the defendant, as its supreme president, to call the convention and directed a verdict in favor of the plaintiffs.

Respondent filed a motion for judgment n. o. v. and a new trial, based upon the proposition that the verdict was against the law and the evidence, and the trial judge filed an opinion refusing the motion for a new trial and for judgment n. o. v., and the court en banc, after argument, sustains the action of the trial judge for the reasons set forth in the opinion filed by him.

In the meantime respondent died, her death was suggested on the record and a rule was granted upon Helen Panik, of the State of Connecticut, the vice-president of the organization, who became president under the laws of the union, to show cause why she should not be substituted as respondent; service of the rule was made upon her by registered letter, and upon the return day she made no appearance and filed no answer.

The mandamus proceedings did not abate by reason of the death of the president. Section 25 of the Mandamus Act of June 8, 1893, P. L. 345, provides that the death, resignation or removal from oifice by lapse of time or otherwise of any defendant shall not have the effect to abate the suit, but his successor may be made a party thereto and any peremptory writ shall be directed against him; and the rule is the same aside from the statute: Com. ex rel. v. Schmidt et al., 287 Pa. 150, and High’s Extraordinary Legal Remedies (3rd ed.), § 443.

Therefore, we make the rule absolute and substitute Helen Panik, successor to Antonia Virusky, now deceased, the supreme president of said organization, as respondent; and a rule is directed to show cause why a peremptory writ of mandamus shall not be issued against her as the supreme president of the above organization, commanding her to issue a call for a special convention of the union, as required by its constitution and the opinion of this court filed in the above proceeding, returnable within ten days after legal service of the rule upon her.


text:
    Herr v. Standard Life Insurance Company of America.

      H. Arronson, for plaintiff; H. H. Rapp, for defendant.
    July 28, 1930.
   Martin, P. J.,

An action of assumpsit was instituted by plaintiff against the defendant to recover commissions for procuring life insurance. The summons in assumpsit was served by the sheriff and return made, “served Standard Life Insurance Co. of America, a corp., the within named defendant, at Ledger Bildg. in the City and County of Philadelphia, the place of business of said defendant company, by handing a true and attested copy of the within writ, on April 30, 1930, to Mr. Dunbar, the person for the time being in charge thereof, being unable to ascertain the residence of any of the officers of said defendant company within the county on inquiry at said place of business. So answers, Louis Silverstein, Deputy Sheriff; Thomas W. Cunningham, Sheriff.”

A petition was filed on behalf of defendant, averring that defendant is a corporation organized under the laws of Pennsylvania, with its principal place of business in Pittsburgh, and that no portion of the real estate belonging to defendant is situated in Philadelphia County; that petitioner transacts no business and owns no property in the County of Philadelphia, except that it maintains an office in the Public Ledger Building, 6th and Chestnut Streets, Philadelphia, and owns the furniture therein; but that the office is merely a branch office operated for soliciting applications for life insurance policies, which, when obtained, are transmitted to the principal office at Pittsburgh for approval, and if approved, the life insurance policies are issued from Pittsburgh, but the Philadelphia office is for the convenience of persons insured, as a place where premiums may be paid, and which, when paid, are transmitted to Pittsburgh; that solicitation and occasional receiving of premiums do not constitute a substantial doing of business in the sense that it renders defendant amenable to the jurisdiction of this court; that Mr. Dunbar, the person upon whom the writ is claimed to have been served, is not an executive officer, member of the board of directors, or chief clerk of petitioner; that neither the directors, the president, secretary, treasurer, general manager, or other executive officer, reside in the County of Philadelphia.

A rule was entered to show cause why the service of the writ should not be set aside and the return of the sheriff stricken from the record.

An answer was filed by plaintiff, averring that, in addition to its principal office maintained in Pittsburgh, defendant maintains, conducts and occupies the office at No. 831 Public Ledger Building, in the City of Philadelphia, which office has charge of all the activities of the corporation for the Eastern District of Pennsylvania; that this office is in charge of a duly authorized agent and manager, Baxter Reynolds, who is manager for the Eastern District of Pennsylvania on behalf of defendant; that defendant transacts a substantial portion of its business in the City and County of Philadelphia, which during the last year exceeded the sum of $1,000,000; that the Philadelphia office has charge of all the operations of defendant, acting through its agents, solicitors, medical advisers and employees in the Eastern District of Pennsylvania, composed of the State of Pennsylvania east of the Susquehanna River and the State of New Jersey; that all policies issued by the company to policyholders residing in the Eastern District are sent to the office No. 831 Public Ledger Building and delivered by agents, solicitors and representatives of the defendant who are connected with that office to policyholders residing in the district; that all premiums due on policies issued in the district are collected by representatives and employees of the defendant, who have their offices at No. 831 Public Ledger Building, in the City of Philadelphia; that all premiums due on policies issued to people residing in the district are payable at No. 831 Public Ledger Building, in the City of Philadelphia; that all premium receipts issued by the company in connection with such policies are countersigned by Baxter Reynolds, the duly authorized agent and representative of the defendant in the Eastern District; that the contract under which plaintiff has brought suit against the defendant was delivered by defendant in the City of Philadelphia; that all premiums and policies issued by defendant for the Eastern District are received at No. 831 Public Ledger Building, in the City of Philadelphia, and deposited to the credit of defendant in the Integrity Trust Company, a banking institution in the City of Philadelphia; that the daily average balance in this bank amounts to $2000; that defendant owns all the furniture, tools, equipment and appliances located in the office, No. 831 Public Ledger Building; that the lease for the office is in the name of defendant, and the rent is paid by defendant; that defendant has a telephone in the office and pays for telephone service, and the telephone is listed in the name of defendant; that the activities of defendant in the City of Philadelphia constitute a substantial doing of business; that the name of defendant and this address, No. 831 Public Ledger Building, is printed on the stationary issued out of this office; that application blanks for insurance, cards and literature indicate that defendant maintains an office for the transaction of its business in the City of Philadelphia; that the cause of action on which this suit arises is in connection with the delivery of insurance policies in the amount of $200,000, delivered from the office in the City of Philadelphia; that the cashier of the company, authorized to receive premiums, countersign insurance receipts and take care of the duties relating thereto, is Thomas M. Dunbar; that the return made by the sheriff is conclusive upon defendant; that Baxter Reynolds, the manager for the Eastern District, resides within the district.

Depositions were taken in support of the answer. It appears in the testimony that a substantial part of the business conducted by defendant is transacted in the City of Philadelphia; that Mr. Dunbar, upon whom the writ was served, is an employee of defendant, and “the person for the time being in charge.”

The sheriff’s return is full and complete on its face. There is no allegation of fraud.

“In the absence of fraud, which is not alleged here, a sheriff’s return, full and complete on its face, is conclusive upon the parties and cannot be set aside on extrinsic evidence:” Walling, J., in Miller Paper Co. v. Keystone C. & C. Co., 267 Pa. 180, 182; Lindsay & Co. v. Pittsburgh Tin Plate and Steel Corp., 29 Dist. R. 569.

The testimony discloses that one of the defendant’s principal offices, where a substantial part of its business is transacted, is located in the City of Philadelphia, where the writ was served; and that the return made by the sheriff of service is full and complete.

The writ was properly served. No legal ground has been presented for striking off the service.

And now, July 28, 1930, the rule to show cause why the service of the writ should not be set aside and the return of the sheriff struck from the record is discharged.


author: Bluett, J.,

text:
    Dissinger v. Rosen.

      William E. McCall, Jr., for plaintiff; Abraham Friedman, for defendant.
    Aug. 26, 1930.
   Bluett, J.,

On Nov. 26, 1929, the defendant in this proceeding issued a writ of summons in trespass against the plaintiff in the present proceeding in Court of Common Pleas No. 4, as of December Term, 1929, No. 601, and served a statement of claim with notice endorsed requiring an affidavit of defense to be filed within fifteen days. On Dec. 6, 1929, the defendant in that proceeding (the plaintiff herein) filed an affidavit of defense in which he denied the agency, but did not set up any counter-claim for damages to his automobile arising out of that accident, caused by any negligence of the plaintiff therein. That action in Common Pleas No. 4 is still pending and undetermined.

On July 14, 1930, plaintiff in this present proceeding issued summons in trespass against defendant (plaintiff in the above mentioned action), returnable the fourth Monday of July, 1930, and filed a statement of claim with notice endorsed to file affidavit of defense, in which he sought to recover $645.70 for damage to his automobile, which he alleges was caused by the negligence of the defendant or his agent and employee, and alleging the same accident or set of circumstances referred to in the first mentioned suit in the Court of Common Pleas No. 4.

The case is before the court now on a petition of the present defendant for a rule to show cause why the plaintiff’s present action in trespass should not be discontinued, because it arises out of the same occurrence for which the defendant herein had previously brought his action in trespass against the plaintiff in Common Pleas No. 4 to recover damages for personal injuries which defendant sustained in the same accident, and' as the result of the alleged negligence of the plaintiff, his agent or employee.

Defendant sets up as his reason why the action of the plaintiff herein should be discontinued, that section 13 of the Act of May 14, 1915, P. L. 483, as amended by the Act of April 4, 1929, P. L. 140, provides that wherever there are counter-claims for damages arising out of the same general circumstances, both claims shall be tried as one action.

The amendment of 1929 provides as follows (Act of April 4, 1929, § 13, P. L. 140):

“The defendant in such actions may, by affidavit of defense, in addition to denying negligence on his own part, allege negligence on the part of the plaintiff, and set up against the plaintiff, in the manner by this act prescribed, a claim for damages arising out of the same general circumstances upon which the plaintiff’s claim is based, and both claims shall in the said cause be tried as one action.”

Prior to the passage of this amendment of 1929, it was impossible for a defendant, in an action of trespass for damages by reason of the negligence of the defendant, to set up in. a counter-claim or set-off against the plaintiff damages sustained by him in the same accident or under the same set of circumstances. It was, therefore, necessary for a defendant who felt that he had a set-off or counter-claim against the plaintiff in an action of trespass, and for negligence arising out of the same transaction, to begin another action in trespass either in the same court or in another court having jurisdiction of the cause. This, of course, meant a multiplicity of suits, with the additional costs and inconvenience to the parties and witnesses, as well as the additional burden placed upon the courts.

It was for the purpose of remedying this defect in the practice of the law, in having such a multiplicity of suits and litigants in cases of this kind, that the amendment was passed, and the question now arises whether the legislature intended this act to be mandatory or whether it was made merely directory or advisory.

From a reading of the amendment it seems to be clear that the legislature intended the amendment to give the right or option to the defendant in trespass proceedings for negligence to set up his set-off or counter-claim in the original suit of trespass, if he desires to do so. The word “may” in the first line of the amendment is in no sense mandatory, but is only advisory or entirely optional with the defendant. The fact that the latter part of the amendment provides that “both claims shall in the said cause be tried as one action,” does not change the meaning of the first clause giving the option to the defendant. Should the defendant, however, set up his set-off or counterclaim in the original suit, the last part of the amendment makes it obligatory that the claims of the plaintiff and of the defendant in the set-off shall he tried as one and the same action. The issues in both claims of the plaintiff and the defendant have then been raised in one and the same ease, and it is quite proper that the claims should be tried at one and the same time, so that the witnesses to the occurrence may be seen by the court and the jury, the negligence ascertained and the damages determined at one and the same trial.

But where the defendant has not, in accordance with the act, exercised his option or privilege to set off his counter-claim in the original proceedings, there is nothing in the act or in the law to prevent the defendant from beginning another cause of action against the plaintiff for damages by reason of the negligence of the plaintiff, his servants, agents or employees. No jurisdiction has been taken away by the Act of 1929, and if the defendant has not seen fit to exercise his option in setting forth his set-off in the original cause of action, there is nothing to prevent him from beginning another suit in a court of competent jurisdiction. We have only to take the plain ordinary meaning of the words used in the act of assembly to determine that it was the intention of the legislature merely to assist in preventing a number of suits arising out of the same transaction, in trespass. It is entirely optional with the defendant whether or not he set off or counter-claim in the original action or begin a new suit. Had the legislature intended otherwise, it would undoubtedly have used the word “shall” instead of “may” or some other language equally mandatory.

The court is of the opinion that the plaintiff in the present case is within his right to begin an action in our court, and, therefore, the defendant’s rule to show cause why the plaintiff’s action should not be discontinued because of the court’s lack of jurisdiction over both the parties and the cause of action for which suit was brought is discharged, with leave to defendant to file affidavit of defense within fifteen days.


author: Niles, P. J.,

text:
    Susquehanna Pipe Line Company v. Sprenkle.

      Schmidt, Keesey, Stair & Kurtz, for applicant; J. Edgar Small, contra.
    Sept. 8, 1930.
   Niles, P. J.,

On Aug. 4, 1930, tb© Susquehanna Pipe Line Company presented to this court its petition, setting forth necessary preliminary facts and alleging that Harry R. Sprenkle had refused to accept the bond tendered and asking approval by the court and that the same be filed. Upon a rule granted an answer was filed on behalf of Harry R. Sprenkle.

The answer (a) denies that the Susquehanna Pipe Line Company is a public service corporation under the Act of April 29, 1874, P. L. 73, and its supplements and amendments; (b) is a denial that the company is vested with the power of eminent domain; (c) “it is averred that the resolutions passed by the board of directors of the Susquehanna Pipe Line Company is not adequate and is misleading, for the reason that said resolutions declare that respondent’s property is appropriated and condemned for the purpose of constructing a pipe line for the transmission of petroleum and/or oil for the public, whereas this is not the real intention or purpose of such condemnation, but the real intention of condemning respondent’s property of the Susquehanna Pipe Line Company is to construct, maintain and operate a pipe line for the transmission of gasoline, which is a refined petroleum product;” (d) “respondent avers that there is no proof that the parties could not agree as to the amount of damages.”

The objection (a>) is substantially that the company possesses no legal charter.

The only reason for this objection which was insisted upon at the argument is that neither the general Act of April 29, 1874, P. L. 73, as amended by the Act of June 2, 1883, P. L. 61, and the Act of April 30, 1929, P. L. 896, gives to such a company any privilege to transport “products of oil or petroleum,” but limits its right to oil and/or petroleum themselves. This objection is based upon the allegation, of which there is no proof, that the real purpose of the company in placing the proposed pipe line is to carry gasoline and not, as the resolution and petition allege, “for the transportation of petroleum and/or oil for the public.”

Incidental to the argument on this objection, counsel pointed to the purpose of incorporation as set forth in the charter of March 28, 1930, as follows: “2nd. Said corporation is formed for the purpose of transporting, storing, insuring and shipping petroleum and refined petroleum products, and to construct, maintain and operate such pipe lines, tanks and facilities as are necessary and proper for the conduct of said business, and said pipe line or pipe lines to run within the Commonwealth of Pennsylvania, including a pipe line or pipe lines beginning at or near the vicinity of the village of Linwood,” etc.

It is urged by respondent’s counsel that this charter purpose exceeded the purposes authorized by the act of the legislature, and that, therefore, the Governor exceeded his legal authority in approving the charter, and the Public Service Commission exceeded its authority in granting a certificate of public convenience; that the inclusion in the charter purpose of “refined petroleum products” without specific authority makes the charter ineffective. It is further pointed out that “there is an entire absence of an expression of purpose to serve the public, and, therefore, this corporation has no claim under the Act of 1883, P. L. 61, to the right of eminent domain.”

Notwithstanding the learned and forceful argument of counsel for the respondent, our conclusion is that there is nothing in the objection which in this proceeding to approve this bond can be sustained. The Susquehanna Pipe Line Company, under the Public Service Law of July 26, 1913, P. L. 1374, is a public service company and has the duty of furnishing and maintaining service for the public; and there has been issued to it by the Public Service Commission a certificate of public service. The insertion of an additional statement in the charter does not deprive the company of the status given it by the Governor and Secretary of the Commonwealth and the Public Service Commission. The petitioner is vested by the Act of June 2, 1883, P. L. 61, as amended April 30, 1929, P. L. 896, with the power of eminent domain. The Act of June 2, 1883, P. L. 61, is valid. The reference to the 18th clause of section 1 of the Act of 1874 is manifestly merely a clerical error. It is clear that the legislature intended the 18th clause of section 2. The courts will disregard such a clerical error and enforce the statute in accordance with the obvious legislative intent: Lehigh Valley Coal Co. v. U. S. Pipe Line Co., 3 Dist. R. 70; Keller v. Com., 71 Pa. 413; Lancaster County v. Frey, 128 Pa. 593; Lancaster County v. Lancaster City, 160 Pa. 411. In this proceeding as now presented to this court, the validity of the petitioner’s charter cannot be questioned: Crescent Pipe Line Co., 2 Dist. R. 93.

The approval of this bond is not an adjudication of the right to appropriate: Katharine Water Co., 32 Pa. Superior Ct. 94; Bond of Equitable Gas Co., 72 Pa. Superior Ct. 371. The allegation of an intent to use the pipe line illegally in contradiction of the legal intent stated in the resolution and the bond cannot be inquired into now: Gring v. Sinking Spring Water Co., 270 Pa. 232; Croyle v. Johnstown Water Co., 259 Pa. 484.

And now, to wit, Sept. 8, 1930, the bond of the Susquehanna Pipe Line Company to Harry R. Sprenkle, filed Aug. 4, 1930, with the United States Fidelity & Guaranty Company as surety, is approved as filed for the use and benefit of the owner, or such others as may be found entitled to the payment of damages thereunder, in accordance with the prayer of the petition of said company filed on the same day.