author: Wickersham, J.,

text:
    Commonwealth v. Valvoline Oil Company.

      Philip S. Moyer, Deputy Attorney-General, for plaintiff.

      Branden & Branden, for defendant.
    Oct. 29, 1928.
   Wickersham, J.,

It is agreed by counsel that a trial by jury be dispensed with in the above-stated case, and that the same be submitted to the decision of the court to be heard and determined under the provisions of the act entitled “An act to provide for the submission of civil cases to the decision of the court, and to dispense with trial by jury,” approved April 22, 1874, P. L. 109, subject, however, to appeal or writ of error, as in other cases, at the option of either party.

Facts.

The following facts have been agreed upon:

1. The Valvoline Oil Company, the defendant, is a corporation organized and existing under the laws of the State of New Jersey. On July 3, 1901, it properly qualified to do business in Pennsylvania, and has since been continuously engaged in business in Pennsylvania since that date. It is authorized by its charter to conduct the business of refining and marketing petroleum products and oils, and during the calendar year 1926, the one here in question, was engaged in carrying on such business in Pennsylvania.

2. The Valvoline Oil Works, Limited, was organized as a limited partnership association on Nov. 12, 1908, in accordance with the terms of the Act of June 2, 1874, P. L. 271, to exist for a period of twenty years. On Dec. 31, 1924, it had a capital stock of an aggregate par value of $1,000,000, consisting of 10,000 shares of the par value of $100 per share, upon which it had paid bonus to the Commonwealth of Pennsylvania in the amount of $3333.34, in accordance with the terms of the Act of May 8, 1901, P. L. 149. The actual value of its total assets and property used in the conduct of its business in Pennsylvania was $2,437,538.78 on Dec. 31, 1924.

3. The Wilburine Oil Works, Limited, was organized as a limited partnership association on April 22, 1898, in accordance with the terms of the Act of June 2, 1874, P. L. 271, to exist for a period of twenty years, and was renewed in 1918 for a further period of twenty years. On Dec. 31, 1924, it had a capital stock of an aggregate par value of $500,000, consisting of 5000 shares of the par value of $100 per share, all of which it had issued prior to the approval of the Act of May 8,1901, P. L. 149, which first imposed a bonus on the capital stock of limited partnership associations. It is admitted that the Wilburine Oil Works, Limited, as such, was not liable to a bonus on its capital stock in the amount of $500,000. The actual value of its total assets and property used in the conduct of its business in Pennsylvania was $1,593,503.24 on Dec. 31, 1924.

4. On Dec. 31, 1924, the defendant, the Valvoline Oil Company, being the owner of all their issued and outstanding capital stock, purchased and acquired the entire property and assets of the Valvoline Oil Works, Limited, and the Wilburine Oil Works, Limited, including all contracts and other rights and privileges used, or of use in connection with, or acquired for, the business carried on by both associations.

5. On April 27, 1925, the Valvoline Oil Works, Limited, was dissolved by decree of the Court of Common Pleas of Butler County, Pennsylvania, and on Sept. 7, 1925, the Wilburine Oil Works, Limited, was dissolved by decree of the Court of Common Pleas of Warren County, Pennsylvania.

6. In the bonus report of the Valvoline Oil Company for the calendar year 1926, filed with the Auditor General of Pennsylvania in accordance with the provisions of the Act of May 8, 1901, P. L. 150, the amount of capital shown to have been employed in Pennsylvania included the value of the tangible property and assets acquired from the Valvoline Oil Works, Limited, and the Wilburine Oil Works, Limited. In the final settlement of the bonus account made Aug. 1, 1927, by the Auditor General, approved Aug. 2, 1927, by the State Treasurer, from which this appeal is taken, the accounting officers found the tangible property employed in Pennsylvania to be $4,019,240. After allowing credit for finished products manufactured in Pennsylvania in the amount of $423,685, and for bonus previously paid upon capital in the amount of $351,000, said accounting officers imposed bonus upon $3,244,555, which, at the rate of one-third of 1 per cent., amounted to $10,815.18. The $3,244,555 included the tangible property and assets taken over from the Valvoline Oil Works, Limited, and the Wilburine Oil Works, Limited. No bonus has been paid by the Valvoline Oil Works, Limited, or the Wilburine Oil Works, Limited, upon capital as such; that is, in the sense of property and assets, but the Valvoline Oil Works, Limited, had paid bonus upon a capital stock of $1,000,000, just as is done in the case of a Pennsylvania corporation, and the Wilburine Oil Works, Limited, had outstanding capital stock of $500,000 upon which it was exempt from bonus.

T. In the defendant’s appeal, specification of objection No. 3, it is alleged that bonus was erroneously imposed upon “oil in process of manufacture in Pennsylvania” in the amount of $329',263.93. The defendant now abandons its position in this respect and admits liability for bonus on this item.

8. If, in the opinion of the court, the defendant is not entitled to a bonus credit on the capital which it employs in Pennsylvania on account of the bonus paid by the Valvoline Oil Works, Limited, and the Wilburine Oil Works, Limited, on their capital stock, then the amount of the bonus settled in the account hereby appealed from, to wit, $10,815.18, is correct, $6000 of which has been paid on account, and judgment should be entered in favor of the Commonwealth of Pennsylvania and against the defendant for $4815.18, together with interest, costs and Attorney-General’s commission. Otherwise, judgment should be entered for the defendant.

Discussion.

This is an appeal by the defendant from the settlement of its account by the Auditor General and State Treasurer. It appears from the record that the defendant, the Valvoline Oil Company, is a corporation organized and existing under the laws of the State of New Jersey. On Dec. 31, 1924, the defendant purchased and acquired the entire property and assets of the Valvoline Oil Works, Limited, and the Wilburine Oil Works, Limited, being partnership associations organized and doing business under the Act of 1874, including all contracts and other rights and privileges used, or of use in connection with, or acquired for, the business carried on by both associations. Thereafter, these partnership associations were dissolved by the Courts of Common Pleas of Butler and Warren Counties, Pennsylvania.

In the final settlement of the bonus account of the defendant corporation, made Aug. 1, 1927, by the Auditor General and approved by the State Treasurer, the accounting officers found the tangible property of the defendant employed in Pennsylvania to be $4,019,240, and, after making certain deductions, the accounting officers imposed bonus upon $3,244,555, amounting to $10,815.18.

It further appears that the Valvoline Oil Works, Limited, prior to the acquisition of its property by the defendant, paid a bonus on its capital stock of $1,000,000. The Wilburine Oil Works, Limited, had an outstanding capital stock of $500,000, but, being organized prior to the passage of the Act of 1901, was exempt from bonus.

It was agreed by counsel that if, in the opinion of the court, the defendant is not entitled to a bonus credit on the capital which it employs in Pennsylvania on account of the bonus paid by the Valvoline Oil Works, Limited, and the exemption of the payment of bonus by the Wilburine Oil Works, Limited, on their capital stock, then the amount of the bonus settled in the account hereby appealed from is correct, $6000 of which bonus, charged to the defendant in the settlement of the accounting officers, has been paid, and judgment should be entered in favor of the Commonwealth of Pennsylvania and against the defendant for $4815.18, together with interest, costs and Attorney-General’s commission; otherwise, judgment should be entered for the defendant.

The defendant claims credit on its bonus settlement for bonus paid by the Valvoline Oil Works, Limited, and a further credit because the Wilburine Oil Works, Limited, was exempt from payment of a bonus upon its capital.

In support of the contention of the defendant, its counsel relies upon Com. v. Erie & Western Transportation Co., 107 Pa. 112, which holds: “There is an essential distinction between a tax and a bonus. The legislative power of taxation is limited only by its own sovereignty; a bonus implies a consideration for something conferred, and where the corporation receives nothing beyond what it possessed by its charter, the legislature cannot exact additional consideration.”

This authority turned upon the construction placed by the Supreme Court upon the Act of May 1, 1868, P. L. 108, which conferred upon the defendant company power to increase its capital stock from time to time, and did not require the payment of any bonus for the privilege of so increasing. This authority can have no application to the instant case, as we now have under consideration only the interpretation to be placed upon the Act of May 8,1901.

Nor is the position of counsel for the defendant strengthened by Com. v. Danville Bessemer Co., 207 Pa. 302, upon which reliance is placed, and which holds that the intent of the Act of May 8, 1901, P. L. 150; .imposing a bonus upon foreign corporations, is to affect only those foreign corporations which, after the passage of the act, locate their chief place of business or bring and actually employ any part of their capital wholly within the State. And Com. v. American Steel Hoop Co., 226 Pa. 6, holds that a foreign corporation which was in this State with a portion of its capital employed here before May 8, 1901, is not within the provisions of the Act of May 8, 1901, P. L. 150. These two cases are clearly distinguishable from the instant case, as they refer to corporations doing business in Pennsylvania prior to the passage of the Act of 1901, or which employed a part of their capital in this Commonwealth prior to the passage and approval of said act. We find nothing in either case which is in any way controlling upon the issue here to be determined.

Nor is defendant’s case aided by Com. v. Martin Co., 6 Dauphin Co. Reps. 97; Com. v. Crucible Steel Co. of America, 7 Dauphin Co. Reps. 20; or Com. v. Matheson Automobile Co., 16 Dauphin Co. Reps. 14. In the case of Martin Co., it was held that the purchase of the capital stock of a domestic corporation by a foreign corporation is not such an employment of capital within the State as will render the purchasing company liable to the payment of bonus under the Act of May 8, 1901, P. L. 150. The case of Crucible Steel Co. of America holds only that the Act of May 8, 1901, P. L. 150, applies to foreign corporations, limited partnerships and joint-stock associations employing their capital in this State subsequent to its enactment, and otherwise affirms the last cited ease as to the purchase of stock of a domestic company by a foreign corporation. And in the case of Matheson Automobile Co., it was held, a corporation which has purchased the property and franchises of another corporation at judicial sale is entitled to have, without payment of bonus, capital stock equal to the amount upon which bonus had been paid by the corporation whose property and franchises it purchased. It appears, however, that this purchase-of the property and franchises of another corporation at judicial sale was made by a domestic corporation.

We find nothing in the authorities relied upon by counsel for the defendant, and to which reference is heretofore made, which relieves the defendant from the payment of the bonus charged against it in the settlement of the Auditor General and State Treasurer. The defendant is a foreign corporation organized and authorized to do business in Pennsylvania subsequent to the passage and approval of the Act of 1901. It admits that it has capital invested in the Commonwealth of Pennsylvania to the amount charged against it in the said settlement. Its only claim is that it should have credit for the bonus paid by one of the partnership associations whose business it purchased in 1924, and that it should have credit for the $500,000 capital of the other partnership association, which it purchased, and which, being organized prior to the Act of 1901, was not required to pay a bonus. We think this contention is not sound.

The Act of 1874, under which the above-stated partnership associations were formed, provides that they may have “capital;” nothing is said of “capital stock.” The Act of May 8, 1901, P. L. 150, however, imposes bonus on the capital stock of limited partnerships organized under the Act of 1874, and it was upon capital stock rather than upon the property and assets of these two limited partnerships that bonus was paid or exemption allowed, and that credit is now asked by the defendant. The fact is that bonus was imposed upon the aggregate capital stock of the Valvoline Oil Works, Limited, exactly as in the case of a domestic corporation. The accounting officers did not attempt to impose bonus upon the value of the capital of this partnership association in the sense of total tangible property and assets, although these clearly exceeded the aggregate par value of the outstanding capital stock. The evident intention of the legislature was to place limited partnerships and other associations of like character upon the same basis as corporations having capital stock, in so far as the payment of a bonus for the privilege of issuing capital and increasing same was concerned: Com. v. Highspire Distillery Co., Limited, 242 Pa. 199, 200.

The amount of bonus is measured by the property employed here and by no other criteria. Bonus is not a tax. It is the consideration for the grant of a privilege or franchise. The bonus imposed upon domestic corporations is the consideration to the State for granting the charter: Com. v. Erie & Western Transportation Co., supra. The bonus imposed upon foreign corporations is the consideration for the privilege of doing business and using property in the State: Com. v. Danville Bessemer Co., supra; Com. v. American Steel Hoop Co., supra. A foreign corporation exercises no franchises here. The State has no control over it and cannot impose a tax upon it except as measured by its tangible property located in the State: Com. v. Ellis Co., 237 Pa. 328; Com. v. Curtis Publishing Co., 237 Pa. 333; Com. v. Barrett Manuf. Co., 246 Pa. 301.

The imposition of bonus is strictly a statutory matter, and we must look to the statute for the solution of this question. If the language of the acts is clear and unambiguous, the court is in duty bound to enforce them according to their obvious meaning, and is not at liberty to enlarge or limit their scope by any ideas it may have of what should be the policy of the legislature. This has been so often said that it is commonplace: Com. v. American C. & P. Co., 203 Pa. 302, 305. The bonus imposed on foreign corporations by the Act of May 8, 1901, “is upon the amount of their capital actually employed or to be employed wholly within the State of Pennsylvania, and a like bonus upon each subsequent increase of capital so employed.” The capital employed, under this act, is measured by the property actually employed within the State and not upon the proportionate value of the company’s stock here employed: Com. v. Schwarschild & Sulzberger Co., 20 Dauphin Co. Reps. 6; Com. v. Mountain Ice Co., 16 Dauphin Co. Reps. 38, 22 Dist. R. 670; Com. v. Merchant Shipbuilding Corporation, 26 Dauphin Co. Reps. 89, 3 D. & C. 670.

Controlled by the authorities to which we have referred, we are clearly of the opinion that the defendant corporation has not established its right to an exemption for the payment of bonus charged against it in the settlement of the Auditor General and State Treasurer, and judgment in favor of the Commonwealth and against the defendant ought to be and is hereby ordered.

Conclusion.

For the above-stated reasons, we conclude that the defendant is liable for the bonus on the whole of its capital and property employed in the State of Pennsylvania for the year 1926.

Amount of settlement Aug. 1, 1927.................... $10,815.18

Amount paid on account.............................. 6,000.00

$4,815.18

Interest from Sept. 30, 1927, being sixty days from the date of settlement, to Oct. 29, 1928, at 6 per cent...... 316.98

$5,132.16

Prom George R. Barnett, Harrisburg, Pa.


source: Caselaw Access Project

author: Fleming, P. J.,

license: Public Domain

text:
    Beaver et al. v. Hile et al., Spring Township School Directors.

      J. K. Johnston, S. D. Gettig, N. B. Spangler and Ivan Walker, for plaintiff.

      John G. Love, Ellis L. Orvis, W. D. Zerby and A. C. Dale, for defendants.
    Aug. 8, 1928.
   Fleming, P. J.,

This is a bill in equity to restrain the School District of Spring Township from increasing its indebtedness for the purpose of erecting and equipping a school building, pursuant to proceedings had, the validity of which proceedings has been questioned.

Our immediate predecessor filed an opinion and decree on June 20, 1927, and upon appeal, the Supreme Court has remitted the record for compliance with the Equity Rules. In order that strict compliance may be had, we shall consider the matter as though the same were originally heard before us, framing our decree as is required by Rule 67, as amended, entering such decree as a decree nisi, and according the parties further entering a final decree. We come to this determination from a firm opinion that there is not a complete adjudication until findings of fact and conclusions of law are stated in the manner prescribed by the Equity Rules. The opinion and decree of our immediate predecessor being lacking in specific findings of fact and conclusions of law could not be well treated as a decree nisi, as the appellate court to properly dispose of the matter on appeal would be required in a large measure, if not entirely, to assume original jurisdiction of this matter, which it is always prone to do. Having ourselves found facts and entered conclusions of law, it is but proper that the parties should be afforded an opportunity for exceptions as the rules provide. We have, therefore, formally disregarded the exceptions filed, following remittitur by the Supreme Court, and have considered the matter de novo in order that the record might be perfected for appeal. No specific requests for findings of fact by the parties are before us for disposition. We proceed, therefore, as directed by Rule 67, as amended.

I.Statement of pleadings and issues raised thereby.

1. On Aug. 11, 1926, plaintiffs filed their bill in equity, praying for a preliminary injunction. An injunction affidavit was filed and decree granting preliminary injunction was entered by the late Judge Keller, who fixed Aug. 18, 1926, at 10 o’clock A. M., as the time for hearing thereon. Plaintiff entered security which was approved by the court.

2. Aug. 18, 1926, a motion was made by plaintiffs to amend the bill filed. Testimony was taken before the late Judge Keller and injunction was continued until final hearing.

3. On Sept. 25, 1926, amendment to bill was filed and defendants directed to file answer on or before Oct. 16, 1926.

4. On Oct. 16, 1926, answer raising preliminary objections to bill was filed.

5. On Jan, 27,1927, an answer was filed to the merits of the original bill.

6. The issue raised by the pleadings is a determination of the validity of the proceedings had by the School District of the Township of Spring for the increase of its indebtedness for the purposes specified,

II. Findings of fact.

1. The plaintiffs are citizens and taxpayers of the Township of Spring, County of Centre and State of Pennsylvania.

2. The School District of the Township of Spring is a school district of the fourth class.

3. The defendants were at the time of the filing of the bill in equity in this case the regularly elected, qualified and acting school directors of the School District of the Township of Spring.

4. The inception of the proceeding to increase the indebtedness of the School District of the Township of Spring was the passage of a resolution on Aug. 8, 1925.

5. That said resolution was as follows:

Resolved, That the indebtedness of the School District of Spring- Township be made the sum of Sixty-four Thousand and Four Hundred Dollars ($64,400.00), for the erection and equipment of a suitable school building, that the same be submitted to the voters of the Township at the November election 1925, that the Secretary prepare the required statement to be included in the advertisement to be given prior to said election, and take all necessary steps to bring about the said indebtedness.

6. That Swartz, Hile, Weaver and Barnhart voted in the affirmative and no negative votes were cast.

7. That the meeting held on Aug. 8, 1925, at which the above resolution was passed was a special meeting.

8. That no notice specifying the purpose of such special meeting was given to the members of the board of school directors.

9. That the following notice of an election to be held to obtain the assent of the electors to such increase of indebtedness was published in the manner prescribed by law, to wit:

ELECTION NOTICE.
Notice is hereby given that pursuant to a resolution of the School Directors of Spring Township, an election will be held in the said Township at the regular polling places therein for the holding of general and municipal elections on Tuesday, the 3rd day of November, A. D. 1925, between the hours of 7:00 A. M. and 7:00 P. M. for the purpose of obtaining the assent of the electors to an increase of the indebtedness of the said Township by the sum of $64,000.00. The amount of the last assessed valuation of taxable property in said Township for County purposes for the year 1925 is $920,444.00.
The existing debt of the said Spring Township is none. The amount of the proposed increase of indebtedness is $64,000.00 and the percentage is .06996 of said last assessed valuation.
The purpose for which the indebtedness is to he increased is the erecting and equipping of a suitable and adequate school building for Spring Township.
SCHOOL BOARD OP SPRING TOWNSHIP
JOHN H. BARNHART, Secretary.

10. That, pursuant to such notice, an election was held at the regular polling-places in Spring Township on Nov. 3, 1925.

11. That at the election held Nov. 3, 1925, the majority of the votes cast were in favor of the proposed increase of indebtedness.

12. That the assessed valuation of all real estate in Spring Township for the year 1925 was $860,569.

13. That real estate exempt from taxation for the year 1925 was $42,400.

14. That the valuation of the occupation of the several citizens of Spring Township for the year 1925 was $58,965.

15. That the valuation of horses in Spring Township for the year 1925 was $19,790.

16. That the valuation of cattle in Spring Township for the year 1925 was $23,520.

17. That the existing indebtedness of the School District of Spring Township in the year 1925 was nothing.

HI. Discussion.

From our findings there are two distinct questions to be answered in order to determine the validity of this bond issue and the rights of the parties in this suit. The first is, “Is the resolution set forth in findings of fact No. 5 legally sufficient?” The second is, “Is the amount by which the debt is sought to be increased in excess of the limit by which such indebtedness can be increased with the assent of the electors?” Should we be required to answer either of these questions in the negative, then the proceedings would fail and the injunction be required to be made perpetual.

The school district chose to commence by the passage of the resolution of Aug. 8, 1925 (findings of fact No. 5). In this resolution they saw fit to include all of the several steps required to be done, to wit, the statement of the proposed increase of indebtedness, the purpose thereof, the submission of the matter to the electors, the filing of the required financial statement, and “all necessary steps to bring about the required indebtedness.” It would have undoubtedly been the better practice to separate these, but for the present we must consider the legal sufficiency of the resolution as it appears on the minutes of the school district. The validating Act of March 29, 1927, P. L. 68, does not act to relieve any defect which might exist in this proceeding, as it is specifically provided that the act shall not apply where the matter “has been made the subject of litigation in any court of the Commonwealth prior to the approval of this act.” This is likewise true of the validating Act of April 7, 1927, P. L. 167.

We do not consider that the fact that the resolution was passed at a special meeting for which no formal call and specific notice were given, should affect the validity of the same. Four of the five directors were present and all voted in support of the resolution. The one absentee has not raised his voice to complain that had he been present he would have voted otherwise than did his fellow-directors who were present.

The Act of April 20, 1874, P. L. 65, and its several amendments, require as a prerequisite to the increase of municipal indebtedness that the enacting power thereof, “by their ordinance or vote, shall have signified a desire to make such increase of indebtedness.” Did the resolution now under consideration express such a desire? Is it necessary that such a desire be expressed in a separate ordinance or resolution, or can such be blended with other matters, as was done in this case? We shall consider the questions in a reverse order.

Our appellate authorities appear to be four in number. In the first two it is held that the action expressing desire must be a separate procedure. The last two appear to hold directly opposite. Let us briefly consider these and endeavor to ascertain the present rule and apply it in the instant case.

In Hoffman v. Pittsburgh, 229 Pa. 36, the Supreme Court said: “In view of this . . . clear statutory provision, . . . the first step to be taken by a municipality in undertaking to increase its indebtedness is action by its corporate authorities, by ordinance or vote, expressive of their desire that the increase shall be made. Before such an election can be authorized by the municipal authorities, they must first act by giving expression, by ‘ordinance or vote,’ of their desire for the increase. That must have been expressed by a separate and independent action.” In this case the Supreme Court further says: “From one end of this ordinance to the other there is to be found no expression of the wish or desire of councils as to the proposed increase. Purposely or otherwise, they avoid the responsibility placed upon them by law.” In the instant case, this cannot be said of the School Directors of Spring Township, as they bluntly resolved at the beginning of the resolution in question “That the indebtedness be made . . . the sum of Sixty-four thousand four hundred Dollars.”

In Bullitt v. Philadelphia, 230 Pa. 544, the Council of the City of Philadelphia “neither by ordinance nor vote . . . express their desire that the indebtedness of the City be increased. What they did was to ordain ‘that the debt of the said city shall be increased in the sum of eight million ($8,000,000) Dollars,’ and in the same ordinance proceeded to direct that an election should be held.” • The Supreme Court, relying strongly on Hoffman v. Pittsburgh, supra, held that council’s enactment was but a “dead letter,” and that “the rule as laid down in Hoffman v. Pittsburgh, 229 Pa. 36, that the expression of desire by councils is to be by a separate and independent ordinance or vote will not be pared down, and the disregard of the statutory requirement by the Councils of the City of Philadelphia called, without more, for the injunction issued by the court below.”

In Egan v. Claysville Borough, 239 Pa. 259, it was held that it was not necessary for a borough council to express its desire to increase the indebtedness of the borough by a separate ordinance as preliminary to submitting the question to a vote of the electors, and that the expression of desire maybe included in the same ordinance by which the submission to the electors is provided. The Supreme Court differentiated this case from Hoffman v. Pittsburgh, supra, and Bullitt v. Philadelphia, supra, by saying: “In the cases relied on by appellant the municipal authorities had entirely failed to express any desire on the question of increasing the indebtedness, and this was the controlling thought in the mind of this court in passing upon the validity of the bond issues then pending. In the present case the borough council did express a desire to increase the indebtedlness; this desire was expressed in a separate and independent section of the ordinance. . . . What was done in the present case was a reasonable compliance with the requirements of the statute and was not in disregard of any provision of law.”

Again, in Storch v. Lansdowne Borough, 239 Pa. 306, where a vigorous dissenting opinion by Mr. Justice Brown is registered, we find the Supreme Court following the rule of Egan v. Claysville Borough, supra, and differentiating Hoffman v. Pittsburgh, supra, and Bullitt v. Philadelphia, supra, by saying: “Courts only adjudicate issues directly raised by the facts in a case or necessary to a solution of the legal problems involved. In neither of the foregoing cases were the facts like those at bar.”

By elimination and inference, therefore, the Supreme Court having held that in Bullitt v. Philadelphia, supra, wherein the council had ordained “that the debt of said city shall be increased in the sum of eight million ($8,000,000) dollars,” such council “had entirely failed to express any desire on the question of increasing indebtedness,” therefore and pursuant to such decision, we are compelled to hold that when the School Board of the School District of Spring Township ordained “that the indebtedness of the School District of Spring Township be made the sum of sixty-four thousand four hundred dollars ($64,400),” they also “entirely failed to express any desire on the question of increasing indebtedness.” Having thus failed in the primary step required, we are compelled to give a negative reply to the question, “Is the resolution set forth in findings of fact legally sufficient?” We need not consider the remaining question. We, therefore, come to the following

IV. Conclusions of law.

1. That the School Board of the School District of Spring Township has not by their ordinance or vote signified a desire to make an increase of indebtedness.

2. That the proceedings had for the purpose of obtaining the assent of the electors to an increase of the indebtedness of the School District of Spring Township are invalid and of no effect. ‘

3. That the indebtedness of the School District of the Township of Spring cannot legally be increased without further submitting the question of increase to the voters.

4. That the School District of Spring Township be restrained from acting pursuant to proceedings had.

Decree nisi.

And now, Aug. 8, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed that the proceedings heretofore had for the increase of the indebtedness of the School District of the Township of Spring are invalid and of no effect, and that the injunction heretofore issued against the defendants be and is hereby made perpetual, and such defendants are enjoined from issuing any bonds in pursuance of such proceedings or from increasing the indebtedness in any manner pursuant thereto. The prothonotary is directed to give notice to the parties or their counsel of record of the entry of this decree nisi, and unless exceptions are filed within ten days, this decree shall be entered as the final decree by the prothonotary as of course. Costs to be paid by the School District of Spring Township.


author: Shull, Dep. Att’y-Gen.,

text:
    Waters of Presque Isle Bay.
    Dec. 27, 1928.
   Shull, Dep. Att’y-Gen.,

You present to this department a communication through Mr. W. E. Montgomery, Chief, Accounts and Maintenance, accompanied with a letter from Captain W. L. Morrison, Superintendent of the Pennsylvania State Park and Harbor Commission of Erie, Pennsylvania, in which a request is made that you be informed as to the jurisdiction in the commission relative to the waters of Presque Isle Bay outside of the harbor-line, and specifically as to the right in others in “mooring of house-boats and boats used by duck hunters, and the anchorage of a grain fleet during the winter season,” etc.

For a solution of this problem, it may simplify our presentation by entering somewhat into the early history of the title to, and interest in, part of the lands surrounding the bay, the fee to which is vested absolutely in the Commonwealth. We then ascertain the rights of the Commonwealth as they are limited in the waters and bed of the bay.

The charter of Charles II, King of England, dated March 4, 1681, granted William Penn the territory known as Pennsylvania, lying between 39th and 42nd parallel north latitude, and extending from the Delaware River five degrees of longitude to a point in Lake Erie. The triangle formed by the 42nd parallel on the south, the lake on the north and the State of New York on the east was acquired under an Act of Congress by patent signed by George Washington, President of the United States, on Sept. 4, 1788.

This grant awarded Presque Isle Peninsula and also the bay lying within the peninsula and the mainland to the Commonwealth. By Act of Feb. 4, 1869, P. L. 105, the peninsula known as Presque Isle was patented to the Board of Directors of the Marine Hospital of Pennsylvania; but by the Act of Assembly approved May 11, 1871, P. L. 746, the Marine Hospital was authorized to reconvey the peninsula to the Commonwealth of Pennsylvania, and deed thereto was executed, delivered and recorded in Erie County. This peninsula extends from the mainland bordering the lake northeasterly approximately five miles, thence eastwardly about three miles, and again southward a distance in excess of a mile. Within the arm formed by this plot and the shore of the lake lies Presque Isle Bay and the Erie Harbor.

On the south side of the bay and bordering thereon is a rectangular strip of land owned by the State, fully described in section 9 of the Act of May 27, 1921, P. L. 1180, the eastern boundary of which is the United States harbor-line, where it has a width of 1700 feet, and extending westwardly along the shore of the lake 9266 feet, where its width is 1400 feet. It will thus appear that the Commonwealth of Pennsylvania is owner in fee absolute of the land lying on the north, west and partially on the south side of the bay. Accompanying these grants are necessarily included the riparian rights in the State and access to the bay, forming a shore-line more than ten miles in length.

“The riparian right is the result of that full dominion which every one has over his own land, by which he is authorized to keep all others from coming upon it except upon his own terms. ... It is the right of the owner to preserve and improve the connection of his property with the navigable water. The rights which a riparian proprietor has with respect to the water are entirely derived from his possession of the land abutting thereon:” Potomac Steamboat Co. v. Steamboat Co., 27 L. Ed. (U. S.) 1070.

“The term does not include the right to appropriate the water front with old vessels to be dismantled or broken up, as it is the exclusive appropriation of the fee itself and not merely an exercise of an easement. It is not necessary that the act should interfere with navigation:” Town of North Hempstead v. Gregory, 66 N. Y. Supp. 28.

Our next inquiry relates to the rights of the Commonwealth as a state in the lake, which is one of the inland seas, and, therefore, is within the constitutional grant of admiralty and maritime jurisdiction to the courts of the United States. It is public and not private waters, and the land underlying it is not the subject of private ownership, but belongs to the state bordering on it, and the laws and rules regulating riparian rights on natural watercourses do not apply to it: 40 Cyc., 635.

The State owns the beds of navigable lakes below the low water-mark in its sovereign capacity in trust for the people and not in a proprietary capacity. The trust under which the title to the land is held is governmental in its nature and cannot be wholly aliened by the State. But for the purpose of enhancing the rights and privileges of the people, the State may by appropriate means grant the title to limited portions of the land under navigable waters, but not so as to divert them from their proper uses for the public welfare: Broward v. Mabry, 58 Fla. 398.

In McLennan v. Prentice, 85 Wis. 427, the court, in reference to a grant under the waters of Lake Superior, said: “In the absence of express and competent grant to some other, the State is the owner of the fee of all land under navigable waters in the Great Lakes, but in trust only for the public uses and purposes of navigation and fishing, and they may not be granted by the United States to a private person for a purely private purpose. . . . The State has no proprietary interest in them, and cannot abdicate its trust in relation to them, and, while it may make a grant to them for public purposes, it may not make an irrepealable one; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation.” Cited in 23 Am. Law Reps. 772.

The ownership, dominion and sovereignty of the lands covered by the tidewater within the limits of the several states belong to the respective states in which found, with the right to dispose of a portion where there is no substantial impairment of the public interest in the waters.

In Illinois Central R. R. Co. v. People of the State of Illinois, 36 L. Ed. (U.S.) 1018, it is held that: “The land covered by fresh water in the Great Lakes over which is conducted an extended commerce with different states and foreign nations, is owned by the sovereignty of the State. These lakes possess all the general characteristics of open seas, except in the freshness of their waters and in the absence of the ebb and flow of the tide. In other respects they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the state of lands covered by tide-waters that is not equally applicable to its ownership of and dominion and sovereignty over land covered by the fresh waters of these lakes.”

There is a dearth of authority in the State Reports within our Commonwealth to guide us with regard to the rights of the State in navigable waters or the submerged lands underlying the lakes. The only case available which pertains to our inquiry is- that of Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, in which is cited with approval Pewaukee v. Savoy, 103 Wis. 271, wherein the principle or rule is expressed as follows: “It is the settled law that submerged lands of lakes within the boundaries of the State belong to the State in trust for public use, substantially the same as submerged lands under navigable waters at common law. Upon the admission of the State into the Union, the title to such land by operation of law vested in it in trust to preserve to the people of the State forever the common rights of fishing and navigation, and such other rights as are incident to public waters at common law, which trusteeship is inviolable, the State being powerless to change the situation by in any way abdicating its trust.”

Prom these decisions it may be concluded that, as to the lands of Pesque Isle and the rectangular plot lying on the boundary of the lake south of the bay, the title is an unlimited or absolute fee which is vested in the Commonwealth, and in which it may exercise the same dominion over it and enjoy the same riparian rights which are accorded to any individual patentee of land bordering on the lake. But the waters being navigable and the submerged bed belonging to the State in its sovereignty is in trust to serve the public in providing transportation and commercial intercourse.

The legislature of the State represents its sovereignty, and through enactments by that body may grant rights not inimical to that of navigation upon the bosom of its navigable waters within or bordering upon the State.

The delegation of authority conferred upon the commission is by Act of May 27, 1921, P. L. 1180, which provides that: “The commission shall have power to enter upon and take possession of the lands hereafter dedicated and such other lands as may be acquired under the provisions of this act, and exercise full power to manage, control, protect, maintain and develop said lands for public park purposes, and for the improvement of the harbor of Erie, and to adopt, establish and enforce all necessary rules and regulations therefor.”

Thus is conferred upon the commission jurisdiction over the lands which abut or border on the bay with riparian rights subjoined hereto, but it vests no dominion over the waters of the lake or its submerged land within the bay, nor can the commission, under the act above cited or any other which we were able to find, protest against the invasion of house-boats, vessels, etc., now complained of, until further power is delegated to the commission by the legislature.

Prom C. P. 'Addams, Harrisburg, Pa.


author: Landis, P. J.,

text:
    Glatfelter v. Sauder.

      C. E. Charles and Charles G. Baker, for rules.

      Harold G. Ripple and Charles W. Eaby, contra.
    July 7, 1928.
   Landis, P. J.,

The verdict of the jury in this case having been for the plaintiff, and no error being claimed as to the manner in which the facts were submitted to them, the rule to show cause why a new trial should not be granted must be considered from that point of view. If the facts warranted the submission, we ought not to interfere with the result.

In Scalet v. Bell Telephone Co., 291 Pa. 451, Mr. Justice Simpson, delivering the opinion of the court, said: “Under these circumstances, all the evidence and inferences therefrom favorable to plaintiffs must be taken as true, and all unfavorable to them, if depending solely on testimony, must be rejected: Dunbar v. Preston, 285 Pa. 502. When these matters are the only ones to be considered, the courts do not inquire whether one party or the other has the weight of the evidence.”

There is a State cement road, eighteen feet wide, which runs from Lancaster northwestwardly toward Harrisburg, and along it are places for parking, &c., of dirt. It passes through the Village of Salunga. On Sept. 7, 1925, the plaintiff started on a motorcycle with a side-car attached, in which his wife was riding, from Lancaster to go to Harrisburg. They arrived at Salunga about 8 or 9 o’clock in the morning. They were running at about eighteen or twenty miles an hour. The defendant, who lives at a place called Rohrerstown, about six miles away, came on this morning in a Chevrolet car to Salunga and stopped his ear on the right-hand side of the road, just off the concrete, in front of a barber shop. A short time thereafter, he came out of this shop and, having gotten into his automobile, he turned to the left over the concrete in order to go into a public alley, which entered the main highway from the south. It was proven by the plaintiff that, as he was running on the right-hand side of the cement road and was passing this point on his motorcycle, the defendant, without warning, made the turn over the concrete part of the road and ran into the right side of the side-car; that, as a consequence, he and his wife were thrown off of the motorcycle and out of the sidecar, whereby they sustained the injuries for which this suit was brought. The defendant claimed that the plaintiff was running at a high rate of speed; that he ran into the automobile when the front wheels had crossed over the cement to the dirt portion of the road; and that he was in fault for the accident, and not the defendant. The questions of negligence and contributory negligence were submitted to the jury.

Objection was made to certain photographs which were offered in evidence by the plaintiff. We think there was no merit in the objection. In Com. v. Winter, 289 Pa. 284, it was held that photographs are admissible for proper purposes in criminal cases; and in Trexler Lumber Co. v. Allemannia Fire Ins. Co., 289 Pa. 13, it was said that “the question of when photographs shall be received in evidence is largely for the discretion of the trial judge.”

We believe that there is nothing contained in the reasons assigned for a new trial which would warrant us in making that rule absolute.

The sole remaining ground on which the defendant’s case is claimed to rest is that binding instructions should have been given in favor of the defendant. We do not see how this could have legally been done. The evidence as to the accident was contradictory. Conceding that the defendant had the greater number of witnesses, yet, nevertheless, their credibility was for the jury, and it rested with them to determine which story was correct. On the trial, we said: “You will judge as to who had the greater opportunity to see what occurred and what is the true story as to who caused the accident. . . .” If the trial judge was authorized to settle the facts, there would be no use for juries. An examination of the plaintiff’s evidence will, beyond peradventure, show that, if believed, there was sufficient testimony to sustain the verdict. If that is so, the verdict should stand.

It has been argued that the plaintiff having admitted that he did not blow his horn, he was guilty of contributory negligence and cannot recover. As a matter of fact, that claim is incorrect. On page 4 of the testimony, the plaintiff testified: “I first saw it (the automobile) about twenty-five feet. . . . I saw him moving — coming towards the road. I blew my horn to pass and turned to the left of the road. Just as I was about to pass him, he turned sharp on the left.” It must also be remembered that the defendant was standing off the concrete to the right on the dirt road before the barber shop, and if this was so, the plaintiff was not bound to blow his horn unless it was necessary to insure safety. The 22nd section of the Act of June 30, 1919, P. L. 678, provides that “every operator of a motor-vehicle shall sound his horn, bell or signal device, giving reasonable warning of his approach whenever necessary to insure the safety of other users of the highway, and before passing any vehicle he may overtake or pedestrian using any part of the highway other than the sidewalk, . . . but the horn, bell or other signal device shall not be sounded unnecessarily.”

We are of the opinion that this case was properly submitted to the jury and that no good reason has been advanced why we should interfere with the finding. The rule to show cause why a new trial should not be granted is, therefore, discharged, and the motion for judgment non obstante veredicto is overruled and dismissed.

Rule discharged and motion overruled.

Prom George Ross Eshleman, Lancaster, Pa.


author: Stearne, J.,

text:
    Dewees’s Estate.

      Axel Teisen, for exceptants; Clement, Donahue & Irwin, contra.
    May 3, 1929.
   Stearne, J.,

The exceptions involve the revocability, by a survivor, of a joint will. The Auditing Judge was so clearly correct in his ruling that were it not for the rather unusual and interesting subject-matter, and the earnest argument of counsel for the exceptants, we would dismiss the exceptions without further comment.

Joint, mutual, reciprocal or double wills, while receiving judicial sanction, nevertheless, are no favorite children of the law. They are very apt to frustrate the intent of their makers, and, consequently, exact a disproportionate share of judicial scrutiny and require considerable study.

The desideratum for joint or mutual wills is founded upon the desire of persons with common interests — usually derived from blood or affection — to dispose of their estates to the same persons and for similar objects. At the time of the execution of such an instrument, the joint testamentary scheme may be entirely proper, just and equitable, but changing circumstances and new situations arising after the death of one of the parties may render such a disposition wholly unjust and inequitable, and quite beyond the primary intent of the joint testators.

A valuable and accurate treatise on the subject of the revocability of mutual or reciprocal wills has been written by Richard J. Partridge, Esq., of the Philadelphia Bar, which is published in the Law Review of the University of Pennsylvania, volume 77, January, 1929.

As pointed out in the reporter’s note to the case of Frazier v. Patterson, 243 Ill. 80 (27 L. R. A., N. S., 508), courts at one time were inclined to refuse probate of such wills because of the implied covenant against revocation, which is one of the most essential and characteristic features of such wills. However, their validity is now generally conceded, and they are admitted to probate in most jurisdictions. While there is confusion and some conflict upon the question of revoeability of a joint and mutual will by one of the makers after the death of the other, the instrument, as a testamentary instrument, may be revoked. Irrespective of the express or implied covenant against revocation, a later will executed by one of the parties is properly probated. A court of equity may, however, in a proper case, give effect to the will, as a contract, and enforce the contract in the same manner as a valid agreement to make or not to revoke an individual will. It is chiefly on the point of the validity and enforcement of the will as a contract that courts have treated the subject of revoeability.

An accurate consideration of the point at issue in the present case requires that a careful distinction be observed between three separate types of wills, viz.: (1) Joint and mutual (reciprocal) wills; (2) joint wills; (3) mutual wills.

1. Wills joint and mutual (reciprocal) are generally held to contain within themselves sufficient evidence of the contract without definite evidence to the contrary: Dufour v. Pereira, 1 Dick. 419 (1796) ; Frazier v. Patterson, 243 Ill. 80 (1909) ; Rastetter v. Hoenninger, 214 N. Y. 66 (1915) ; Campbell v. Dunkelberger, 172 Iowa, 385 (1915); Bower v. Daniel, 198 Mo. 289 (1906). The joinder of the parties reveals their common intent, or the meeting of their minds; the mutuality supplies the consideration.

2. Wills joint, but not reciprocal, lack the element of consideration, i. e., mutuality, though manifesting a common intent.

3. Wills mutual or reciprocal, but not joint, require additional evidence of the meeting or joinder of the minds.

Both the latter types of wills, (2) and (3), require additional evidence of the contract, according to majority law. The present case, being a joint will, without the element of mutuality, falls within class (2) of the above classification and requires additional evidence of the contract, according to the generally accepted law in other states. However, it is not necessary to go outside of Pennsylvania to discover authority for the present case. In Rhodes’s Estate, 277 Pa. 450, it was held that a joint and mutual will requires additional evidence of the contract; then, a fortiori, a will that is merely joint and contains no reciprocal features must likewise be held to require additional proof of the contract. The Auditing Judge, therefore, very properly relied on Rhode’s Estate in requiring additional proof of the contract.

It is interesting to note, however, that Rhode’s Estate relied, inter alia, upon Edson v. Parsons, 155 N. Y. 555, in which a mutual will not joint was held to require additional evidence of the contract, whereas a later case, Rastetter v. Hoenninger, 214 N. Y. 66, in the same jurisdiction, held, contra to Rhode’s Estate, that joint and mutual wills contain within themselves sufficient evidence of a contract, without definite evidence ’to the contrary.

However, Cawley’s Estate, 136 Pa. 628; Hoffert’s Estate, 65 Pa. Superior Ct. 515, and Rhode’s Estate, supra, clearly fix the rule in Pennsylvania as to the requirement of additional evidence of the existence of a contract beyond the mere terms of the will itself.

The ruling of the Auditing Judge being clearly correct and abundantly supported by authority, there is no merit in the exceptions herein filed. They are, accordingly, dismissed, and the adjudication is confirmed absolutely.


author: Groff, J.,

text:
    Futer v. Futer, Jr.

      Guy K. Bard, for certiorari; Robert Ruppin, contra and for rule.
    Sept. 29, 1928.
   Groff, J.,

In the above case a summons in assumpsit was issued on May 11, 1928, by John F. Burkhart, an alderman in the City of Lancaster, requiring Omer Futer, Jr., of No. 650 East King Street, in said city, to appear and answer said summons on May 18, 1928, between the hours of 10 and 10.30 o’clock A. M. A hearing was had before said alderman in said case on the return-day of the writ. The plaintiff appeared, but defendant did not. A hearing was had and a judgment was entered against the defendant for $87.50, with interest. Defendant having learned of this judgment being entered against him did, on May 29, 1928, file a prseeipe, directing the prothonotary of this county to issue a writ of certiorari to John F. Burk-hart to bring up his record, with all things touching the same, before our judges, at Lancaster, at our Court of Common Pleas, there to be held on the third Monday in June, 1928, and so forth. On June 5th a writ of certiorari was issued, returnable the third Monday in June, 1928. On June 13, 1928, pursuant to the command contained in the said writ of certiorari, John F. Burkhart returned the record to the Court of Common Pleas of Lancaster County. On June 14, 1928, four exceptions were filed to the record, only two of which we think are pertinent to the case, viz.:

1. It [the alderman’s docket] does not show that the summons was served on the defendant or left at his place of residence.

3. The summons, as shown by the transcript of the docket, was left at the home of Mrs. Susan Wenger, No. 650 East King Street, Lancaster, Penna.

These two exceptions will be considered hereafter at their proper place.

The defendant, on Aug. 25th, filed a motion to quash the writ of certiorari for these reasons:

1. The rule to appear and plead endorsed on the writ is not signed or attested.

2. The record does not show that a rule to plead was ever served upon the plaintiff, as required by section 2 of Rule 10 of this Court, and no such rule was in fact ever served upon the plaintiff or her attorney.

3. The exceptions relate to matters of fact outside of the record and are not verified by affidavit.

The only reason assigned for quashing the writ that might have merit is the second reason. In examining the Rules of Court we find section 2 of Rule 10 of the Court of Common Pleas of this county is as follows:

Section 2. The prothonotary shall endorse on each writ of certiorari a rule to appear and plead on the return-day of the writ, which rule shall be served on the party other than the one suing out the writ. In default of an appearance by said party after proof of such service, the cause may, when called for argument, be proceeded with ex parte.

The defendant was not injured by the non-observance of this rule, for she voluntarily appeared in court and has participated in all the proceedings had in the case. The third reason for quashing the writ is incorrectly stated, for the reason that one of the exceptions to the record stated in substance that the writ was incorrectly served. We, therefore, find nothing in the reasons assigned for quashing the writ, and we dismiss the motion to quash the writ and proceed to consider the merits of the exceptions filed to the record of the alderman.

Both plaintiff and defendant took depositions, the one trying to establish the legal service of the writ, the other trying to show the illegal service thereof. In Holly v. Travis, 267 Pa. 136, we find that the Supreme Court decided, as reported in the syllabus of that case:

1. A constable’s return, regular on its face, showing service within the county, cannot, on certiorari from the Common Pleas, be shown by depositions to have been made outside the county. Such a return is conclusive and cannot be contradicted by parol testimony.

3. A writ of certiorari brings up for review nothing but the record, and the court to which it is returned has jurisdiction to correct only such irregularities, if any, as appear on the face of the record. In such actions, the parties are confined strictly to questions affecting the regularity of the record. Where no irregularity is apparent on the record, nothing is left the •court but to dismiss the certiorari.

4. A constable’s return is as conclusive as that of a sheriff.

We, therefore, conclude that we cannot look outside of the record for irregularities, and if the writ of certiorari is to be sustained, we must find "the irregularties in the record itself.

Examining the Act of July 9, 1901, P. L. 614, we find in section 16: “Writs issued by any magistrate, justice of the peace or alderman shall be served in the county wherein they are issued by the constable or other officer therein to whom given for service, in the same manner and with like effect as similar writs are served by the sheriff when directed to him by the proper court.” And in examining section 1 of the said act, we find that the writ of summons may be served in five different ways. The service of the summons in question, according to the return, was attempted to be made under paragraph (d), ■section 1, of the said act of assembly, which reads as follows: “By handing a true and attested copy thereof, at his place of residence, to the manager or ■clerk of the hotel, inn, apartment-house, boarding-house, or other place of lodging at which he resides.”

The return to the service of the writ of summons issued by the alderman in this ease, as it appears on the record, reads as follows: “Served the within writ May 12, 1928, upon the within named defendant, by handing a true attested copy thereof to an adult member, Mrs. Susan Wenger, at rooming house 650 East King Street.” This return must be taken as correct, and, if so, it is defective, in that it did not show service on the manager, or clerk, having control of the apartment-house, boarding-house or place of lodging of the defendant, and it does not show that the defendant resided at the said place. It is absolutely necessary that the service should be made in accordance with the act of assembly, the purpose being to give notice to defendant of the fact that suit has been brought against him, so that he may appear and properly defend. We, therefore, sustain the certiorari and set aside the proceedings before the alderman.

Writ sustained and proceedings before the alderman set aside.

From George Ross Eshleman, Lancaster, Fa.


author: Alessandroni, J.,

text:
    Commonwealth v. Baldwin.

      J. R. K. Scott, for motion.

      John H. Maurer, Assistant District Attorney, and John Monaghan, District Attorney, contra.
    May 8, 1929.
   Alessandroni, J.,

This is a motion to quash the bill of indictment. Joseph L. Baldwin, being Assistant Director of Public Health, on Nov. 8, 1927, the day fixed by law for the election of municipal officers of the City of Philadelphia, is charged in the first count with being and appearing in a certain polling-place in the 31st Election District of the 26th Ward of the City of Philadelphia for a purpose and purposes other than the purpose of marking and depositing his ballot as an elector of said election district as speedily as it reasonably could be done . . . and was in said polling-place and place of voting in said election district for purposes of offering to assist and of assisting divers electors of said election district who then and there appeared and applied for ballots then and there to vote therein at said election, in the preparation and marking of their respective ballots; contrary to the form of the act of the general assembly, etc.

He is charged in the second count with having assisted divers electors and voters of said election district to prepare and mark the votes and ballots then and there cast and voted by them in said election district at said election. The third count charges substantially the same offense.

The basis of this prosecution is the prohibition contained in section 23, article xix, of the Act of June 25, 1919, P. L. 581, entitled “An Act for the Better Government of Cities of the First Class of this Commonwealth,” which provides: “No officer, clerk or employee of any city of the first class, or of any department, trust or commission thereof, shall be a member of, or delegate or alternate to, any political convention, nor shall he be present at any such convention except in the performance of his official duty. No officer, clerk or employee of any city of the first class, or of any department, trust or commission thereof, shall serve as a member of, or attend the meetings of, any committee of any political party, or take any active part in political management or in political campaigns, or use his office to influence political movements or influence the political action of any other officer, clerk or employee of any such city, department, trust or commission. No officer, clerk or employee of any city of the first class shall in any way or manner interfere with the conduct of any election, or the preparation therefor at the polling-place, or with the election officers while counting the vote or returning the ballot-boxes, books and papers to the place provided by law for that purpose, or be within any polling-place save only for the purpose of marking and depositing his ballot as speedily as it reasonably can be done, or be within fifty feet thereof, except for purposes of ordinary travel or residence, during the period of time beginning with one hour preceding the opening of the polls for holding such election and ending with the time when the election officers shall have finished counting the votes and have left the polling-place for the purpose of depositing the ballot-boxes and papers in the place provided by law for that purpose, excepting only police officers, who may temporarily approach or enter the polling-place in order to make any arrest permitted by law or for the purpose of preserving order, and in each such case only long enough to accomplish the duties aforesaid, after which the said officers shall at once withdraw.”

In his motion to quash, defendant states:

1. The first, second and third counts of the bill fail to set forth the commission of any offense under the law.

2. That the Act of June 25, 1919, P. L. 581, under which the bill of indictment is drawn, is unconstitutional and invalid, in so far as it creates or" defines the offense or offenses sought to be charged in the bill of indictment.

3. That said act is unconstitutional because no notice is contained in the title of the act of the creation of the offense of taking an active part in political campaigns while being an employee of a city of the first class.

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

This act is constitutional. Its title, “An Act for the Better Government of Cities of the First Class of this Commonwealth,” is all-embracing and comprehensive of the duties, functions, responsibilities and liabilities of those entrusted with the machinery of the government. It embraces but one subject, namely, the government of cities of the first class. This subject concerns the operation of the administrative government. It defines not only the positive duties of those charged with the discharge of them, but also the prohibition against the behavior of city officials and employees deemed detrimental to good municipal government. All presumptions are in favor of the validity of statutes, and courts are not to be astute in finding objections to them.

It is urged by the defendant that the title of the act is defective, in that it fails to reveal from a fair and comprehensive reading of it the creation of an offense for political activity on the part of employees of the city. It is to be presumed that all officers and employees of the city desirous of faithfully discharging their duties have, prior to the assumption of their respective offices, familiarized themselves with the provisions of this act. If they have failed in so doing and run afoul of its provisions, they will derive scant comfort in their search for precedent and authority holding this act to be unconstitutional. The cases are numerous in Pennsylvania holding that a title need not embody all the distinct provisions of the bill nor serve as an index or digest of its contents, but that it is sufficient if the title fully gives notice of the real subject of the bill so as reasonably to lead to an inquiry into what is contained in the body of the bill: Booth & Flinn, Ltd., v. Miller, 237 Pa. 297. See, also, White on Constitution of Pennsylvania, 216. The unity of the subject of the statute is to be determined by its paramount purpose rather than the details through which that purpose is to be accomplished. The subject may have but one object, while the measures necessary for the attainment of that object may necessarily embrace many subordinate subjects, differing in their nature and particular effect, yet all contributing to and comprised within the principal subject: Sugar Notch Borough, Appeal of Warrier Run School District, 192 Pa. 349. Everything which the nature of the subject of a title reasonably suggests, as necessary or appropriate for the accomplishment of its expressed purpose, is sufficiently indicated by such title: Com. v. Jones, 4 Pa. Superior Ct. 362.

The Act of June 7, 1915, P. L. 878, known as the Escheat Act, whose title, “An act providing for the escheat of deposits of money or property of another received for storage or safekeeping, etc.,” specifies with great detail for the escheat of dividends, profits, debts and interest on debts of corporations, excepting from its provisions certain associations and property, contains no reference whatever to any penalty for the violation of its provisions. Section 13 thereof, however, declares it a misdemeanor for any one to neglect or refuse to testify to any lawful question, etc., fixing a penalty therefor. Answering the attack on its constitutionality because of the insufficiency of the title, the court said: “The title is sufficiently broad to cover the various provisions of the statute relating to the matters here in controversy, including the fact that certain penalties are provided for violation of its terms. The first clause of the title is general, providing ‘for the escheat of deposits of money or property of another received for storage or safekeeping.’ This language is sufficient to indicate the purpose of the legislation, a necessary or appropriate procedure for the accomplishment of its purpose and fairly to give notice and reasonably lead to an inquiry as to the contents of the body of the law. This court has expressly decided that the constitutional provisions relating to titles of acts of assembly do not require the title to give notice of penalties or other punishment for violation:” Germantown Trust Co. v. Powell, 265 Pa. 71; in accord, Com. v. Sellers, 130 Pa. 32; Com. v. Muir, 180 Pa. 47. That a title general in terms and relating to but one subject-matter should contain a complete index to the provisions contained in the act is unnecessary: Fredericks v. Penna. Canal Co., 109 Pa. 50; Myers et al. v. Com., 110 Pa. 217; Com. v. Charity Hospital of Pittsburgh, 198 Pa. 270; Rose v. Beaver County, 204 Pa. 372.

The authorities submitted by the defendant, none of which appear applicable to the real question here presented, are not inconsistent with the rule which in our opinion governs this question.

In conclusion, it is not inappropriate to direct attention to the fact that provisions similar to section 23 were incorporated in the Act of June 1, 1885, P. L. 37, commonly referred to as the Bullitt Bill, followed by the Act of Feb. 15, 1906, P. L. 19, known as the Shem Bill. The title of the Bullitt Bill is “An Act to Provide for the Better Government of Cities of the First Class in the Commonwealth.”

The title of the Shem Bill is the usual title of an amendatory act, which in this case, of necessity, refers to the article sought to be amended, specifically stating the character of the amendment. The Bullitt Bill, with a title similar to the one in question, served as the organic law of the city’s government for over thirty-four years without question. While these circumstances are not conclusive in its favor, yet they are a strong argument that it is not so plainly repugnant to the Constitution as it must be to warrant the court in declaring it void.

And now, to wit, May 8, 1929, the motion to quash is overruled.


text:
    Witmer v. Witmer.

      Ivan Walker (with him N. B. Spangler), for libellant and rule.

      W. G. Bunkle, for respondent.
    Dec. 3, 1928.
   Fleming, P. J.,

The question before us is the' right of the libellant to discontinue this action in divorce without prejudice. The respondent’s only apparent objection to the allowance of this request lies in her insistence upon the payment of an alleged order made by the late Judge Keller verbally at the time of the argument of the rule for alimony pendente lite on Nov. 17, 1926. No formal entry of such order appears in the record. We have no reason to doubt the statement of counsel that the late judge so expressed himself from the bench at such hearing, and no doubt it was his intent to formally enter such an order when so suddenly stricken on March 2, 1927.

However, in the light of the delay of the respondent in calling this alleged verbal order to the attention of the court and requesting a formal order to be entered, coupled with the present admissions of respondent’s counsel as to the subsequent conduct of the respondent, we do not see how we can in conscience compel its enforcement as a condition precedent to allowing the request for a discontinuance.

The subpoena in divorce was served personally on the respondent on Aug. 16, 1926. On Sept. 4, 1926, an answer was filed. On Sept. 13, 1926, rules for alimony pendente lite and for a jury trial were allowed; both returnable the first Monday of October, 1926. The matter was heard before Judge Keller on Nov. 17,1926, at which time, it is averred, the court directed the payment of a counsel fee of $75 and the payment of the sum of $15 per month pending the proceedings. From this point on, the record shows no further action by the respondent. To enforce the alleged order would require the libellant to pay the sum of $360 in addition to the counsel fee. According to admissions of counsel for respondent, during the period of accrual of this sum the respondent has not conducted herself in a proper manner and by such conduct has afforded the libellant further grounds for divorce not set forth in the original libel. To compel the libellant to pay the respondent such sum before placing himself in a position to avail himself of these new grounds would be but to reward the respondent for her misbehavior and illegal acts. This would be wholly contrary to conscience and to the laws of ordinary morality and justice. We will, therefore, enter the following decree:

And now, Dec. 3, 1928, after due consideration, the motion of the libellant for permission to discontinue this action in divorce, without prejudice, is allowed, and the alleged verbal order of this court dated Nov. 17, 1926, is vacated and set aside, upon the payment by the libellant to respondent’s counsel of the sum of $75 as counsel fee, and upon the further payment of the costs of this proceeding.

From S. D. Gettig, Bellefonte, Pa.


author: Marsh, J.,

text:
    Jennings v. Tioga County.

      David Cameron, for plaintiff; Crichton & Owlett, for defendant.
    Feb. 19, 1929.
   Marsh, J.,

The question raised by the case stated for the opinion of the court is this: Is Tioga County authorized, under the Act of May 13, 1925, P. L. 676, to pay $75 toward the funeral expenses of the widow of a soldier who remarried after the soldier’s death, but who outlived her second husband?

Section 3 of the act invoked directs the county commissioners “to pay $75 towards the funeral expenses of any widow of any person who served in the army and navy of the United States” in any war, provided the total expenses ,of such funeral, including said allowance, shall not exceed $400.

The expense of the funeral in this case was $200; George Jennings was a soldier of the United States in the Civil War, and the only question to be determined is whether at the time of her death the decedent was the widow of George Jennings within the contemplation of the Pennsylvania statute.

It is only where the authority of a statute is clear that the commissioners may pay out the county funds. In other words, it must be certain that at the time of her death Margaret Jennings Spencer was, under the law, the widow of George Jennings. Unquestionably, when she married J. C. Spencer, she lost her status as the widow of George Jennings; and when Mr. Spencer died, she was entitled, as his widow, to her exemption and to all the rights of a widow in his estate. Under the laws of this State, she was recognized as the widow of her second husband, and this recognition whs unaffected by the Federal statute restoring her pension. Was she, because of the restoration of her pension, potentially and legally the widow of both?

In the absence of an authoritative decision, we cannot sustain such an anomalous duality. If the legislature desires to follow the just benevolence of the general government, it should adopt that government’s policy, and say so explicitly by an appropriate statute.

And now, Feb. 19, 1929, judgment is entered for the defendant.

From G-. Mason Owlett, Wellsboro, Pa.


author: Brown, Jr., J.,

text:
    Wyoming Construction Company and Frederick S. Koons, to use of John W. Best, v. Franklin Trust Company.

      Paul Reilly, for use-plaintiff; Edward H. Cushman, for defendant.
    April 17, 1929.
   Brown, Jr., J.,

This is a motion by defendant for judgment non obstante veredicto. At the conclusion -of the testimony it was agreed that there were no disputed questions of fact to be passed upon by the jury and that binding instructions should be given either in favor of plaintiff or defendant. Not having had opportunity to read the several contracts upon which the determination of the casé depends, and simply for the purpose of having the damages fixed, the trial judge directed a verdict in favor of plaintiff in the amount of $3067.

On April 25, 1919, the Wyoming Construction Company, being the owner of forty-one lots of ground in Philadelphia, entered into a written agreement with the Franklin Trust Company, the defendant, whereby the construction company was to erect a dwelling-house on each lot and the defendant was to insure titles, guarantee completion and, to that end, receive all moneys on account thereof and dispense same in accordance with the provisions of said agreement.

On June 6, 1919, the construction company entered into agreement in writing with Samuel T. Hall, Inc., whereby the former agreed to sell and Hall agreed to purchase the aforesaid lots with the dwelling-houses in course of erection thereon, the agreement providing that the construction company was to “fully finish and complete” the houses and that certain of the proceeds from the resale thereof should be deposited with the defendant, which was to issue policies of insurance against failure to erect the houses in compliance with the plans and specifications and against mechanics’ claims.

On July 1, 1919, the construction company delivered to J. Anderson Ross Company an order on defendant, directing it to pay that company the sum of $5500 out of the moneys coming into its hands from the sale or mortgage of the premises; and then, on July 3, 1919, authorized defendant in writing to pay John W. Best, assignee of Frederick S. Koons, $2000 “out of the proceeds of the sale” of the aforesaid properties to Hall upon settlement under the terms of the agreement of sale of June 8, 1919. Defendant acknowledged receipt of this assignment, endorsing thereon “without any obligation to itself.” The assigned claim was for services rendered by Koons to the construction company in procuring the sale of the properties to Hall.

Defendant received as the net cash proceeds of the sale of the said forty-one properties to Samuel T. Hall, Inc., the sum of $53,683.30, which was mingled with other moneys received on account of the operation, and paid to the Wyoming Construction Company from July 3, 1919, to Jan. 16, 1920, that is, subsequent to the assignment to the use-plaintiff, sums aggregating $18,504.60 for carpenter work, cement work, plastering, lumber, grading and labor. Defendant has in its hands, as net proceeds of the operation, the sum of $521.45, and there being still due and unpaid to J. Anderson Ross Company the sum of $1800 on account of the aforesaid assignment of $5500, which was prior to that of the use-plaintiff, prevents the latter from receiving anything on account of the assignment to him unless the aforesaid payments to the construction company were made improperly.

The question for determination is whether defendant had the right to pay direetly to the construction company what the latter spent in the construction of the houses instead of paying its assignee, the use-plaintiff, the $2000 under the assignment of July 3, 1919.

Plaintiff’s position is that defendant, under the contract of April 25, 1919, had no right to make any payments directly to the construction company, contending that there was no provision authorizing it to do so except after all payments therein provided for were made; that there was no provision for payment to the construction company to repay it for bills paid on the operation, it being the latter’s duty to pay its own bills. However, the contract provides in paragraph 10 that the defendant “shall have the right to use any funds or securities in its hands belonging to the said operation, or otherwise, to secure the completion of said buildings, and to pay the debts thereof,” and in paragraph 12 that all moneys received on account of the operation “shall not . . . be liable to attachment or garnishment at the suit of any creditor” of the construction company, “said moneys being hereby specially and irrevocably appropriated and applied to the protection of the trust company against loss of any kind in connection with the said operation and to the payment of debts contracted in and about the erection and construction of the said buildings and the expense incident thereto.” These provisions authorized defendant, in order to protect itself, to use the funds coming into its hands to secure the completion of the houses and to pay the debts thereof. Among such debts were those of the construction company for work done and materials furnished. There was no provision prohibiting payments directly to the latter, and as moneys coming into the defendant’s hands on account of the operation were appropriated and applied to its protection “against loss of any kind” and for the payment of debts contracted in the erection of the houses, the payments to the construction company were properly made.

Paragraph 13 provides that defendant shall pay out the moneys deposited with it “direetly to the several contractors and materialmen for work actually done and materials actually furnished” in the construction of the houses, and no part of the moneys shall be drawn by the construction company, “either directly or indirectly, for his own use until the full completition of the buildings,” free from all mechanics’ claims or liens, and until the defendant is “fully and wholly relieved from all loss or liability on account of any obligations issued by it or otherwise in connection with the said building operation.” Then, by paragraph 18 (g), the construction company, “or such other person or persons as it shall in writing designate,” is entitled to “any balance remaining out of any funds coming into the hands of” defendant only “after the buildings shall have been fully finished and completed” and defendant “shall have been discharged of and from all liability or liabilities by reason of policies, indemnities, guarantees or other undertakings issued by it, or by reason of any other liability growing out of the operation and after all debts incurred in and about the erection and construction of the said buildings shall have been paid.” Thus, until the houses had been fully completed, free from all claims and liens, and until defendant was entirely relieved from all liability, neither the construction company nor its nominee was entitled to any of the funds in defendant’s possession. True, the construction company did receive certain sums from defendant, but they were for the purpose of relieving the latter from “liability growing out of the operation” by securing the completion of the houses. If “all debts incurred in and about the erection and construction” of the houses had not been paid, there would have been no balance available for payment to the construction company or its nominee, the use-plaintiff.

There is a further provision in paragraph 18 (ff) that no payments shall be made to the construction company or its nominee “until all sums due the trust company shall have been paid in full and all liability on account of policies, guarantees, indemnities or other letters issued by the said trust company, or otherwise, shall, in the opinion of the said trust company, have ceased.” This empowered defendant to determine, in its own opinion, whether its liability under the contract had ceased. So long as debts incurred in the completion of the buildings remained unpaid, its liability continued, and, to relieve itself of this, it saw fit to pay the construction company for labor and material actually furnished. Until such debts were paid, defendant was not relieved of its obligations, and, hence, no payments could have been made to use-plaintiff, the nominee of the construction company.

Defendant’s contention is that so long as the funds were used for labor and material to complete the operation, the identity of the person to whom such payments were made is not important. This is the view we take, because the moneys received on account of the building operation were expressly appropriated and applied to the payment of labor and material in the erection, construction and completion of the houses. The sums paid to the construction company were for that purpose: for labor and material which had been actually furnished and delivered upon vouchers signed and countersigned in accordance with the provisions of the contract. They were, as the contract provided, to secure completion of the houses and not for the construction company’s “own use.”

Where funds are deposited for the payment of specific claims, such as labor and materials, there is an appropriation or pledge that they be used for such special purpose which places them beyond the grasp of the contractor or one attempting to attach: Willis v. Curtze, 203 Pa. 111; Austin-Nichols & Co. v. Union Trust Co., 280 Pa. 341. Here the moneys were deposited with defendant to secure the erection and completion of the houses. The construction company had no beneficial interest therein until after the obligations of the building operation, assumed by the defendant, were satisfied. The moneys received could not be applied to general purposes of the construction company, but only for the completion of the houses, as was actually done. Defendant was obliged to make payments in accordance with the provisions of the contract which authorized it to pay all debts of the operation. It was only in case of a balance remaining after “all debts incurred in and about the erection and construction of the said buildings shall have been paid” that the construction company was entitled to any moneys for its own use. The funds received from the operation were pledged for the specific purpose of assuring its completion, and until this purpose had been accomplished, neither the construction company nor its assignee was entitled to part thereof. Neither had right to payment until the defendant had discharged itself of its liabilities. This it did by paying the construction company for labor and materials, and to have first honored the order by the construction company in favor of this assignee would not have relieved defendant from obligations which, by the contract, it had expressly undertaken, but would have diverted the funds in its hands from payment of the specific claims for which they had been appropriated.

The test is not to whom the money was paid, but the purpose for which it was paid. The assignee or use-plaintiff stands in the same position as its assignor, the construction company. The latter had no right to receive any part of the moneys in defendant’s hands for its own use until the completion of the houses and the payment of the debts incident thereto, for which they had been specifically appropriated. What it did receive was in payment of such debts, that is, for labor and material actually furnished to the operation. The assignment by the construction company to the use-plaintiff was not for material and labor, but for services in connection with the sale of the properties.

Accordingly, defendant’s motion for judgment n. o. v. is granted, and judgment is now entered in favor of the defendant.


author: Lamorelle, P. J.,

text:
    Putnam’s Estate.

      Pierce Archer, Jr., and John 8. Sinclair (J. Snowden Rhoads and W. Nelson L. West with them), for exceptants.

      Stanley L. Thornton (of Guokes, Shrader, Burtt & Thornton), contra.
    May 3, 1929.
   Lamorelle, P. J.,

So far as respects the present accounting and the adjudication thereon, the exceptions which relate to the rulings of the Auditing Judge in his interpretation of the two wills under consideration resolve themselves into a determination of two questions: first, had the donee of the power the right to appoint any part of the principal of the trust estate for the payment of his wife’s debts; and, second, are debts of others assumed by her to be treated as her debts within the meaning of her husband’s will? It is contended by exceptants that the Auditing Judge erred in ruling against them. Our study of the record and of the briefs submitted does not convince us of reversible error, nor do we feel — being unanimous in opinion on the subject — that extended discussion or elaboration is necessary, in that the adjudication is lengthy and treats in detail of the questions now before us. Because of the earnest argument, however, at the risk of possibly needless reiteration, we are impelled to stress with becoming briefness certain of the salient facts with our conclusion! thereon.

True it is that Emeline Putnam created a trust for the benefit of her son, Joseph W. Black, and after his death for the benefit of his wife, Susan L. Black, and their children, without liability, both as to principal and to income, for their debts; it is equally true that the trust was to terminate Feb. 8, 1909, if the son was then deceased intestate, or without having in the exercise of a power of appointment willed otherwise; and it is equally true — a matter overlooked on argument — that a very wise and wide discretion was vested in the trustee to use all of the principal if by reason of reverses or unforeseen circumstances, the son, or, after his death, his widow or surviving children should require more than income for their support and maintenance.

So much for the spendthrift clauses of the trust.

But testatrix herself went further; she was willing to trust to the discretion of her son to terminate the trust, to use the money himself, or to give it to whom he pleased. He, however, was required to do what he elected to do in a manner unmistakable. On the death of the son, the trust estate, which would otherwise have gone for the benefit of his wife and children, was subject to this important provision: “Unless my said son, Joseph Walter Black, shall otherwise direct by any last Will or Testament duly executed by him and specially referring to this Trust fund.” And he did otherwise direct.

It is noticeable that his will so “directing” treated of this trust estate and this alone. As to anything else he had, there was an intestacy; and what little he had of his own was insufficient to pay his own debts. This court has already held that he had a power of appointment and that he exercised it in terms. We have also held that the appointment to his creditors was valid and the trust estate has been depleted to such extent. If the appointment to his own creditors was valid, it is strange reasoning which would challenge donee’s right to appoint to his wife’s creditors, especially in view of the fact that he was untrammeled as to his selection of beneficiaries or appointees; and as his widow was sui juris, she could legally make any debt her own if there was a good and valid consideration for such assumption. We find nothing in the donee’s will which justifies our discriminating between debts contracted and debts assumed, for, after all, a debt is a debt, and the authorities sustain the conclusions of the Auditing Judge. The sole and only purpose of the power of appointment would appear to be to confer upon the donee the right to treat the trust fund as if it were his own for any and all purposes, without limitation or restriction of any kind, provided only that in making his will he clearly expressed an intention to dispose of the estate otherwise than in the manner originally prescribed by the donor.

All exceptions are dismissed and the adjudication is confirmed absolutely.


author: Lloyd, J.

text:
    Hine v. Feese.
    J. P. Carpenter, for plaintiff; J. W. Bassler, for defendant.
    On Sept. 19, 1927,
   Lloyd, J.

the plaintiff secured a judgment of possession against the defendant for premises situate in the Borough of Northumberland in this county, together with a money judgment for $40. At the same time, the defendant filed an affidavit of appeal. On Sept. 22nd following, the attorney for defendant filed a certified check payable to the Commonwealth of Pennsylvania for the sum of $50. The record shows payment of justice and constable costs. The plaintiff on Dec. 19, 1927, presented his petition and secured a rule to show cause why the said appeal should not be quashed and stricken from the record. The plaintiff by his petition challenges the validity of the appeal on the ground that defendant “did not file good and sufficient bail absolute for the payment of debt, interest and costs that have and will accrue in affirmance of the judgment as required by the Act of May 29, 1907, P. L. 306.”

The precise question here raised is correctly stated by the plaintiff as follows : “Is the deposit of a certified cheek with the justice of the peace sufficient recognizance or bail absolute as required by the acts of assembly regulating cases of appeal from the judgment rendered by the justice of the peace in civil actions; and will the deposit of such a check operate to perfect an appeal?”

By the Act of May 29, 1907, P. L. 306, two methods of appeal were open to the defendant. He might pay the costs and give bail absolute in double the probable amount of costs accrued and likely to accrue, with one or more sufficient sureties, conditioned for the payment of all costs accrued or that might be legally recovered in such case against the appellant, in accordance with the provisions of the Act of March 20, 1845, P. L. 188, or he might give good and sufficient bail absolute for the payment of debt, interest and costs that had accrued and would accrue on affirmance of the judgment, in which event he would not be required1 to pay any costs before taking the appeal: Lentz v. Kittanning Real Estate Co., 72 Pa. Superior Ct. 513.

In the case of Com. v. Sitler, 261 Pa. 261, 265, it was held that “A general power to take bail does not authorize the receipt of a deposit of money in lieu of it.”

Similarly, the case of Steam Heat and Power Co. v. Hutchinson, 3 Dist. R. 657, holds that “When the recognizance in an appeal from a justice is defective, the appellant should be called upon by rule to perfect it within a given period. This rule is, however, confined to cases in which the appellant has entered an imperfect or irregular recognizance; it does not apply where no security has been attempted to be given. The depositing of money with the justice of the peace is not a compliance with the act or a giving of a recognizance, and an appeal based thereon will be stricken off.”

These cases are directly in point and the discussion could well end here. However, it may not be amiss to advert to the fact that the check in the present case is made payable to the Commonwealth of Pennsylvania, which is neither a party to nor has any interest in the outcome of this appeal, and, hence, affords no protection to the plaintiff. There is nothing on the face of the check to indicate the purpose for which it was delivered to and held by the justice, and no obligation created thereby except to pay the sum of $50 to the Commonwealth of Pennsylvania, and in no aspect of the case can be regarded “as bail absolute” within the meaning of the said Act of May 29, 1907.

In the case of Kuhns v. Sack, 28 Dist. R. 1031, it was held: “In an appeal from a judgment of a justice of the peace, if an irregular form of bond or recognizance has been given by the appellant, it would not be proper to make absolute a rule to strike off such appeal without first affording the appellant an opportunity to perfect the appeal by amending the defective bond or recognizance; but where no obligation whatever has been given, or attempted or offered to be given, there is an entire defect of a thing indispensable to the existence of an effective appeal, not a mere irregularity susceptible of amendment, and in such case the appeal should be stricken off.” Here, as there, the appeal lacks an indispensable element to its perfection and cannot be sustained. The question as stated, supra,, must be answered in the negative.

And now, April 9, 1928, rule absolute, and it is hereby ordered, adjudged and decreed that the appeal of the defendant to the above number and term be and is hereby quashed and stricken from the record.

An exception is noted and bill sealed for the defendant.

. From C. M. Clement, Sunbury, Pa.