author: Hargest, P. J.,

text:
    Commonwealth v. Sharon Steel Hoop Company.

      Philip S. Moyer, Deputy Attorney-General, and Cyrus E. Woods, Attorney-General, for plaintiff.

      Nauman & Smith, for defendant.
    April 22, 1929.
   Hargest, P. J.,

This case comes before us upon an appeal from the settlement made by the Auditor General and approved by the State Treasurer Jan. 3, 1928, for tax on capital stock for the year ending Dec. 31, 1926, amounting to $3119.69. A stipulation has been filed agreeing that a trial by jury be dispensed with pursuant to the Act of Assembly of April 22, 1874, P. L. 109.

Facts.

The facts have been separately found and only those necessary to understand this opinion are here repeated.

The appellant (for brevity hereinafter called the Hoop Company) is a domestic corporation, “formed for the purpose of the manufacture of iron or steel, or both, or of any other metal or of any article of commerce from metal or wood, or both.” The Stambaugh Iron Company (hereinafter called the Iron Company) is a corporation of the State of Ohio, “formed for the purpose of mining and dealing in iron ore and coal and the several products thereof and for the purpose of manufacturing iron and steel and the various products thereof. . . .”

During the tax year in question, the appellant owned 40 per cent, of the capital stock of the Iron Company, of a par value of $400,000 and of an actual value of $177,650.64. During the tax year, the Iron Company did not engage in any business for which it was incorporated and did not furnish from its operations any aid or support to the Hoop Company.

In the requests for findings of fact, we have denied as immaterial the following, but restate them here so that the contentions of the appellant and our discussion may be understood.

In January, 1928, the Iron Company leased a mine in Minnesota, known as the “Billings Mine.” Contemporaneously with that lease, the Hoop Company purchased a blast furnace at Lowell, Ohio, known as the “Mary Furnace,” and pig iron was transferred directly from the Mary Furnace to an open hearth plant of the Hoop Company. Contemporaneously, also, with the lease, the stock of the Iron Company was issued to the Tod-Stambaugh Company, the Hoop Company and the Ohio Iron and Steel Company. On April 10, 1918, the Hoop Company acquired one-half of the ownership of the Iron Company by an agreement which required the Iron Company to furnish the Hoop Company with' a minimum tonnage of 100,000 tons of ore per annum, and the Hoop Company was required to take from the Iron Company such amount of ore. Subsequently, the agreement of April 10, 1918, was modified so that the interest of the Hoop Company in the capital stock of the Iron Company was 40 per cent. The Hoop Company made its original capital investment in the Iron Company for the purpose of securing an adequate ore supply for its blast furnace. Such ore supply was furnished from the Billings Mine from 1919 to 1925, inclusive. The Iron Company discontinued operations and closed its mine during the year 1926 for economic reasons. The M. A. Hanna Company owns a controlling interest in the Tod-Stambaugh Company, and on March 27, 1926, made an agreement with the Hoop Company to furnish the ore which the Iron' Company was required to furnish.

Discussion.

Following the decision of Com. v. Sunbury Converting Works, 286 Pa. 545, which overruled Com. v. Westinghouse Airbrake Co., 251 Pa. 12, the Act of April 20, 1927, P. L. 311, was passed, which is, in part, as follows: “That whenever any corporation . . . shall own, directly or through subsidiary or sub-subsidiary corporations, shares of stock of any other corporation . . . which is engaged in a business auxiliary to the business of the owning corporation . . . upon the value of which, under existing laws, the owner of such stock would be liable to the payment of tax upon capital stock, then, in such cases, so much of the value of such shares of stock so owned as represents capital stock, which capital stock represents property located or having a legal situs without this Commonwealth, shall not be liable for taxation . . . but shall be excluded in determining the value of the capital stock of such owning company for purposes of taxation.”

The following questions are presented:

1. Is the business of the foreign corporation “auxiliary” to the business of the owning corporation?

2. Is it necessary for the owning corporation to have more than 50 per cent, of the capital stock of the foreign corporation in order to secure the exemption under the Act of 1927?

3. Is the domestic owning corporation entitled to the exemption if the foreign corporation is not, during the tax year, “engaged in a business auxiliary to the business of the owning corporation?”

1. We are of the opinion that the chartered powers and purposes of the Iron Company, the foreign corporation, are auxiliary to the powers and purposes of the appellant domestic corporation. One who is an “auxiliary,” according to the Standard Dictionary, is “one who or that which aids or helps, especially when regarded as subsidiary or accessory.” The word is also therein defined as “giving or furnishing aid or support, especially in a subordinate or secondary matter; supplementary; subsidiary; accessory.” The Hoop Company is incorporated “for the purpose of the manufacture of iron or steel, or both, or of any other metal or of any article of commerce from metal or wood, or both,” and the Iron Company is formed “for the purpose of mining and dealing in iron ore . . . and for the purpose of manufacturing iron and steel and the various products of both.” It is plain that a corporation farmed to manufacture iron and steel could give aid and support to another corporation formed for the same purpose and that a corporation mining and dealing in iron ore could aid a corporation manufacturing steel.

It, therefore, follows that the business of the Iron Company is “auxiliary to the business of the owning corporation,” and if there were no other facts to be considered, the appellant company would be entitled to exemption on the value of the shares of the capital stock of the Iron Company held by it.

2. The Deputy Attorney-General, as the record shows, in presenting this case, stated that the fiscal officers contended that to be an auxiliary corporation within the meaning of the Act of 1927 the domestic company must own more than 50 per cent, of the capital stock of the foreign company.

We cannot conceive of any substantial basis for such contention. The act of assembly is silent as to the proportion of the capital stock of a foreign- company engaged in an auxiliary business which a domestic company may own in order to be relieved of taxation on such ownership. When a corporation brings itself within the act, so much of the value of its shares of stock as represents capital stock, which capital stock represents property located without this Commonwealth, shall not be liable to taxation.

The appellant owned 40 per cent, of the capital stock of the Iron Company, which represented property having a legal situs outside of the Commonwealth, and the language of the statute is that “so much of the value of such shares of stock so owned” is not taxable. There is no warrant for holding that, under the act, the owning company must own a majority of the stock of the subsidiary to construe the latter as “engaged in a business auxiliary to the business of the owning corporation.” The number of shares has nothing to do with such a construction.

3. The most serious question in this case, however, is whether the appellant is entitled to the exemption because, during the tax year, the foreign corporation was not “engaged in a business auxiliary to the business of the owning corporation.”

At the outstart, it must be remembered that this is a claim for exemption. Generally speaking, the capital stock of all corporations is taxed, and only those are not taxed which the Commonwealth has exempted from taxation. Taxation is the rule, exemption the exception.

In Com. v. Lackawanna I. & C. Co., 129 Pa. 346, 356, it is said: “Language which relieves from taxation is to be strictly construed: Miller v. Kirkpatrick, 29 Pa. 226; Crawford v. Burrell Township, 53 Pa. 219.”

In Callery’s Appeal, 272 Pa. 255, 272, it is said: “'Where the taxpayer or his property is within the general language of the statute imposing the tax, all exempting provisions are to be strictly construed against the claim for exemption.”

In Com. v. Sunbeam Water Co., 284 Pa. 180, 183, it is said: “If it [company] is to be exempted from the payment of the tax, it must clearly bring itself within the exemption provided in the act: Academy of Fine Arts v. Philadelphia County, 22 Pa. 496.”

There is no doubt that the appellant in this case is within the general language of the statute imposing a capital stock tax and is also claiming the exemption under the Act of 1927. Therefore, its right to the exemption must be strictly construed. It is only entitled to this exemption when it owns the capital stock of a corporation which owns property located “without this Commonwealth” and “which is engaged in a business auxiliary to the business of the owning corporation.” For the tax year in question the Iron Company was not engaged in a business auxiliary to the business of the Hoop Company.

We think the authorities construing the exemption for manufacturing corporations are in point. The statute relieving manufacturing companies from taxation exempts so much “of the capital stock . . . which is invested in and actually and exclusively employed in . . . manufacturing within the State; ... it being the object of this proviso to relieve from State taxation only so much of the capital stock as is invested purely in the . . . manufacturing plant and business:” Act of July 22, 1913, P. L. 903.

In Com. v. Altoona Foundry and Machine Co., 18 Dauphin Co. Reps. 569, it was held by this court, construing this exemption, that “a corporation organized for manufacturing purposes whose entire capital is invested in its plant and machinery is not exempt from payment of tax on its capital stock for a year, during which its plant remained idle on account of business depression.”

This court there said: “The purpose of granting the exemption seems to have been to encourage the investment and use of capital in manufacturing enterprises so that our resources might be developed, our people given employment and the public welfare advanced. The conditions of the exemption demand that the exempt capital be actually and exclusively employed in carrying on manufacturing within the State. This contemplates active' operation of a manufacturing plant and the actual carrying on of manufacturing. While the defendant company had its entire capital invested in the plant and machinery, business conditions made it seem advisable not to operate during the tax year covered by the settlement. Thus the defendant failed to meet the statutory condition of carrying on manufacturing within the State.”

In Com. v. Excelsior Brick and Stone Co., 233 Pa. 84, a manufacturing corporation was compelled to stop business by reason of the condemnation of most of its lands by the City of Philadelphia. It was held by the Supreme Court, affirming this court, that it was not exempt from taxation and that its stock could be taxed on a fair valuation of its assets consisting of its claim against the city for damages and its remaining real estate.

In the instant case, the exemption is only extended to the ownership of capital stock of a company which “is engaged in a business auxiliary to the business of the owning corporation.” In the exemption for manufacturing it is only extended where the company is actually engaged in manufacturing. The two exemptions are similar, and if exemption is denied to a manufacturing company not so engaged during the tax year, it logically follows that exemption should be denied where the corporation owning property without the State is not engaged in the auxiliary business during the tax year.

The appellant argues that if the principle found in the cases of Com. v. Dilworth Porter & Co., 242 Pa. 194; Com. v. John B. Stetson Co., 17 Dauphin Co. Reps. 278; Com. v. Standard Underground Cable Co., 17 Dauphin Co. Reps. 281, would be applied, it would not be denied exemption. That same argument was made to this court in the case of Com. v. Altoona Foundry and Machine Co., supra. In the cases cited the corporations were all actually engaged in manufacturing and the only question was how much capital on hand could be said to be actually and exclusively engaged in manufacturing, considering the magnitude of the business. That is to say, how much was reasonably necessary to properly conduct the manufacturing business. We see nothing in these cases that interferes with applying a strict construction to the exemption contained in the Act of 1927.

It' is also contended that, because of the contractual relations existing between the Iron Company, the Tod-Stambaugh Company and the M. A. Hanna Company, the appellant company was enabled to secure the same amount of ore as if the Iron Company had, in fact, been engaged in the auxiliary business during the tax year 1926. We are of the opinion' that this does not sustain the right to the exemption. If the appellant is' entitled to the exemption, it is so entitled because it brings itself within the language of the statute allowing it and not because through the ramifications of contractual relations it has' obtained the same benefits which it would have obtained if the Iron Company had engaged in business. The purpose and intent of the defendant in investing in' the capital stock of the Iron Company is not material on the question of exemption. It is for these reasons that we have held the evidence as to such contractual relations immaterial. The question under the statute is whether the stock which it holds is stock of a corporation which is engaged in a business auxiliary to the business of the owning company and whether it is so engaged in the tax year. That, and that alone, is the test which the statute applies. If the fact that the Iron Company went into the market and bought ore to carry out its contract could obtain for the Hoop Company the exemption under the statute, it would make the language of the statute a nullity, and every domestic corporation holding the stoek of foreign corporations representing property outside of the Commonwealth could set aside the plain letter of the statute by such a process of contractual relations. To so hold would be to engage in refinements for the purpose of sustaining exemption rather than applying the principle stated- in Academy v. Philadelphia County, 22 Pa. 496, 497, that no corporation is entitled to claim exemption “unless the exemption be so clearly expressed in the statute as to admit of no other construction.”

For these reasons, we are of the opinion that for the tax year in question the appellant is not entitled to exemption.
Amount of settlement was.............'.................$3119.69
Defendant admits, and has paid......................... 2739.99
Leaving a balance for which it denies liability of.......... 379.70
Interest from March 3, 1928 (being 60 days after date of settlement) ......................................... 25.82
405.52
Attorney General’s commission 5%....................... 20.28
Total ............................................ 425.80

Now, April 22, 1929, judgment is hereby directed to be entered in favor of the Commonwealth and against the Sharon Steel Hoop Company,' defendant, in the sum of $425.80, unless exceptions be filed within the time limited by law.

Prom George R. Barnett, Harrisburg, Pa.


source: Caselaw Access Project

author: Patterson, P. J.,

license: Public Domain

text:
    Hammann et al. v. Painter et al.

      Charles R: Mallery and J. Lee Plummer, for plaintiffs.

      J. F. Sullivan and G. Nevin Dively, for defendants.
    Feb. 21, 1929.
   Patterson, P. J.,

On Sept. 4, 1928, the plaintiffs filed this bill, praying' for an injunction restraining defendants from constructing and operating a public service gasoline and filling station on a lot of ground owned by the defendants, situate at Fourth Street between Twenty-fifth Avenue and Wopsononoek Avenue in the City of Altoona, alleging that this immediate vicinity -is exclusively residential in .character. On Oct. 1, 1928, defendants filed their answer to said bill, wherein they admit that they intend to construct and operate upon said premises, as described in plaintiffs’ bill, a public gasoline station for the retail sale of gasoline and oils, and deny that the immediate neighborhood surrounding the place where the proposed service and filling station is to be erected is exclusively residential in character; that the neighborhood is not an entirely built-up neighborhood, and that many lots are vacant and unimproved. Thereafter, the evidence of many witnesses on both sides was heard by the court and the same transcribed and filed to this case.

Findings of fact.

1. That twenty-two of the plaintiffs own and occupy, for residence purposes, real estate in the City of Altoona in .the immediate vicinity of the proposed gasoline station, and two of the plaintiffs occupy, as tenants, real estate in the immediate vicinity.

2. That the defendants own a lot of ground, situate between Twenty-fifth Avenue and Wopsononoek Avenue, said lot of ground fronting 84.8 feet on the southwestern side of Fourth Street, and extending back therefrom along Wopsononoek-Avenue in a southeasterly direction a distance of 52.2 feet, and thence-along line of Lot No. 7, Block “B,” a distance of 106.17 feet to Twenty-fifth Avenue, and thence in a northeasterly-direction along said Twenty-fifth Avenue 50 feet to Fourth Street, the place of beginning.

3. That the defendants intend to construct and operate upon said lot a public service station for the retail sale of gasoline and oils for automobiles.

4. That the immediate neighborhood surrounding the proposed service statoin is exclusively residential in character and no public business whatever is being conducted in that part of the city.

5. That some years ago a railroad, known as the Wopsononoek Railroad, passed through the lands in close proximity to the lot upon which it is proposed to construct a public gasoline filling station, but this road has been abandoned and removed and some of the plaintiffs own and reside in houses built upon land which was formerly occupied as a right of way for said railroad.

6. That at the time of the operation of said railroad the land in the immediate-vicinity-of the proposed station was vacant and unoccupied except by said railroad. That since the removal of the railroad, the occupancy of said lands has completely changed. That in the past few years many new residences have been constructed, and are now occupied by their owners, on lands that were but recently vacant fields. That the only other buildings under construction or about to be constructed are two churches, St. Theresa’s Roman Catholic Church, being situate on Wopsononock Avenue, a distance of 130 feet from the site of the proposed gasoline filling station, and a lot on Wopsononock Avenue, a distance of 60 feet from the site of the proposed gasoline station, upon which the congregation of the Emanuel Evangelical Church propose to erect a church building.

7. That there is no business now being conducted in this immediate vicinity and no evidence of any business ever having been conducted in close proximity thereto except the remains of an abandoned coal tipple, used when the railroad existed, and a small frame building that was once occupied as a bakery or pastry shop. And that there are no grocery or other stores, manufacturing plants, offices, laundries or other business located within this immediate vicinity.

Discussion.

Under the decisions of the appellate courts, there is but one question for determination, and this is a question of fact: Is the immediate neighborhood where the intended filling station is to be erected predominantly residential in character? This question must be answered in favor of the plaintiffs.

It is true there are vacant lots near by, but this fact is not inconsistent with the conclusion that the neighborhood is residential in character. In Eckels v. Weibley, 232 Pa. 547, it is held: “The injunction appealed from followed findings by the court below that the defendants were about to engage in the horse and cattle business in an exclusively residential section . . . but not yet compactly built up.”

It is only a few years since all of the land in the immediate vicinity was vacant except as it was occupied by the abandoned railroad. The plaintiffs and other persons desiring an exclusively residential section became owners of lots upon which they have erected homes and now occupy the same. No buildings for any other purposes than residence and church purposes have been constructed within said immediate neighborhood. And it is evident from an examination of all the testimony and from observation on the ground that the character of the immediate neighborhood has been established with certainty by the character of the buildings so erected. We are, therefore, bound to come to but one conclusion, and that is that the immediate neighborhood surrounding the proposed gasoline station is not only predominantly residential but exclusively residential in character. The only argument against this conclusion is that there are vacant lots — not that there are industrial plants or other business establishments being conducted there. We think, however, that the fact that there are vacant lots has no bearing on the question of the occupancy of the land in the immediate vicinity of the station. Its occupancy is residential, as evidenced by the many homes occupied by their owners.

In the very recent opinion of the Supreme Court in Burke et al. v. Hollinger, dated Feb. 4, 1929, opinion by Mr. Justice Kephart [296 Pa. 510], it is held:

“We have never attempted to state, what an exclusively or predominantly residential district should consist of, nor can it be accurately done. What is here suggested is the types of uses that may constitute a given district. In certain aspects these may control and by the uses stated not only may the application of the rule above announced in our decided cases be properly gauged but some idea may be given for future action.
“A district composed of one-family dwellings, churches, library, with an occasional grocery store, doctors’ or lawyers’ offices in homes, would unquestionably compose an exclusively residential district; and such accessory uses as private garages, stables or necessary out-buildings for the comfort or enjoyment of the premises would not affect its exclusive character. A second type of residential district, closely resembling the one referred to, but not so exclusive, is one having, in addition to the above uses, the following: Double-houses, schools, public or private, gardens, with their accessory uses. In each of the foregoing classes our previously established rule as to public garages unquestionably applies.....
“In applying the rules here stated, the courts will be careful to note that in small cities and boroughs business and residence closely interlock, and, in determining the residential character of a locality, of which that considered in Tyson v. Coder, 83 Pa. Superior Ct. 116, is a type, they will be guided by the considerations so well expressed there and preserve the home-dwellers from the intrusion of business which destroys peace, comfort and enjoyment as well as property value. The reasons mentioned as controlling in a city are not to be found in such places.”

The case under consideration differs from all of the reported cases in one respect, and that is, it is a new development, having new houses and new streets, while all of the reported cases deal with locations on streets that have been occupied for a longer time for either business or residential purposes, or both. We think, however, that the character of the occupancy of a new section may be more readily determined than that of an older part of a city. Especially is this true in the present case, where there are numerous dwelling-houses and no grocery stores, doctors’ offices or other business or professional places of any kind.

In Tyson v. Coder, supra, it is held: “But the prohibition is not limited to cases of a restriction against nuisances in a deed. It has been enforced against the erection of a public garage in a residential neighborhood because of the character of the neighborhood and the nature of the business proposed to be conducted, the doctrine being that a neighborhood! which has been preempted by the construction of residences and is adapted to that use is entitled to protection against the introduction of a business which would subject the residents to discomfort, inconvenience, risk and depreciation of property resulting from the prosecution of such business.”

This principle is supported also by Prendergast et al. v. Walls et al., 257 Pa. 547; Hohl et al. v. Modell, 264 Pa. 516; Slingluff et al. v. Tyson, 280 Pa. 206.

The foregoing cases also hold that it is now well established in Pennsylvania that a public garage, though not a nuisance per se, becomes such, in fact, when conducted in a residential neighborhood. And the same rule applies to both public filling stations and public garages: Carney et al. v. Penn Oil Co., 291 Pa. 371.

Conclusions of law.

1. The operating and maintaining of the public gasoline filling station as proposed by defendants would be a nuisance against which the plaintiffs are entitled to equitable relief.

2. The plaintiffs are entitled to an injunction perpetually restraining the defendants from the erection, maintenance and operation of a public gasoline filling station upon the lot of ground fronting 84.6 feet on the southwesterly side of Fourth Street between Twenty-fifth Avenue and Wopsononoek Avenue in the City of Altoona, which they have purchased for the purpose of constructing and maintaining a public service gasoline filling station.

3. The cost of this proceeding to be paid by the defendants.

Decree nisi.

And now, Feb. 21, 1929, upon consideration of. the foregoing ease, it is ■ordered, adjudged and decreed as follows: That an injunction be issued perpetually restraining and enjoining the defendants', together with their agents, servants and employees, from establishing, maintaining and operating a public service gasoline and oil filling station on the lot of ground situate on the southwest comer of Twenty-fifth Avenue and Fourth Street, extending southeastwardly from the southeastern side of Twenty-fifth Avenue. along the southwestern side of Fourth Street to Wopsononoek Avenue, being premises numbered 401-403 Twenty-fifth Avenue, in the City of Altoona. And defendants are directed to pay the costs of this proceeding. The prothonotary is directed to file this opinion and enter the foregoing decree nisi and give notice to the parties or their counsel of record of the entry of the decree, as provided in Rule 68 of Rules of Equity Practice, as adopted by the Supreme Court of Pennsylvania. Prom Robert W. Smith, Hollidaysburg, Pa.


author: Hertzler, Special Dep. Att’y-Gen.,

text:
    Registration of Consulting Interior Architects.
    June 21, 1929.
   Hertzler, Special Dep. Att’y-Gen.,

We have your request to be advised whether or not a person may use the term “consulting interior architect” in this Commonwealth without registering as an architect with your Board.

You state in your communication that the title “consulting interior architect” is used more or less extensively by interior decorators who desire to take up certain sides of architectural practice.

Section 13 of the Act of July 12, 1919, P. L. 933, provides that:

“On and after July first, one thousand nine hundred nineteen, it shall be unlawful for any person in the State of Pennsylvania to enter upon the practice of architecture in the State of Pennsylvania, or to hold himself or herself forth as an architect or as a ‘registered architect,’ or to use any word or any letters or figures indicating or intended to imply that the person using the same is a ‘registered architect,’ unless he or she has complied with the provisions of this act and is the holder of a certificate of qualification to practice architecture issued or renewed and registered under the provisions of this act.
“This act shall not be construed to prevent persons other than architects from filing applications for building permits or obtaining such permits; nor shall it be construed to prevent such persons from designing buildings and supervising their construction, provided their drawings are signed by the authors with their true appellation as engineer or contractor or carpenter or et cetera, but without the use in any form of the title of architect.”

The Century Dictionary and Cyclopedia defines the word “consulting” as follows: “Acting in consultation or as an adviser; making a business of giving professional advice; as, a consulting barrister; a consulting physician; a consulting accountant.”

The word “interior” is defined as “being within; inside of anything that limits, incloses or conceals; internal; further toward a center; opposed to exterior or superficial; as, the interior parts of a house or the earth.”

As used in relation to art, it is defined as “an inside part of a building, considered as a whole from the point of view of artistic design or general eifect, convenience,vete.”

It is evident, therefore, that the words “consulting” and “interior,” when used to modify the term architect, indicate that the architect gives, or is prepared to give, professional advice relative to the construction and artistic design of the interior of a building.

In the case of Simons, Brittain & English, Inc., v. Armstrong & Markell, 86 Pa. Superior Ct. 98, 102, Judge Trexler, in giving the opinion of the court, announced that although section IS of the act allows others than architects to design buildings and supervise their construction, it only permits such work “. . . as long as they do not use the title of architect.” The opinion of the court is that the act “. . . was aimed at such persons as claimed to be architects who were not or who, at least, could not or would not register and who, notwithstanding, still employed the professional title. . . .”

Every person using the term “consulting interior architect,” therefore, holds himself or herself out as an architect, qualified to render a limited service in the general practice of architecture. Such persons must comply with the provisions of the Act of Assembly if they employ the professional title.

It is our opinion, and we so advise you, that persons using the title “consulting interior architect” must secure registration from your Board or subject themselves to the penal provisions for practicing as a registered architect without being so registered.

From C. P. Addams, Harrisburg, Pa.


author: Mays, J.,

text:
    Commonwealth v. Zilberberg.

      William A. Witman, Jr., for defendant and rule; Emanuel Weiss, contra.
    Feb. 18, 1929.
   Mays, J.,

The indictment in this case charges that the defendant “with force and arms, etc., 153 19/24 dozen pairs of hosiery, of the value of $1209.75, of the goods and chattels, money and property of the Concordia Silk Hosiery Co., Inc., by some ill-disposed person to the jurors aforesaid yet unknown, then lately before feloniously stolen, taken and carried away, feloniously, unlawfully, unjustly and for the sake of wicked gain, did receive and have, the said Bernard Zilberberg then and there well knowing the goods and chattels, moneys and property aforesaid to have been feloniously stolen, taken and carried away.” The jury returned a verdict of guilty.

Two applications are before us, one for a new trial and the other for arrest of judgment. The defendant in his brief of argument states that “the real basis for both applications is practically the same. It raises the question of the jurisdiction of this court, and is in substance as set forth in defendant’s first point for charge, which is as follows: ‘If the jury finds from the evidence that the hosiery which found its way into the hands of the defendant was hosiery actually stolen from the plants of the prosecutors and was delivered to and received by the defendant in the City and County of Philadelphia, then the verdict must be for the defendant.’ ” The question of jurisdiction, therefore, is the only matter to be decided.

The defendant was indicted under the Act of April 23, 1909, P. L. 159, which provides: “That if any person shall buy, have or receive, within the limits of the Commonwealth of Pennsylvania, any goods, chattels, moneys or securities, or any other matter or thing, which shall have been stolen or feloniously taken, either in the Commonwealth of' Pennsylvania or in any other state or country, knowing the same to have been stolen or feloniously taken, such person shall be guilty of a felony, and, on conviction, suffer the like pains and penalties which are by law imposed upon the person who shall have actually stolen or feloniously carried away the same within the limits of this Commonwealth.”

The Act of March 31, 1860, § 109, P. L. 382, made it a felony to buy or receive any goods, etc., knowing the same to be stolen or feloniously taken. But the Act of 1909 went further; it provided that any person who shall buy, have or receive, within the limits of the Commonwealth' of Pennsylvania, any goods, etc., which shall have been stolen, either in the Commonwealth of Pennsylvania or elsewhere, knowing the same to have been stolen, shall be guilty of a felony.

The testimony in this case discloses that the theft took place in the City and County of Philadelphia, and that the goods stolen were stored by the alleged thief in the basement of his home in Philadelphia, where they were purchased by the defendant and by him removed to the basement of another building in Philadelphia, and from that point moved by truck to the City of Reading, where they were located by the authorities in the actual or constructive possession of the defendant.

It is probably true that under the Act of 1860 the prosecution should have been brought in the County of Philadelphia. But we cannot agree with the defendant’s contention that under the Act of 1909 he cannot be prosecuted in Berks County for buying, having or receiving stolen property which he is found to have in his possession here, knowing the same to have been stolen, even though it is made to appear that the property was actually bought and received in the County of Philadelphia, and was for a short space of time while in transit stored in a place other than that of defendant in the last-named county. The Act of 1909 is broad enough to cover a set of facts such as was here found by the jury. If we should construe the Act of 1909 as the defendant contends, the effect would be to promote what we believe to be a thriving and profitable business in buying, receiving and having stolen goods. It is true enough that the courts are bound to safeguard the rights of persons charged with the commission of a crime; but in the interpretation of the acts of assembly we should not go so far as to encourage and foster a pernicious practice which the Act of 1909 was designed to prevent. It must also be remembered that stolen property does not lose its identity wherever it may have acquired that distinctive character and wherever it may be found.

And now, to wit, Feb. 18, 1929, the rule for a new trial is discharged and the motion in arrest of judgment is refused.

From Charles K. Derr, Reading, Fa.


author: Henderson, J.,

text:
    Maris’s Estate.

      Luden B. Carpenter, for remaindermen, exceptants.

      John V. Lovitt (Ballard, Spahr, Andrews & Ingersoll with him), for life-tenants, exceptants, contra.
    Nov. 15, 1929.
   Henderson, J.,

Notwithstanding the able argument of counsel, a careful study of the record leads us to the conclusion that the Auditing Judge was right in holding that the direction in the will is void as an accumulation forbidden by the Act of April 18,-1853.

The further question that remains is to whom do these stock dividends belong? The aforesaid act provides that they shall go to such persons as would have been entitled if no accumulation had been directed. As this provision is in the residuary estate, it cannot fall therein, and, hence, must be awarded as in an intestacy. It is contended that because the will gives the widow all the income and as these stock dividends are income, they should be awarded to her. This view overlooks the fact that the will segregates them from the income given to the widow. In Wentz’s Estate, 12 D. & C. 398, this question was not argued or decided. See, however, Thistle’s Estate, 263 Pa, 60, 68.

This void provision, being in the residuary clause, would ordinarily pass under the latter portion of section 15 (c) of the Wills Act of June 7, 1917, which provides as follows: “In any case where such devise or bequest, which shall fail or be void or shall be revoked as aforesaid, shall be contained in the residuary clause of such will, it shall pass to and be divided among the other residuary devisees or legatees, if any there be, in proportion to their respective interests in such residue.”

In the residue of the instant case there are succeeding life estates and our problem would be to direct a division of the illegal accumulations “in proportion to their respective interests in the residue.” The shares are of a different quality and are not exactly ascertained. The question is like that presented in McNulty’s Estate, 29 Dist. R. 709, where we said: “This provision of the new act was clearly intended to abolish the common law rule criticised by the Supreme Court in Gray’s Estate, 147 Pa. 67, that where the residuary estate is devised to or among a number of devisees, and the devise as to one or more of them lapses, or is avoided by some rule of law, or is revoked, an intestacy resulted as to that share under the former rule. The obvious intention of the act was to introduce the principle that in devises of this nature the void or revoked share is to be divided among the other residuary devisees in proportion to their respective interests. This contemplates the case where the residuary devisees are given aliquot shares in the residue, and not to a case like the present, where the devisees are respectively life-tenant and remainderman and thus given estates of a different quality.”

We, therefore, conclude that this clause of section 15 (a) of the Wills Act has no application to the instant case and that the Auditing Judge was correct in awarding these illegal accumulations as in the case of an intestacy.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.


author: Sherwood, J.,

text:
    Charles H. Bear & Co. v. Zech.

      McClean Stock, for plaintiff; J. E. Brenneman, for defendant.
    March 25, 1929.
   Sherwood, J.,

This case comes before the court on an affidavit of defense raising questions of law. The reasons assigned may be summarized under three heads: First, the failure to allege that the name of the plaintiff is registered as a fictitious name under the Act of 1919, P. L. 942 (it being conceded at the argument that this citation was erroneous, the correct act being that of June 28, 1917, P. L. 645, and the several amendments) ; second, plaintiff’s failure to allege the agency of the wife; third, the entry of the charge on the books of plaintiff against the wife.

Plaintiff, a partnership trading under the name of Charles H. Bear & Co., declared on a book account for goods sold and delivered by verbal agreement to defendant’s wife, alleging that the said goods were necessaries for the use of the wife and for use in the household of the defendant. The goods so sold were charged on plaintiff’s books against the wife. The defendant and his wife are alleged to be living and cohabiting together. For the purpose of this argument, the facts set forth in plaintiff’s statement must be accepted as true.

The Act of June 28, 1917, P. L. 645, provided that no individual should carry on or conduct any business in the Commonwealth under an assumed or fictitious name, unless complying with the directions of that legislation. In Eagle v. Insurance Co., 75 Pa. Superior Ct. 390, it is said: “The purpose of the statute is obvious. It was intended to protect persons giving credit in reliance on the assumed or fictitious name, and to definitely establish this identity of the individuals owning the business, for the information of those who might have dealings with the concern. It was not intended to produce a confiscation of property, nor to relieve debtors from their honest obligations. It is a penal regulation, and should be so construed as not to extend its operations beyond the purposes for which it was evidently enacted.” In Lamb v. Condon et al., 276 Pa. 544, it is said: “An examination of the act discloses an intention to deal with two classes of individuals who might use assumed names; those who are residents and those who are non-residents. In both cases, one adopting the fictitious name shall not carry on or conduct business in the Commonwealth until registration is had, and the engaging in such activity is penalized and made a misdemeanor. There is no express declaration that the contracts entered into by such parties shall be void and unenforceable.” The wording of the amending Act of May 10, 1921, P. L. 465, is significant in determining the question of the right to sue where no such certificate was filed. The Supreme Court in the case last cited says: “It will be noted that the first paragraph of the first section, which provided for individual residents of the State, was not modified, but the second paragraph of the same section provided that those who were non-residents, and failed to register, should not be permitted to institute actions until they had paid a fine of $25.00, and, even in those cases, it was declared that pending proceedings could be carried on if the penalty and costs of the case to the date of payment were satisfied. It is also to be observed, as indicative of the legislative intent, that no prohibition against the bringing of suits by residents of the State who were in default was made, but that the inhibition was directed solely to those living beyond the confines of the Commonwealth.” In the instant case, the plaintiff, by adding the term “company,” was acting in violation of the act of assembly, but no one was deceived thereby. Its contract was entered into in good faith; it was not receiving but extending credit to the defendant in this action. It was not necessary to register in order to maintain the action.

In the remaining reasons assigned, we find nothing that would warrant us entering judgment for the defendant. Agency of a wife living with the husband, and who buys necessaries for her use and the use of the husband’s household, is implied, and, being a conclusion of law, need not be averred: Allen v. Rieder, 41 Pa. Superior Ct. 534. When a wife takes up necessaries for the family of her husband and herself, the presumption is that she is acting as his agent, for on him lies the primary duty of furnishing and paying for them: Berger v. Clark, 79 Pa. 340.

A wife is not liable for necessaries furnished her and the family unless she expressly undertakes to become liable, and this undertaking is never presumed, but must be shown affirmatively. Nor is the act of delivery of the goods to her, or the fact that the creditor has chosen to charge them to her, enough to render her liable: McCreery v. Scully, 67 Pa. Superior Ct. 524.

And now, to wit, March 25, 1929, the questions of law raised are decided against the defendant, with leave to file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days.

From Richard E. Cochran, York, Pa.


author: Knight, J.,

text:
    Conshohocken Borough’s Petition.

      Robert T. Potts and Irvin P. Knipe, for petitioners.

      Dennis O’Neill and Charles D. McAvoy, for remonstrants.
    March 28, 1929.
   Knight, J.,

The Borough of Conshohocken was incorporated by Special Act of Assembly approved May 15, 1850, P. L. 1051. Its charter was amended by the Special Act approved March 22, 1870, P. L. 522.

On Feb. 21, 1929, the burgess and fourteen of the fifteen councilmen of the borough presented their petition, praying leave to surrender their special charter with all of the rights and privileges granted the borough by the provisions of the special acts above mentioned and to accept the provisions of “The General Borough Act” approved May 4, 1927, P. L. 519.

The court fixed Friday, March 15, 1929, for a hearing on the petition, and directed that notice should be given by advertisement in certain newspapers. On March 15, 1929, the matter was continued to March 21, 1929, at which time a hearing was held before the writer of this opinion.

The petitioners proved the proper enactment of a resolution by the borough council, approved by the burgess, signifying its desire to surrender the special charter and accept the provisions of “The General Borough Act” of 1927. Section 107 of this latter act provides, inter alia, that any borough or incorporated town acting under any local or special act of assembly may surrender the provisions of its special acts in their entirety and be governed by the provisions of the General Borough Act by presenting a petition to the Court of Quarter Sessions of the proper county, setting forth the desire of said borough so to do. The petition may be made by the burgess and council or by twenty-five qualified electors of the borough. Upon the presentation of the petition, it is the duty of the court to fix a day for a hearing, of which notice shall be given as directed by the court. At such hearing, any inhabitant of the borough may remonstrate against the granting of the petition, and the court may grant or refuse the. prayer of the same.

At the hearing, an appearance was entered for certain remonstrants and an imposing petition was filed, signed, according to the evidence, by over 1200 residents of the borough, opposing the granting of the prayer of the petition.

But one witness was called by the remonstrants, and we gather from his testimony that the reasons urged against the proposed action of the borough authorities are:

1. That under the present charter the county pays damages incident to the opening of streets, while under the Borough Act these damages must be paid by the borough.

2. That under the Borough Act the number of councilmen may be reduced from three to one for each ward. •

3. That the borough tax rate is now limited to ten mills, while under the Borough Act it may be raised to fifteen mills.

None of these objections do we consider particularly meritorious. True it is that in Conshohoeken and two other boroughs in our county damages for the opening of streets are paid by the county, while in our twenty-one other boroughs these damages are paid by the residents thereof. This inequality is unjust to residents of the latter class of boroughs, and it is to the credit of the petitioners that they are fair minded enough to be willing to give up the advantage of this unfair discrimination.

The second reason is an unwarranted reflection on the ability of the people of Conshohoeken to govern themselves. The trend of modern thought and practice is toward smaller representative bodies. If the people of Conshohocken desire three councilmen to a ward, they can retain that number; if, on the other hand, they should determine in the future that their best interests would be advanced by reducing the representation to one councilman to a ward, why should they not be given the power to put their wishes into effect?

The power to raise the tax rate from ten to fifteen mills is a distinct advantage rather than an objection. The people today demand far more of their governments than did the people when Conshohoeken was chartered. This ever-widening scope in the activities of the civic authorities, together with the increased cost of everything, has made government of our municipalities, from a financial standpoint, a difficult problem. It will be to the advantage of the borough to be able to raise by taxation the money necessary to meet the needs of a progressive community.

Over against these alleged objections to accepting “The General Borough Act” may be set certain specific advantages, among which may be mentioned: The right given by the Code, but not now enjoyed, to condemn outside land for a sewage-disposal plant; the right to combine with West Conshohoeken in building a sewerage-disposal system, and the right of opening certain streets now blocked by decision of the appellate court.

Over and above these specific rights, needed at the present moment, there is the great advantage of being governed under a modern code, in which is incorporated the experience of a hundred years in borough government. The fact that this code is working out successfully in over 98 per cent, of the boroughs of the Commonwealth demonstrates its merits.

The day of the special act with its attending evils is passed. The demand of the times is for uniformity in legislation, and we see no reason why Conshohocken should not be allowed to get in step with the overwhelming majority of her sister boroughs in the State.

In arriving at this conclusion, we have not overlooked the petition signed by approximately one-third of the voters and taxpayers of the borough opposing the prayer of the petition. Only one of the remonstrants appeared to give the court the benefit of his reasons for 'opposing the present application. Just what actuated the others in signing the petition, and just how much they knew of the merits of the controversy when they signed, is, of course, unknown. We have considered the petition of the remonstrants, however, together with the other evidence, and have arrived at the conclusion that the application now before us should be granted.

And now, March 28, 1929, the prayer of the petition of the Burgess and Town Council of the Borough of Conshohocken for leave to surrender all the provisions of the special acts of assembly mentioned in the petition in their entirety and to accept the provisions of, and hereafter to be governed by, “The General Borough Act” approved May 4, 1927, P. L. 519, is granted, and upon the recording of this decree in the office of the Recorder of Deeds in and for the County of Montgomery, the Borough of Conshohocken shall be subject to all the provisions of the General Borough Act, supra, and the local and special acts of assembly in force in said borough shall be annulled in their entirety, or so far as they are inconsistent with the provisions of this act, and henceforth the title of said borough shall be “The Borough of Conshohocken.”

Prom Aaron S. Swartz, Jr., Norristown, Pa.


author: Hildebrand, P. J.,

text:
    Frasso v. Doyno, Papilli et al.

      Aiken & Braham, for plaintiff.

      William McElwee, Jr., and Alvah M. Shumaker, for defendants.
    July 31, 1929.
   Hildebrand, P. J.,

In an action of ejectment, on trial of the case, the court directed a verdict for the defendants. Plaintiff's motion for a new trial has been argued before the court in banc, Frank E. Reader, President Judge of the 36th judicial district, sitting in place of James A. Chambers, J., who was disqualified by reason of his having previously been of counsel in the case.

The action was instituted April 1, 1927. Joseph Papilli, defendant, had conveyed his interest in the land which is the subject of the suit to his wife, Josephine Papilli, by deed dated Dec. 16, 1926, and recorded in the Recorder’s Office of Lawrence County, Pennsylvania, on Dec. 28, 1926. Antonio Doyno died on Aug. 5, 1927. Previous to his death, plaintiff had taken Doyno’s testimony as under cross-examination by deposition. On Aug. 31, 1927, Joseph Papilli, showing to the court his conveyance of his interest in the land to his wife previous to the entry of suit, filed his disclaimer.

On the trial of the case in February, 1929, plaintiff offered in evidence the deposition of the deceased defendant, Antonio Doyno [which was admitted], and then offered himself as a witness. It being objected that, one of the defendants being dead, the plaintiff was incompetent as a witness, the objection was sustained. The plaintiff was then offered as a witness against the defendant, Josephine Papilli. A like objection having been made, this objection also was sustained. Plaintiff also offered to call Joseph Papilli as under cross-examination. This was opposed for the reason that Papilli was no longer a defendant, he having filed disclaimer, and that he was incompetent because his wife was a defendant. The witness then being offered generally as plaintiff’s own witness, objection was made that he could not be called as a witness against his wife. The objections of the defendants were sustained. The rulings of the court on the offers of plaintiff and Papilli as witnesses are assigned as error in plaintiff’s motion for new trial.

It seems to be agreed that, under the general provisions of section 5, clause (e), of the Act of May 23, 1887, P. L. 158, the plaintiff is rendered incompetent. However, plaintiff contends that the case falls within the following exception: “Unless the proceeding is by or against the surviving or remaining partners, joint promisors or joint promisees, of such deceased or lunatic party, and the matter occurred between such surviving or remaining partners, joint promisors or joint promisees and the other party on the record.”

A reading of the exception appears to us to clearly show that it does not take the plaintiff out of the general provisions of the act rendering him incompetent. The suit is not against Antonio Doyno’s “surviving or remaining partners, joint promisors or joint promisees.” Antonio Doyno was a defendant, and plaintiff contends that the executor of said Antonio Doyno, the Cleveland Trust Company, was properly made a party to the suit. The other defendants were in no manner partners, joint promisors or promisees of Antonio Doyno. We are well satisfied there was no error in our conclusion on the trial that Frasso was incompetent as a witness generally and incompetent as against Josephine Papilli alone.

Plaintiff, however, contends that he was competent as a witness under the Act of June 11, 1891, P. L. 287. No authority is cited for this position, and we think it cannot be sustained. That act renders a party competent as to matters occurring before the death of the adverse party, where one who is living at the time of trial and competent to testify does testify to matters occurring between himself and the adverse party. Had defendants here called a witness to testify to matters happening before the death of Antonio Doyno between the witness and Frasso, and such witness had testified to such matters, then Frasso would have been rendered a competent witness as to the matters concerning which testimony had been offered. In the present case the defendant called no such witness. Plaintiff contends that his own offering of the testimony as of Antonio Doyno taken under cross-examination rendered the plaintiff competent. Had this testimony been offered by defendant, plaintiff would have been rendered competent. This testimony, however, did not get into the case in the way of defense, but it was offered by plaintiff as drawn from Antonio Doyno under cross-examination in the aid of plaintiff’s cause. It was not offered against Prasso, but by himself in his own behalf. We conclude that plaintiff’s position as to his own competency as a witness is wholly untenable: Steel v. Snyder, 295 Pa. 120, 129; Wright v. Hanna, 210 Pa. 349; Montelins v. Montelins, 209 Pa. 541; Aaron v. Smith, 90 Pa. Superior Ct. 565.

In refusing to allow Joseph Papilli to be called by the plaintiff as under cross-examination, we based the ruling partly on the conclusion that he was not a party to the suit, this conclusion being based upon section 2, Rule 11 of our Common Pleas Rules relating to ejectment, which provides as follows: “Where the defendant, or one of several, disclaims title and denies possession of the land claimed in the action, he shall file his affidavit to that effect; and unless the plaintiff traverse the denial of possession by affidavit filed, the cause shall stop as to all who disclaim.”

Plaintiff complains of the injustice of permitting Papilli by disclaimer to put himself beyond the reach of plaintiff’s cross-examination. More obvious would be the injustice of permitting him to be made a party, although the record showed he had no interest in the land, in order that he might be subjected to plaintiff’s cross-examination. The action had stopped as to Papilli, and he was no longer a party to the suit so as to permit of his being called under cross-examination.

In support of his contention that we should have permitted Joseph Papilli to testify as a witness, either as under cross-examination or as plaintiff’s witness, plaintiff cites Barnhart v. Grantham, 197 Pa. 502. This case seemingly supports plaintiff’s position, but search fails to show that the case has ever been cited as authority by either of the appellate courts. It is to be noted, too, that Justices Mitchell and Brown dissented from the opinion filed.

Opposed to the case of Barnhart v. Grantham, supra, we have the rule laid down in Canole v. Allen, 222 Pa. 156, 159, and repeated in Ulrich’s Case, 267 Pa. 233, 238, that a husband and wife are rendered incompetent as witnesses against each other by section 5 (c) of the Act of May 23, 1887, P. L. 158, the court there saying: “Our Act of May 23, 1887, P. L. 158, defining competency is more than confirmatory of the common law rule; it declares in express terms that neither shall be permitted to testify against the other, a prohibition of which both the parties to the suit, and the trial judge as well, are bound to take notice. Connivance by the parties cannot evade it, nor can indulgence by the court.”

In Canole v. Allen, supra, it was held to be immaterial whether the husband was or was not a co-defendant. The disability to testify against the wife was held to be the same in either case. In that, as in the present case, the offered testimony of the husband was directed against the wife, and its purpose was to make out a case against her. It appears clear to us that Papilli was a wholly incompetent witness.

Having found no merit in any of the reasons assigned for a new trial, plaintiff’s motion must be refused.

Now, July 31, 1929, plaintiff’s -motion for a new trial is overruled and refused and judgment is directed to be entered on the verdict on payment of the jury fee.


author: Fleming, P. J.,

text:
    Commonwealth v. Haugh.

      John G. Love, District Attorney, for Commonwealth.

      N. B. Spangler (with him Ivan Walker), for defendant.
    May 3, 1929.
   Fleming, P. J.,

On Oct. 16, 1928, the defendant was arrested on information made by Game Protector Thomas Mozier, charging him with a violation of section 720 of the Act of May 14, 1925, P. L. 752, in that he had, after having killed a deer upon his property, failed to report the same to the nearest game protector or to the Game Commission at Harrisburg, Pa., within twenty-four hours after such killing. The defendant, upon being brought before a justice of the peace, admitted the killing of the deer in question as well as his failure to report the same, and also admitted the killing of ten or twelve additional deer and his similar failure to report them. The game protector entered into an agreement in writing with the defendant to pay the penalty stipulated by said act for five deer and costs, amounting in the aggregate to $515. On Oct. 18, 1928, an appeal was allowed by this court and the matter is now before us on appeal.

There is apparently no dispute existing as to the facts. The defendant frankly admits the killing, not alone of the one deer, upon which information was based, but of ten or twelve other deer. The Commonwealth admits that damage had been done by deer upon the farm of Harvey Haugh, where defendant resided as a tenant during the year 1928. The defendant contends that he is not guilty of any violation of law and raises a question as to the constitutionality of the act of assembly upon which the information is founded. This is our primary consideration herein. Should the act be found to contravene the provisions of our Constitution, then, of course, the defendant should be discharged. If not, we must proceed further and ascertain the validity of the fine imposed by the justice.

Section 720 of article VII of the Act of May 24, 1923, P. L. 359 [as amended by the Act of May 14, 1925, P. L. 752, 756], provides as follows:

“Nothing in this act shall be construed to prevent any person actually residing upon or cultivating, as a means of gaining a livelihood, any lands for general farm crop purposes, commercial trucking or fruit orchard or nursery, being regularly maintained for commercial purposes, as either the owner or lessee, or any member of the family of such owner or lessee residing upon and assisting in the cultivation of such lands, or the employee of such owner or lessee who regularly assists in the cultivation of such lands, from killing, in any manner except through the use of poison, at any time, any elk or deer, or bear, or rabbit, or squirrel, or raccoon, or the birds commonly known as blackbirds, regardless of sex or age, which he may find on such lands actually engaged in the material destruction of cultivated fruit trees, cultivated crops, vegetables, livestock, poultry or bee-hives, or in the case of red squirrels or blackbirds destroying either the eggs or young of protected or game birds; or from destroying such animals or birds anywhere on the property under their control immediately following such destruction, or where the presence of such bird or animal on any such aforesaid cultivated lands or in any such aforesaid fruit orchards is just cause for reasonable apprehension of additional imminent destruction. Any such person shall, upon request of any representative of the board, produce satisfactory evidence that material damage has been done within thirty days, and that there was just cause for reasonable apprehension of additional imminent destruction by the species of animal or bird killed, except in the case of red squirrels and blackbirds; and in the case of elk, deer or bears shall report such killing within twenty-four hours, either verbally or in writing, to the nearest game protector or the office of the board at Harrisburg, and shall immediately remove the entrails, hang up and care properly for the carcass of any such animal killed for delivery to anylcharitable institution designated by such officer or board. Failure to produce satisfactory evidence of material damage, or lack of reasonable cause for apprehension of additional imminent destruction, or failure to make the report herein required, or dress and care for such carcass properly, unless retained for food, or use, in the manner herein specified, all edible portions of a carcass retained for food, shall subject any person killing any animal or bird herein named, or using or having in possession any portion of the carcass in any manner contrary to this section, to the full fine hereinafter provided for unlawfully killing or having in possession such animal or bird, or part thereof.”

It is contended that the provisions of the above act are contrary to article x, section 1, of the Constitution of Pennsylvania, which provides that “All men . . . have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property.”

When Judge Gillan wrote the opinion in Com. v. Gilbert, 5 D. & C. 443, the Act of May 24, 1923, P. L. 359, had not then been amended as is quoted above. The matter before him was an appeal from a conviction before a justice of the peace for having shot and killed a doe deer. The property therein alleged to have been defended against destruction by the deer killed was an apple orchard containing over 5009 trees, most of them in bearing condition. The subject for Judge Gillan’s consideration in the case cited was the killing of a deer by the owner of land alleged to have been damaged by such animal and not the failure to report such killing as is the subject in the instant case. We fully concur in the learned judge’s conclusions that “the owner of real estate has an indefeasible right to destroy a deer when necessary to protect his crop” and that “any legislation which undertakes to deprive him of that right contravenes the Constitution.”

The defendant in the instant case was not arrested for killing deer. It is for his failure to report such killing that he is now before us. The Act of May 14, 1925, P. L. 752, expressly allows the killing of deer which have been found destroying private property specifically mentioned therein. The property admitted to have been destroyed in this case comes within the kinds of property mentioned in such act. The right to kill is not confined to the owner of the land, but has been extended to lessees, members of the family of such owners or lessees and to the employees of such owners or lessees. The fact that the defendant was a lessee of the owner has been admitted. That the Act of 1925 contravenes the Constitution by preventing or obstructing the enjoyment and defense of the life and liberty of our citizens or their right to acquire, possess and protect their property has not been and cannot be seriously contended. On the contrary, full and complete permission or authority so to act has been specifically ratified, confirmed and conferred by such legislation. The defendant now before us, however, contends that the provision in said act which requires such owner, lessee, member of the family of owner or lessee, or employee of owner or lessee, to report such killing to the nearest game protector or to the office of the Board of Game Commissioners at Harrisburg within twenty-four hours after such killing is an unreasonable exercise of the police power of the Commonwealth, and that it, therefore, contravenes the Constitution. With this contention we most emphatically disagree.

With the founding of our Commonwealth and its early settlement came the unrestricted right to hew from our hills and plains the virgin timber. Without hindrance as to time when or the manner in which it was done our forefathers killed the game existing in our colonial forests. This was necessary to provide shelters for our settlers and to furnish food with which to sustain life. As our population increased and our modes of living advanced came a serious decrease of the natural advantages of our forests. Our hills were denuded of their stately trees and our wild life failed to properly survive the march of civilization. With a realization of the fact that a continuance of such depletion of our timber and our game would seriously impair the welfare of our people came governmental regulation of these most vital matters. That such was a proper exercise of governmental authority, hindering or preventing in no manner the life or liberty of our citizens or their right to acquire, possess and protect property, but on the contrary advancing such interests, has never been seriously questioned.

Much interest has been manifested, not only by those in authority in our Commonwealth but' by our citizens individually, in the propagation and protection of our game. Proper and valid laws have been enacted, the purpose of which has been to encourage our wild life in general. Restrictions have been placed upon the times when and the manner in which our citizens and those from other states shall pursue this wild life within our borders. Our statutes have provided that before any one can legally hunt in our hills and valleys they must first establish their right so to do by qualifying for and obtaining a proper license. The manner in which such license shall be worn or exhibited has been provided by statute. The privilege of hunting has been restricted to American citizens and the right to possess firearms denied to all aliens in a desire to advance the interest of our game. Even the kind of firearms which shall be used by our hunters and the kind of ammunition to be used therein have been restricted by our statutes. Dogs which pursue deer have been required to answer with their lives for such annoyances caused by them. All these regulations have been imposed, not arbitrarily, but with the purpose of preventing the elimination of wild life from our State, and the consequent benefit to our citizens at large by way of healthful recreation, supply of food and the general betterment of both State and people. None of these regulations have been challenged as being unreasonable exercises of the police power of the Commonwealth. See Com. v. Papsone, 44 Pa. Superior Ct. 128; Com. v. McComb, 227 Pa. 377.

Having for its purpose the general good of our State and people, and having enacted the safeguards mentioned and others, our legislature has in its wisdom seen fit to enact the requirement that after an owner, lessee, member of the family of owner or lessee, or employee of owner or lessee, has killed a deer alleged to have caused damage to property, he shall make report of such killing to the nearest game protector or to the office of the Board of Game Commissioners at Harrisburg, Pa. This is for the sole purpose of enabling such commission to ascertain, as a matter of fact, whether or not the constitutional right of the person killing such animal has actually existed at the time of such killing. This imposes no hardship upon such person, and is an act which should be willingly done by any citizen actually interested in the advancement of respect for law and the maintenance of good government. With the broadened scope of our rural delivery, one cent enables the party concerned to remain a law-abiding citizen, should the location of the nearest game protector be inaccessible on the happening of such an event. To open the door to the killing of our wild life and to permit the promiscuous killing of deer by owners, lessees, members of the family of owner or lessees, or by employees of owners or lessees, under the guise of the constitutional right mentioned above, without enabling that branch of our government charged with the protection of our game and the enforcement of laws relating thereto to investigate and check upon such alleged claims, would be to create such a chaotic condition as would render naught all protection heretofore thrown about our wild life for the good of our State and its people.

The defendant in the case before us admits his failure to make the report as required by the act. He attempts to justify his position by saying that he had reported former killings to the game protector and did not consider it necessary to further comply with this requirement. Such contention is further evidence of the necessity of the check-up or investigation by the Game Commission provided for in the act. Were such an excuse to suffice, it would be reasonable to expect a further excuse that the party in question or others killed deer, not because they damaged crops, but because such person might be of the opinion that such damage might ensue, other deer having formerly damaged crops elsewhere, and so on until a condition of complete disregard of governmental restriction would prevail.

We hold that the provision requiring the reporting of the killing of a deer, by the owner or lessee, member of the family of the owner or lessee, or employee of owner or lessee, to the nearest game protector or to the office of the Board of Game Commissioners at Harrisburg within twenty-four hours after such killing is a reasonable exercise of the police power of the Commonwealth and does not contravene the Constitution in any respect.

We, therefore, find the defendant guilty. Before dismissing the appeal herein, we must further consider the amount of the fine imposed by the justice of the peace in this case. The information made was for the failure to report one deer. The evidence shows that at the hearing the defendant admitted to the game protector and to the justice of the peace that he had killed and failed to report ten or twelve other deer under similar circumstances; that thereupon an agreement in writing was entered into between the defendant and two game protectors that, as a compromise, the defendant would pay the fine for five deer, amounting in all to $515. We note, however, that the penalty imposed upon the defendant by the justice is a fine of $100 and costs of $3.25, and in default of such payment to serve 103 days in the county jail.

It is evident that the justice quite properly took cognizance only of the matter before him, to wit, the failure to report the killing of one deer. Section 1103, article XI, of the Act of May 24, 1923, P. L. 359, provides a means whereby an offending party may acknowledge his guilt, either before or after the beginning of suit, and pay to any duly appointed and commissioned game protector the fine provided by such act, together with the costs accruing to that date. The defendant herein appears, by paper attached to the justice’s record, to have acknowledged his guilt as to his failure to report three deer killed on or about Sept. 19, 1928, one deer killed on or about Oct. 6, 1928, and one deer killed on or about Oct. 10, 1928. Prom the fact that this matter is now before us, we find that defendant denies his liability to pay the stipulated fine and costs for any of these deer. He has not been arraigned for failure to report the three deer killed on or about Sept. 19, 1928, or the one deer killed on or about Oct. 10, 1928. He is before us at this time for having failed to report the killing of one deer on or about Oct. 6, 1928. No legal costs have accrued other than those appearing on the transcript of the justice, which were, before appeal, $3.25, and which are now increased, by reason of the appeal, to $4. In the light of defendant’s present attitude, we are not justified or permitted, under our Constitution, in compelling the defendant †0 pay more than that for which he has been regularly charged under the record before us. The statute of limitations has not run against the other offenses, and if defendant still persists in his refusal to abide by the fair and equitable adjustment consented to by the game protector, further informations can be lodged against the defendant for all such violations as he is alleged to have committed. The defendant can then be accorded a full opportunity for hearing and the matter disposed of under the law and the evidence.

And now, May 3, 1929, the appeal is dismissed and the defendant is sentenced to pay a fine of $100, together with the costs of prosecution and this appeal, or, upon failure to make such payment, to be imprisoned in the county jail one day for each dollar of fine and costs imposed.

From S. D. Gettig, Bellefonte, Pa.


author: Reno, P. J.,

text:
    Stephens v. Lehnert.

      Orrin E. Boyle, for plaintiffs; Butz & Rupp, for defendant and rule.
    May 27, 1929.
   Reno, P. J.,

The suit was instituted on Oct. 29, 1925, and on Oct. 31, 1925, a general appearance was entered for defendant. On March 23, 1927, plaintiffs filed their statement of claim, and on April 12, 1927, defendant filed an affidavit of defense and a counter-claim, to which plaintiffs replied on Jan. 4, 1928. Meanwhile, the case was placed upon the trial list for the January (1928) Term. On Jan. 18, 1928, it was continued “pending settlement.” A settlement was not effected and the case was placed on the trial list for the April (19.28) Term. Before the case was reached for trial, defendant filed a petition, praying that the court “determine preliminarily the question of jurisdiction in the Court of Common Pleas upon an action of assumpsit of the cause of action for which suit is brought and to issue a rule to show cause why such preliminary question should not be disposed of in accordance with the Act of Assembly of March 5, 1925, P. L. 23.” A rule was granted, an answer filed and the question has been argued.

It will have been noted that the petition raising the question of jurisdiction was filed after defendant had entered a general appearance, had filed an affidavit of defense to the merits of the action, had filed a counter-claim, to which plaintiff had replied, and that the case was at issue and on the trial list. It will be noted, too, that the petition was filed two and a-half years after the suit was instituted and more than a year after the filing of the affidavit of defense.

The contract upon which the suit was instituted was executed on Feb. 10, 1920. The cause of action, according to plaintiffs’ allegations, arose on March 28, 1920. The action was instituted within the period prescribed by the statute of limitations, but if plaintiffs are now turned out of this court upon a finding of no jurisdiction, that statute may prove an obstacle to the maintenance of another action elsewhere. To the extent that plaintiffs are imperiled by a threat of a plea of the statute of limitations they have been harmed by defendant’s delay in raising the question of jurisdiction.

This circumstance furnishes the cue for the decision. The Act of March 5, 1925, supra, does not fix a time within which it must be invoked. It does not designate the point in the procedural process when the question must be raised, and because the court is authorized to determine the question “upon the pleadings,” there is, perhaps, room for the argument that the question may be raised even after the defendant has filed his affidavit of defense. But, be that as it may, and upon that phase of the question we venture no opinion, it is patent that the act must be promptly invoked. The dominating purpose of the act is to secure, both below and in the appellate courts, a speedy, independent and final decision of the question of jurisdiction. An appeal lies from the decision of the nisi prius court, but “it must be taken and perfected within fifteen days from the date when the decision is rendered;” the appeal becomes returnable to the appellate court “on the third Monday after it is taken,” and the appellate court is required to place the case “at the head of its argument list for civil causes.” These clauses manifest the legislative desire for speedy adjudication, and that desire should not be thwarted by delay in initiating the proceedings. And in Selmer v. Smith, 285 Pa. 67, under the same act and giving effect to the above-quoted clauses, it was held that ordinarily fifteen days after service will be deemed sufficient time for moving to set aside service of process. It is true that in that case the jurisdiction of the court over the person of the defendant was involved, while in the instant case its jurisdiction over the subject-matter is in dispute; but we think that, even when the jurisdiction of the subject-matter is to be tested in the method provided by the Act of 1925, an application should be made at the first and earliest opportunity.

This requirement becomes more reasonable when we reflect that, after all, a party is not obliged by the act to secure a preliminary decision upon the question of jurisdiction when jurisdiction is dependent upon the subject-matter. The act provides that “a failure to appeal . . . will be deemed a waiver of all objections to jurisdiction over the defendant personally,” and is silent as to the effect of failing to appeal when the subject-matter is involved. Concerning this clause, the Supreme Court has said: “This clearly prohibits the raising of questions as to jurisdiction of the person at any time thereafter; but it has no such effect where jurisdiction of the subject-matter is the issue involved. The right to appeal directly and preliminarily is lost after fifteen days, whether jurisdiction of person or of subject-matter be the question, but, under the act, failure to appeal creates a waiver only in regard to the former; for jurisdiction of the subject-matter cannot be conferred by estoppel. So far as the latter character of jurisdiction is concerned, after the expiration of the fifteen days, the situation is exactly as it was before the Act of 1925, and the interlocutory order of the court below, except as to jurisdiction of the person, may be considered on appeal after final judgment on the merits:” Wettengel v. Robinson, 288 Pa. 362, 367. Accordingly, since the pending petition is not considered upon its merits, defendant may raise the question of jurisdiction subsequently in the proceedings, and ultimately in the appellate courts if the decision of the case upon its merits, including this question, is adverse to him.

Consequently, we hold that a petition for a preliminary determination of a question of jurisdiction under the Act of 1925 must be filed promptly: that is, always within fifteen days after service of the summons, if the purpose of the petition is to'test the jurisdiction of the defendant’s person; and generally within fifteen days after the service of the plaintiff’s statement of claim, if the purpose is to test the jurisdiction of the court of the subject-matter. Unless defendant files his petition within this period, “he will be deemed to have waived the right to do so, [especially] if, by reason of his failure to act thus promptly, the rights, interests or obligations of the plaintiff have been altered for the worse:” Selmer v. Smith, supra.

Now, May 27, 1929, the rule to show cause why the question of jurisdiction should not be determined preliminarily is discharged.

Prom Edwin H. Kohler, Allentown, i?a.


author: Wilhelm, P. J.,

text:
    Lipko’s Estate.

      R. P. Swank, for petitioners.

      M. M. Burke and P. H. Burke, for administrator.
    July 22, 1929.
   Wilhelm, P. J.,

This is the petition of Andrew Lipko, Anna Lipko and George Lipko, heirs-at-law of Michael Lipko, Sr., deceased, which sets forth that the register of wills issued to Michael Lipko, son of decedent, letters of administration.

It is asserted that Michael Lipko was convicted of the crime of incestuous fornication and bastardy in the year 1924 and was sentenced to three months’ imprisonment and to pay for the support of the child and give bond with surety in the sum of $500, and that he has neglected or refused to pay for the support of the child or furnish a bond with surety as directed by the court; that during said trial Michael Lipko testified that he was not a son of Michael Lipko, Sr., although he had the same mother as all the other parties in interest; that the administrator is insolvent and the interests of the estate are jeopardized by his continuing as administrator; and the petitioners ask that the administrator show cause why he should not be removed from his office.

An answer was filed, in which the administrator admits the averments in the first three paragraphs of the petition, but denies his guilt of the crime of which he was convicted. The administrator asserts that he is a son of Michael Lipko and recites the baptismal record of the Greek Catholic Church of Hazleton, Pa., in support thereof, and denies that he asserted at said trial that he was not a son of said decedent. The answer also avers that letters of administration were issued to him by the register of wills; that he has filed in the office of the register a bond satisfactory to the register; that he has filed his inventory and appraisement showing that the personal estate amounts to $180, and that it is his purpose to administer the estate lawfully, carefully and honestly.

No authority has been cited in support of the proposition that an administrator should be discharged after he has been duly appointed and qualified because he was convicted several years before of a crime and where it has not been shown that the interests of the estate are in jeopardy.

At the hearing it was asserted by the petitioners that they would withdraw their objection to the administrator acting in his fiduciary capacity if the administrator would make certain payments to one of the parties in interest claimed to be due and owing.

This action would indicate that the petitioners do not really believe that the interests of this estate are jeopardized in the hands of this administrator.

Under the facts as related, it cannot be said that sufficient cause has been shown for action on the part of the court, and the petition should be dismissed.

And now, July 22,1929, the petition is dismissed.


author: Potter, P. J.,

text:
    Advance-Rumely Thresher Co. Inc. v. Frederick.

      Andrew A. Leiser, for plaintiff.

      Cloyd Steininger and H. W. Cummings, for defendant.
    Aug. 19, 1929.
   Potter, P. J.,

The defendant entered into a written lease, under seal, with the plaintiff, dated Feb. 15, 1929, under the provisions of which the plaintiff leased to him, to be shipped on or about March 15, 1929, one oil pull tractor rated 15, traction H. P. 25, for the term of twenty-one months, beginning Feb. 15, 1929, and ending Dec. 30, 1930, at a rental of $870, which was to be paid as follows: $170 on delivery of the tractor, $100 on Oct. 1, 1929, $250 on Dec. 15, 1929, and $350 on Dec. 1, 1930, and, in addition to which, he was to deliver to the plaintiff one 12.20 oil pull. All deferred payments to be secured by judgment exemption notes, to be delivered to the plaintiff at the date of the delivery of the tractor to the defendant.

On May 10, 1929, the plaintiff caused the above-stated judgment to be entered against the defendant in the sum of $870, with attorney’s commission, costs, &c., by virtue of a warrant of attorney in the said lease contained, on which a writ of fi. fa. was issued and levy made on his personal property. On June 3, 1929, on his petition to us presented, we granted a rule on the plaintiff to show cause why the said judgment should not be stricken off, and to show cause why the plaintiff, being a corporation from another state, should not enter security for costs. No affidavit of default or other paper was filed with the lease in court.

We are asked to strike off this judgment for the following reasons:

1. No affidavit of default or statement of claim showing the amount due, if any, was filed by the defendant [should be plaintiff] at the time of the entry of the said judgment.

2. There is nothing appearing of record showing that the machinery mentioned and leased in the contract hereinbefore referred to was delivered to the defendant.

3. The contract or lease hereinbefore referred to requires the payment by the defendant to the plaintiff in the sum of $170 at the time the machinery mentioned in the said lease or contract was to be delivered to the plaintiff. Nothing appears of record showing that the said sum of $170 was not paid.

4. That, so far as the record in this case shows, nothing is due by the defendant to the plaintiff upon the lease, contract or obligation mentioned.

5. That from a perusal or examination of the obligation, lease or contract in this case, it is impossible to determine what, if anything, is due on the said obligation, or that there was default in any respect on the part of your petitioner.

6. That the warrant of attorney contained in the obligation, lease or contract hereinbefore mentioned is a conditional warrant of attorney and authorizes the confession of judgment upon the happening or non-happening of certain events. There being no affidavit of default nor a statement of claim filed alleging the happening or non-happening of the events contained in the conditional warrant of attorney, the judgment entered thereon was illegally entered, is void, of no effect, and should be stricken from the record.

7. On the face of the record, there is nothing at this time due the plaintiff from the defendant.

• 8. On the face of the record, no default appears.

9. Because, it being impossible to determine from the face of the record the amount due on the lease or contract upon which judgment was entered, or that any amount was due, then, before a valid judgment could be entered, an averment stating in what respect default had occurred must be filed and appear of record.

10. The lease or contract in question, as it appears of record, shows that it must be accepted by the plaintiff company. There is nothing of record to show that it was accepted.

We think these reasons given in support of the rule to strike off the judgment are well taken. We have no hesitation in saying that, in our judgment, this is a conditional lease and warrant of attorney. It reads as follows: “If lessee shall, fail or refuse to receive the goods above described and to settle for the hire thereof at the time and in the manner aforesaid, then, in that event, lessee, jointly and severally, empowers any attorney or any prothonotary of any court of record in Pennsylvania to appear for him and with or without declaration confess judgment against him and them (if more than one) in such court for the sum of eight hundred seventy dollars, payable one day after date, with costs of suit and five per cent, collection fees, waiving stay of execution, right of appeal, errors, inquisition and exemption laws.”

By the terms of this warrant of attorney, if the lessee fails to do certain things, judgment may be entered; and, conversely, if he does those certain things, judgment cannot be entered. As we have before said, when this judgment was entered, nothing was filed but the lease. There was no obligation nor affidavit of default filed. How, then, are we to know whether or not he is in default in the performance of those things? We are of the opinion that an affidavit setting out the default of the defendant, if any, should have been filed. Where a warrant in a bond authorizes an attorney of record to enter judgment after default, failure to aver default on entry of a judgment is fatal, and the judgment will be stricken off: Kolf v. Lieberman, 282 Pa. 479.

In the case before us, the language is “If the lessee (defendant) shall fail or refuse,” &c. This very plainly indicates that in the performance or the non-performance of the conditions of the lease there must be either a default or no default, and from the bare lease, with nothing more, there is nothing to indicate which.

It is contended by counsel for the plaintiff that should there have been any defect in the judgment entered, which he denies, it is cured by the “waiver of errors” contained in the warrant of attorney. We cannot concur in this contention. A waiver of errors operates only on irregularities in the proceeding apparent in the record; it does nob supply lack of power to proceed: Disanto v. Rowland, 83 Pa. Superior Ct. 155; Philadelphia v. Johnson, 23 Pa. Superior Ct. 591, affirmed in 208 Pa. 645; Fogerty v. Dix, 75 Pa. Superior Ct. 214. And a judgment entered under a power of attorney which requires parol evidence to determine the amount of it is void and should be struck off. The instrument on its face must show the authority for the acts done under and by virtue of it. Where the judgment is irregular on its face, the remedy is to strike it off, not to open it: Sayers v. Redbank Telephone Co., 25 Dist. R. 655; Essrig v. Greenburg, 5 D. & C. 183. A release of errors does not reach the defect of a lack of authority to proceed, but operates only on errors or irregularities in the proceedings apparent on the record: Philadelphia v. Johnson, supra. Such waiver and release is not the waiver of the right to have inquiry made into the power of the lessor to enter judgment at all. What it does is to release to the lessor all errors or defects in the judgment or in causing the writ to be issued: Curry v. Bacharach Quality Shops, Inc., 271 Pa. 364.

So far as concerns this rule as relates to security for costs, we think our rule of court (New Rules, page 21, rule 1) covers this contention. We do not think that under this rule security for costs can be demanded at this stage of the proceedings.

We think we have covered the chief reasons set up by the defendant in his petition why the judgment should be stricken from the records, and, in view of our proposed disposal of the question, we deem further discussion unnecessary.

We might go on and discuss the reasons set up in the petition of the defendant seriatim, but we think we have discussed sufficiently the reasons which, in our judgment, warrant us in entering the following decree:

And now, to wit, Aug. 19, 1929, the rule is made absolute, and it is ordered and directed that the judgment complained of in these proceedings be stricken from the records of this court. As to the same rule requiring security for the costs, it is discharged. An exception is noted for both the plaintiff and for the defendant.

From A. Francis Gilbert, Middlebur^, Pa.