text:
    Waer Bus Company, Inc., et al. v. City of Easton et al.

      Aaron Goldsmith, for complainants.

      Newton B. Turner, City Solicitor, for defendants.
    Oct. 22, 1928.
   Stewart, P. J.,

We issued a preliminary injunction restraining the defendants from interfering with the complainants parking their motor-busses on the streets of the City of Easton which are open and used by other vehicles for parking purposes. The defendants filed an answer, and the parties, by writing filed, agreed that the case should be heard on bill and answer as on final hearing. On March 21st last we filed an opinion which passed on an ordinance and certain traffic rules or regulations of the City of Easton, which compelled the complainants to use certain streets of the City of Easton. We held that section 1035 of “The Vehicle Code” of May 11, 1927, P. L. 886, repealed the same. That case is reported in 21 North. Repr. 223, 11 D. & C. 391. It will not be necessary to re-examine the authorities referred to in that opinion. The bill in the present case sets forth that the complainants had been assigned by the City of Easton a terminal on the west side of North Third Street, between Centre Square and Church Street, and that that terminal had been advertised and was well known as the terminal from which people traveling to Martin’s Creek took complainants’ auto-busses, and that the complainants had used it for a period of three years; that the City of Easton, on June 5, 1928, adopted an Ordinance, No. 704, the title of which is as follows: “An Ordinance establishing Public Parking Zones for MotorBusses Operating in, through, to and from the City of Easton, providing rules and regulations in relation thereto and penalties for the violation of’the provisions of this Ordinance,” which ordinance was amended by Ordinance No. 711, adopted on Aug. 8, 1928, which amended ordinance is entitled as follows: “An Ordinance Amending Section 2 of Ordinance No. 704, File of City Council of the City of Easton, Pa., adopted June 5, 1928, entitled ‘An Ordinance establishing Public Parking Zones for Motor-Busses operating in, through, to and from the City of Easton, Pa., providing rules and regulations in relation thereto and penalties for the violation of the provisions of this Ordinance.’” Ordinance No. 704, in sections 2 and 3, provided as follows: “Section 2. That portion of the cartway along the sidewalk of North and South Second Street, on the east and west sides of the same from Northampton Street to Pine and to Church Streets, or such portions as may be deemed necessary and so indicated by proper signs erected by order of the Bureau of Police, are hereby designated and set apart as space for the parking of busses. The parking of other vehicles within the spaces so designated for busses is hereby prohibited, except between the hour at night when the last scheduled bus shall have left and one hour previous to the arrival of the first scheduled bus in the morning.

“Section 3. Nothing in this ordinance shall prevent the stopping of busses while actually engaged in the taking up or setting down of passengers or merchandise in parking spaces other than the parking spaces herein designated or authorized, unless otherwise restricted by the rules, regulations, laws or ordinances of the City of Easton and the Commonwealth of Pennsylvania. The establishment of ‘bus’ offices or booths shall not carry with it any right for a parking at such office or booth.”

Ordinance No. 711 amended section 2 as follows: “Section 2. That portion of the cartway along the sidewalk of North and South Second Streets, on the east and west sides of same from Northampton Street to Pine and to Church Streets, or such portions as may be deemed necessary and so indicated by proper signs erected by order of the Bureau of Police, are hereby designated and set apart for the parking of busses, and busses are hereby prohibited from parking on highways of the City of Easton other than at designated places for such parking. The parking of other vehicles within the spaces so designated for busses is hereby prohibited, except between the hour at night when the last scheduled bus shall have left and one hour previous to the arrival of the first scheduled bus in the morning.”

Complainants also aver: “That the City of Easton, by its proper officers, has also set apart and defined the east and west corners of South Third Street and Centre Square, for a distance of about fifty feet on South Third Street, as a parking zone where busses may be parked.” Complainants’ contention is that the City of Easton has no legal authority to prevent complainants from parking their busses on any of the streets of the City of Easton where other vehicles are permitted to be parked. Defendants, in the answer, admit many of the .averments of the bill, but they deny that the complainants ever were assigned a terminal on North Third Street, in the City of Easton, and deny specifically the allegation that the city permitted busses to park on North Third Street. The main question involved in the present case is, Has the city a right to provide by ordinance that busses shall only be parked upon certain portions of a street, and to prohibit the parking of busses on other streets, it being admitted that other vehicles are allowed to park on other streets for various periods of time? Complainants relied upon Rule 10 of the rules or regulations adopted under the Ordinance of July 8, 1919. We discussed that ordinance and those regulations in N. J. Interurban Coach Co. et al. v. City of Easton et al., 21 Northamp. Co. Repr. 223, and we held that by “The Vehicle Code” they had no validity. We said in that case that “The Vehicle Code” changed the entire situation, and we repeat that statement. The Code, in section 102 (pp), defines parking as follows: “ ‘Parking.’- — Every vehicle standing or waiting on any highway not actually engaged in taking up or setting down passengers or merchandise.” Section 1033 provides as follows: “Local authorities, except as expressly authorized by this act, shall have no power or authority to alter any speed limitations declared in this act, or to enact or enforce any ordinance, rule or regulation contrary to the provisions of this act, except that local authorities shall have power to provide by ordinance for the regulation of traffic, by means of traffic officers or semaphores or other signaling devices, on any portion of the highway where traffic is heavy or continuous, and may regulate or prohibit parking, or prohibit other than one-way traffic, upon certain highways, and may regulate the use of the highways by processions or assemblages.” That section expressly confers upon municipalities the power to regulate or prohibit parking. Reading that section in connection with the definition quoted, the city may prohibit parking absolutely, or may regulate it by providing that busses may stand in certain designated places for certain periods of time. Section 1035 has a title, “Rights of Operators on Highways.” The section provides: “Operators of motor-vehicles shall have the same right upon the highways as the drivers of other vehicles, and no highway, open to other vehicles, shall be closed to motor-vehicles.” We made an application of that section in N. J. Interurban Coach Co. et al. v. City of Easton et al., but the situation in the present case is not analogous to the situation in that case. To deprive bus owners of the right to use certain streets is to abridge the operation of motor-vehicles. Parking is the exact opposite of operation. The latter contemplates an obstruction on the streets to their use by “operators.” The two things are entirely different, and we do not think that the principle of law as laid down in Endlich on the Interpretation of Statutes, § 183, as follows: “Where in a statute there are several clauses which present, as compared with each other, an irreconcilable conflict, the one last in order of date or local position must prevail, and the others deemed abrogated to the extent of such repugnancy, whether the conflicting clause be sections of the same act or merely portions of the same section,” applies to the present case. Section 1035 is not a new section. It was referred to by Mr. Justice Elkin in Applewold Borough v. Dosch, 239 Pa. 479, and the same argument was made there that is made here, that it prevented a borough from imposing a license fee on motor-busses. In disposing of the contention, Mr. Justice Elkin said: “The driver of a carriage or wagon or other vehicle drawn by horses may be subjected to a license fee when engaged in a particular kind of business which requires police regulation and subjects the borough authorities to additional expenses as a protection to the public. Why should not the same rule apply to motor-vehicles even when licensed by the State, when the act expressly provides that the owner of the motor-vehicle thus licensed shall only enjoy the same privileges as those possessed by the drivers of wagons and other vehicles drawn by horses upon the public highways? When the owner of a motor-vehicle licensed by the State engages in a particular kind of business for profit in a borough, and conducts it in such a manner as to require additional police protection and necessitates an increase in public expenditures, we can see no reason why the municipal authorities should be denied the power to require the payment of a reasonable license fee for the privilege of conducting such a special business. This is a police regulation intended as a protection to the public, and those who enjoy the benefits should contribute to the cost of such protection.” It should be observed that this case was reversed in White Line Taxi and Transfer Co. v. South Brownsville Borough, 291 Pa. 478, because of subsequent legislation, but the reasoning of Judge Elkin remains unchanged. In Jitney Bus Ass’n of Wilkes-Barre v. City of Wilkes-Barre, 256 Pa. 462, Mr. Justice Potter said on page 468: “as to the right of the municipality to regulate, in the interest of public safety, the running of jitneys, as well as all other traffic upon the public streets, we have no doubt. The only question in such case is whether the requirements of an ordinance for that purpose are reasonable and not unduly burdensome. Regulation is not to be carried to the extent of prohibition. A jitney is an automobile, and by universal custom automobiles are permitted to use the streets of cities as are other vehicles. The fact that the owners of jitneys derive a profit from their operation makes no difference in their legal status. Much of the traffic upon the city streets is a matter of profit, directly or indirectly, to those engaged therein. The public highways are for the use of those engaged in commerce or industrial pursuits, no less than fpr pleasure ears. But if, from the usual manner of operating certain vehicles, the public safety is endangered, the right and duty of special regulation is clear.” The best summary of reasons which would prevent the City of Easton from adopting this ordinance is found in the opinion of the learned President Judge Shull in Com. v. Rinker, 4 D. & C. 357, but it must be remembered that that case was an appeal from a summary conviction. On page 358 the opinion states: “It was admitted at the time of argument in this case that the car in question was not operated as a jitney in the sense that it followed a designated route, but that it was an automobile of the type commonly known as a touring car, and was operated under a certificate of public convenience, granted by the Public Service Commission of Pennsylvania, as an autobus. It was further admitted that the cars operated by this defendant and John Bevil, another defendant in a similar action at this time before us, were of the types commonly known as touring car and sedan.” Again, the learned judge said: “This ordinance, i. e., No. 179, is not directed to the regulation of the operation of automobiles using the highways as common carriers, but to the keeping of certain streets free of obstruction. Nor can this class of automobiles be classified with those engaged in the carrying of passengers over designated routes or between given points, for their purpose and use is widely different.” It shows clearly that he recognized the difference between automobiles in the case before him and auto-busses, such as are used in the present ease.

We have examined 42 Corpus Juris, 623, et seq., and the cases which are referred to in the Century Digest, title “Municipal Corporations,” § 703. It would be useless to cite the cases therein contained. Excellent opinions can be cited to support either of the views advanced by the learned counsel in this case. One line of decisions holds that municipalities have a right to confine jitneys or auto-busses to particular streets. As an illustration, see Red Star Motor Drivers’ Ass’n et al. v. City of Detroit et al., 208 N. W. Repr. 602, and the many cases therein referred to. Another line holds just the opposite. See City of Ballinger et al. v. Nichols et al., 297 S. W. Repr. 480. We are inclined to think that the weight of authority, in the absence of legislation like “The Vehicle Code,” which we held controlling in N. J. Interurban Coach Co. et al. v. City of Easton et al., supra, would give wide authority to municipal authorities in the control and regulation of traffic on public streets, and we think there is nothing in “The Vehicle Code” which makes the present ordinance unreasonable or void. There is no discrimination as against different bus owners, which would be one of the tests in declaring it unreasonable: Bothwell v. York City, 291 Pa. 363.

It is also objected that sections 6 and 7 of the ordinance are void. That contention must be sustained. We have set out the title supra. There is nothing in it which gives notice of the subject-matter of sections 6 and 7, and those sections are clearly in violation of section 2 of article iv of the Act of June 27, 1913, P. L. 568, which is as follows: “No ordinance shall be passed by council except by bill, and no bill shall be so altered or amended on its passage through council as to change its original purpose. No bills, except general appropriation bills, shall be passed containing more than one subject, which shall be expressed in its title.” While it is not set forth in the bill, yet, upon the argument, it was suggested that the ordinance was void because section 9 of the ordinance, referring to penalties for its violation, was in conflict with “The Vehicle Code.” That Code provides, in section 1203, for various fines, ranging from $50 to $2, for violations of various sections of the act. None of them has any reference to the subject-matter of this ordinance. Section 1204 is as follows:

“(a) All prosecutions for offenses defined in this act, except as otherwise herein provided, committed by any person, shall be brought under this act, and not under any local ordinance, rule or regulation.
“(b) All prosecutions instituted under local ordinances, rule or regulation, which are based on acts for which there is a specific penalty provided in this act, shall be deemed and considered as having been brought under this act.”

It is manifest that those sections have no reference to the provisions of this ordinance. We think there is nothing in “The Vehicle Code” that interferes with section 9 of the ordinance. This ordinance, by section 10, provides as follows: “Each section of this ordinance and every part thereof is hereby declared to be an independent section or part of a section, and if any section, sub-section, clause or phrase of this ordinance shall for any reason be declared unconstitutional or invalid, the validity of the remaining phrases, clauses, sentences, sub-sections and sections of this ordinance shall not be affected thereby and shall be effective and in full force.” That is a correct statement of the general rule of law, that the mere fact that certain sections of an act or of an ordinance are void does not affect the validity of the remainder. The rule is stated in Minsinger v. Rau, 236 Pa. 327, 336, as follows: “A title need not be an index; it must not be misleading, but if it fairly gives notice of the subject and substance of an act, it is sufficient. A short general comprehensive title is more desirable than a long one which attempts to point out all the details of a statute. If there are provisions not covered by the title, they do not affect the validity of the act as a whole unless they are vital in character, and it is apparent that without them the lawmakers would not have enacted the legislation.” It is, therefore, by section 10, declared that the municipal authorities intended to legislate on those matters separately and not as a whole; so that, excluding sections 6 and 7, the remainder of the ordinance must stand.

And now, Oct. 22, 1928, this cause came on to be heard at this term upon final hearing, and, upon consideration thereof, it is ordered, adjudged and decreed that the preliminary injunction heretofore issued be dissolved and the bill dismissed, at the costs of the complainants.

Prom Henry D. Maxwell, Easton, Pa.


source: Caselaw Access Project

author: Finletter, P. J.,

license: Public Domain

text:
    Philadelphia v. Hadley, City Controller.

      A. T. Ashton, City Solicitor, G. Coe Farrier and Ernest Lowengntnd, Assistant City Solicitors, for plaintiff.
    Defendant, P. P.
    July 6, 1929.
   Finletter, P. J.,

The City of Philadelphia proposes to condemn certain properties for public use under the provisions of the Act of May 3, 1927, P. L. 508; and in that connection presented a petition, under the Act of May 21,1921, P. L. 1054,-to bring about the determination by the court of what part (if any) of the properties to be purchased might reasonably be expected to produce earnings sufficient to carry bonds upon which it is proposed to raise the money needed to pay for the purchased property.

It is required by the Act of 1921 (supra) that such a petition shall be made by the Mayor and “attested by the City Controller and by the head of the department of the city government having management of such improvements as to the matters within their special knowledge and control.”

The Mayor has signed and sworn to the petition; and it has been attested by the head of the proper department, but not by the Controller. That officer, upon presentation of the petition to him with a request that he attest it. declined to do so.

The City has caused a writ of alternative mandamus to issue, directed to the Controller, to compel his attestation. To this he returned that he cannot attest the petition because he has not sufficient knowledge of the facts needed as a basis for an opinion; and that, from what he does know of the subject, he could not attest the averments of the petition presented to him.

We have been referred by the plaintiff to many decisions in which the duties of the controller are defined, and the dividing-line between his ministerial and his judicial duties has been drawn with respect to city contracts, claims against the city and other subjects. Except in a general way, and to establish the principle that the duties of this office are statutory and that the language of the statutes in question must be the criterion of the decision, the cases cited are not determinative of the instant case.

The duty, the performance of which is sought to be enforced by this writ, is a new one created by the Act of 1921. The subject before us, therefore, is the interpretation of that statute.

Its pertinent provisions are:

“Section 1. Be it enacted, etc., That whenever the City of Philadelphia shall have incurred or is about to incur any debt or debts for, and the proceeds thereof shall have been or are about to be invested in, any public improvements of any character, or in the construction, purchase or condemnation of any public utility, or part thereof or facility therefor, which, either separately or in connection with any other public improvement or public utility, or part thereof, may reasonably be expected to yield revenue in excess of operating expenses sufficient to pay the interest and sinking fund charges thereon, the city may, at any time and from time to time, present its petition to any of the courts of common pleas of the county in which such city is situated for the purpose of having determined the amount of its debt which may be deducted from its indebtedness in ascertaining the borrowing capacity of the said city as provided in section 8, article ix of the Constitution of the State of Pennsylvania, as amended. The said petition shall contain an enumeration of any such public improvement or improvements, public utilities, part or parts thereof and facilities therefor, so reasonably to be expected to yield such revenue, the amount of indebtedness which shall have been incurred or is about to be incurred for such public improvement or improvements, public utilities, part or parts thereof and facilities therefor, the average rate of interest and sinking fund charges payable upon the indebtedness incurred by said city as to each of such improvements, public utilities, part or parts thereof and facilities therefor, and such other facts as may show or tend to show that the operation of the said improvements, public utilities, part or parts thereof and facilities therefor, whether operated separately or in connection with any other public improvement or public utility, or part thereof, may reasonably be expected to yield revenue in excess of operating expenses sufficient to pay the interest and sinking fund charges thereon, and together with such other information as may be pertinent to the ends of the inquiry. The petition herein above provided for shall be made and sworn or affirmed to by the mayor, and shall be filed by the city solicitor, having first been attested by the city controller and by the head of the department or other branch of the city government having the management of such improvements, as to the matters within their special knowledge or control, respectively.”

The scheme of the act is plain: When a purchase of income-producing propery is contemplated, and an issue of municipal bonds is needed in that connection, it is important, under the amendment of Nov. 2, 1920, to article ix, section 8, of the Constitution, to know whether the property bought will be self-supporting. If it is, in whole or part, it is not to be included in the municipal debt, or only so to the extent that it will not carry the bonds issued. This question is to be determined by the Court of Common Pleas according to the procedure prescribed by the statute. This, it appears to us, presents an eminently practical and sensible plan. The facts are to be set out in a petition by the Mayor, as the executive head of the City, the data on the engineering side of the matter are attested by the head of the department, who presumably is familiar with the practical questions involved, while the City Controller is asked to give his attestation on the financial side.

The plaintiff emphasizes the fact that the question is for the court, and would draw the inference that this relieves the signers of the petition from the duty of forming any judgment on the proposition. True, the decision is ultimately for the court, but only so after the facts have been presented to it in such a way as to raise the question and give it jurisdiction; that is, by a petition containing all the pertinent data, averred by all the prescribed parties to the petition. It is only when the petition so executed is presented that jurisdiction is acquired. In other words, the question must be raised by proper pleadings required by the statute before the court may undertake its determination. The act expressly so provides when it calls for a decision of the court “after hearing the allegations and proofs.” The fact that the duty of deciding the question rests upon the court does not relieve the plaintiffs from asserting their claim in the prescribed form; that is, by petition duly attested.

The values involved may be, and in this instance are, large. The problems are both for the engineer and the financier. The court, if we understand the scheme of the act, is entitled to the averment, by all the responsible officials named in the statute, that the plan is practically feasible and financially sound, before engaging in any discussion of it. This is apparently what was intended when it was required that the engineer and the officer in charge of the city’s finances shall attest “as to matters within their special knowledge and control.”

The first question is whether or not the issuance of the bonds and the earning capacity of the property to be acquired with their proceeds are within the “special knowledge” and “control” of the City Controller? And the second question is, what sort of an attestation must be made by him?

Regarding the first question: It is assumed that the phrase “special knowledge” refers to knowledge the Controller has by virtue of his office. “Control” refers to his official power. As we have said, his office is statutory. We must look, then, to the statutes for the limits of his official knowledge and control.

A reading of the latest amendment of the charter of the City, the Act of June 25, 1919, P. L. 581, in which the duties of the City Controller are defined, shows the large part he has in the fiscal affairs of the City, and particularly in the care for the municipal debt. His estimates of the City’s resources, of its assets and liabilities, are the bases for the annual budget he is required to estimate and report to the Mayor upon the borrowing capacity of the City; his estimates are also required in connection with the extinguishment of floating indebtedness, and he, with other officers, negotiates temporary loans. Finally, he is a member of the Sinking Fund Commission.

It is plain, then, that the finances of the City, and especially the subject of the municipal debt, are within his “official knowledge” and much of it within his official “control.”

The subject, then, being within his “special knowledge and control,” what sort of an attestation does the statute require? If the facts involved are merely statistical figures, as they appear upon his books, a mere balance sheet, his attestation would be purely ministerial, and the courts might by mandamus compel his attestation. But if the subject involves his financial judgment, he is beyond the reach of the court.

The plaintiff’s position is that the duty in question is ministerial. Paragraph 8 of the petition avers:

“Your petitioner is advised by counsel, believes and therefore avers that the attestation provided for by the above-quoted part of section 1 of the Act of May 21, 1921, is a ministerial duty, enjoined upon the City Controller of the Gity of Philadelphia, and that his failure to so attest is illegal, wrongful and in violation of his duty as City Controller.”

But obviously the attestation of the petition involves an exercise of skilled financial judgment. It is whether certain properties may in the future for fifty years be reasonably expected to yield a given return. The very phrase used shows that what is expected is an exercise of the reason. It is not a statement of an existing fact. It is not a statement of the money value of a certain property today. The broker’s ticker would tell him that. It is what, on a consideration of that which now exists and that which in the exercise of sound judgment is likely during the next fifty years to happen, will be the return on certain property. The mental operation involved is not that of the book-keeper who totals a column, but of the financial expert who exercises his judgment about future values.

We regard the determination of what 'a property may reasonably be expected to return during the next fifty years as a question requiring a nice exercise of judgment and great financial skill. The attestation of that judgment is not a ministerial act whose performance may be compelled by mandamus.

It is to be noted that the plaintiff, in its petition for the writ of mandamus, does not complain of the failure of the Controller to exercise his discretion, but, in effect,'alleges that he has no discretion in the premises, and avers that “the attestation provided for in the Act of-1921 is a ministerial duty, enjoined upon the City Controller, and that his failure to so attest is ... in violation” of this duty.

We do not, therefore, have the question of the failure of a judicial officer to render a decision. No doubt if, with a duty to decide, he declined to do so, he would be compelled to act. But that question is not before us. We are asked to compel him to attest as a ministerial act, and, as we have said, we do not regard the attestation to be ministerial.

We, therefore, overrule the demurrer.


author: Lewis, J.,

text:
    First Mortgage Guarantee Company of Philadelphia v. Powell.

      M. J. Markmann, for plaintiff; George Cascaden, for defendant.
    May 20, 1929.
   Lewis, J.,

We understand that the defendant has made an additional point in this case that the plaintiff is not entitled to receive the attorney’s fee provided for in the terms of the bond upon which judgment was entered in this case by the prothonotary under the authority of the Act of Feb. 24, 1806, § 28, 4 Sm. Laws, 278. The bond specifically provides for an attorney’s fee of 5 per cent., and defendant admits that if the plaintiff, as mortgagee, upon default, had foreclosed by means of a writ of sei. fa. sur mortgage, or had caused an appearance of counsel to be entered for defendant and judgment confessed under the provisions of the warrant of attorney contained in the bond, the counsel fee would be properly allowable. Having chosen, however, to proceed under the Act of Feb. 24, 1806, § 28, 4 Sm. Laws, 278, plaintiff is, according to the contention now made, not entitled to receive any attorney’s fee whatsoever. The basis for this contention is to be found in the last clause of section 28 of the 1806 statute. The entire section reads as follows:

“And be it further enacted by the authority aforesaid, That it shall be the duty of the prothonotary of any court of record within this Commonwealth, on the application of any person being the original holder (or assignee of such holder) of a note, bond or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney-at-law, or other person to confess judgment, to enter judgment against the person or persons who executed the same for the amount, which, from the face of the instrument, may appear to be due, without the agency of an attorney, or declaration filed, with such stay of execution as may be therein mentioned, for the fee of one dollar, to be paid by the defendant; particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment obtained in open court, and in term time; and the defendant shall not be compelled to pay any costs, or fee to the plaintiff’s attorney, when judgment is entered on any instrument of writing as aforesaid.”

The defendant’s claim is without foundation. The language relied on by the defendant in the 1806 statute provides only that a defendant in a judgment entered by the prothonotary under its terms shall not be obliged to pay “any costs or fee to the plaintiff’s attorney.” This manifestly refers to the fee to which plaintiff’s attorney would otherwise be entitled under the fee bill; attorneys are usually entitled to this as officers of the court: see Pittsburgh v. O’Brien, 239 Pa. 60.

The purpose of section 28 of the Act of 1806 is stated in the early. Supreme Court case of Helvete v. Rapp, 7 S. & R. 306 (1821), wherein it was said: “The extent and sole intention of the legislature, in conferring the power of entering a judgment on the judgment bond without the intervention of an attorney, was to exempt the obligor from the payment of costs to an attorney.” This does not mean, however, that the defendant cannot, by specific agreement, confer upon the plaintiff the right to be reimbursed for counsel fees. It is well established that attorneys’ commissions provided for in a judgment bond are part of the judgment (Miller v. Miller, 147 Pa. 548 (1892); Daly v. Maitland, 88 Pa. 384 (1879); and they, accordingly, belong to the plaintiff: Harper v. Consolidated Rubber Co., 284 Pa. 444 (1925); Klein, Judgment by Confession in Pennsylvania (1929). This commission is not part of the costs and is to be distinguished from the judgment fee, which does belong to the attorney, not to the client. As to the latter, see Pennsylvania Law of Costs and Fees, 19, et seq.


author: Martin, P. J.,

text:
    Taheny’s Estate.

      B. B. Olmstead, for plaintiff; H. M. Bumsey, for defendant.
    March 1, 1929.
   Martin, P. J.,

A petition was filed by John J. Cunningham, averring that on March 12, 1910, Dominick Taheny executed a declaration that property, specifically described, was held by him as trustee during 'the lifetime of Robert C. Cunningham, the settlor, and upoji the death of Robert C. Cunningham, in trust to pay the net income to John J. Cunningham during his natural life, and upon the death of John J. Cunningham, to distribute the corpus of the trust estate to Robert C. Cunningham, Jr., and Sarah C. Trimble; that Robert C. Cunningham died Sept. 4, 1911, and Dominick Taheny, the trustee, died April 12, 1926, and the Commonwealth Title Insurance and Trust Company was appointed substituted trustee; that vacant lots, located on the west side of Dungan Street, north of Hunting Park Avenue, formed a part of the trust estate; that there were no improvements on the lots and no revenue derived therefrom; that the taxes were paid by the trustee from the income of the trust estate, of which the petitioner was the sole life-tenant; that on June 1, 1928, the lots were sold for $9350; that the taxes advanced by the trustee from other income of the etetate amounted, with interest, to $340.13; that the petitioner, as life-tenant, demanded that the amount of money that had been paid by the trustee should be paid to him for the purchase money received from the lots.

It was averred in the petition that in the year 1910 the value of the land was $1200, and that during the period from 1910 until 1928 various fair and reasonable offers were made to purchase the property; that petitioner urged the trustee to sell, but the remaindermen objected, claiming that the property would increase in value.

It is averred that the lots did increase in value until the sale, and during eighteen years they were maintained and kept intact by advances of taxes by the life-tenant.

A rule was granted on the trustee to show cause why the cost of maintenance of the unproductive real estate should not be refunded to the life-tenant out of the proceeds of the sale of the Dungan Street lots.

An answer was filed by the Provident Trust Company of Philadelphia, averring that it had been appointed trustee in place of the Commonwealth Title Insurance and Trust Company; and that, in addition to personal property of the trust estate, it held the unproductive lots on Dungan Street, the title to which was vested in Dominick Taheny.

The answer admits that the taxes on the lots were paid since the death of Robert C. Cunningham, Sept. 4, 1911, from income derived from personal property of the trust estate, and that there was no other source of income from which taxes could be paid; that at the death of Robert C. Cunningham, these unimproved lots constituted the only realty in the trust estate, except an unimproved lot at the northwest corner of Hunting Park Avenue and Park Avenue, that was sold in March, 1913, realizing $9116.05.

The answer avers that the taxes were paid by Dominick Taheny, the trustee, from 1912 to 1925, from income from the personal property of the trust estate, with the knowledge of the life-tenant and without any protest or objection from.him to the trustee; and that, subsequently to the death of the trustee on April 12, 1926, and after the appointment of the Commonwealth Title Insurance and Trust Company as substituted trustee, by decree of court entered April 8, 1927 (whose successor is the Provident Trust Company of Philadelphia), the substituted trustee paid the taxes for 1926, 1927 and from June 1,1928, in the settlement for the lots, and that the money was paid from income from the personal property of the trust estate, with the knowledge of the life-tenant, and without protest or objection by him.

It is admitted that a demand has been made on the trustee for repayment of the amount representing the taxes from 1912 to 1927, and averred that when the demand was communicated to the parties in remainder, the said substituted trustee was obliged to decline the demand, but advised the representative of the life-tenant that the substituted trustee- was willing to file an account so that the question could be decided.

The answer suggests that the present proceeding is defective, in that the parties in remainder have not been made parties; that the question is one of accounting by the executors of the estate of Dominick Taheny, the deceased trustee; and that the present substituted trustee should file an account of its administration, and the question of the refund of taxes should be submitted to an auditor.

The answer avers that it was the duty of the trustee to pay the taxes from the income of the trust estate, without regard to whether the income was derived from realty or personalty; and that the life-tenant was benefited by the payments, by the conservation and preservation of the trust assets, and now enjoys the income arising from investment of the net proceeds of sales, including the money received from the Dungan Street lots, that has been invested. That the net income from the trust estate between the years 1913 and 1926 was $384 annually, and after 1928 it will be in excess of $900 annually; and $6335.49 has been paid to John J. Cunningham, the life-tenant.

The deposition of John J. Cunningham was taken. He testified that he had asked the trustee to dispose of the lots about 1915, and again in 1926; that he told the trustee in 1915 that the lots should be sold, and the trustee stated it would be a shame to sell them then. He testified to a conversation with Robert C. Cunningham, Jr., the remainderman, in 1928, in which he told the remainderman he was tired of paying taxes, that he would not pay any more, that he was not supposed to pay the taxes, and the remainderman replied that he would sell when he got $12,000.

While there may be no legal obligation on the part of those in remainder to reimburse the life-tenant for the depletion of his income in protecting the vacant property until it became a substantial addition to the corpus of the estate, permission on the part of the remainderman to allow the comparatively small claim to be deducted from the handsome sum realized from the sale of the properties that had been preserved by the payment of taxes would be a gracious act.

It was the duty of the trustee to preserve the corpus of- the estate and to pay to the life-tenant only the net income. If there had been revenue derived from the lots, the taxes would have been properly deducted from that income, and only the balance paid to the life-tenant. If there had been encumbrances on the property, the interest would have been paid out of the income before distribution to the life-tenant. The duties of the trustee demanded that these lots with a prospective value be preserved to the estate. The only money applicable for this purpose was income derived from other sources than the lots themselves, and it was the trustee’s duty to use as much of this income as was required to protect the corpus of the estate. Petitioner was not entitled to that money.

If the remaindermen are unwilling to allow to the life-tenant the amount of depletion of his income, the court is without authority to compel the payment.

And now, to wit, March 1, 1929, the rule to show cause why the substituted trustee should not refund to John J. Cunningham, from the proceeds of the sale of the Dungan Street lots, the taxes paid during the time the property was held by the trustees prior to the sale is discharged.


author: O’Hara, Dep. Att’y-Gen.,

text:
    In re Mothers’ Assistance Fund.
    Oct. 30, 1928.
   O’Hara, Dep. Att’y-Gen.,

We have your request for an opinion by this department upon the eligibility of Mrs. Albert H. Walker for assistance from the Mothers’ Assistance Fund.

You submit the following statement of facts:

Albert H. Walker resided with his family in Lancaster County upwards of two years and died in December, 1925. The widow and her family remained in Lancaster County until April, 1926, when she and her children went to Franklin County, ¡the residence of her father, where she remained until May, 1926, when she returned to Lancaster County. There she filed an application with the Mothers’ Assistance Fund in June, 1926, for relief. Immediately after filing the application, she returned to Franklin County. The following month she came back to Lancaster and in July and August conducted a rooming-house. This venture was not successful, and in August, 1926, she was compelled to return to her father’s home in Franklin County. Finding it impossible to obtain work there, in August, 1926, she went to Hagerstown, Maryland, for the purpose of keeping house for her brother.

No action was taken by the Lancaster County board until April, 1927, when it was dismissed by the board because, as it concluded, she had lost her residence in Lancaster County, by absence from the county for a period of a year. Her application had not been considered by the board until April, 1927, because of prior applications pending before the board.

In November, 1926, she made application to the Mothers’ Assistance Board of Franklin County. That board did not consider her eligible for relief in that county at that time because she had not been a resident of Franklin County for one year.

One year from the date of filing her application with the Franklin County board, the Franklin County trustees investigated her claim and found that she had been living in Hagerstown, Maryland, since August, 1926, and thereupon the Franklin County board dismissed her application.

You submit the following question:

Is she no longer eligible in Lancaster County for relief and will it be necessary for her to live twelve consecutive months in Franklin County in order to qualify for assistance there, or has she lost her State residence and by reason of that fact is it necessary for her to reside in Pennsylvania continuously for two years before she may again be considered in any county of this Commonwealth?

There can be no question that in June, 1926, when she filed her application in Lancaster County she was eligible for relief there. Her application was not considered because of pending applications having priority. While it is not so stated in your letter, I am informed verbally that she left Lancaster County at that time because of her inability to provide for herself and her children and thereafter continued to reside temporarily with either her father or her brother, pending the granting of her application; that when she left Lancaster County it was with the intention to return to it, and she deemed Lancaster her home.

Under such state of facts, if so found by the board, we are of the opinion that the period of one year’s residence within the county and two years’ residence within the State mean one year and two years, respectively, immediately preceding the date of application. If on the date of application the local board is unable to grant immediate relief, and, as a result thereof, the applicant is compelled to temporarily sojourn outside the county or State in order to live and maintain her children pending action upon her application, she does not by reason of her absence from the county lose her eligibility or her priority on the list of applicants. Under the circumstances, her application may be reinstated by the Lancaster County board as of June, 1926, for immediate or preferred action.

If, on the other hand, after investigation, the board concludes that when Mrs. Walker left Lancaster County in August, 1926, it was her intention to abandon her residence in Lancaster County and take up her residence in Hagerstown, Maryland, permanently, then her application fell and might have been treated as if withdrawn. From C. P. Addams, Harrisburg, Pa.


author: Henderson, J.,

text:
    Starr’s Estate.

      Daniel C. Donoghue, for exceptions.

      W. H. Myers, Jr., Morgan, Lewis & Bockius and Wintersteen, McCoy & Wintersteen, contra.
    July 5, 1929.
   Henderson, J.,

A careful study of this record and the able briefs of counsel convinces us that the Auditing Judge was right in his conclusions. The gift to Louis, his widow, his children and their issue was undoubtedly vested, and the attempt to put it in trust for a term was wholly abortive; it is just as if no term for the duration of the trust had been named.

All exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.


author: Cummins, J.

text:
    Blayney v. Donegal Township.

      W. R. Dennison, for plaintiff; Brownlee & Brownlee, for defendant.
   Cummins, J.

Plaintiff's action is in assumpsit to recover for an alleged breach of contract. Plaintiff in his statement of claim alleges that a written contract was entered into between himself and defendant township, whereby he agreed “to unload, haul and distribute sufficient slag from cars at the B. & 0. station at Vienna ... to properly complete the construction of three miles of road, known as the Haneytown Road;” in consideration whereof defendant agreed to pay him 70 cents per ton for all slag so hauled, to be paid bi-monthly; that when one-half of said three-mile section of road had been completed, defendant township prevented him from proceeding further under his said written contract and employed others to do said work; for his loss thus resulting, plaintiff seeks to recover.

To plaintiff’s statement, the defendant township files a statutory demurrer, alleging that said written contract, a copy whereof is attached to plaintiff’s statement, was not approved and signed by the Township Commissioner of the State Highway Department, as required by the Act of May 17, 1921, P. L. 857, and is, therefore, unenforceable.

The Act of May 17,1921, which is an amendment of clause 4, of section 386, of the Township Act of July 14, 1917, P. L. 840, 881, provides: “That all contracts for the construction, reconstruction and improvement of roads and for the purchase of materials used in such work . . . shall be submitted to the Township Commissioner of the State Highway Department, for approval or disapproval, before such contracts are actually entered into, and no such contract shall be valid unless it shall be approved and signed by the township commissioner.”

By the copy of the contract attached to plaintiff’s statement, it affirmatively appears that same was not signed by the township commissioner. Did the contract sued upon come within the scope of the act? For it is clear that if it did, no recovery can be had thereon: Hontz v. Hollenback Township, 85 Pa. Superior Ct. 281; Harris v. Philadelphia et al., 283 Pa. 496, 503; Philadelphia Co. v. Pittsburgh, 253 Pa. 147, 151.

Since the enactment of this statute, the township, where it itself undertakes to construct, reconstruct or improve its roads or highways, may, as an incident thereto, enter into contracts of hire for men and teams without any approval of the township commissioner (Houtz v. Hollenback Township, supra, 383) ; but it can now no longer enter into improvement contracts without such approval.

The contract in question is not one of hire. Plaintiff did not thereunder become an employee, but an independent contractor, with full control over the work agreed to be done by him. The character of the contract does not depend on whether it involved the entire improvement to be made, but on the contractual relationship thereby created between plaintiff and the municipality. Under this contract, plaintiff could have unloaded from the cars this slag either by machinery or by hand; he could haul it by truck or with teams; he could do the work himself or employ others to do it. Plaintiff, under the contract, was in no sense the agent, servant or employee of defendant. Under the act of assembly, this contract was clearly void, not having been approved by the township commissioner.

Decree. — And now, May 5, 1928, statutory demurrer sustained, and judgment is entered for defendant for costs.

From Harry D. Hamilton, Washington, Pa.


author: Jones, J.,

text:
    Petition for Public Roads in Lake Township.

      Philip Drum, for petitioners; G. J. Clark, for township.
    July 7, 1928.
   Jones, J.,

Citizens and inhabitants of Lake Township, this county, petitioned the court that they labored under a great inconvenience for the want of two public roads in the township, describing the termini of each.

Viewers were appointed and the proposed roads recommended as prayed for in the petition and set forth on an attached map. To the repori? exceptions were filed that there is no warrant in law for the laying out of two public roads in one proceeding.

In the case of West Goshen Roads, 7 Pa. C. C. Reps. 250, a petition was presented for three public roads, to which exceptions were filed, and the court said: “We cannot find that such a practice is forbidden. It may be better to have separate petitions and orders for distinct roads, but in this case, where these three roads are designed to form a system and are so closely identified with each other, we are disposed to grant the order for them on the petition filed. They are all separately described therein and can be so reported by a jury.”

In Sadsbury Township Roads, 147 Pa. 471, exceptions were filed to a report of viewers in favor of three roads because the petition and report combined several roads. The lower court dismissed the exceptions and, upon appeal, the West Goshen Roads, supra, was cited by appellee. The Supreme Court said: “In the case before us, the petition for the appointment of viewers embraced three separate and distinct roads, and the viewers reported in favor of each respectively, giving the termini, courses and distance of each separately. If that can be done, there is no good reason why one petition, and a single proceeding thereon, may not embrace thirty, or even a hundred proposed roads, if it be possible for the petitioners to suggest the necessity for so many within the county. Other things being equal, it cannot be doubted that the merits of each proposed road will be better considered in a separate than in a joint proceeding embracing one or more other separate and distinct roads,” and the order of the lower court was reversed.

The petition and report are subject to further criticism. They substantially state the location of the proposed roads.

In Franklin Township Road, 54 Pa. Superior Ct. 293, it was stated: “It is fatal error to designate an intermediate point or points between the termini of a proposed road, either in the petition or the order to viewers, or both.”

After designating the termini of the first road, the petition follows with the statement: “The purpose of said road being to create a public road for property holders whose lots abut on what is designated as ‘East Avenue’ and a part of ‘High Street’ on the plot of lots known as ‘Warden Place,’ ” and, after stating the termini of the second road, says that the purpose of the second road is to create a public road of what is known as “Center Avenue” on the same plot.

The report of the viewers states that the board is in favor of locating the proposed road or roads “as prayed for in the petition and set forth on the attached map.” An inspection of the map discloses a plot of lots known as the Warden Place, surveyed in 1897. Upon this plot are located “East Avenue” and “High Street,” running at right angles to each other. These two streets embrace the first road.

The second road is known on the map as “Center Avenue,” and not only embraces Center Avenue as it appears on the plot, but also a part of Lake Avenue, already an open, public highway in the township for many years, and also covers a part of High Street embraced in the first road, so that the two roads lap over upon certain portions of each other.

The viewers simply adopted the purposes set forth in the petition of making East Avenue, High Street and Center Avenue, upon the Warden plot, public highways, and, therefore, the petition and the report substantially designate the roads between the termini.

For the reasons herein stated, the exceptions to the report must be sustained, and the report of the viewers is accordingly set aside.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: MacDade, J.,

text:
    Keystone Automobile Club’s Charter.

      E. Wallace Chadwick (of Taylor, Chadwick & Weeks), for petitioner.

      John E. McDonough, contra.
    Feb. 1, 1929.
   MacDade, J.,

This is an application filed on Dec. 17, 1928, and under the Act of April 17, 1876, P. L. 30 (authorizing the amendment, alteration and improvement of charters of corporations of the first class), for the amendment of the charter of the Keystone Automobile Club, a corporation of the first class. The club was chartered by this court on Sept. 19, 1911, under the name of the Automobile Club of Delaware County, after having previously had an existence of over five years as a voluntary association, and having established a record of service to the motorists of Delaware County in particular. At that time, and in the application for the charter, the annual income, other than from real estate, was fixed as not to exceed $20,000; the number of officers and directors was fixed, and the purpose was proposed to be “to maintain a club for social enjoyment, and a club-house, and for the comfort, protection and convenience of its members in the pursuit of the pastime of automobiling.”

On Dec. 24, 1917, this court, upon due application, amended this charter so as to change the name of Automobile Club of Delaware County to the Keystone Automobile Club and to increase the number of directors to twenty-one.

The latter corporation now applies for a further amendment, increasing the authorized number of directors to twenty-seven (1927), the authorized annual income to a sum not exceeding $2,000,000, and to enlarge upon and re-express the purpose of the corporation as follows;

“Second. The purpose for which this corporation is formed is to promote the construction and maintenance of public highways, to promote the safe and convenient use of the public highways, to collect and disseminate touring and other information valuable to automobile users, to promote the comfort, protection, convenience and interests and to protect the rights of automobile owners and users in general, and its members in particular, to facilitate the co-operation of its members to their mutual advantage and protection in matters relating to the use and ownership of motor-vehicles, to maintain a club for social enjoyment, and a club-house, and to purchase, lease and improve such real estate or other property as may be necessary for such aforesaid purpose.”

The reason for the proposed amendment to paragraph “Second” of the charter is that the club has increased tremendously in membership, and, in common with other growing automobile clubs, has greatly broadened the scope of its activities, and the amended purpose is more definitely expressive of its present and anticipated future purpose; the reason for the proposed amendment to paragraph “Sixth” is that the club has enlarged the field of its activities, and the increased directorate is essential to adequate representation of the membership on the board of directors; the reason for the proposed amendment to paragraph “Eighth” of the charter is that the rapid growth of the club (its membership now approximating 50,000), and the enlarged scope and field of its activities make a more liberal allowance of permitted annual income essential to its adequate and proper functioning.

These proposed amendments are opposed by a member of the club, one of some 50,000 interested persons constituting its total membership, as will more fully appear by reference to the objections herein filed to the granting of the amendment proposed, as follows:

1. Your objector is, and has been for many years, a member of the Keystone Automobile Club.

2. He makes this objection in his own behalf and in behalf of such other members of the club as may desire to share therein and in the expense thereof.

3. The application for the amendment of this charter is defective because it does not show that any meeting was held at a place at which such meeting legally is authorized to be held.

4. No notice of said meeting was given as required by the laws of the State of Pennsylvania and the constitution' and by-laws of the said Keystone Automobile Club.

5. A meeting to consider the authority to apply for this amendment was only attended by ninety-five persons.

6. More than one-half of the persons who attended said meeting as members of said club were in the pay and under the salary of said club and pecuniarily interested in said amendment.

7. The application is defective in that it seeks by amendment to authorize an incorporation for more than one of the purposes authorized by law.

8. The application is defective because [and] in so far as it seeks corporate right to “promote the construction and maintenance of public highways.” Generally, the court has no authority to authorize the same.

9. The application is defective because [and] in so far as it seeks the right “to promote the safe and convenient use of public highways, to collect and disseminate touring and other information valuable to automobile users.” No authority exists in the court to authorize such amendment to this charter.

10. The application is defective because it seeks to authorize an amendment '‘to promote the comfort, protection, convenience and interests and to protect the rights of automobile owners and users in general, and its members in particular, to facilitate the co-operation of its members to their mutual advantage and protection in matters relating to the use and ownership of motor-vehicles,” no authority to do which resides in the court under the provisions of the-law authorizing a corporation without profit.

11. The application is defective because [and] in so far as it seeks the right to amend the charter “to maintain a club for social enjoyment, and a clubhouse, and to purchase, lease and improve such real estate or other property as may be necessary for such aforesaid purpose.” Said corporation already has this right, and the amendment in that respect is unnecessary.

12. No authority resides in the court to make this amendment unless it be with the limits that the real estate owned by such a corporation shall not exceed in value an annual income of $20,000.

13. The application is defective because it seeks, by amendment, to authorize this club, under the guides of its charter, to do more than one thing provided by the act.

14. The application is defective because it does not set forth that the membership in this club shall be-limited to the citizens of the State of Pennsylvania.

15. The application is defective because it does not show in what regard it is proposed to promote the comfort, protection, convenience and interests of the rights of automobile owners and users in general, and to members in particular, nor does it show that any of these things are to be accomplished in accordance with the spirit of the act of assembly authorizing a corporation not for profit.

16. The application is defective because it seeks to increase the income of the club to $2,000,000, a sum out of all proportion to the spirit and the purpose of the act of assembly authorizing the incorporation and execution of charter corporations not for profit.

17. The purpose of the alleged increase in the income of this corporation is in order to afford a sum for the payment of large salaries to officers and other employees of the Keystone Automobile Club for purposes and enterprises not authorized by its charter and contrary to the provisions of the law authorizing the incorporation of such a charter or the amendment thereto.

18. Objection is also made to this amendment, for the reason that there is now pending in the Court of Common Pleas of Delaware County, as of No. 525, December Term, 1928, a bill in equity, wherein your objector is the complainant and the Keystone Automobile Club and others are the defendants, the purpose of which bill is to compel the management of the Keystone Automobile Club to conduct its affairs according to law. The matters and things set forth in said bill are either urged as an objection against said charter, and the said proceeding is hereby incorporated in this objection for the consideration of the court, and for the further reason that said application to amend the charter of the Keystone Automobile Club is being made for the purpose of anticipating the trial of the equity suit herein referred to, as appears from the public statement made by the president of said Keystone Automobile Club, J. Borton Weeks, Esq., which newspaper statement is hereto attached and made part hereof.

Since the matters involved address themselves entirely to the discretion of the court, it may fairly be said that the application represents the overwhelming, preponderant wishes of the membership, and is, therefore, fairly entitled to liberality of treatment from the courts.

The application was authorized at a special meeting of the club, held at Brookline, in this county, on Dec. 15, 1928, at the call of the president, pursuant to a printed notice mailed to all members; at which meeting ninety-five members were present, including the present objector, Arthur Preeston, who cast the only negative vote. The minutes of the meeting were offered in evidence hy the objectant, and proved to be in due form, fully evidencing the consent of the majority of those present to the proposed application. The object-ant participated in the meeting, and, therefore, it does not stand him in good stead to make objections to its regularity, and, in addition, there stands against him the presumptions of regularity raised by the record of the meeting which he himself accredits by his offers.

The court, very logically and properly, as we think, has declined to permit the objectant to raise an this proceeding questions of the club’s activities in the insurance field, and the conclusion as to this is fairly to be helped by objectant’s counsel’s admission that these activities (now already made the subject of inquiry in a collateral proceeding in equity by the objectant herein) are innocent and even meritorious, but technically objectionable as beyond the corporation’s present powers. Even taking this latter to be true, its relevancy as a reason against granting the proposed amendments does not clearly appear; it rather emphasizes the desirability of enlarging the charter so that these alleged meritorious functions may be fully exercised and the corporation granted a permitted income commensurate with its opportunities for service to its large membership in particular and the public in general.

The real question before the court then seems to be, are these proposed amendments such as, in the language of the act, are “lawful and beneficial, not injurious to the community, and not in conflict with the requirements of the Corporation Act of 1874, and its supplements, nor with the Constitution of this Commonwealth.”

We think these proposed amendments meet this test. A wide discretion with respect to charters and amendments thereof of first class corporations is vested in the Common Pleas, reviewable, incidentally, under the statute only as to jurisdiction and formality, and by certiorari, not appeal. This discretion, we think, may properly be exercised in the instant case by granting the amendments. The objectant can point to no consideration of public policy which would be jeopardized thereby. Automobile clubs per se are not contrary to the public interest, nor is it objectionable that they have twenty-seven directors, or, finally, that they be permitted to have an income of $2,000,000 if their members are willing to provide that much for their mutual purposes. The decision of this latter aspect of the matter is in the courts under a section which provides as follows: “It shall be the duty of the court in granting a charter of incorporation for any purpose to limit the yearly income of such corporation, other than from real estate, to such sum as in the opinion of the court will not be injurious or prejudicial to the community” (Act of Feb. 20, 1854, § 3, P. L. 91; 1 Stewart’s Purdon, page 779, par. 14).

The practice adopted by the courts elsewhere in expressing this limitation as “such sum as shall not be in excess of any legal limitation” has been found practical and beneficial and, incidentally, convenient. Thus we find in the charter of the William Penn Motor Club, called to our attention at bar, approved April 30, 1927, as of No. 6907, March Term, 1927, by Common Pleas No. 4 of Philadelphia, by Audenried, P. J., the following section:

“Fifth. There is no capital stock in this corporation and its income shall not exceed the amount limited by law.”

This court has preferred to express a limit in amount, and applicants here are by practice required to propose the amount that they believe wall be at once sufficient and still proper for the exercise of their functions. But this carries no necessary suggestion that the amount must be absolutely small; apparently what is intended is that it shall bear a reasonable relation to the activities of the corporation. A court might view with suspicion a proposed income of $10,000 a year for some corporations, but would hardly be surprised at a suggested limit of a million dollars for The Union League of Philadelphia, the Manufacturers’ Club or the Penn Athletic Club, all of Philadelphia. We do not perceive any inconsistency between authorizing an income of $20,000 for the Keystone Automobile Club as it existed in 1911, with its small membership, by present comparison, and $2,000,000 for the same club as it now exists with a membership of 50,000 and an established ratio of growth which has already made it the second or third largest organization of its kind in the United States.

So long as corporations of the first class include such varied activities as great universities and small business colleges, hospitals with thousands of beds and chapels with a few score communicants, great fraternal orders and small civic societies, the courts will be required to administer this section of the law with liberality so as to advance and not hamper these commendable objects; as exampled by the charter granted by Common Pleas No. 4 of Philadelphia to the Regional Planning Federation of the Philadelphia Tri-State District (No. 10359, March Term, 1928), whose purpose is expressed to be “the creation and promotion of a plan for the physical, economic and social advance of the Philadelphia Tri-State District,” and whose permitted income at the commencement of its activities was expressed at the instance of the applicants at $500,000.

It not appearing that the community is threatened with any injury or prejudice, no matter what income the members of this organization may provide, any objection to this amendment would seem to fall.

There remains then to be discussed seriously only the question whether the proposed purpose of the club is worthy of this court’s approval. The objections made appear captious; if an automobile club is legal at all, these are proper and reasonable activities for such an organization. No one can now be permitted to question the legality of such a club; this became res adjudicada, as against the world when this court in 1911 issued the original charter, and it would seem particularly invulnerable as against this objectant who voluntarily became a member in 1917 and continues to be such to the present time.

The original charter purpose set out three expressed and interrelated activities, the last very broad in its scope: (1) To maintain a club for social enjoyment; (2) and a club-house; (3) and for the comfort, protection and convenience of its members in the pursuit of the pastime of automobiling. But no one would have any difficulty in identifying these as being in all aspects of one general purpose. This court finds that the various activities detailed in the proposed amendment to this paragraph second are likewise directly interrelated and still all aspects of the same proper general purpose. Counsel for the objectant may have confused difference of purpose with difference of method of serving a single purpose. There is no legal objection to a detailed expression of the matter.in which a proper corporate purpose may be served; indeed, the law books contain many cases in which the courts have taken objection to proposed charters for such general purpose as “social enjoyment” and the like, without particularizing what method or kind of social enjoyment was intended: Monroe Republican Club, 19 Pa. C. C. Reps. 568; Jacksonian Club, 1 Dist. R. 110; Nether Providence Ass’n, 2 Dist. R. 702.

The Supreme Court, in Roofing, etc., Ass’n, 200 Pa. 111 (1901), points out that the words of the Act of April 29, 1874, P. L. 73, are used in their popular connotation, and are to be liberally, not strictly, construed; using, also, this language, which seems very applicable to the question now being discussed: “Each of the numbered sub-divisions of this section of the statute describes a particular class of objects, the promotion of which is the purpose of the provision, and to carry out its full intent must necessarily be held to authorize a corporation for one or more, or all, of the special purposes that may come within the general scheme.”

Nor does a very considerable latitude in the expression of purpose appear to be objectional to our appellate courts. Thus, in Derry Council v. State Council of Pennsylvania, Junior Order United American Mechanics, 197 Pa. 413, Mr. Justice Brown has occasion to quote the purposes of the corporation, whose charter was issued by Common Pleas No. 3, Philadelphia, in 1893, as follows (the divisions and numbering being ours) : “The purposes of the order,» as an unincorporated society, continued to be the same after its incorporation, and were beneficial and protective, and (1) to maintain and promote the interest of the Americans and shield them from the depressing effects of foreign competition; (2) to establish a sick and general fund; (3) to maintain the public school system of the United States and to prevent sectarian interference therewith; (4) to uphold the reading of the Bible therein; (5) to assist the American youth in obtaining employment, and to encourage them in business; (6) to afford relief to the members and their families, etc.” Incidentally, the learned Supreme Court mentioned in passing that “a majority of its members and councils are non-residents of Pennsylvania,” and sustained a corporate action taken at a meeting in Minneapolis; and the question of non-residents there decided squarely meets another proposition of law advanced by the objectant.

Nor is the purpose now asked to be authorized by this amendment essentially different from the purposes expressed in other charters of similar organizations allowed by other careful courts of this State. Thus, in the case of William Penn Motor Club, above referred to (C. P. No. 4, Philadelphia County, No. 6907, March Term, 1927), the purpose is expressed as follows:

“Second. The purposes of this corporation shall be the promoting of sociability among its members, promoting improvements of roads and for the protection, general interest and welfare of motorists and to promote greater care in driving and in adherence to the laws in reference thereto.”

Judge Niles, in the matter of York County Automobile Club (C. P. York County, No. 7978), on June 28, 1926, approved a charter with the following expression of purpose:

“2. The purpose for which this association is formed is lawfully to advance and protect the interests and enjoyment of the users of motor-vehicles, by promoting the cause of good roads within the State and Nation; furthering the cause of highway safety, encouraging automobile touring to the historical shrines and scenic grandeurs of Pennsylvania and co-operating for their mutual advantage and the better attainment of the aforesaid purpose.”

The charter of the Lancaster Automobile Club, approved July 19, 1916, by Charles I. Landis, P. J., and A. B. Hassler, J., contains the following expressed purpose:

“2. The purposes for which the said corporation is formed are as follows: The maintenance of a club for social enjoyments through the holding of social meetings of persons interested in automobiling and in lawful ways inauguration and support of movements contributing to their comfort and the preservation of their rights.”

Judge Miller, of Montgomery County, in 1923, authorized the charter of the Pennsylvania State Automobile Association (No. 30, April Term, 1923), with purpose as follows:

“2. The purpose for which this association is formed is lawfully to advance and protect the interests and enjoyment of the users of motor-vehicles, by promoting the cause of good roads within the State and Nation, furthering the cause of highway safety, encouraging automobile touring to the historical shrines and scenic grandeurs of Pennsylvania, and assisting in the organization of local automobile clubs, touring bureaus and good roads associations through the State, co-operating with them for their mutual advantage and the better attainment of the aforesaid purpose.”

The same court, in the matter of the“ Keystone Motor Club” (No. 6, Sept. Term, 1925, C. P. Montgomery County), approved the following expression of purpose:

“2. Said corporation is formed for the purpose of promoting the construction and maintenance of public highways, to promote the safe and convenient use of the public highways, to collect and disseminate touring and other information valuable to automobile users, to promote the interests and to protect the rights of automobile owners and users generally, and to conduct a club for social enjoyment; and to purchase, hold, lease and improve such real estate or other property as may be necessary for such aforesaid purpose.”

The Allegheny Common Pleas (Judge Kline) approved the charter of the Pittsburgh Motor Club (C. P. Allegheny County, No. 1064, April Term, 1923), with purpose expressed as follows:

“Second. The purpose for which the corporation is formed is to promote the construction, improvements and maintenance of streets and highways, the general welfare of motorists, to collect and distribute touring highway information, assist in the enactment, maintenance and enforcement of good and beneficial laws, a uniform system of road-marking and sign-posting, to extend the education of ‘Safety Always,’ provide a standardized emergency road service, advise owners as to operation of cars and laws governing same, aid authorities in the detection and punishment of auto thieves, and to furnish all aid and assistance possible for the better operation of motor cars.”

So, likewise, the Philadelphia Common Pleas, in the matter of the charter of the Automobile Club of Philadelphia, which was granted May 25, 1901, ten years before the original incorporation of this club (as of No. 304, June Term, 1900; C. P. No. 4, Philadelphia County), approved a purpose for such organization as follows:

“Second. Said corporation is formed ior the purpose of maintaining a club for social enjoyment, with the provisions of a club-house and other requisites for the comfort and convenience of its members in the pursuit of the pastime of automobiling, together with the advancement of automobiling interests generally by force of example of the use of automobiles and similar machines as practical and enjoyable aids to locomotion and for such other purposes connected therewith as may be proper and expedient.”

The petitioners have gone to great lengths to demonstrate to us that there is nothing in the objections made to the form of the proposed amendments by citing these examples of the practice of other courts which are not otherwise conveniently available to us, and since they demonstrate, without more, the propriety of granting the petition, their efforts are not wholly in vain, for we hold the proposed amendments are “lawful and beneficial, not injurious to the community, and not in conflict with the requirements of the Corporation Act of 1874, and its supplements, nor with the Constitution of this Commonwealth.”

Indeed, an application for a charter of the first class, it is admitted, should set forth the purpose of corporators in the words of the act of assembly so as to show it is embraced within one of the enumerated classes; it should also be devoted to a single purpose, the method of carrying out which is indicated and lawful, and the qualifications for membership should be stated, as well as how amendments can be made: Master Builders’ Exchange, 12 Dist. R. 670; Xantha Beneficial Ass’n, 8 Dist. R. 142; Master Granite, &c., Ass’n, 9 Dist. R. 357; Columbus, etc., Citizens’ Ass’n, 47 Pitts. L. J. 47.

As well, an application for a charter of the first class, the purpose of which is stated to be “the maintenance of a club for social enjoyments,” without specifying the nature of the proposed social enjoyments, or how they are to be conducted, or how the club is to be supported or continued, will not be granted: Penn Farmers’ Club, 24 Pa. C. C. Reps. 415.

Having in mind, therefore, that the purpose of the corporation may be enlarged upon in detail, we do not consider that the amendments desired in the present application contain subjects foreign to each other or are calculated to mislead and deceive; but, on the other hand, the court holds that the charter (including amendments thereto) may still contain any number of provisions properly connected with and germane to the expressed purpose without violating any constitutional requirements or the law. By analogy, see Blood v. Mercelliot, 53 Pa. 391; Com. v. Green, 58 Pa. 226; Yeager v. Weaver, 64 Pa. 425; Com. v. Sellers, 130 Pa. 32; Bradley v. Pittsburgh, 130 Pa. 475; Rodebaugh v. Traction Co., 190 Pa. 358; Com. v. Moir, 199 Pa. 534; Goebler v. Wilhelm, 17 Pa. Superior Ct. 432; Franklin v. Hancock, 204 Pa. 110.

The unity of the subject permitted by the corporation statute is to be determined by its paramount purpose rather than by the details through which that purpose is to be accomplished. We think this principle of law is applicable to a charter of a corporation of the first class in designating its purpose. The purpose may have but one object, while the measures necessary for the attainment of that object may necessarily embrace many subordinate subjects differing in their nature and particular effect, yet all contributing to, and comprised within, the principal object. Everything which the nature of the purpose reasonably suggests as necessary or appropriate for the accomplishment of the expressed purpose can be stated in the charter or any amendment thereto. This principle is greatly clarified in Com. v. Jones, 4 Pa. Superior Ct. 362, 368, quoted with approval in Pittsburgh v. Daly, 5 Pa. Superior Ct. 528, 535.

So can the purpose of a charter (and, as well, an amendment or amendments thereto) which seeks to accomplish one general purpose by one general means, just as a statute seeks .to accomplish one general purpose by one general subject, be deemed to contain but one subject, though the details or specific means are multiplied to any extent, provided they are in fact subordinate to and germane to the general aim: In re Opening of Arrott Street, 18 W. N. C. 121; Com. v. Charity Hospital, 198 Pa. 270.

A purpose has but one object, no matter how many different matters it relates to, if they are all cognate and but different branches of the same general subject: Kelley v. Mayberry Township, 154 Pa. 440.

For instance, a bicycle association which agrees with its members and is incorporated for the following purposes, “ (1) Clean your bicycle twice during the year. (2) Repair tire when punctured by accident. (3) Repair bicycle when damaged by accident. (4) Replace bicycle when destroyed by accident. (5) Replace bicycle when stolen, if not recovered in eight weeks, and provide a bicycle during that time,” is within the act (Com. v. The Provident Bicycle Ass’n, 178 Pa. 636), while it is held in Application for Incorporation, 34 York Leg. Record, 123, a corporation should be devoted to a single purpose: Master Builders’ Exchange, 12 Dist. R. 670; Right Warden Grand Court, 8 Dist. R. 127; Nat. Lit. Ass’n, 30 Pa. 150.

We think the present application for amendment to the charter is for a single purpose and it does not change or alter the single purpose of the charter already existent when allowed and approved, as hereinafter decreed by final order.

The character of a corporation is determined by its object as expressed in its charter by acts performed under its conferred powers: Collins v. Kephart, 271 Pa. 428.

And the terms “any lawful purpose” and “any lawful business,” as used in the corporation acts, are synonymous: Thomas Diagnostic Clinic, 30 Dist. R. 778, 50 Pa. C. C. Reps. 356.

The court cannot reject as not “a good purpose” for incorporation one for which the statute gives the right of incorporation: Umberto First, &c., Society, 25 Dist. R. 414.

This latter case also decides: “If the incorporators are qualified and the object of the proposed corporation lawful, it cannot be assumed that the corporation will be handed over to unlawful elements or purposes.”

On an application for a charter, it is not the duty of the court to pass upon and select what seems to it the best scheme for carrying out the purpose of a proposed corporation, as the incorporators must determine that question for themselves: Pittsburgh, &c., Ret. Fund Ass’n, 17 Dist. R. 867; Marsh Creek Fishing Club’s Charter, 36 Pa. C. C. Reps. 593; Brodrof. Svea, 15 Pa. C. C. Reps. 516.

The certificate should be approved where the application is in legal form and the court is satisfied that the purpose is proper, lawful and not injurious to the community: In re Continental Benefit Society, 42 W. N. C. 183.

Non-resident or alien friend stockholders may be directors of corporations in this State: Com. v. Detwiller, 131 Pa. 614.

The above decision is cited because the question of non-residents arose in the proceedings, and as well did the question of what constitutes a majority for the transaction of the business of the corporation, considering that it now has approximately a membership of 50,000 men. Where could they be accommodated if all desired to attend a meeting? The capacity of the Academy of Music has been ample heretofore. Perhaps Franklin Field or the Municipal Stadium may be engaged for future meetings. However, this latter question has been decided by our courts in Myers v. Union League of Phila., 17 Dist. R. 301, which holds that a majority of a meeting means a majority of those who choose to take part in its proceedings.

Therefore, holding to the above views, citing supporting authorities, as we do, on every possible phase of the matter presented and scrutinizing carefully the petition or application for amendments to the charter, the objections thereto and the testimony adduced thereon, we make the following

Order and decree.

And now, Feb. 1, 1929, the within petition for amendment to the charter of incorporation of the Keystone Automobile Club and objections to the granting of the same having been presented to the court in banc, accompanied by due proof of publication of notice of this application for amendment of charter, as required by the Act of Assembly and Rules of this Court in such cases made and provided, we certify that we have examined and perused the said petition and objections thereto and heard testimony therein after a hearing duly granted thereon; and, after due consideration, the court doth order and decree that the amendments as prayed for be and they are hereby allowed and approved; and the court doth further decree that we have found the same to be in proper form and within the first class approved in section 2nd of the Act of the General Assembly of the Commonwealth of Pennsylvania, entitled “An act to provide for the incorporation and regulation of certain corporations, approved the 29th day of April, 1874, and the supplements thereto;” and, further, the same appearing lawful and beneficial and not injurious to the community and not in conflict with the requirements of the Corporation Act of 1874, and its supplements, nor with the Constitution of this Commonwealth.

We also do hereby order and decree that the said amendments to the charter of the Keystone Automobile Club aforesaid be and the same are hereby allowed and approved, and that, upon the recording of the same and of this order and decree, the said amendments shall become of full force and effect, the same as if they had been originally incorporated and made part of the said charter, with any and all amendments thereto heretofore made, for the purpose and upon the terms therein stated.

Prom William R. Toal, Media, Pa.


author: Hicks, J.,

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

      J. F. Mahoney and D. W. Bechtel, lor plaintiff.

      Roger Prosser, for defendants.
    July 23, 1928.
   Hicks, J.,

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

On Feb. 21, 1928, testimony was taken, most of which referred to the removal from the ward by the relator after his election to represent that ward in the town council. All this testimony was taken over the objection of the relator, who contended that the matter of his removal, if true, subsequent to his election and prior to his taking his seat in the council, was wholly irrelevant and immaterial in this proceeding. In the opinion filed by the writer on April 23, 1928 [11 D. & C. 319], all the testimony relating to the removing of the relator from the ward was ignored as not being relevant or material to the disposition of the real problem involved in the case.

The following exceptions on behalf of the defendants were filed to the opinion of the court, to wit: (1) The court erred in not stating separately and distinctly the facts found and the conclusions of law, as required by the Act of April 22, 1874, P. L. 109; (2) the court erred in not determining the residence of the relator as of the time of the reorganization of council on the first Monday of January, 1928; (3) the court erred in entering the following decree: “And now, April 23, 1928, it is ordered and directed that a peremptory mandamus issue forthwith against the defendants, the Town Council of the Borough of Minersville, commanding them to place the name of the relator, Stanley Radzievich, upon the roll, to allow him to take his seat as a member of said Town Council, and to exercise all the rights and privileges of a member of said body until the expiration of his term of office, unless removed therefrom by legal and proper means. The costs of this proceeding to be paid by the defendants.” The exceptions filed on behalf of the defendants were argued before the court in banc and the case is now for final disposition.

The first exception is that the court did not state separately and distinctly the facts found and the conclusions of law, as required by the Act of April 22, 1874, P. L. 109. It is true that the court did not in numerical paragraphs state separately the facts found and the conclusions of law drawn, but no facts were disputed upon which the right of the relator to his seat in council depended, according to the opinion of the court heretofore filed. All the testimony having to do with the residence of the relator and his removal from the ward subsequent to his election and prior to the organization meeting of the council was received by the court over the objection of counsel for the relator, because . . . the matter was entirely before the court, making a further hearing unnecessary should the court err in sustaining the objection of the relator, and leaving the disposition of the objection to this testimony until the time of writing the opinion. The defendants contested the seating of the relator solely and alone upon the ground that he removed from the ward after his election, and in the writing of the court’s opinion, the fact whether he did or did not remove from the ward was held wholly irrelevant, and so all testimony upon this point was ignored by the court, which amounted to a sustaining of the objection of the relator to the admission of the said testimony. In its opinion, the court said: “And in reaching its conclusion in this case, the court has not considered any evidence adduced at the hearing on the contested question of removal, and does not now in this action determine whether relator did or did not remove from the ward. It might be said, however, if relator does not have a bona fide residence in the ward in which he was elected, that he cannot serve, even though seated. And nothing herein contained shall be construed as prejudicing any right or person in any proceeding hereafter brought properly presenting the loss of relator’s qualification through removal from the ward and the consequent forfeiture of his office.”

Thus the matter resolved itself into a pure question of law upon the pleadings, since it was admitted that the relator had been duly elected, had qualified for the office by subscribing to and filing his oath, there being no dispute as to the election and no one in the office for which he had been elected or contesting the same. Therefore, it was unnecessary to make any specific findings of fact: Com. v. School Directors, 4 Dist. R. 314.

The second exception is that the court erred in not determining the residence of the relator as of the time of the reorganization of council on the first Monday of January, 1928. As heretofore stated, the residence of the relator as of the time of the organization of council on the first Monday of January, 1928, is wholly irrelevant and immaterial to a decision of the question involved. As stated by the writer in his former opinion: “The relator was elected to council by the electors of the 4th Ward of the Borough of Minersville, and, therefore, had title to his office, was armed with a certificate of election, which was at least prima facie evidence of the title to his office, had qualified by taking the statutory oath, which was filed with the council prior to his request for possession of his office, and he was, therefore, legally entitled to exercise its functions, allegations touching his residence qualifications notwithstanding, until his disqualification was determined by another tribunal with judicial powers." (The italicizing is that of the writer.) This exception must also be overruled.

The full court is unanimously of the opinion that every proposition advanced by the defendants has been fully met in the opinion formerly filed by the writer, in which every phase of law relating to the question has been fully and amply discussed, and no benefit could be derived in attempting to amplify the former opinion written in this case, as it fully warrants the conclusions reached. For the reasons, therefore, set out in the opinion heretofore filed in this case, the exceptions of the defendants are overruled, final judgment is now entered for the relator and the following order is now entered:

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

From M. M. Burke, Shenandoah, Pa.


author: Reno, P. J.,

text:
    Magyar v. Magyar.

      Dallas S. Gangewer, for libellant.
    Nov. 26, 1928.
   Reno, P. J.,

The libel charges cruelty and indignities. The parties were married for six years, but never lived together, and whatever happened between them occurred during respondent’s occasional week-end visits to the house of libellant.

As to most of the incidents of alleged cruelty and indignities the master remained in a state of justifiable dubiety. He says, “I put little weight in the cursing and other accusations made by libellant.” And, seeing that for the most part her testimony came upon the record in response to leading questions, his frigid reaction is' a normal consequence. Thus, without endorsing all he says, we concur in the general conclusion that the alleged acts of physical violence are not proven.

Still, he finds that respondent “failed to support and provide the necessaries of life” for libellant, and this, he says, is sufficient to sustain a divorce on the ground of cruel and barbarous treatment. For this position he cites and relies upon Hansell v. Hansell, 15 Pa. C. C. Reps. 514, and Hartman v. Hartman, 21 Dist. R. 341. The first case is merely a ruling upon a question of evidence. A wife sued her husband for divorce on account of cruelty, and respondent undertook to show that he was insane at the time, and the trial judge ruled that the proof should be received. In the second case, a husband sued his wife for divorce because of cruelties and indignities. He proved repeated and intentional false accusations of marital infidelity and venereal diseases, and a divorce was granted. In neither case was the question of the husband’s failure to support or provide necessaries even remotely touched upon. The cases do not support the master’s conclusions, and illustrate the fallacy of relying upon unverified text-book citations.

There are, however, Pennsylvania cases upon the point. Both the Supreme and Superior Court have in effect said that failure to support and to provide necessaries of life are elements to be considered in charges of cruelty and indignities. But, so far, neither has granted a divorce where these elements alone were present. These elements have always been found in combination with others, e. g., bad temper, drunkenness, jealousy, abuse, humiliations, false accusations, threats, physical violence: Cf., Mason v. Mason, 131 Pa. 161; Lynn v. Lynn, 76 Pa. Superior Ct. 428. In Roth v. Roth, 15 Pa. Superior Ct. 192, there are, it must be conceded, expressions which might be taken to authorize the view that these elements alone, under some circumstances, might constitute indignities and that position is clearly understandable. But that case will not support a decree for indignities arising from failure to support where, as here, there is no explanation of the reasons for the failure ever to establish a home and where, as here, there is evidence that he supported her, though perhaps inadequately, until the time of one of his alleged acts of cruelty, which the master regards as trivial. In short, the failure to support and provide necessaries can amount to cruelty and indignities only when, in the one instance, it “endangered the wife’s life,” or, in the other, it renders “her condition intolerable and life burdensome.”

Now, Nov. 26, 1928, the master’s report is not approved, the decree is refused and the libel is dismissed.

From Edwin L. Kohler, Allentown, Pa.