author: McDevitt, P. J.,

text:
    In re Fox Film Corporation.

      Roberts & Montgomery, for appellant; J. R. Jones, for Board of Censors.
    July 19, 1928.
   McDevitt, P. J.,

This cause came before the court on appeal from the final order of disapproval of a film constituting a motion-picture play, “She’s Still My Baby.”

This appeal presents the questions (a) whether, under the Act of May 15, 1915, P. L. 534, the Board of Censors has jurisdiction to require the submission to it for approval of such language as may be used in conjunction with the exhibition of a film either by means of a mechanical device or by the use of persons; and (b) whether the board has not been guilty of an abuse of discretion in failing to approve the film “She’s Still My Baby” when it has not found that said film is sacrilegious, obscene, indecent, immoral or such as tends, in the judgment of the board, to debase or corrupt morals.

The Pennsylvania State Board of Censors of Motion Picture Films as presently constituted was created by the Act of May 15, 1915, P. L. 534. Since its creation, the board has been engaged in the performance of the duties imposed upon it by said act in accordance with such rules and regulations as it has, from time to time, announced.

From the early beginnings of motion pictures up to approximately eighteen months ago the motion-picture art had not progressed beyond the point of' being able merely to record and reproduce pictures upon a screen. About eighteen months ago, two different devices, which had previously been invented and perfected, were first used in motion-picture exhibitions, which were an outstanding advance in the development of the art and which made possible the reproduction of the voices of the actors in synchronization with the picture reproduced on the screen.

The two devices, known as the Movietone and the Vitaphone, respectively, which have finally succeeded in synchronizing language with pictures are not the same principle. The Movietone records the sounds directly upon the emulsion or film in the form of a series of horizontal lines varying in density with the variations of light at the time the sound was recorded. The sound is then reproduced in synchronization with the picture by means of an attachment placed upon the standard projecting machine, which, by a combination of electrical and mechanical processes, turns the light variations on the film into sound. Without such an attachment on the projecting machine, the film can be shown in the regular way without reproducing the sounds recorded thereon.

The Vitaphone is a device which reproduces sounds in the same manner as a phonograph. The sound is recorded upon a round disc which revolves on a turntable. Into the grooves on the disc a needle connected with a sound-box is inserted. The projection machine used to exhibit the picture is timed with the sound-producing machine through the operation of a motor common to both machines, which keeps the speed of the two uniform.

For a period of approximately eighteen months the use of these two devices has been gradually extended until at the present time a total of approximately 300 motion-picture theatres have been equipped to use them. The development of these devices and the installation in and equipment of theatres to use them represent a very large investment totaling several million dollars.

The appellant, Fox Film Corporation, has exclusive rights in Pennsylvania and throughout the United' States as sole distributing agent for the Fox Film Corporation which produces the subjects known as “Fox Movietone News” and “Fox Movietone Entertainments.” The Fox Movietone features are produced by the appellant, Fox Film Corporation.

Prior to the submission to the Board of Censors for approval of the particular film which is the subject of this appeal no effort had been made by the board to regulate in any manner the utterance of language or reproduction of sounds in synchronization with the exhibition of a film, so that for the said period of approximately eighteen months' during which the Board of Censors made no effort to assert any power of control over the reproduction of sound, the Movietone invention was developed, many pictures were filmed with Movietone accompaniment, and many theatres were equipped to reproduce sound and picture simultaneously.

On or about April 16, 1928, the Board of Censors notified the appellant, Fox Film Corporation, that in the future it must submit to the board for examination all language which was proposed to be used by means of any mechanical device or by the use of persons in conjunction with the exhibition of a film. The board also caused to be printed upon the form of application for examination of all films to be submited to it the following requirement: “State whether or not this film is to be exhibited in conjunction with any mechanical device, or by the use of persons, for the utterance of language. ... If so, submit such language.”

On April 25, 1928, the appellant presented to the board the application for the approval of a film constituting a motion-picture play “She’s Still M,y Baby,” a copy of which application is attached to the answer filed by the board to the appellant’s notice of appeal. As will appear upon reference to said application, the appellant, in response to the above-quoted requirement printed upon said application, answered “yes” to the inquiry whether the film was to be used in conjunction with a device for the utterance of language, and further stated: “Upon advice of counsel we refuse to submit such language upon the ground that this requirement is beyond the authority and/or discretion of the Board.”

The board thereupon examined the said film and disapproved the same “for the reason that the said Fox Film Corporation has refused the request of the Board to submit to it for its examination the language used by the actor in said picture which is proposed to be exhibited in connection with a mechanical device for the utterance of the language of such actor.” The Fox Film Corporation appealed from the said order of disapproval and the board thereupon re-examined the same and finally disapproved the said film for the same reasons upon which it was originally disapproved.

The board did not find, either in the original or in the final order of disapproval, that the said film was sacrilegious, obscene, indecent, immoral or such as tended, in the judgment of the board, to debase or corrupt morals.

On May 10, 1928, the Fox Film Corporation accordingly filed its appeal from the final order of disapproval of said film by the Board of Censors.

It is provided in section 1 of the Act of May 15, 1915, P. L. 534, “that the word ‘film’ used in this act means what is usually known as a motion-picture film.”

“Sect. 6. The board shall examine or supervise the examinations of all films, reels or views to be exhibited or used in Pennsylvania; and shall approve such films, reels or views which are moral and proper; and shall disapprove such as are sacrilegious, obscene, indecent or immoral, or such as tend, in the judgment of the board, to debase or corrupt morals. This section shall not apply to announcement or advertising slides.

“Sect. 21. No banner, poster or other like advertising matter shall contain anything that is immoral or improper. A copy of such banner or poster shall be submitted to the board.

“Sect. 22. This act shall be enforced by the board. In carrying out and enforcing the purposes of this act, it may adopt such reasonable rules as it may deem necessary. Such rules shall not be inconsistent with the laws of Pennsylvania.

“Sect. 24. Every person intending to sell, lease, exhibit or use any film, reel or view in Pennsylvania shall furnish the board, when the application for approval is made, a description of the film, reel or view to be exhibited, sold or leased, and the purposes thereof; and shall submit the film, reel or view to the board for examination; and shall also furnish a statement or affidavit that the duplicate film, reel or view is an exact copy of the original film, reel or view, as submitted for examination to the board; and that all eliminations, changes or rejections made or required by the board in the original film, reel or view has been or will be made in the duplicate.

“Sect. 26. If any elimination or disapproval of a film, reel or view is ordered by the board, the person submitting such film, reel or view for examination will receive immediate notice of such elimination or disapproval, and, if appealed from, such film, reel or view will be promptly re-examined in the presence of such person by two or more members of the board and the same finally approved or disapproved promptly after such re-examination, with the right of appeal from the decision of the board to the Court of Common Pleas of the proper county.”

Section 27 provides that for any violation of the act, upon conviction thereof, the sentence shall be a fine of not less than $25 nor more than $50 for the first offense, and not less than $50 nor more than $100 for any subsequent offense, with a provision for imprisonment in default of payment of such fine and costs as might be imposed.

The powers conferred upon the board and the duties imposed upon an exhibitor are set forth in paragraphs 6 and 24, respectively, of the Act of 1915. The powers conferred upon the board by section 6 are as follows: “The board shall examine or supervise the examinations of all films, reels or views to be exhibited or used in Pennsylvania; and shall approve such films, reels or views which are moral and proper; and shall disapprove such as are sacrilegious, obscene, indecent or immoral, or such as tend, in the judgment of the board, to debase or corrupt morals.”

The duties of an exhibitor as defined in section 24 are as follows: “Every person intending to sell, lease, exhibit or use any film, reel or view in Pennsylvania shall furnish the board, when the application for approval is made, a description of the film, reel or vieio to be exhibited, sold or leased, and the purposes thereof; and shall submit the film, reel or view to the board for examination; and shall also furnish a statement or affidavit that the duplicate film, reel or view is an exact copy of the original film, reel or view, as submitted for examination by the board; and that all eliminations, changes or rejections made or required by the board in the original film, reel or view has been or will be made in the duplicate.”

Bearing in mind the fact that the word “film” is defined by said act as “what is usually known as a motion-picture film,” let us compare the powers of the board with the regulation which they seek to put into effect and with the jurisdiction which they seek to assert. The board seeks to impose the following requirement upon the application for approval of each film: “State whether or not this film is to be exhibited in conjunction with any mechanical device, or by the use of persons, for the utterance of language. ... If so, submit such language.”

It is obvious that no authority for the imposition upon an applicant of such a requirement is contained in or comprehended by the power given to the board to examine “all films, reels or views.” It is also obvious that no such requirement is included among the duties imposed by the act upon an applicant; the act merely requiring that the applicant give the board a description of the film to be exhibited, submit the film for examination, furnish an affidavit that the duplicate film is an exact copy of the original, and a statement or affidavit that all eliminations made by the board in the original film will be made in the duplicate.

The regulation of the board, therefore, is an obvious attempt to extend its jurisdiction beyond that conferred upon it by the legislature. It is an attempt on the part of the board to step out beyond the confines merely of examining and approving or disapproving “all films, reels or views” and to appropriate to its jurisdiction the censorship of any language or music used in connection with the exhibition of a film, whether the same be uttered by a person actually on the stage or by means of a mechanical device. Indeed, the position of the board, as stated by its counsel in the brief filed by him in the appeal by Vita-graph, Inc., raising the same question as the instant appeal, reveals an intention on the part of the board to extend its jurisdiction far beyond even these arbitrary boundaries so as to cover the entire “exhibition as a whole” of moving-picture films. It is stated on page 13 in said brief: “. . . the exhibition as a whole as the same is proposed to be made publicly in this State is subject to the power of the board in order to determine whether or not the pictured play and the necessary as well as the intended accompanying language is ‘moral and proper.’ ” Again, on page 17 of the brief filed by counsel for the board, it is stated that the Board of Censors has “. . . all the power that is needful for it to determine the quality of the motion picture, play or exhibition proposed to be publicly given in this State.”

It is significant that the present attempt of the Board of Censors arbitrarily to extend its jurisdiction, as indicated by the regulation which it is seeking to enforce, is the first attempt on the part of motion-picture censors to censor spoken language, and that even the Pennsylvania board apparently never thought of attempting thus to extend its jurisdiction for a period of approximately a year and a half after the use of mechanical devices for the synchronization of language with a picture film.

A comparison of the Act of June 19, 1911, P. L. 1067, the first censorship act, with the Act of May 15, 1915, P. L. 534, is of considerable help in ascertaining the intent of the legislature with respect to the limitations upon the powers of the board. In the first place, the Act of 1911 was entitled “An act regulating the exhibiting or using of moving pictures and stereopticon views. . . .” The Act of 1915 is entitled “An act relating to motion-picture films, reels or stereopticon views or slides; providing a system of examination, approval and regulation thereof, and of the banners, posters and other like advertising matter used in connection therewith; creating the Board of Censors, and providing penalties for the violation of this act.” It is to be noted that the first Act of 1911 was considerably broader in scope than the Act of 1915; the Act of 1911 conferred the power to regulate the exhibiting or using of moving pictures; the Act of 1915 provides a system of examination, approval and disapproval of motion-picture films, reels or views. The argument in support of the position of the board would have more force if it were based upon the Act of 1911 rather than the Act of 1915. '

In the second place, the legislature, in the Act of 1915, not only narrowed the scope of the former act as defined in its title, but expressly conferred upon the board the right to examine all films, reels or views, and, in addition thereto, the power to examine and censor “banners, posters and other like advertising matter.” The legislature would certainly not have deemed it necessary to give to the board express authority to censor banners, posters and advertising matter (which power has not been expressed in the Act of 1911) if the board already had, as an incident to the powers conferred upon it, the right to control “the exhibition as a whole” of motion-picture films publicly shown in the State.

In the third place, it is to be noted that the Act of 1911 contains no definition of “moving pictures” or of “film.” In this respect, also, the legislature in the Act of 1915 limited the scope of the prior act by defining “film” as “what is usually known as a motion-picture film.” Here lies the crux of the whole matter. The board announces that it will no longer act as censors merely of what is usually known as a motion-picture film, but that it will in the future censor the entire exhibition of which the motion picture is a part. Such authority once asserted by the board will undoubtedly lead to the effort by the board to censor indirectly anything and everything connected with the exhibition of a motion picture, including the music, the language, the program, and conceivably even the decorations in the theatre in which a picture is exhibited, or such other performances, as, for example, vaudeville acts, as may be given on the same program with the motion picture. That such power in the board was not contemplated by the legislature is self-evident upon the mere statement of the proposition.

It cannot be argued with any force or conviction that the legislature, by giving the board the power to examine and approve or disapprove of a motion-picture film, as it existed in 1915, the year the enabling act was passed, intended to clothe the board with authority to censor the language of President Coolidge, for instance, who might be filmed while delivering an address, or to censor the address given by an explorer or traveler in person upon the stage in conjunction with a travelogue. The educational value of the Movie-tone invention would be entirely destroyed by such an assertion of authority, for the producer could make no record of any public address unless the speaker first submitted to the photographer the manuscript of his speech, to be censored by the Pennsylvania Board in advance, and the address of an explorer, given in conjunction with a travelogue, could never be delivered extemporaneously.

The board contends in support of its position that, without knowledge of the language proposed to be uttered in connection with a motion picture, it is impossible to determine whether the motion picture is moral and proper or whether it is sacrilegious, obscene, etc. This position is perhaps ingenious and astute, but it is obviously an attempt to do by indirection what it apparently realizes it has no direct authority to do. While conceivably it may be desirable for the board to have the right to demand the submission of language used in conjunction with a motion-picture film in order to ascertain whether the film is moral and proper, that is a matter which must be addressed to the legislature, for neither the board nor the court, by judicial legislation, can create such a power if not conferred by the act of assembly. It must be borne in mind, therefore, that the issue raised by this appeal is not whether the board should have the power to censor language, but whether such power has been conferred upon it by the Act of 1915.

It cannot be contended, of course, that by reason of the limitations placed upon the powers of the board by the Act of 1915, a motion-picture exhibitor can, therefore, with impunity use such language in conjunction with a motion-picture film as may be immoral, sacrilegious or obscene. There is ample legislative authority quite apart from the Censorship Act to enable the proper authorities to close an indecent public exhibition and to punish such persons as may be guilty of exhibiting indecent pictures or plays. The Acts of April 13, 1911, P. L. 64, and of May 20, 1913, § 16, P. L. 229, establish effective remedies for the control and punishment of such persons as may be inclined to produce improper public exhibitions. A committee of theatrical censors has been and is functioning effectively in the City of Philadelphia, which, under the authority of legislative acts, controls the production of the spoken drama.

The board admittedly has jurisdiction to censor the titles and sub-titles which are printed on the film. Such titles are an integral part of the film and of the story which is depicted thereon. Counsel for the board contends that, admitting the power of the board to censor language printed on the film in the form of sub-titles, and denying the authority of the board to censor language which is spoken by an individual or mechanical device in conjunction with the film, is a distinction which is unsound, because it is based upon whether the language is printed or spoken. The board contends there should be no such distinction. But the authority of the board arises solely from the act which created it, and, however desirable it may be to censor spoken language as well as printed language, jurisdiction over the former was not conferred upon it by the legislature.

Certain well-established rules of construction must be borne in mind when an act is to be construed. Clear language is to be construed in exact accordance with what it says, and the language of an act which is complete and clear in itself cannot be extended, even though a court may think such extension might have been wise. In the second place, a penal act is always to be strictly construed.

Upon the first point, a clear statement of the rule is found in the case of Grayson v. Aiman, Inc., 252 Pa. 461 (1916). In this case the court considered the Act of 1891, which provided that where goods subject to distress for rent passed into the hands of an assignee for the benefit of creditors, a landlord should have a preference for rent from the proceeds of the sale of such goods. The question was whether the act gave the same preference where the goods were sold by a receiver instead of by an assignee for the benefit of creditors. The court said: “The argument concedes, of course, that it is the legislative intent that governs in all statutory construction, but it overlooks the fundamental rule that courts, in seeking for the legislative intent, must find it in the statute itself; that unless good ground can be found in the statute for restraining or enlarging the meaning of its words, the courts may not subtract therefrom or add thereto. Another equally fundamental rule overlooked is, that where the words of a statute are plain and clearly define its scope and limit, construction cannot extend it. Were it to be conceded that preference in cases of receivership fall within the spirit of the Act of 1891, while this would establish the equity appellant contends for, it would come far short of establishing a statutory right which alone can give relief. Any so-called equitable construction that would so extend the Act of 1891, of that of 1772, as to include the relief therein provided for cases arising under receiverships, in view of the plain and unambiguous language of the act defining and limiting its application, would be nothing less than supplying a supposed defect in the act which the legislature could have easily supplied. It would not be construing the act, but altering it. And this we may not do.”

In the ease of Com. v. Kebort, 212 Pa. 289 (1905), the court considered an Act of 1895 providing against the adulteration of food. The act provided that the word “food” “shall include all articles used for food or drink.” The court held this section unconstitutional on the ground that the title of the act referred only to food, and that food, in common understanding, did not include drink. The court said: “The words food and drink, in common usage and understanding, are complementary and associate terms denoting the two prime necessities of life, but they are so far from synonymous that they import a plain and fundamental distinction, as universal as language and as old as the human race. No tongue is so primitive that it lacks different words to indicate them and different words to express the sensations of want of them, as hunger and thirst.”

It may be observed at this point that the vocabulary of the legislature is doubtless large enough to include different words to indicate things heard as differentiated from things seen, and that had the legislature intended to give the Board of Censors jurisdiction over language it could easily have done so.

The rule of strict construction applicable to penal statutes has often been defined. In the case of Stewart v. Com., 10 Watts, 306 (1840), the court held that the building partly of brick and partly of wood was not included in legislation prohibiting the erection of wooden buildings. The court said: “If this were a remedial law, it might be construed liberally so as to effectuate the design of the legislature, which was to guard against the danger of fires in a populous city. But being a penal statute and this proceeding of a criminal case, the rule of law is well settled that such statutes are to be construed strictly and that no one is to be brought withih the penalty of the act who is not within the plain meaning of the words strictly construed; and they are confined to wooden buildings only.”

Similarly, in the Kebort case, supra, the court said: “It is a penal act creating an arbitrary and artificial crime, without reference to criminal intent, and must receive a strict construction with due regard to the popular comprehension.”

In the case of Com. v. Exler, 243 Pa. 155, 162 (1914), the court said: “And right here we encounter the rule of interpretation that forbids any construction of a penal statute that would extend its meaning beyond its words. ‘No person is to be made subject to a penal statute by implication; all doubts concerning their interpretation are to preponderate in favor of the accused: ’ Bishop’s Criminal Law, § 225.”

The principle is also clearly stated in this case that a criminal statute cannot be extended to cover situations which did not exist when the act was passed and which, therefore, the framers of the act could not have had in contemplation. The court says, at page 163: “Not only consonant with the rule just stated, but seemingly a corollary to it, we have another rule thus stated in Endlich on Interpretation of Statutes, § 325: ‘Again, as illustrative of the rule of strict construction, it has been said that while remedial laws may extend to new things not in esse at the time of making the statute, penal laws will not. . . .’ The same rule may be found in 26 Am. & Eng. Eney. of Law, 600, where it is thus stated: ‘It has been held that penal laws should not be extended to new things which were not in being at the time when the laws were made, nor to offenses created and defined by subsequent statutes.’ The authorities cited in the note to the text embrace English and American cases, and included among the latter is one of our own, Com. v. Wells, 110 Pa. 463, where this is said: ‘And it was long ago ruled that a penal act of Parliament cannot be extended to things that did not exist when the statute was made.’ ”

As has been previously pointed out, at the time the Act of 1915 was passed, a mechanical device for the reproduction of language in synchronization with a moving-picture film had not been invented or probably contemplated. This fact, together with the fact that the legislature defined the word film to mean “what is usually known as a motion-picture film,” leaves no possibility of doubt but that the act gave no authority to the board to censor language.

Indeed, the above statement is so clearly correct that the same conclusion is inescapable, whether the Act of 1915 be viewed merely as a remedial statute, to which the rule of reasonable construction should be applied, or as a penal statute, to which the rule of strict construction should be applied. There are approximately 20,000 motion-picture theatres throughout the United States. Of these theatres approximately 300 are equipped to and do exhibit films with the mechanical device for the reproduction of language in synchronization with the picture. It is clear, therefore, that this type of film or exhibition is even today distinctly unusual and that it could not reasonably be described as “what is usually known as a motion-picture film.”

We wish also to cite the case of Mindlin v. O’Boyle, 278 Pa. 212 (1923), in which the court said: “A statute will not be construed as changing the common law beyond what is expressly stated or necessarily implied, and in doubtful cases the presumption is that no change was intended.”

In ascertaining what is usually meant as a motion-picture film, as defined by the act, it is interesting to refer to Webster’s New International Dictionary, in which the word “film” is defined as “the photographic film in the form of a flexible strip, used in making a motion picture.” “Motion picture” is defined as “a series of pictures, usually photographs taken with a special machine, presented to the eye in very rapid succession, with some or all of the objects in the picture represented in successive positions slightly changed, and producing, because of the persistence of vision, the optical effect of a continuous picture in which the objects move.”

The first case in which the Act of May 15, 1915, P. L. 534, was considered by the Supreme Court was the case of Franklin Film Manuf. Corp., 253 Pa. 422 (1916). In that case, as there was no finding, in the opinion of the Court of Common Pleas, that the censors acted arbitrarily or were guilty of an abuse of discretion in ordering the eliminations in question, the Court of Common Pleas was reversed. The Supreme Court said, page 426: “The evident intent was to grant a right of appeal to the Common Pleas so that tribunal could correct any arbitrary or oppressive orders which the Board of Censors might make. . . .” The court also stated, at page 427: “When, after hearing, the court is convinced in any case that the censors have abused their discretion, the construction just placed upon the Act of 1915, swpra,, leaves ample power in the Common Pleas to see that the public is not denied proper entertainment and to protect property rights, a power which they should not hesitate to use when occasion requires.”

The next case before the Supreme Court was Goldwyn Distributing Corp., 265 Pa. 335 (1919), the ruling of the Board of Censors was sustained because there was no finding of fact by the Court of Common Pleas which would support an inference that the board “rested its conclusion in the case on any ground not within the scope of its discretion.” Concerning the scope of the discretion vested in the board, the court said, at page 342: “Such is the general rule when the exercise of discretionary power is complained of. ‘The rule that a discretionary ruling is not reviewable on appeal does not apply where the decision complained of was not made in the exercise of discretion, but was based upon a question of power in the court below, or upon some ground of law not involving discretion. It follows that a decision is not unappealable as being discretionary where it was not made in the exercise of discretion, but was the result of the refusal to exercise discretion. In such cases, although there have been decisions to the contrary under particular statutes, the general rule is that the onus is upon the appellant to show affirmatively that the decision was made on a ground not involving the exercise of discretion:’ 3 Corpus Juris, 471, § 289. The authorities cited in the note to the text show how widely and generally this rule is recognized and adopted.” The Supreme Court also said in this case, at page 344: “. . . when the board has failed to exercise any discretion whatever, it is quite as much an abuse of its power as it would have been for it to act contrary to the express duty enjoined. So much may be granted.”

In the case of Citizens Passenger Ry. Co. v. Public Service Commission, 271 Pa. 39 (1921), the court considered the scope of the authority of the Public Service Commission under the act which created it. The court said, at page 54: “The Public Service Company law, however, like all others not in the course of the common law and providing extra judicial remedies (even though the exercise of the jurisdiction conferred may ultimately be brought within the scrutiny of a court), covers only such matters as are expressly or by necessary implication included within its terms.”

In the case of Gemas’s License, 169 Pa. 43 (1895), the lower court refused to grant a distiller’s license because he found it unnecessary for the accommodation of the public. The Supreme Court said that although the granting of licenses was within the discretion of the Court of Quarter Sessions, “this discretion, as we have frequently said, is a judicial discretion, to be exercised for legal reasons and in a judicial manner.” As the license in this case had been refused solely because it was alleged to be unnecessary for the accommodation of the public, the Supreme Court said: “We are of the opinion, therefore, that the only reason assigned for a refusal of the license was not a valid reason under the statute in the case of a distiller, and unless there is other ground for refusing it, which does not appear, the license should be granted.”

To the same effect are the cases of English’s License, 59 Pa. Superior Ct. 629 (1915), and the case of Cambria County Brewers’ License, 78 Pa. Superior Ct. 40 (1921).

■In the case of Com. v. Shaffer, 52 Pa. Superior Ct. 230 (1913), the court reversed the action of a lower court in regard to the imposition of costs on the ground that the lower court had abused its discretion. The court said: “The phrase ‘abuse of discretion,’ as applied to judicial proceedings, does not necessarily imply a wilful abuse or intentional wrong. It may occur through an honest, though erroneous, opinion entertained by the court as to the nature and extent of its discretionary power and as to the legal principles governing its exercise. And where this is plainly made to appear to the appellate court, in a legitimate way, it may set aside the action complained of and remit the matter to the court of first instance, with direction to proceed according to the legal principles governing the judicial discretion committed to it.”

The same principle has been applied in numerous other cases, including Fuel City Manuf. Co. v. Waynesburg Products Co., 268 Pa. 441 (1920); Waite v. Macy, 246 U. S. 606 (1918), and Stroh Products Co. v. Davis, 8 Fed. Repr. (2nd) 773.

In the case of Clicquot Club Co. v. United States, 13 Fed. Repr. (2nd) 655, the court, referring to the regulation of the Collector of Internal Revenue, said: “The regulation must be kept within the law. The administrative officers may not by regulations enlarge or abridge the obligations imposed by the statute. To exercise such power is to legislate, and not to regulate.”

In the case of Hover v. Denver & R. G. W. R. Co., 17 Fed. Repr. (2nd) 881, the Circuit Court of Appeals, referring to a regulation of the Interstate Commerce Commission, said: “The commission cannot make or modify the law. Executive and administrative departments of the Government are required to keep within the limits of the power granted them by Congress.”

The reason for the disapproval by the board of the film “She’s Still My Baby” clearly appears in the order of disapproval. The only reason assigned is “that the said Fox Film Corporation has refused the request of the board to submit to it for its examination the language used by the actor in said picture. . . .” This statement is. later supplemented by the statement that without the submission of such language the board cannot ascertain whether the picture is moral or proper. The latter statement, however, is merely the statement of a conclusion and in no sense the statement of a reason for the order of disapproval. There is no finding by the board that the film in question is sacrilegious, obscene, indecent or immoral. The limit of the board’s authority, however, as defined in the act, is that the board shall approve such films as are moral and proper, and shall disapprove such as are sacrilegious, obscene, indecent or immoral. Nowhere in the act will be found any authority in the board to disapprove a film because the applicant has refused to submit to the board at its request the language used by the actor in the picture.

Not only is there a total absence of any authority contained in the act under which the board can compel the submission of language for its examination, but the title of the act, as ábove .referred to, would clearly not support any such position. The title of the act, as we have previously pointed out, states that the act relates to motion-picture films, provides a system of examination, approval and regulation thereof, and of the banners, posters, etc., used in connection therewith, creates a Board of Censors, and provides penalties for violation of the act. It is a fundamental proposition that any provision in the act not included in the title would be. unconstitutional. It is also obvious that the title of the act gives no notice whatsoever of any effort to confer jurisdiction on the Board of Censors over the utterances of the language, whether by mechanical device or by an individual in person.

Upon an application of the law as defined by the foregoing decisions to the facts of this case, the order of disapproval entered by the board upon the film in question was an arbitrary and oppressive abuse of its discretion; and in failing to approve said film, in the absence of a finding that the said film was immoral, indecent or obscene, it failed totally to exercise such discretion as was vested in it by the act.

The Pennsylvania State Board of Censors has no jurisdiction whatsoever to compel the submission to it for examination of such language as is to be used in conjunction with a motion-picture film; the regulation heretofore adopted by the Pennsylvania State Board of Censors and herein complained of has not been established in accordance with any power or authority conferred upon the board by the act which created it; the order of disapproval of the film “She’s Still My Baby,” which order was made because the appellant refused to submit to the board the language used in conjunction with the picture, and in the absence of a finding that said film is immoral, indecent or obscene, is an arbitrary and oppressive abuse of discretion, and the said order of disapproval is set aside and the appeal is sustained.

NOTE. — See In re Vitagraph, Inc., 11 D. & C. 45.


source: Caselaw Access Project

author: Martin, P. J.,

license: Public Domain

text:
    Campise v. Wible Brothers.

      S. Melnick, for plaintiff; A. T. Hanby, for defendant.
    June 27, 1928.
   Martin, P. J.,

A suit in trespass was instituted by plaintiff against defendants. A statement of claim was filed on Aug. 30, 1926, alleging that the accident for which suit was brought occurred on Dee. 29, 1925. An affidavit of defense was filed April 14, 1928, which averred that defendants were not the owners of the motor-vehicle involved in the accident, and that it was not operated by their agent, servant or employee. On May 11, 1928, plaintiff presented a petition averring service of the writ upon defendants and a statement of claim; that no affidavit of defense was filed until April 14, 1928; that the cause of action arose out of a collision of motor-vehicles on Dec. 29, 1925, more than two years prior to the filing of the affidavit of defense, and, in the meantime, the case had been listed for trial a, number of times, and on each occasion defendants were notified by mail that the case was on the list ready to be tried; that the affidavit of defense was not filed until after the statute of limitations had expired, and then without leave of court.

This rule was granted to show cause why the affidavit of defense should not be struck from the record. An answer was filed by defendants, admitting the averments of the petition, and averring that no motor-vehicle belonging to them was in the collision described in the statement of claim; that the accident happened Dec. 29, 1925, and defendants received no word of it until the summons was served on them on May 27, 1926, five months after the alleged accident, and no statement of claim was served until Aug. 30, 1926; that when the summons was served defendants turned the matter over to the Continental Casualty Company, which carried the insurance on trucks belonging to defendants; that an investigation was made of the alleged accident, which disclosed that it was not caused by any truck belonging to defendants, and the insurance company informed defendants they were not involved in the accident; that, relying upon the insurance company to take care of the proceedings, defendants were under the belief that the proper pleadings had been filed, and it was not until the papers were returned to defendants on April 13, 1928, that they discovered through counsel that no affidavit of defense had been filed; an affidavit was then prepared and filed.

„ Defendants were not entitled to file an affidavit of defense under the circumstances in which this affidavit was filed without leave of court. No application was made for permission to file the affidavit of defense, and it should be struck off.

Rule absolute, without prejudice to the right of defendants to apply for leave to file an affidavit of defense nunc pro tunc.


author: Harvey, P. J.,

text:
    Commonwealth v. Bender.

      John M. Myers, District Attorney, for C. M. Beatty; A. A. Geary, contra.
    May 16, 1928.
   Harvey, P. J.,

A. W. Bender was placed on trial in December Sessions, 1927, of this court under indictment of larceny by clerk, and a verdict of hot guilty was returned by the jury in the case, in which verdict the costs were imposed on C. M. Beatty, the prosecutor. C. M. Beatty was at that time, and at and prior to the institution of the proceedings, County Detective for Clarion County. A motion was presented by the District Attorney of Clarion County to set aside the portion of the verdict imposing the costs on the prosecutor. Rule to show cause was granted thereon. Answer to the rule was filed by the defendant in the case opposing the granting of the motion. Arguments of counsel were heard thereon.

The power to dispose of the costs in this case (felony), by reason of the value of the goods (in this case, money) alleged to have been stolen being less than $10, rests with the jury: Act of May 25, 1897, P. L. 89. That statute (section 1) was framed, we believe, with the intent and purpose to discourage and deter the institution of trivial, petty and vexatious matters without due consideration, possibly maliciously on the part of the prosecutor, which would occupy the time of the courts to little or no avail at the expense of the public. Nevertheless, the provisions in the act referred to are broad enough to embrace the present case, and the jury was so instructed. This is an important case. It was hotly contested. Great public interest was excited.

The trial was had on the main issue, namely, the guilt or innocence of the defendant upon the indictment as modified. The verdict “not guilty” settled that. The jury proceeded further and imposed the costs upon the prosecutor. This part of the verdict the court is asked to set aside. This the court possesses the power to do, but only for proper and sufficient reasons.

“It is well established in Pennsylvania that the courts possess the power for good and sufficient reasons to set aside that part of a verdict of acquittal which imposes the costs on the prosecutor:” Guffy v. Com., 2 Grant, 66; Com. v. Doyle, 16 Pa. Superior Ct. 171; Com. v. Charters, 20 Pa. Superior Ct. 599; Com. v. Gaines, 42 Pa. Superior Ct. 550.

“In disposing of the costs in such cases, the discretion of the petit jury and of the court is in its nature judicial, and is to be guided in its operation by the general principles that govern the exercise of judicial discretion:” Com. v. Shaffer, 52 Pa. Superior Ct. 230.

The points in this phase of the case for consideration and conclusions thereupon are as follows: (1) By whom or at whose instance was the prosecution instituted? (2) Was it instituted upon probable grounds? (3) Was it instituted in good faith with a view to bring a guilty person to justice, and (or) to establish the innocence of the accused if found to be wrongfully accused? (4) Was C. M. Beatty, a public officer, only connected with the case in the performance of his official duties, or was he acting in collusion with J. B. Truby? (5) Did C. M. Beatty act maliciously and improperly? (6) Was the evidence of C. M. Beatty at the trial so at variance with what he gave at the hearings before the magistrates as to warrant the accusation of false witness or perjury?

1. The matter was brought originally to the district attorney. The district attorney directed the county detective, C. M. Beatty, to investigate it. Upon the reports of the county detective, information, authorized by the district attorney, was lodged against the defendant with a justice of the peace. A ' hearing was had and the defendant bound over to court for trial. A bill of indictment was presented to the grand jury. A true bill was found. A motion was made that the indictment be quashed on the grounds of duplicity. Motion granted. A new information made before a magistrate, a hearing had thereon and the defendant bound over to court. A bill of indictment was presented thereon to a grand jury and a true bill found. When the matter was brought into court a motion was made to quash the indictment for defects in the procedure before the committing magistrate. The motion was granted. A new complaint was lodged against the defendant upon the same charges. Full hearing was had thereon. Defendant was again bound over to court for trial. A bill was presented to the grand jury and an indictment found containing two counts, viz., (1) larceny by clerk, (2)- larceny. We find that the prosecution was instituted at the instance of the district attorney, with C. M. Beatty, the county detective, named as prosecutor by reason of his official position.

2. The district attorney heard the testimony at three hearings before magistrates. Taken to three grand juries. The action of the grand juries after hearing testimony and the testimony at the trial leads us to believe that the district attorney and the prosecutor in good faith, believed there were probable grounds upon which to institute the proceedings, and we so find.

3. We find that the prosecution was brought and pursued in good faith. The trial of the case occupied several days and was ably conducted by attorneys on both sides. It was of grave character. A bill of particulars was asked for by defendant, and, upon direction of the court, was filed. One count, the second, was withdrawn. Stress is laid by counsel for A. W. Bender, the defendant, in his argument upon the motion here under considei*ation, on the undue interest exhibited and the course of action on the part of the prosecutor to obtain evidence to convict the defendant, particularly as to a confession written by Bender, also as to discrepancies between testimony of the prosecutor given at the different hearings in the matter before the magistrates and at the trial in court.

4. C. M. Beatty was a public officer. He made certain accusations, under oath, against A. W. Bender, the defendant. It was his duty as a prosecutor to bring evidence, if possible, to substantiate his accusations. It must be competent, legal evidence. In his capacity as a public officer he had a right to procure the evidence in all proper ways and by all proper means. The “confession” referred to covered alleged peculations to the amount of $3000. The amount specifically at issue was the sum of $2 alleged stolen on a certain day; Upon that the trial was had and the verdict rendered. It was a criminal trial in which the prosecutor could have no pecuniary interest. The utmost that the defendant would be required to “restore,” if found guilty, would be $2.

We have reviewed the testimony given at the trial on both sides very carefully. From our notes taken during the progress of the trial, from our recollection and from the briefs filed, we can find no evidence of collusion between C. M. Beatty, the prosecutor named, and J. B. Truby indicating that Beatty was to receive personally any reward or benefit from the prosecution. Acting as he was and reporting to the district attorney on the case, it would not have been possible for him to “settle” the case. He made information in the matter before the magistrates for $3000. It is the practice, it seems, for arresting officers in some cases to try to secure “confessions” from persons accused. Sometimes improper means and methods to secure confessions are pursued. Officers have been called to account for it. In this case, Beatty may have been zealous to the extreme in the way he proceeded, but we do not find from the evidence that Bender was forced or induced through fear of bodily harm to make the alleged confession.

5. Finding as we do that Beatty acted in good faith in the institution of the prosecution under direction from the district attorney’s office and upon probable grounds, no malice is found.

6. Seeing and hearing Beatty as a witness on the stand, we are not impressed that he wilfully or wantonly varied his testimony on different examinations some time apart, nor that such variations were of such a character to mislead the jury.

And now, May 16, 1928, after hearing arguments of counsel and upon due and careful consideration, rule discharged. Motion granted. And it is ordered, adjudged and decreed that the portion of the verdict imposing costs on the prosecutor, C. M. Beatty, be, and hereby is, set aside; and that the County of Clarion pay all costs properly taxable in the prosecution of the case.

From Merritt H. Davis, Clarion, Pa.


author: Lloyd, J.,

text:
    In re Northumberland National Bank.

      Knight & Taggart, for petitioner; Cummings & Gubin, contra.
    Dec. 27, 1927.
   Lloyd, J.,

The above-entitled proceeding is before us upon the petition of the Northumberland National Bank for a declaratory judgment, as provided by the Act of June 18, 1923, P. L. 840.

From the admissions and the evidence, we state the following

Findings of fact.

1. The Northumberland National Bank is a national banking corporation, conducting its business in the Borough of Northumberland, Northumberland County, Pennsylvania.

2. That Charlotte J. Lesher and John Lesher are and were, prior to Oct. 14, 1920, husband and wife.

3. That Charlotte J. Lesher and Mrs. John Lesher are one and the same person.

4. That on Oct. 14, 1920, the said Mrs. John Lesher and John Lesher opened a joint savings account with the Northumberland National Bank.

5. That the said savings account was opened with the bank under the following depository agreement: “The sums deposited in this account belong to John Lesher or Mrs. John Lesher jointly; it being understood each may withdraw on his or her individual order during their joint lives and we hereby direct and authorize the Northumberland National Bank, Northumberland, Penna., to pay any balance remaining upon the. death of either of us to the survivor. John Lesher, Mrs. John Lesher.”

6. The balance remaining in the joint savings account on May 25, 1927, was $2024.98, which, with interest computed as principal to June 1,1927, amounted to $2030.

7. That on Nov. 8, 1923, the said Mrs. John Lesher and John Lesher opened a joint checking account at said Northumberland National Bank.

8. That the said checking account was opened with the bank under a depository agreement identical with that set forth under our fifth finding of fact.

9. That the balance remaining in said checking account on May 25, 1927, is $306.97.

10. That the said John Lesher was found to be insane on Feb. 17, 1927, and on that date was committed to the Danville State Hospital for the Insane upon the certificate of two physicians.

11. That this court, on May 25, 1927, by proceedings duly had, adjudged the said John Lesher to be insane and appointed said Charlotte J. Lesher his guardian.

12. That no action had been taken by John Lesher during his sanity to annul, cancel or revoke either of said depository agreements.

13. That on May 14, 1927, Charlotte J. Lesher drew her check on the joint savings account for the sum of $2000 and presented the same to the North- - umberland National Bank for deposit to her individual account, Mrs. John Lesher; that the said bank accepted the said check, transferred the account and issued to Mrs. John Lesher a pass-book, No. 4266, and therein credited her individual account with the sum of $2000.

14. That on May 26, 1927, Mrs. John Lesher presented to the Northumberland National Bank her check against the said joint checking account for the sum of $306.97, and payment thereof was refused by the bank.

15. That on May 25, 1927, Mrs. John Lesher presented her check drawn on said bank for the sum of $2024.98, this being the amount then on deposit in the savings department in said bank in the name of Mrs. Johq Lesher and identified by pass-book No. 4266, issued by said bank to Mrs. John Lesher; that Mrs. John Lesher demanded payment of said check and presented her pass-book, but payment was then and there refused by the bank.

16. That Mrs. John Lesher has an interest in both of said accounts, separate and distinct from the interest arising out of said depository agreements.

From the foregoing findings we state the following

Conclusions of law.

1. That the joint savings account, under the depository agreement set forth in our 5th finding of fact, was and is subject to the check of Mrs. John Lesher.

2. That the joint checking account, under the depository agreement set forth in our 8th finding of fact, was and is subject to the check of Mrs. John Lesher.

3. That on May 14, 1927, the Northumberland National Bank honored the check of Mrs. John Lesher drawn for the joint savings account and legally transferred the said account to Mrs. John Lesher.

4. That there is now on deposit in the said bank in the name of Mrs. John Lesher $2030, with interest computed as principal to June 1, 1927, and that said amount is subject to the individual check of Mrs. John Lesher.

5. That the adjudication of John Lesher as an insane person did not annul, cancel nor in any way affect the contract and agreement entered into by John Lesher, Mrs. John Lesher and the Northumberland National Bank relative to the said savings and checking accounts of John Lesher and Mrs. John Lesher.

6. That judgment must be entered in favor of Mrs. John Lesher or Charlotte J. Lesher and against the Northumberland National Bank for the total of said savings account, to wit, the sum of $2030, with interest thereon at the rate of 6 per cent, from June 1, 1927.

7. That judgment must be entered in favor of Mrs. John Lesher and against the Northumberland National Bank for the balance of said checking account, to wit, the sum of $306.97, with interest thereon at the rate of 6 per cent, from May 25, 1927.

Bequests.

Our action upon the requests of the parties for findings of fact and conclusions of law are indicated upon the original requests which are filed herewith.

Decree.

In view of the foregoing findings of fact and conclusions of law, we now declare that judgment must be entered in favor of Mrs. John Lesher and against the Northumberland National Bank for the sum of $2030, with interest thereon at the rate of 6 per cent, from June 1, 1927; and, further, that a judgment be entered in favor of Mrs. John Lesher and against the Northumberland National Bank for the sum of $306.97, with interest thereon at the rate of 6 per cent, from May 25, 1927.

An exception is noted and bill sealed for the petitioner, the Northumberland National Bank, Northumberland, Pennsylvania.

Prom C. M. Clement, Sunbury, Pa.


author: Groff, J.,

text:
    Landis et al. v. Conoy Township School District et al.

      Charles W. Eaby and Metzger & Wickersham, for plaintiffs.

      William C. Behm and Zimmerman, Myers & Kready, for defendants.
    Jan. 14, 1928.
   Groff, J.,

This is a bill in equity filed by the plaintiffs, taxpayers of the Township of Conoy, Lancaster County, Pennsylvania, against the School District of the Township of Conoy, Lancaster County, Pennsylvania, and Jacob W. Hoffer and Abraham W. Hoffer, partners, trading as Elizabethtown Planing Mill, defendants, praying that a contract entered into by the school district with the Elizabethtown Planing Mill for the construction of a six-room addition to the school building in the village of Bainbridge, Conoy Township, Lancaster County, Pennsylvania, and all other contracts entered into for and on account of the same, be declared illegal, null and void and of none effect, and praying, further, that an injunction be issued, restraining and enjoining the said school district, the several members of its board of directors and the said Jacob W. Hoffer and Abraham W. Hoffer, trading as the Elizabethtown Planing Mill, from proceeding with the erection or construction of the said school buildings and from all payments of public money on account thereof.

The reading of the bill, the answer filed thereto and the testimony leads us to find the following facts:

Findings of fact.

1. The plaintiffs are residents and taxpayers of the School District of Conoy Township, Lancaster County, Pennsylvania.

2. That Benjamin P. Hoffman, I. Scott Smith, Harry M. Pink, J. K. Shoop and Abram H. Engle were the duly qualified and acting members of the school board at the time of the bringing of this bill, and that Jacob W. Hoffer and Abraham W. Hoffer, trading as Elizabethtown Planing Mill, the remaining defendants, are contractors living in the Borough of Elizabethtown, Lancaster County, Pennsylvania, and were employed to erect and construct the six-room addition to the school building at Bainbridge, Conoy Township, hereinafter referred to.

3. That on or about May 26, 1927, the board of school directors of the School District of Conoy Township agreed to build a six-room addition to the school building located in the village of Bainbridge, Conoy Township, Lancaster County, Pennsylvania, in accordance with the plans of H. E. Keller, as approved by the building committee of said school board.

4. That the advertisement inserted in the Lancaster New Era on May 18, 1927, and subsequent thereto, asking for bids for the erection of said six-room addition, read as follows:

“Notice to contractors — Sealed proposals will be received on a general contract — plumbing, heating, ventilating and electric wiring for addition to the Bainbridge school building, Conoy Township. Plans may be had from the secretary,

“I. Scott Smith,

“Bids due May 26, 1927. “Bainbridge, Pa.”

5. That neither the specifications nor plans for the addition included the heating or plumbing.

6. The contract awarded was not a general contract such as was called for in the advertisement for bids, but was only a contract for the erection of the building, without including the heating and plumbing.

7. That neither the advertisement for bids nor the specifications stated the time at which the building should be completed.

8. That after the advertisement for bids and at the time the specifications were handed out by him, the secretary of the board made material changes verbally in the specifications and in the terms of the bids as advertised, without advertising the changes.

9. The contract for the erection of the buildings, not including heating and plumbing, was awarded to the Elizabethtown Planing Mill, operated by Jacob W. Hoffer and Abraham W. Hoffer.

10. That after the Elizabethtown Planing Mill bid was received and the contract was awarded, the defendant school board agreed with the Elizabeth-town Planing Mill to pay a surety bond which was to guarantee the faithful compliance by the said Elizabethtown Planing Mill with the terms of their contract.

11. No minutes of the school board prior to May 27, 1927, show or indicate the levying of any tax for the year 1927, as required by section 537 of the School Code, but the uncontradicted evidence of the board of directors shows that in April, 1927, the board unanimously levied a tax rate of 12 mills on the valuation of the taxable property in the township and a five-dollar per capita tax.

12. The contract of June 1, 1927, between Hoffer Brothers, trading as Elizabethtown Planing Mill, and the Conoy Township School District does not contain any provision that the said Hoffer Brothers, trading as the Elizabeth-town Planing Mill, had accepted the Workmen’s Compensation Act of 1915, or its supplement, or that they had insured their liability thereunder in accordance with the terms of the said act, or that a certificate of exemption from insurance had been issued by the Compensation Board, as required by the Act of July 18, 1917, P. L. 1083, nor was any bond given guaranteeing the payment of any compensation which may or might fall due in the performance of the said contract.

13. Neither the advertisement nor the plans and specifications fix a time for the completion of the work.

Findings of law.

1. That the plaintiffs are proper and legal plaintiffs in this proceeding.

2. That the School District of the Township of Conoy, Lancaster County, Pennsylvania, is a school district of the fourth class. It is also a municipal division or subdivision of the Commonwealth within the contemplation of the Act of July 18, 1917, P. L. 1083.

3. That the contract of June 1, 1927, between the School District of Conoy Township and Jacob W. Hoffer and Abraham W. Hoffer, trading and doing business as the Elizabethtown Planing Mill, was illegal and void:

(a) Because the bids for the building were not in accordance with the advertisement inviting bids.

(b) Because the bidders did not bid on the same basis as to the time for the completion of the contract.

(a) Because certain changes were made verbally in the plans and specifications, and in the bidding as advertised, by the secretary when he handed out the specifications, which changes were never advertised, as required by law.

(d) Because, after the contract was awarded to the Elizabethtown Planing Mill, the school board agreed to pay the surety bond which was taken to guarantee the faithful compliance by the Elizabethtown Planing Mill under the terms of their contract.

(e) Because the contract of June 1, 1927, was executed in violation of the provisions of the Act of July 18, 1917, P. L. 1083.

(f) Because the advertisement did not fix the time at which the building was to be completed.

Discussion.

The facts in this ease show that the plaintiffs in the bill are taxpayers of Conoy Township, Lancaster County, Pennsylvania, and as such they had a right to file this bill in equity, asking for the relief prayed for. The defendants, Benjamin Hoffman, I. Scott Smith, Harry M. Fink, J. K. Shoop and Abram H. Engle, school directors, acting for the School District of the Township of Conoy, in Lancaster County, Pennsylvania, decided to build an annex to their school building in the village of Bainbridge, in said township, and apparently proceeded to do so without a due consideration of the requirements of the School Code of Pennsylvania, P. L. 1911, page 309.

There is nothing in the evidence or the bill to show that this school board had any regular place or time for meeting, but they do show that it met at the call of the secretary, made under the direction of the president, Benjamin F. Hoffman, who was ill and confined to his bed, sometimes at Mr. Hoffman’s home and sometimes at the home of I. Scott Smith, the secretary.

The school board had prepared and submitted to it, at a meeting held at the home of Benjamin F. Hoffman, the president of the board, on April 27, 1927, what they called tentative plans for the erection of a six-room addition to their school-house. At.that meeting the plans were discussed, but not adopted, and at a special meeting held on May 26, 1927, at the home of the secretary, it was agreed to build the six-room addition according to the plans of H. E. Keller, as approved by the building committee of said school board. It was reported that three bids had been submitted; that the bid of Elizabethtown Planing Mill for the sum of $18,476 was the lowest bid on the basis of the plans and specifications submitted to all the bidders. No one of the three bids, according to the evidence, was in accordance with the advertisements inviting bids. That it was at that meeting resolved that the contract for the erection and completion of the addition to the Bainbridge School Building according to the plans and specifications adopted and approved by the board be awarded to the said Elizabethtown Planing Mill. This motion was, according to the minutes, unanimously adopted.

Prior to that time, I. Scott Smith, pursuant to a resolution of the board of directors, adopted at the April meeting, inserted in the Lancaster New Era, the following advertisement:

“Notice to contractors — Sealed proposals will be received on a general contract — plumbing, heating, ventilating and electric wiring for addition to the Bainbridge school building, Conoy Township. Plans may be had from the secretary,

“I. Scott Smith,

“Bids due May 26, 1927. “Bainbridge, Pa.”

It is admitted by the secretary that he verbally changed this advertisement at the time he handed the plans and specifications to prospective bidders without having readvertised the bidding. An examination of the plans and specifications show that they include the heating, plumbing, wiring and ventilating. The contract with the Elizabethtown Planing Mill excludes therefrom the plumbing and heating, and the contract further shows that the school board, after the bidding was let, agreed to pay the expense of the bond which the contractor was required to give for the faithful performance of his duty.

The contract entered into.,with the Elizabethtown Planing Mill on June 1, 1927, does not contain any provision that Jacob W. Hoffer and Abraham W. Iloffer, trading as Elizabethtown Planing Mill, had accepted the Workmen’s Compensation Act of 1915, or its supplements, or that they had insured their liability thereunder, in accordance with the terms of the said act, or that a certificate of exemption from insurance had been issued by the Compensation Board, nor was any bond given guaranteeing the payment of any compensation which may, or might, fall due in the performance of the said contract.

From the above facts we find as a matter of law that the plaintiffs are proper plaintiffs in this bill, they being taxpayers of the Township of Conoy, which is a fourth class school district under section 105 of the School Code, P. L. 1911, page 309, and it is also a municipal division or subdivision of the Commonwealth within the Act of July 18, 1917, P. L. 1083: Lehigh Coal and Navigation Co. v. Summit Hill School District et al., 289 Pa. 75, 81.

The plans and specifications and the terms of the bidding were materially changed verbally by the secretary of the board at the time he handed the plans and specifications to the contractors, by taking out the heating and plumbing and notifying the applicants for specifications that the contract should be completed before the beginning of the next school term. These changes were not readvertised.

This, we believe, gave an unfair advantage to the persons who actually applied for plans, and the changes not being communicated to other bidders who may have desired to bid under the new conditions verbally submitted by the secretary may have prevented many persons from bidding, and was, we think, contrary to the law. This was not conducive to competitive bidding, unless a public notice of the change was given. It was said by the Supreme Court in Page v. King et al., 285 Pa. 153-159: “To alter the specifications during the submission of bids would not produce competitive bidding, unless public notice of the change was given. Bidders should be informed by the specifications on file what is expected of them; material changes thereof should be followed by a public notice and a letting made accordingly. Personal notice to those having already secured plans, in addition to the public notice, is highly desirable, and should be given, if possible; but, without public notice, discrimination may easily be practiced by sending only personal notices to a few individuals. A contract cannot be lawfully awarded when changes are made in the specifications after advertisements, unless the change is advertised.” And to the same effect was Flinn v. Philadelphia, 258 Pa. 355, and Louchheim v. Philadelphia, 218 Pa. 100.

We feel that the paying of the.premium for the bond guaranteeing the completion of the contract for the successful contractor was a discrimination which should not have been made, and if it was intended-to be paid by the school district, it should have been advertised, so that all prospective bidders might have had knowledge of the same. Such action was unfair to the other bidders and contrary to the statutory proceedings designed to safeguard the expenditure of public funds and prevent the favoring of the successful bidder.

Another reason exists here why this contract should not have been awarded, viz.: That when the advertisement for bids was made, neither it nor the specifications stated the time within which the building should be completed, and, therefore, prospective bidders could not apply on a common basis: Hibbs et al. v. Arensberg et al., 276 Pa. 24-28; Edmundson v. Pittsburgh School District, 248 Fa. 559, 563.

There is another objection to the validity of the contract entered into between the school board and the Elizabethtown Planing Mill, viz., that there was nothing in the specifications, nor in the advertisement for the bids, nor in the contract entered into between the school board and the Elizabethtown Planing Mill, requiring or indicating that the contractor had to comply with the Act of July 18, 1917, P. D. 1083, “requiring that all contracts executed by any municipality, or any officer or bureau or board thereof, or by any municipal division or subdivision of the Commonwealth, which contracts shall involve the construction or doing of any work involving the employment of labor, shall contain a provision that the contractor shall accept . . . the provisions of the Workmen’s Compensation Act of 1915, . . . and the said contractor will insure his liability thereunder, or file with the Commonwealth, or the municipal corporation or board with whom the contract is made, a certificate of exemption from insurance. . . . Section 3 of the act provides that ‘any contract executed in violation of the provision of this act shall be null and void.’ ”

It is admitted that Jacob W. Hoffer and Abraham W. Hoffer, trading as the Elizabethtown Planing Mill, did not comply with this requirement, and there is no reason given for the non-compliance with it. Both the school board and the Elizabethtown Planning Mill were bound to know the law. The language of the act is mandatory, and, in view of the express provision of section 3 of the said act that a contract executed in violation of the provisions of the said act is void, makes further discussion of this subject unnecessary.

For the reasons above given, we conclude that the contract entered into between the Directors of the Conoy Township School District, through their secretary, I. Scott Smith, and Jacob W. Hoffer and Abraham W. Hoffer, trading as the Elizabethtown Planing Mill, is null and void. The parties to the said contract not having complied with the statutes in such cases made and provided, nor with the laws of the Commonwealth affecting public contracts, we, therefore, enter the following decree nisi:

Decree nisi.

1. That the contract entered into between the Conoy Township School District for the construction and erection of the six-room addition to the school building in the village of Bainbridge, Conoy Township, Lancaster County, Pennsylvania, and the Elizabethtown Planing Mill is null and void and of no effect.

2. That an injunction be issued, restraining and enjoining the said School District of Conoy Township, the several members of its board of directors, and Jacob W. Hoffer and Abraham W. Hoffer, trading as the Elizabethtown Planing Mill, from proceeding with the erection or construction of the said school building, and from the payment or collection of any public moneys due on account thereof.

From George Ross Eshleman, Lancaster, Pa.


author: Whitehouse, J.,

text:
    Strizak et al. v. Danacko et al.

      John Skwier and George J. Puhalc, for plaintiffs.

      Henry Houck and J. F. Mahoney, for defendants.
    April 9, 1928.
   Whitehouse, J.,

On May 2, 1927, the plaintiffs filed a bill of complaint in the above case. The time for filing answer was extended through an agreement of attorneys, and the answer raising preliminary objections was filed on July 5, 1927.

On Sept. 12, 1927, plaintiffs moved for judgment pro confesso, stating in their petition that the defendants had filed preliminary objections on July 5, 1927, that the plaintiffs did not amend within ten days thereafter, and since defendants, in turn, did not, within the ten days after the expiration of the ten days first referred to, order the case upon the argument list and neglected and failed to answer within an additional period of ten days, plaintiffs would be entitled to judgment pro confesso under provisions of Equity Rule No. 49. The court, on Sept. 12, 1927, made the following order: “And now, to wit, Sept. 12, 1927, the court order judgment pro confesso to be entered against the defendant, and that Monday, Sept. 28, 1927, be fixed for hearing for entry of the appropriate decree in accordance with Rule No. 51 of equity practice. By the Court.”

There was no action taken on Monday, Sept. 28, 1927. On Oct. 3, 1927, defendants moved to have the case placed upon the argument list for disposition of the questions raised in the answer raising preliminary objections to the bill, and for the first time became acquainted with the fact that judgment had been taken against them pro confesso. The matter was deferred until Oct. 17, 1927, and again until Oct. 24, 1927, when the court granted a rule on the plaintiffs to show cause why the judgment pro confesso should not be stricken off.

There is no dispute as to the essential facts which are stated in the petition to strike off and the answer. Equity Rule No. 49 is as follows: “If defendant objects upon any one or more of the grounds above stated, plaintiff may, within ten days thereafter, amend as of course, in such a way as he may consider necessary to obviate the objections. If he does not amend, or defendant thinks the amendment is insufficient to remove all the objections, the latter may, within ten days thereafter, order the case upon the argument list for a hearing, otherwise all further objections will be deemed waived and defendant must answer within an additional ten days. If a hearing is had, the court shall either dismiss the objections and require the defendant to answer over, under penalty of having the bill taken pro confesso, or sustain them in whole or in part, and require plaintiff to amend accordingly, under penalty of a dismissal of the bill, in whole or in part, in either event within such time as the court shall prescribe, and upon such terms and conditions as to trial, continuance and costs as to it shall seem meet. . . .”

The plaintiffs, after the filing of the preliminary objections by the defendants, did not within ten days amend the bill of complaint, and, therefore, but two courses were open to the defendants, either to order the cause on the argument list within ten days after the expiration of the ten days allowed defendant to amend, which should have been done by praecipe to the prothonotary, or all objections would be deemed waived, and defendants should have answered within an additional ten days after their time for ordering the same on the argument list for hearing.

The defendants did not order on the argument list, and neglected and failed to file their answer within the period named in Equity Rule No. 49, and, therefore, the judgment pro confesso ordered by the court on Sept. 12, 1927, was proper under the circumstances.

“By the Act of June 16, 1836, § 13, P. L. 784, 789, the equity rules adopted by the Supreme Court have the force of a statute: Cassidy v. Knapp, 167 Pa. 305, 307:” Summerhill Borough v. Sherbine, 88 Pa. Superior Ct. 419, 423.

The Equity Rules for the County of Schuylkill provide as follows: “Beginning on the fourth Monday of the January Term and on the fourth Monday of each succeeding term, excepting July, and every Monday thereafter, until the first Monday of the following term, the court in banc will make up the argument and equity list, and all cases to be heard must be entered on said list, and the stenographer shall notify all counsel interested of the dates fixed for the hearing of the said cases, and shall post a copy of said list in the prothonotary’s office as soon as made up:” Rule 6, Court Rules of Schuylkill County.

Defendants’ attorney contends that because of the Schuylkill County rule he was within his rights. It is, however, a well-settled principle that local court rules cannot override acts of assembly, and since the equity rules adopted by the Supreme Court have the force of an act of assembly, it is apparent that the Schuylkill County rules must give way if they conflict with the Equity Rules of the Supreme Court. We, however, do not believe that they conflict in this instance, as the said case could have been ordered for argument through a prsecipe to the prothonotary within the time fixed by the Equity Rules of the Supreme Court, and then at the proper time, under the rules of the local court, the time for said argument should be named.

In the opinion of the writer, there was some neglect upon the part of the defendants, possibly due to their interpretation of the Equity Rules of the Supreme Court and the local court rules relative to the fixing of the time of argument. It has been held, however, that whilst the equity rules have the force and effect of a positive enactment, they are not inexorable under all circumstances, and that it was not intended to take them out of the ordinary equitable control of a chancellor in the application of chancery rules.

“The right of the court to allow the filing of exceptions nunc pro tunc, notwithstanding the language of Equity Rule 65, was elaborately considered by the learned judge below, and though it is only impliedly challenged here, it may be well to say that it was a matter within his legal discretion. The equity rules were promulgated by this court under the authority of an act of assembly, and it has been said that they ‘have all the force and effect of a positive enactment:’ Cassidy v. Knapp, 167 Pa. 305. By this was meant that they were established as rules of equity practice in all the courts of the Commonwealth and must be followed and enforced as such. When they were first published there was a disposition in some districts to regard them as subject to the approval and adoption of the local courts. This view had to be corrected by the reversal of the decrees in Chester Traction Co. v. Phila., etc., R. R. Co., 180 Pa. 432, and Palethorp v. Palethorp, 184 Pa. 585. But it was not intended to say that they were inexorable under all possible circumstances or to take them out of the ordinary equitable control of a chancellor in the application of chancery rules to exceptional cases. Such a construction might easily make them more oppressive than mandatory statutes:” Hinnershitz v. United Traction Co., 206 Pa. 91, 97.

“These illustrations serve to show the scope of the equity rules. They are the rules of all the courts, to be enforced as of course in all of them, and not relaxed or disregarded as matter of mere indulgence or convenience. But, on the other hand, they are like all other rules of practice, subject to the judicial discretion of the chancellor as to their strict enforcement under circumstances productive of injustice or exceptional hardship:” Hinnershitz v. United Traction Co., 206 Pa. 91, 98.

See, also, Bixler v. Swartz, 257 Pa. 300, 303; Sunbury Borough v. S. & S. R. R. Co., 241 Pa. 357, 360; Crenell v. Pulton, 241 Pa. 572, 579.

The plaintiffs were not injured in any way, as under the local rules it was impossible for the case to be argued before the week of Oct. 3, 1927, and we believe that, under all the circumstances, the rule to strike off the judgment pro confesso should be made absolute.

And now, April 9, 1928, rule to strike off judgment pro confesso is made absolute and said judgment stricken from the record.

Prom M. M. Burke, Shenandoah, Fa.