author: Maxey, J. —

text:
    In re Surcharge of County Commissioners.

      George Morrow, for appellants; Taylor & Lews, for county commissioners.
   Maxey, J. —

The opinion filed in the above-entitled case, purporting to be filed “By the Court” and signed “Newcomb, P. J.,” does not represent the opinion of the Court of Common Pleas of this county, and the judgment entered for $1894.19 against Morgan Thomas et ah, as a surcharge, upon the direction of said judge in said opinion, without the concurrence of at least one of the other judges of the Court of Common Pleas of this County, is a nullity. It is merely a one-judge order. This case was never argued before the court in banc and was not discussed by the court in banc. In fact, this case was never discussed by Newcomb, P. J., with, or mentioned by him to, the writer of this opinion, although we have at all times been available for conference.

In his opinion attempting to dispose of this case, Judge Newcomb wrote as follows: “For obvious reasons it is no welcome duty to have to sit in judgment in such case. But it is here and the right of the parties to have it disposed of cannot be denied.”

If the duty to dispose of this case was as “unwelcome” as the quoted words would indicate, Judge Newcomb could easily have divested himself of part of this burden by giving his colleagues an opportunity to share it with him. However, he did not do this. We may with propriety add to the latter’s statement above quoted, so that it will read as follows: “The right of the parties to have this case disposed of by the entire court in banc cannot be denied.”

In the very recent Scranton registration case, Nolan v. Farr, No. 15, November Term, 1928, in Equity; No. 111, January Term, 929, Supreme Court; in an opinion reversing an order made by Newcomb, P. J., in the name of the court, without consulting his colleagues, the Supreme Court said, quoting a statute: “ ‘Any person . . . may appeal to the Court of Common Pleas,’ ... in which event the matter should be heard as the act specifies by the ‘Court of Common Pleas’ sitting in banc, and not by any one judge thereof, if other judges are available for the purpose.”

The appeal of this case is from the report of the county controller to the “Court of Common Pleas:” Act of June 12, 1878,. P. L. 208. This appeal must, as the Supreme Court said, “be heard as the act specifies by the ‘Court of Common Pleas’ sitting in banc, and not by any one judge thereof, if other judges are available for the purpose.”

The Supreme Court, in Summers v. Kramer, 271 Pa. 189, in which it held that in a district in which there were two judges of the Court of Common Pleas, the judgment of one of the judges of the court entered without the concurrence of the other judge was no judgment at all, said, in an opinion by Justice Simpson, page 195: “There is no judgment to affirm. It requires the action of a majority of the court to authorize the entry of a judgment; no one judge can enter it against the protest of his only colleague, who has an equal right to pass on all matters pending in the court: Madlem’s' Appeal, 103 Pa. 584; Butts v. Armor, 164 Pa. 73; Myers v. Consumers’ Coal Co., 212 Pa. 193. . . . ‘What is ordered and adjudged by the court, not merely what is entered, constitutes the judgment:’ Butts v. Armor, supra. ... As Bach (judge) had equal power and authority in the court, neither had a legal right to exclude the other from participation in its business.”

In Myers v. Consumers’ Coal Co., 212 Pa. 193, the Supreme Court, in an opinion by Mestrezat, J., said, page 200: “Luzerne County is a separate judicial district and elects four judges learned in the law who sit in and compose the Court of Common Pleas of that county. While there are four law judges of the Common Pleas of that county, there is but one court, and the concurrence of a majority of the judges is a prerequisite to the entering of a valid decree. . . . The court in banc should have heard the argument on the exceptions and, after consideration, should have disposed of the exceptions and entered a decree. There would then have been a decree of the court from which only an appeal lies.”

Butts v. Armor, 164 Pa. 73, Dean, J., page 83, said:

“A court is a ‘tribunal established for the public administration of justice and composed of one or more judges, who sit for that purpose at fixed times and places, attended by proper officers:’ Burrill’s Law Dictionary; Mason v. Woerner, 18 Mo. 570. . . .
“The court which took cognizance of this cause at the trial was composed of the three judges, . . . and they sat at the time and place appointed by law for that purpose. Then, after adjournment, they commenced to act, not as a court in consultation over a grave question involving both fact and law, but as individuals. Without consultation with the associates, the president judge . . . filed in vacation this opinion as the judgment of the court.
“The two associates thereupon, at no court of which the president judge was a member, and without consultation with him, overruled this judgment and filed one to the contrary. . . .
“After hearing a cause, opinions of the individual members of a court, no matter how diverse, may be expressed to and urged upon each other as reasons in vindication of a proposed judgment, and the opinion of one may be adopted as that of the court and judgment be entered accordingly. But if, after hearing, the members of the court, without consultation, deliberation or decision, separate and each one commences to file of record his individual opinion and conclusion, however valuable these may be as law literature, they are not judgments of a court. ‘What is ordered and adjudged by the court, not merely what is entered, constitutes the judgment:’ Freeman on Judgments, § 38.
“There never was, so far as this record shows, a Common Pleas Court held by the president in the absence of his associates at which his judgment, as the act of the court, was made up or entered; there never was a Common Pleas Court held by the two associates in the absence of the president for the adjudication of questions arising out of this trial. . . .
“Not one of these judgments was entered by the Court of Common Pleas; they were- only the individual opinions of the members of that court, and all of them, as judgments, must for that reason be set aside.”

In the recent case of Sterrett v. MacLean et al., 293 Pa. 557, reported ip the Advance Reports of Nov. 9, 1928, the Supreme Court, in an opinion by Justice Frazer, said, page 563:

“We have consistently reprehended the allowance of proceedings in court before only one judge when the particular judicial district had two or more judges and where the vital interest of litigants or the conservation of public rights renders it imperative that a case be heard,- considered and decided by aid of the experience and knowledge as well as the personal attention of more judges than one. . . .
“Since but one judge heard and determined the ease, we consider that the court so constituted, to use the words of the Chief Justice in Com. v. Hall, 291 Pa. 341, 355, ‘was not constituted as required by law and, therefore, lacked legal capacity — or, in that sense, jurisdiction — to adjudge the particular case before it.’ On consideration and determination of any case in matters of review or appeal, the final obligation rests upon the court in bane, quite aside from the Act of 1876. This obligation is mostly adequately and fairly met when the largest number of judges available take part in the proceedings and for a proper disposition of the litigation at least two judges should be present when the bench consists of two judges, and if one is not available then a judge from another district should be called in to perform that service; while in districts where the bench has a greater number of judges, at least two must sit as the court in banc, and when it can be arranged without considerable inconvenience, three should sit. In the present case, the right of President Judge Rossiter to act for the whole court is challenged. The record does not show that the final decree was entered after consultation with the other judge of the district, and the plain intent of the Act of 1876 requires the attendance of more than one judge where the bench consists of more than one.
“Under these circumstances: The judgment is reversed. . . .”

1 Cooley’s Constitutional Limitations (8th ed.), page 193: “A court must act as an organized body of judges, and where differences of opinion arise they can only decide by majorities.”

Facts discussed.

The appointment of Miss Amelia S. Koch by Judge Watson as secretary or clerk to assist him in the performance of his judicial duties was necessary to the due administration by Judge Watson of the duties of his office. This appointment was made by him after a conference with another judge of this court, who agreed with Judge Watson that the appointment of Miss Koch was necessary to the due administration by Judge Watson of the duties of his office. The action of Judge Watson in appointing Miss Koch was, therefore, the action of the Court of Common Pleas of this county, and it was so recognized by the county commissioners of this county. There was nothing secret or surreptitious about Miss Koch’s appointment. While the fact of Miss Koch’s appointment as clerk or stenographer by Judge Watson was noted in the public press and was well known to every member of the court of Lackawanna County, no judge of the court made the slightest objection or protest against the appointment of Miss Koch. Therefore, it might be said that this appointment was made not only by the express consent of one of the other judges but by the tacit consent of all the judges of the Court of Common Pleas of Lackawanna County and was to all intents and purposes, therefore, an appointment made by the Court of Common Pleas of Lackawanna County.

We think it would appear to the average mind, either professional or lay, that if any judge of this court believed that the county commissioners in obeying an order of one or more of the judges of the court were exceeding their statutory powers, the very least said judge could have done was to call the matter to the commissioners’ attention and have steps taken to have the matter in question judicially determined by the entire court in banc.

Every judge of the Courts of Common Pleas of Pennsylvania, so far as we have been able to ascertain, has a court stenographer, or secretary, or clerk to assist him in the performance of his judicial duties, and the salary of this attendant is paid out of the respective county treasuries. For example, the judges of the Court of Common Pleas of the neighboring County of Luzerne and of the neighboring Counties of Bradford and Susquehanna- and Monroe each have secretaries or clerks whose salary is paid by the treasury of the respective counties. Whether this attache of the judge’s office is called a clerk, or secretary, or court stenographer or assistant court stenographer, is quite immaterial. In Lackawanna County the President Judge of the Orphans’ Court has an official stenographer who also attends to secretarial duties for the judge. The Court of Common Pleas of Lackawanna County has appointed three official stenographers. One of these stenographers, H. H. Coston, is in his eightieth year. It is no reflection on him to state that he is not as active and his services are not so easily available as they were years ago. One of these official stenographers, Daniel W. Williams, attends to his duties as court stenographer and when not engaged in court he is assigned to the office of Judge Maxey. He is also frequently called upon by Judge Newcomb and Judge Leach to do stenographic work for them in chambers. The other court stenographer, Willis D. Coston, attends to his duties in court and also does most of the stenographic work in chambers for Judge Newcomb.

When Judge Watson came on the bench he found there was no court stenographer available to him at the times that he most needed such services. In this county there are twenty-three weeks of common pleas and quarter sessions court and also five weeks of equity court in each year. There are also five sessions of divorce court and many hearings in court or in chambers on injunctions and habeas corpus proceedings. It frequently happens that several weeks each year are also taken up with hearings on election matters. All these proceedings require the time of the official court stenographers, with the result that the judge who is in chambers attempting to write opinions and attending to other judicial matters finds that there is no court stenographer available to assist him clerically and stenographically in the performance of his judicial duties. 'It was because of this fact that Judge Watson deemed it necessary to appoint a competent stenographer to assist him in chambers in the performance of his judicial duties. As the result of his recognition of this necessity, Miss Koch was appointed as his clerk and the county commissioners, upon being notified of this fact by Judge Watson, paid Miss Koch a salary of $150 per month. This salary did not completely pay for her services; Judge Watson personally out of his own private funds supplemented Miss Koch’s salary to the extent of $50 per month additional.

It should be noted that while the record shows that Judge Watson’s letter to the county commissioners is signed “Albert L. Watson,” the original letter bore the abbreviation “A. L. J.” (for “Additional Law Judge”) and was written upon Judge Watson’s official stationery.

Miss Koeh not only rendered stenographic services to Judge Watson in his judicial capacity but on a few occasions did stenographic work for both Judge Newcomb and Judge Maxey. She took in shorthand and typewrote all the opinions of Judge Watson and attended to all his official correspondence. All the services that she rendered were rendered in behalf of the proper administration of justice in the County of Lackawanna. That the County of Lackawanna and not the county commissioners should pay for these services, every fair-minded person must concede.

No taxpayer or other official of Lackawanna County made any protest when Judge Watson, on March 30,1926, appointed Miss Koch as clerk in his office, for the reasonable necessity for such appointment was obvious. It is a significant fact that the appointment was not even questioned until more than two years after the appointment was made, although the fact of the appointment was well known to the bench and to every person having business in the courts and to the newspaper readers of the county. There is ample ground for the belief so widespread in this county that the movement for these surcharges against the commissioners for the salary paid Miss Koch did not originate in the minds of the taxpayers who took the appeal from the controller’s report. The circumstances. surrounding this ease brings irresistibly to one’s mind the ancient incident in which “the voice” was “the voice of Jacob” but “the hand” was “the hand of Esau.” But regardless of the source of that movement to surcharge the county commissioners, the question before the court is this:

Question involved.

Has not a judge of the court, acting either alone or with the concurrence of another judge of the court, the right to appoint a clerk in his judicial office to assist him stenographically in the performance of his judicial duties?

The law.

That courts have inherent power to do all things that are reasonably necessary for the proper administration of their office within the scope of their jurisdiction is a well-settled principle of law. This question was thoroughly and clearly and convincingly discussed by that distinguished jurist, the late John Lynch, President Judge of the Court of Common Pleas of the adjoining County of Luzerne, in an opinion filed by him in 1903, reported in Rosenthal v. Luzerne County, 11 Luzerne Legal Reg. Rep. 183, and 12 Dist. R. 738. The facts of this case were that one of the judges of the Court of Common Pleas of Luzerne County, acting in his official capacity and for the purpose of having his opinions in cases pending filed, employed a young woman to make typewritten copies of the opinions in forty-one cases which were before said judge for decision. The bill for these services amounted to $65. This young woman, also by appointment of said judge, acted as stenographer; she took and transcribed testimony in the juvenile court, for which she claimed $15. These charges were held to be reasonable. She presented her bill for $88 to the county commissioners and demanded payment, which was refused because the controller of said county refused to approve the stenographer’s bill. Judge Lynch said in this case:

“These opinions were written for the purpose of. giving the reasons of the court in the decisions entered in each case, and whilst written by one of the judges, they expressed the views of all the members of the court. They are in no sense the individual opinions of a judge and most certainly cannot be looked upon as in any way the private view of the person who wrote them. . . .
“This plaintiff founds her claim against the county, not as a county officer, but rather because in the discharge of the judicial duties of a judge, he, to expedite the affairs of the court and have the record of these opinions in a convenient and legible hand, deemed it his duty to employ her.
“Will it be said that the court, or a judge who has supervision of the courts, its records and its officers, must see the records of the court are properly kept, may employ or dismiss the officers, may see that the court-rooms are lighted, heated and kept clean and in order, has not the inherent power to employ and order paid the person who typewrites his opinions? Every bank, business house, clerk of the courts, county commissioners and county controller has the services of such an one, and can it be said’ under the common law, which adjusts itself to the needs and advancement of the people, the judges of the court alone shall continue in the slow plodding methods of the past? It appears to me that the controller might with equal propriety refuse to approve bills for gas or electricity used for lighting the court-rooms or the judges’ chambers and force a return to tallow dips, or refuse, as he did, to approve a bill for chairs purchased to take the place of worn out and rickety ones used by members of the bar in the court-room. . . .
“The law does not invest him (the controller) with authority to decide how or in what manner a judge shall discharge his judicial functions, and no .judge who respects his high office, its power, honor and dignity, will submit to such assumption of authority. , . .
“In Lancaster County v. Brinthall, 29 Pa. 38, an action by a constable against the county for the recovery of costs for services rendered in criminal proceedings, it is said the duty to pay for such services arises from the benefit derived by the county from such services in the preservation of order and the administration of justice; and in McCalmont v. Allegheny County, 29 Pa. 417, the clerk of the Supreme Court having paid the expenses of providing apartments in which to keep and preserve the records and for incidental expenses of the court, although no act of assembly provided for such expenses, recovered the amount from the county.
“What was said by Gibson, C. J., in Commissioners v. Hall, 7 Watts, 290, may well be applied here; and in Allegheny County v. Watts, 3 Pa. 464, Gibson, C. J., speaking of a physician who testified as an expert before a coroner and who had sued the county for his services, said:
“ ‘The service he performed, though ancillary to the purpose of the inquest, which could not have been effected without it, was not official and consequently not in the contemplation of the legislature in the framing of the fee bill; so that compensation for it is neither enjoined nor prohibited by that or any other statute. But though spontaneously rendered, both justice and policy require it to be paid for by the county if it was rendered at the public instance and request; that officer certainly has authority to pledge the responsibility of the county for the compensation of all ancillary services which are necessary to the proper execution of his office and which he could by no other means command.’ . . .
“In Com. v. Commissioners of Philadelphia County, 2 S. & R. 195, Taylor sold chairs to the agents of the commissioners for the purpose of accommodating persons who were legally employed in holding an election. The objection was that the commissioners had no right to furnish chairs for the election. The court said: ‘It (the election) ought not to be held without the conveniences which contribute to the ease and dispatch of a laborious business. It is held for the benefit of the people of the city and county, and, therefore, they ought to defray the expense.’ . . .
“In Venango County v. Durban, 3 Grant, 66, the Supreme Court said: ‘It is a mistake to suppose that the public have no interest in the trial of civil causes. ... It ought to take the utmost care that justice be rendered to every one in the safest, the most speedy and the least burdensome manner. . . . Where no other provision is made for the necessary expenses of the judiciary in its official duties, the county where the court is held is in general liable.’ . . .
“In Com. v. Magee, 8 Pa. 240, that ‘the authority which a judge exercises at his chambers over process of the court in a case pending is that of the court itself and may be enforced by attachment.’
“We are of opinion that the necessity for expediting public business before the court for determination, the above decisions and the inherent power of the court fully justified the judge in having the opinions typewritten, and, therefore, judgment must be entered in favor of the plaintiff and against the defendant in the sum of $80.60, with interest from Jan. 12, 1903.”

The appointment by Judge Watson of Miss Koch was based exactly upon rhe same grounds as the decision by President Judge Lynch, to wit, the necessity for expediting the public business before the court for determination.

7 Ruling Case Law, “Courts,” § 62, page 1033, sets forth the following well-established principles: “It is fundamental that every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. . . . This power is essential to the existence of the court, for without it no court could possibly exist. The power of the court to order the repair of the court-room in which its sessions are held is akin to the power to punish for contempt, in that it springs out of absolute necessity; it does not belong to the general jurisdiction, but is incidental to such jurisdiction and is inherent in the court. Another illustration of the inherent powers of courts is the power to administer oaths in the trial of cases. . . . Likewise, a court has the inherent power and authority to incur and order paid all such expenses as are necessary for the holding of court and the administration of its duties. The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments, their jurisdiction is conferred by the provisions of the constitution and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant nor in any sense upon the legislative will.”

7 Ruling Case Law, “Courts,” § 12, page 985, sets forth, further: “To perform the functions of a court, the presence of the officers constituting the court is necessary. In addition to the judge or judges, the essential feature of all courts, and, in the case of courts of record, a recording officer, variously known as a clerk, prothonotary or register, numerous other officers are usually necessary to the existence of a court and the proper transaction of its business, such as sheriffs, constables, bailiffs, reporters, etc. . . . The power to appoint necessary attendants upon the court is inherent in the court in order to enable it to perform properly the duties delegated to it by the constitution, and it cannot be doubted that judicial power includes the authority to select persons whose services may be required in judicial proceedings or who may be required to act as the assistants of the judges in the performance of their judicial functions. . . . When it seems necessary to the judge of a circuit court that an attendant upon the court, in addition to the sheriff and his deputies, should be appointed, it is his right to make the appointment for such time as the necessity exists. . . . Whether the necessity exists must be determined by the judge of the court in which the appointment is made.”

15 Corpus Juris, § 205, page 871: “The statutes frequently provide for the appointment by courts of court attendants or assistants, but eYen apart from statute a court of general jurisdiction, of record or of last resort possesses the inherent power to provide the necessary attendants and assistants as a means of conducting its business with reasonable dispatch or to provide for assistants charged with the care of its rooms or other like functions, and the court itself may determine the necessity: Nicholl v. Koster, 157 Calif. 416; s. c., 108 Pac. Repr. 302; People v. Wendell, 57 Hun (N. Y.), 362; S. C., 10 N. Y. Supp. 587.”

In a leading case arising in Wisconsin, the Supreme Court of that state held that even the legislature could not deprive the Supreme Court of that state of its right as a part of its inherent powers to appoint necessary assistants charged with the care of its rooms and other like functions, that the court itself was to judge of the necessity, that the power to remove or appoint the janitor of the Supreme Court was possessed only by that court, and that an order of the superintendent of public property purporting to remove a janitor previously appointed by the court was void. The Supreme Court in its opinion said, page 417, case In re Janitor of Supreme Court, 35 Wis. 410, 417: “The appointment should be made as has heretofore been the custom, and . . . the power of appointment according to that custom should reside in the court; and it is the object of this opinion to vindicate the power and to defend and uphold the prerogative and independence of the courts as they are believed to exist in the particulars under consideration. . . (page 419). It is a power inherent in every court of record, and especially courts of last resort, to appoint such assistants; and the court itself is to judge of the necessity. This principle is well settled and familiar and the power so essential to the expedition and proper conducting of judicial business that it may be looked upon as very doubtful whether the court can be deprived of it. As a power judicial and not executive or legislative in its nature and one lodged in a co-ordinate branch of the government separated and independent in its sphere of action from the other branches, it seems to be under the protection of the Constitution, and, therefore, a power which cannot be taken from the court and given to either the executive or legislative departments or to any officer of either of those departments. But, however these questions may be, no attempt has ever been made to deprive the court of the power thus inherently possessed by it; and the authority of the superintendent of public property in or about the rooms and offices occupied by the court and its officers will be found extremely limited, if indeed he can be said to have any control over them whatever.”

The Court of Common Pleas of Lackawanna County sixteen years ago took a position exactly identical with that of the Supreme Court of Wisconsin, when an attempt was made by the County Commissioners of Lackawanna County to appoint persons to the position of janitor of the court-rooms. The Court of Common Pleas stood upon its right to name these janitors. The case was referred to Hon. A. T. Searle, P. J., of the neighboring County of Wayne, specially presiding. He held that this power to appoint janitors was inherent in the court and that the commissioners had no control whatsoever over these appointments. We cannot quote the opinion filed in this case because it was not reported in the Lackawanna Jurist and the opinion is missing from the files of the prothonotary’s office. It was filed to No. 769, March Term, 1912. A writ of mandamus was issued requiring the county commissioners to pay these janitors appointed by the court.

Examples of the exercise by courts of their inherent powers-.

Many examples could be cited of public expense incurred by order of courts in the exercise of their inherent powers and without specific statutory authority. Among the examples of expense incurred by orders thus made are the following:

(a>) The feeding and lodging of jurors at public expense.
(b) The attendance of physicians upon jurors who became ill while impaneled. We had a recent example of this in Lackawanna County.
Commissioners v. Hall, 7 Watts, 290, Gibson, C. J., page 291: The expenditure for the accommodation of jurors “is as much a part of the contingent expenses of the court as is the price of the firewood and candles consumed in the court-room. A physician would scarce be thought to render, on the credit of the patient, professional services ordered by the court for a juror suddenly ill, when the object is not his private benefit but to serve the ends of public justice by repairing a disordered part of the judicial machinery. ... In every aspect, we perceive emergencies which require the prompt and efficient action of the court, the safeguard of the public purse being found in the responsibility of the judges for its propriety in the particular instance. . . . If the court may act at discretion despite the commissioners’ actual dissent, it follows that to consult them is but an act of courtesy which may be dispensed with without impairing the right founded on a judicial order.”
(e) The tranportation of jurors to the locus in quo of the matter in controversy.
(d) The appointment of custodians of ballot-boxes after elections. This is done after nearly every election in Lackawanna County. Thousands of dollars are paid out of the county treasury for such custodians. The appointment of such custodians is often vitally necessary.
(e) The appointment of bodyguards to protect judges from violence in the performance of their duties and on their journeys to and from the courts. In California a bodyguard thus appointed found it essential to the proper functioning of the judge that he kill the judge’s assailant, thereby proving that said appointment was “reasonably necessary.”

Tipstaffs and court interpreters were appointed by courts and judges long before there were any statutes on the subject. Many statutes only give formal expression to what are already inherent powers of the agencies of government, exactly as many statutes only give formal expression to what is already a part of the common law.

This county and other counties supply many things to the judges that are not specifically authorized by statute. It is true that the statute authorizes the commissioners to furnish an office for each judge and also to furnish office furniture and stationery required for each of the county officers and also to furnish fuel and light. In fact, these things were done long before there was any statute enacted on the subject. Neither this nor any other statute specifically authorizes the county under the direction of the commissioners to furnish judges with water for drinking and ablutions. The county, under the direction of the commissioners, also furnishes each judge with a private washroom, although there is no statutory authority for the same. The county, under the direction of the commissioners, furnishes each of the judges with an office rug, although there is no specific statutory authority to do so unless the word “furniture” be interpreted to include rugs. The county, under the direction of the commissioners, furnishes each judge with a set of Purdon’s Digest, although there is no specific statutory authority to do so. The county likewise furnishes each judge with a telephone in his office, although there is no specific statutory authority to do so. The county likewise furnishes each judge with postage stamps, although there is no specific statutory authority to do so.

In many counties of the State the county, under the direction of the county commissioners, furnishes the judges of the court with complete law libraries. This is done in the neighboring County of Luzerne. In fact, in the County of Lackawanna the county purchased for the use of the president judge a set of “Corpus Juris” at a cost of about $400. Part of this; set was purchased while the late H. M. Edwards was president judge and the later volumes have been added to this set and paid for by the county during the incumbency of the present president judge, E. C. Newcomb.

Further discussion of the law.

It might be argued that, since the Act of May 1, 1907, P. L. 135, confers upon the law judges of each of the several Courts of Common Pleas the power to select and appoint a stenographer or stenographers to report all suits and proceedings in their respective courts, the statute, by implication, forbids the appointment of any other officials or clerks to assist the judges in the performance of their duties. This argument is not tenable. In the first place, the Act of 1907 conferred on the judges no power which was not already included in their inherent powers. The act was probably passed to prevent some one’s raising the question that was raised in the case now before us. The statute clearly does not imply that if the judge appoints a court stenographer he exhausts his powers to appoint clerks or others to assist him in the due discharge of his judicial duties.

This very question was decided in the opinion of the Supreme Court of Wisconsin in Stevenson v. Milwaukee County, 140 Wis. 14; s. c., 17 Am. & Eng. Ann. Cas. 901. In that ease, the Supreme Court held that the courts of Wisconsin were created by the Constitution of Wisconsin and did not depend solely upon statutes for their powers; that, independent of statute, such constitutional courts have inherent power to make such rules and orders as may be necessary to properly perform their functions; that when it seems necessary to the judge of a circuit court that an attendant upon the court, in addition to the sheriff and his deputies (as directed by statute), should be appointed, it is his right to make the appointment for such time as the necessity exists; that the statute requiring the sheriff to attend upon the circuit court during its session and file a list of his deputies, not exceeding three, does not deprive the judge, in case a necessity exists, of the power of appointing an attendant upon the court. “We think it clear,” said the Supreme Court, “that where it seems to the judge necessary that an attendant upon the court, in addition to the sheriff and his deputies, should be appointed, it is his right to make the appointment for such time as the necessity exists.”

It is to be observed that in the above-cited case the court used the word “necessary” in holding that any appointment the court deemed necessary (to the due administration of justice) to make, it had the right to make. To hold that the courts do not have inherent power to make any appointments which are necessary to the due performance of their duties would be to paralyze the courts in the performance of their duties. When the necessity is reasonably apparent, the power of the court to make such appointments cannot be successfully challenged. The word “necessary” in this connection should, we think, be interpreted as Chief Justice Marshall interpreted the word in the famous case of McCulloch v. Maryland, 4 Wheaton, 316, in which opinion he announced the decision of the United States Supreme Court that Congress, in the exercise of the express powers given it by section 8 of article I of the Constitution, to wit, inter alia, the power “to declare war, ... to raise and support armies, ... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, . . .” had the right to incorporate a national bank, and that a branch of that bank which was established in Maryland could not be taxed by the State of Maryland without violating the Constitution of the United States. In his opinion, Chief Justice Marshall defined the word “necessary,” as used in the above-quoted provision of the Constitution, as follows, page 407:

“Although, among the enumerated powers of government, we.do not find the word ‘bank’ or ‘incorporation,’ we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. ... It may with great reason be contended that a government entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. ...
“(Page 413): Does it (the use of the word ‘necessary’) always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without that order? We think it does not. If reference be had to'its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient or useful or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.”

Chief Justice Marshall says in another part of his opinion, in effect, that a right is incidental to a power expressly given when it is conducive to its beneficial exercise (page 418).

He says, further (page 421); “We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”

We believe this language can be appropriately paraphrased to apply to the situation before us as follows:

We think the sound construction of the powers of courts created by the State Constitution must allow to the courts that discretion, with respect to the means by which their powers are to be carried into execution, which will enable the courts to perform the duties assigned to them in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the court’s jurisdiction, and all means which are appropriate to that end which are not prohibited, but consistent with the letter and spirit of the functions of the court, are within the court’s inherent powers.

Judicial power not dependent upon statute.

In Pennsylvania the judicial power is vested in the courts primarily, not by statute but by the Constitution. Article V, section 1, of the Constitution of Pennsylvania provides as follows: “The judicial power of this Commonwealth shall be vested in a Supreme Court, in Courts of Common Pleas,” etc.

The people through the Constitution have vested the courts with judicial power, and that grant of power carries with it certain inherent powers necessary to the proper functioning of the courts in which the judicial power is vested.

Even a legislative enactment that attempted to abridge the inherent powers of the courts or the inherent powers of any other branch of government, such as, for example, the executive, would be set aside.

In the notable case of Myers v. United States, decided Oct. 25,1925, reported in 47 Sup. Ct. Repr. 21; S. C., 272 U. S. 52, the United States Supreme Court, in an opinion by Chief Justice Taft, held that an Act of Congress which required the consent of the Senate to the removal by the President of postmasters of the first, second and third classes was invalid. The reasoning of the Supreme Court was that since article II of the Constitution of the United States grants to the President the executive power of government, the power of removal of executive subordinate officers was incidental to this power; in other words, that the President had the inherent power to remove subordinates in the executive branch of the government without the consent of the upper branch of Congress, and that this was true even though the office from which the officer was removed was created by Act of Congress and even though the Act of Congress creating the position provided for the removal of occupants only with the consent of the upper branch of Congress. The Supreme Court of the United States held this in spite of the fact that the Constitution itself vests in the President the power of appointment only by and with the advice and consent of the Senate. Chief Justice Taft, in his opinion, said; inter alia (47 Sup. Ct. Repr. 30) : “Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of removal.”

The Chief Justice quoted from an opinion by Mr. Justice Miller in Cunningham v. Neagle, 135 U. S. 1, at page 63; s. c., 10 Sup. Ct. Repr. 658, 668, as follows: “The Constitution, section 3, article II, declares that the President ‘shall take care that the laws be faithfully executed,’ and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and by and with the advice and consent of the Senate to appoint the most important of them to fill vacancies.”

Chief Justice Taft quoted (47 Sup. Ct. Repr. 43) from a message of President Cleveland as follows: “I believe the power to remove or suspend such officials is vested in the President alone by the Constitution, which in express terms provides that ‘the executive power shall be vested in a President of the United States of America,’ and that ‘he shall take care that the laws be faithfully executed.’ ”

The Chief Justice said, further (47 Sup. Ct. Repr. 40): “The power of removal must remain where the Constitution places it, with the President, as part of the executive power. . . .”

He said, further (47 Sup. Ct. Repr. 29): “A reference of the whole power of removal to general legislation by Congress is quite out of keeping with the plan of government devised by the framers of the Constitution. It could never have been intended to leave to Congress unlimited discretion to vary fundamentally the operation of the great independent executive branch of government and thus most seriously to weaken it. It would be a delegation by the convention to Congress of the function of defining the primary boundaries of another of the three great divisions of government.”

As the courts of Great Britain are historically the parents of our American courts, it may be pertinent to note the fact that practically all powers exercised by the British courts are derived not from statute but are held to be inherent in the creation of the courts themselves. The court having been created by royal decree and the judges being in possession of a royal judicial commission, the courts and the judges thereof exercise all the powers naturally inherent in the institution or position thus created. At the time that the American Bar Association met in Great Britain in 1924, Mr. Justice Greer delivered an address at Gray’s Inn, July 24, 1924, which is reported in 10 American Bar Association Journal (No. 10), page 721. Mr. Justice Greer said, in part: “There is no statute, no act of Parliament, under which we get our privileges and powers and under which we perform our duties; there is no charter from the Crown which gives us those privileges, so far as we can discover. We exercise our rights because we have exercised them for hundreds of years, and I trust we will be allowed to exercise them for hundreds of years to come. We have for our rights the same groundwork that those who live under the common law have for the rights given to them by the common law. . . . When we judges go circuit we take with us a companion (at the expense of the nation) who is called our marshal.”

Presumably this marshal is appointed by the court in the exercise of its inherent powers.

Little v. State, 90 Ind. 338, 339; s. c., 46 Am. Rep. 224: “Courts of justice possess powers which were not given by legislation and which no legislation can take from them. . . . There are inherent powers resident in all courts of superior jurisdiction. These powers spring not from legislation, but from the nature and constitution of the tribunals themselves.”

In re Waugh, 32 Wash. 50; s. c., 72 Pac. Repr. 710: “It must necessarily be that the court has inherent power to preserve its existence and to fully protect itself in the orderly administration of its business.”

Sanders v. State, 85 Ind. 318, 328; s. c., 44 Am. Rep. 29: “That courts possess inherent powers not derived from statute is undeniably true.”

Further discussimi of the facts.

The only limitation on the inherent power of the court to appoint clerical or other attaches to facilitate the dispatch of the court’s business is that the appointment shall be reasonably necessary.

Any lawyer at the bar who has any practice whatsoever finds it necessary in these modem days to have a clerical or stenographic assistant. A judge of the Court of Common Pleas of Lackawanna County who attends to his full share of the business of the court has as much legal work to do as has the busiest practitioner at the bar. It would be absurd for such a practitioner to attempt to take care of his law business without the help of one or more clerical assistants. It would be equally absurd for a judge of the Court of Common Pleas to attempt to take care of the many judicial matters that come to him daily in his office without at least one clerical or stenographic assistant almost constantly on duty in that office. Such a clerical assistant is not only a necessity to a judge, but he is also a great convenience to members of the bar, as every member of the bar well knows and if asked would so state. That judges in former years got along without secretaries or stenographers is no more a valid argument against employing such assistance now than is the fact that people in former years got along without electricity or automobiles a valid argument against the use of electricity and automobiles now. What is non-existent in one generation becomes the luxury of the second generation and the necessity of the third. The fact that judges of all courts, both trial courts and appellate courts, everywhere have one or more secretarial or stenographic assistants is sufficient proof — if proof other than reason and common sense is called for — that such assistants are reasonably necessary to the dispatch of the business of courts and of judges thereof.

As proof that the judges of this county are not over-supplied with clerical assistants we might cite the fact that Allegheny County, with a population of only about four times that of Lackawanna County, has for the Court of Common Pleas of that county nine official stenographers and seven assistant court stenographers, each one of the latter being designated to assist the judges in their work in chambers, the salaries of the stenographers and assistants ranging from $4600 a year to $1920 a year. In Schuylkill County the three judges have appointed three assistant official stenographers, each one of whom is assigned to one of the judges to assist in his work in chambers. In the neighboring County of Luzerne there are three official stenographers and five assistant official stenographers. The lowest salary received by any of these assistant stenographers is $1800 per year. In regard to these assistant stenographers who attend the judges in chambers, we have been informed by one of the judges of the Luzerne County court as follows: “Our court has appointed assistant stenographers and each judge has for regular work a stenographer who does public business also. The assistants are at all times employed in the offices of the judges, each judge having one assistant to attend to public business and to be ready to substitute for the regular stenographers. The salaries are paid by the county. These assistant stenographers greatly aid us in the expedition of public business.”

In Philadelphia County there are fifteen official stenographers and numerous assistant stenographers. In the neighboring Counties of Susquehanna, Bradford and Monroe, and in every other county of the State, as far as we have been informed, each judge has appointed a stenographer or clerk to assist him in chambers in the performance of his duties.

Conclusion.

Our conclusion is that the appointment by Judge Watson of Miss Amelia S. Koch as clerk in his judicial office was an appointment reasonably necessary to the due dispatch of the judicial business entrusted by the Commonwealth to Judge Watson, and that among the powers inhering in him by virtue of his office as judge was the power to make said appointment.

Our conclusion, further, is that since the order filed by Judge Newcomb in the above-entitled case was made by him without the case having been heard before the court in banc or before any two of the three judges of said court, and without the concurrence of either one of the two additional law judges of the said court, said order and the judgment entered pursuant to said order is invalid. As one of the additional law judges of the Court of Common Pleas of Lackawanna County, we — to quote the language of the Supreme Court in the recent case of Sterrett v. MacLean et al., already cited in this opinion— “challenge the right of the president judge to act for the whole court” in this matter, and to quote further from the language of that case, “the record does not show that the final decree was entered after consultation with the other judges of the district, and the plain intent of the Act of 1876 requires the attendance of more than one judge where the bench consists of more than one.”

The language used by Mr. Chief Justice Moschzisker on Jan. 3, 1928, in the case of Com. v. Hall, 291 Pa. 341, 354, we think is most appropriate for us to use in closing this opinion: “When a judge exercises a power not conferred upon him by law, his act is more than a mere irregularity; ... it is a nullity.” Of this principle so recently laid down by the Chief Justice of the Commonwealth every judge of this court and every official of this county should take due notice and govern himself accordingly.

From William A. Wilcox, Scranton, Pa.


source: Caselaw Access Project

author: Jones, J.,

license: Public Domain

text:
    Hudak v. Falasa et al.

      Stanley B. Jones, for claimant; Andrew Hourigan, for defendants.
    Jan. 22, 1929.
   Jones, J.,

Mechanic’s lien filed by a sub-contractor for work and services performed in connection with the erection and construction of a building owned by defendants, and a petition to strike off upon the grounds:

(a) Stipulation against mechanic’s lien was duly filed in the office of the prothonotary before any authority had been given by the owners to the contractor to commence work on the building.

This is a matter purely dehors the record and the subject of defense upon trial upon a scire facias on the lien. The court will not strike off a lien regular on its face for matters dehors the record: Hiestand v. Keath, 229 Pa. 149.

A contract against liens not being a part of the original contract between the owner and .the contractor, and, hence, not disclosed by the record of the lien, is not available as a defense upon this motion, but can be available on the trial of a scire .facias when offered as a defense to the plaintiff’s claim: Burger v. S. R. Moss Cigar Co., 225 Pa. 400.

(b) Defective notice of intention to file the lien.

All that need appear on the face of the lien is “when and how notice was given:” McVey v. Kaufmann, 223 Pa. 125.

This lien discloses sufficient service of notice upon John and Helen Falasa, owners, on Sept. 29, 1927, at their dwelling-house, No. 205 West Union Street, Nanticoke, by handing the notice to them personally and making known the contents thereof.

A copy of the notice need not be set out in the lien. Whether the form and substance of the notice are in compliance with the provision of section 8 of the Mechanics’ Lien Act are matters to be determined at the trial: Thirsk v. Evans, 211 Pa. 239.

Our attention has been called to several cases decided by the Superior Court in which the lien was stricken off upon a defective notice, but subsequently the court, in Benton v. Berg Distilling Co., 63 Pa. Superior Ct. 412, explains the practice: “It is true that in Thirsk v. Evans, supra, it was held that a copy of the notice need not be set out in the lien; and whether the notice is in proper form is a matter to be determined at the trial; but in the present case the notice is set out in the affidavit of defense and there is no disputed question of fact in reference to it.”

That was a case of a scire facias sur mechanic’s lien, and in the case at bar the notice is not set out in the lien.

The Supreme Court, in Burger v. S. R. Moss Cigar Co., supra, quoted with approval the above extract from the opinion in Thirsk v. Evans, supra, holding that the only remedy for a defect in the notice of the intention to file the lien is a substantive defense on a matter dehors the lien.

For the reasons herein stated, the rule to strike off the lien is discharged, without prejudice to the petitioner to present the matters upon the trial of the scire facias.

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


author: Fleming, P. J.,

text:
    Humphrey v. Clearfield Oil and Gas Company.

      E. J. Thompson, for plaintiff; A. K. Ramey, for defendant.
    April 11, 1929.
   Fleming, P. J.,

This is a motion to strike off the appeal of the defendant from the judgment of a justice of the peace. Summons issued Nov. 8, 1928, returnable Nov. 13, 1928. Owing to illness of plaintiff’s counsel, a continuance was had to Nov. 20, 1928, on which date judgment was entered in favor of plaintiff and against the defendant. A transcript of appeal was issued by the justice on Dec. 5, 1928. and the same filed in this court on Dee. 10, 1928. This last-named date was the first day of the December Term.

The motion before us is based upon the theory that defendant’s appeal was not filed in conformity with law, in not having been filed before the first day of the next term. With this contention we cannot agree. The Act of March 20, 1810, 5 Sm. Laws, 161, section 4 provides as follows: “All which proceedings so had before the justice shall be entered at large by him in a docket or book, to be kept by him for that purpose, in which he shall state the kind of evidence upon which the plaintiff’s demand may be founded, whether upon bond, note, penal or single bill, writing obligatory, book, debt, damages on assumption, or whatever it may be; and the whole proceeding, in case of appeal, shall be certified to the prothonotary of the proper county, who shall enter the same on his docket, and suit shall from thence take grade with, and be subject to, the same rules as other actions where the parties are considered to be in court, and the costs accrued before the justice shall await the event of the suit: Provided, always, that if the party appellant shall enter bail to appear within twenty days after judgment being given as aforesaid, such appeal shall be effectual in ease such party appellant shall file the transcript of the record of the justice in the prothonotary’s office on or before the first day of the next term of the Court of Common Pleas of the proper county after entering such bail as aforesaid. . . .”

We fail to find that this statutory provision has been amended or repealed. There is nothing therein which limits the time for the filing of the transcript to “before” the first day of the next term. In this case, it was filed “on” the first day of the next term. This is in compliance with the statute governing such matters.

And now, April 11, 1929, motion to strike off appeal is denied.

From S. D. Gettig, Bellefonte, Pa.


author: Evans, P. J.,

text:
    Commonwealth v. Abdella.

      D. P. Weimer, for Commonwealth; Frank P. Barnhart, for defendant.
    Feb. 11, 1929.
   Evans, P. J.,

This is a certiorari to a magistrate bringing up the record of a summary conviction proceeding in which the defendant, Joseph Abdella, was charged with violation of the State regulations of the Department of Health, approved March 21, 1928.

The information which is attached to the petition advises that the prosecution is based upon this complaint. The record of the magistrate also refers to City Ordinance No. 519, but the original information, as shown by the copy attached to the petition, contains no such complaint. Furthermore, the record of the magistrate does not show with any certainty whatever that he found the defendant guilty of any violation of City Ordinance No. 519.

A number of exceptions are filed, but for the purpose of disposing of the matters now before us, it is necessary only to consider the matter set forth in the 5th exception, which is as follows: “That said regulation upon which conviction was had is unreasonable.”

The regulation of the Department of Health upon which this prosecution is based is as follows:

“No person, firm or corporation shall expose for sale in any public place in the Commonwealth of Pennsylvania articles of food or foodstuffs which are eaten uncooked, unless such articles of food or foodstuffs are so covered as to be thoroughly protected from dust, dirt, flies and other vermin.
“Public places within the meaning of this regulation shall include grocery, delicatessen, confectionery, department stores and markets, and foodstuffs shall include candies.”

The authority to make regulations in the interest of health is given under the 15th and 16th sections of the Act of April 27, 1905, P. L. 312, and the penalty inflicted is authorized by the Act of April 7, 1927, P. L. 154.

That the Department of Health is properly authorized to make regulations in the interest of the health of the people of the State is not questioned, but it is complained that the regulation in this case is unreasonable, and, therefore, invalid and unenforceable. This ground seems to us to be well taken. It will be noted that under the head of “foodstuffs which are eaten uncooked” will be listed, among others, bananas, apples, cabbage, lettuce, carrots and many other bulky foodstuffs. It will also be noted that the regulation provides that they “shall be covered so as to be thoroughly protected from dust, dirt, flies and other vermin.” In order to give the protection required by the regulation, it would be necessary, in order to display produce to customers, to have it covered practically in glass cases or containers. It would further mean that farmers who bring their produce to the market-places in the city for sale would be practically prohibited from engaging in such business, because of their inability to furnish the needed protection and still display and dispose of their goods. Even in the case of merchants having places of business, it is impracticable and unreasonable to require that these bulky foodstuffs offered for sale and exhibited must be given such protection as is required by this regulation. We can understand why sufficient protection should be given to protect from flies and similar vermin, but to require a thorough protection from dust and dirt for this class of foodstuffs is without reason, unfair and impracticable. We may not strike out the unreasonable parts of this regulation and leave the reasonable part stand, for this would be an amendment to the regulation and not construing it: Pittsburgh v. Keech, 21 Pa. Superior Ct. 548.

A regulation which would work hardship on farmers or others raising foodstuffs might tend to discourage such work, and was declared unreasonable in the case of Com. v. Deibler, 3 D. & C. 335.

A regulation which so seriously interferes with the offering for sale of foodstuffs produced by farmers at the regular market-places where they gather would necessarily discourage the raising of such foodstuffs and placing it before the consuming public for sale, and is unreasonable and unenforceable.

And now, Feb. 11, 1929, after argument and due consideration, the fifth exception is sustained and the judgment and sentence of the magistrate is set aside.

From Henry W. Storey, Jr., Johnstown, Pa.


author: Groff, J.,

text:
    Commonwealth v. Ditzinger.

      S. V. Hosterman, District Attorney, for rule.
    Jan. 19, 1929.
   Groff, J.,

The matter under consideration is a rule to show cause why such part of the costs in the above case as was imposed upon John Gilmartin should not be stricken off.

From the petition, to which no answer has been filed, it appears John Gil-martin is, and was at the time of making the coniplaint in the.above case, a police officer in the City of Lancaster. The complaint was for violating the liquor law, viz., unlawful possession and sale of intoxicating liquors containing more than one-half of 1 per cent, alcoholic contents by volume.

On Sept. 13, 1928, the case was tried in the Court of Quarter Sessions and the jury returned a verdict of not guilty and placed one-half the costs upon the prosecutor, John Gilmartin, the policeman as aforesaid. The evidence in the case, in the opinion of the court, showed that there was probable cause for bringing the prosecution and that John Gilmartin was acting in good faith and as a public officer of the City of Lancaster when he made the complaint.

Under conditions of that kind, it is the duty of the court, in the exercise of its supervisory power over the imposition of costs in cases like this, to set aside pro tanto a verdict imposing costs on the prosecutor, especially where the prosecution is instituted by a public official in the public performance of his duty: Com. v. Plymouth Township, 11 Kulp, 138.

We, therefore, make the rule to show cause why the costs should not be stricken off absolute. Rule made absolute.

From George Ross Eshleman, Lancaster, Pa.


author: Martin, P. J.,

text:
    Bylock v. Colonial Ice Cream Company.

      E. Budman, for plaintiff; H. D. Saylor, for defendant.
    July 10, 1929.
   Martin, P. J.,

Plaintiff instituted suit to recover damages resulting from an assault and battery committed upon him by a driver in the employ of defendant.

The jury returned a verdict in favor of plaintiff for $3600.

Defendant moved for judgment n. o. v., and entered a rule for a new trial.

Plaintiff conducted a store for the sale of ice cream at Bryn Mawr, and purchased ice cream from the defendant. Brando drove defendant’s truck, delivered ice cream and made collections.

There was evidence for plaintiff that Brando made insulting or offensive remarks to the wife of plaintiff, that plaintiff complained to a salesman employed by defendant, that the salesman promised that the driver would act differently, and plaintiff forgave the driver; that four or five days later the driver delivered ice cream to plaintiff, was paid, and then said to plaintiff: “Listen, don’t be too smart and report me again. If you will, I’ll take the best with you.” Plaintiff assumed that this was a threat to thrash him, and called up the salesman and subsequently visited the office of defendant, and was assured by the foreman that he would not send the same driver t* deliver ice cream. Some days later the driver, accompanied by the foreman, came on the truck to deliver ice cream. Plaintiff was handed a bill by the driver, which he paid by handing him a check. The foreman then asked plaintiff why “he should not make up with this man.” Plaintiff testified: “I told him I couldn’t do anything about the man;” and that this was followed by an unprovoked striking of plaintiff, which resulted in a broken jaw.

There was no evidence of any further offensive remarks to the wife between the time of the first complaint and the assault.

The foreman testified that he ordered the driver to remain outside the plaintiff’s store while he, the foreman, delivered the ice cream there, but that, contrary to this order, the driver followed him into the store, had some conversation with plaintiff, that plaintiff called the driver a son of a bitch, and then the driver struck him. The testimony of the forman was corroborated by the driver.

The act of the driver was not authorized or assented to by the employer, and was wholly disconnected from the purpose of defendant’s business or the employment of the driver. Defendant, through the foreman, attempted to prevent trouble between the plaintiff and the driver, and made an effort to adjust whatever feeling there was between the men. There was no evidence to warrant the inference that defendant knew, or should have known, that the driver was of a quarrelsome disposition.

Brennan v. Merchant & Co., Inc., 205 Pa. 258, and kindred cases, in which employers have been held liable for the negligent manner in which servants removed trespassers from moving vehicles, or from the land of the employer, are not in point where the act complained of is not connected with the employment, and can in no sense be termed a negligent act done in the course of employment, and the only relation is the fact that the event happens at a time when the servant is engaged in his employer’s work.

In Rudgeair v. Reading Traction Co., 180 Pa. 333, the employer was held not liable for the act of a motorman who, leaving his car, committed an assault upon a person driving a team on the tracks of the company. It was held that the servant was not acting within the scope of his employment or by the authority of its officers or agents.

The act of Brando, the driver, was wholly disconnected from his employment, and was in no sense warranted or assented to by the employer.

The motion of defendant should be allowed.

Judgment n. o. v. is directed to be entered in favor of the defendant. An exception to this action of the court is noted for plaintiff. The rule for a new trial is discharged.


text:
    M & I Auction Company v. City of Philadelphia et al.

      J. M. Gray, for plaintiff.

      A. T. Ashton, City Solicitor, and J. F. Ryan, Assistant City Solicitor, for defendants.
    July 18, 1929.
   Martin, P. J.,

A bill in equity was filed by plaintiffs, averring that they are citizens and taxpayers and registered with the Secretary of the Commonwealth of Pennsylvania and the Prothonotary of the Courts of Common Pleas of Philadelphia County to trade under the fictitious name of the “M & I Auction Company;” that Thomas F. Watson, Director of the Department of Supplies of the City of Philadelphia, advertised for sealed proposals to supply 300 horses to be used by the City; that in answer to the advertisement and in accordance with the specifications and information for bidders, bids were filed with the Director, and, among others, a bid by plaintiffs, who also filed a certified check for $2500, which was more than 5 per cent, of their bid; that the bids were duly opened by the chief clerk of the Director and publicly announced; that the M & I Auction Company’s bid for each horse was $159, amounting to $47,700; that Paul Connelly’s bid was $173, amounting to $51,900, and the bid of J. L. Roach $181, amounting to $54,300; that plaintiffs were the lowest bidders; that Albert Milikovsky called at the office of the Director to discuss the matter and the Director refused to interview him; that a letter was sent by counsel for plaintiffs to the Director, calling attention to the ability, qualifications and responsibility of plaintiffs and their willingness to comply with all further requirements with regard to entering a bond for the faithful performance of the contract if awarded to them, and notifying the Director that, in the event the contract was not awarded to them, proceedings would be instituted; that the Director awarded the contract to Paul Connelly instead of plaintiffs, and that the price bid by Connelly was $4200 more than the bid of plaintiffs; that plaintiffs have had experience in the purchase, selling and dealing in all kinds and classes of horses and mules for twenty-eight years last past; that within the last eleven years plaintiffs have conducted an auction business for the sale of horses and mules in the City of Philadelphia; that they were the lowest responsible bidders, well and fully qualified to perform the contract; that the Director is guilty of an abuse of discretion in not awarding the contract to plaintiffs and in awarding it to Paul Connelly at a price higher than the bid of plaintiffs; that the Director knew that plaintiffs were the lowest responsible bidders on the contract, and with full knowledge and disregard of the laws and statutes pertaining thereto refused to award the contract to plaintiffs, the lowest responsible bidders. *

The bill contains prayers for a preliminary injunction to restrain the execution of a contract to any person except plaintiffs.

An answer was filed by defendants, averring that the Director refused to interview the plaintiffs because the bids had been opened and the contract not yet awarded, and he did not desire to permit any representations or statements made to him other than those contained in the bids. It is admitted in the answer that the Director received a letter from the counsel for plaintiffs, but denied that the statements set forth in the letter are entirely true. It is averred that the business and experience of the plaintiffs was largely in buying, selling or dealing in horses which were not of first quality, and not such as are required by the City under the bids submitted in this case; and that investigation convinced the Director that plaintiffs are not the lowest responsible bidders; that they are not practiced, experienced nor accustomed to dealing in horses of the type required by the City; that their general business is dealing in horses of a grade and type not desired by the City, and that their general business reputation is not such as to qualify them as the lowest responsible bidders for this contract. The answer denies that the Director was guilty of an abuse of discretion in not awarding the contract to plaintiffs, and avers that he acted in the exercise of a sound discretion vested in him under the City Charter and law relating to the awards of city contracts ; and that in awarding the contract to Paul Connelly he complied with the law in awarding the contract to the lowest responsible bidder.

A rule was granted to show cause why a preliminary injunction should not issue. Testimony was taken in support of the rule, which, after hearing, was discharged. It was agreed by counsel for the parties that the evidence taken upon the application for a preliminary injunction should be treated as the evidence on a final hearing.

Discussion.

Plaintiffs admitted that they had never bid upon a City contract, but offered proof of their financial ability and testified that the horses to fulfill the contract could be obtained by them within the time specified; that they had half a dozen men to spot horses in the West, and they would look them over and pay for them; that they have supplied leading firms in Philadelphia, the Newton Coal Company, Abbotts Dairies, Harbison’s Dairies and various trucking companies.

Witnesses were called on behalf of defendants to prove that the Director of the Department of Supplies was justified in refusing to accept the bid presented by plaintiffs and in awarding the contract to the higher bidder, who was known to be thoroughly responsible.

The chief clerk of the Department of Supplies testified that in a conversation with one of the plaintiffs he was told that plaintiffs’ bid was made instead of and for Roach.

It was testified that on a previous occasion Roach had been the lowest bidder and that a contract was awarded to him, but there were continual rejections, and out of the total lot ordered only one-half were actually delivered because there were so many rejections, and that the business was finally wound up without getting a sufficient number of horses. This alleged conversation with the plaintiff was reported to the Director before the bids were opened.

Plaintiffs denied that there had been such a conversation, but there was no evidence that the denial was known by the Director.

There was testimony that Connelly has been in the business of buying, selling and shipping horses for thirty years; that during the war he sold 16,000 horses in one year to the French Government, and that at the present time he sells 6000 or 7000 horses a year; that he has had four contracts with the City of Philadelphia; and at the time the City took over street cleaning he sold the City 800 horses, at another time 300 horses, another time 400 horses and on still another occasion 100 horses; that his reputation was A-l among all horsemen, that he handled the best class of draft horses that came to this market, and was the only man that handled first class draft horses in the Philadelphia market.

It was testified by a former city veterinarian that he had known the M & I Auction Company for years; that they handled auction horses, possibly a third or fourth grade horse, and that is their reputation as to the class of horses they handle; that any horse that goes to auction is a third or fourth class horse; that not many first class horses were sold at auction, but they were sold privately, and the auction handles what is left. This witness testified that he bought second-hand horses from Milikovsky for a contract at Hog Island and for a contract at Hammonton, New Jersey, third grade horses to be used in excavation work; that he had been dealing with Milikovsky for twenty-five years; that they handle what are called “plugs,” a low-grade horse, a cheap kind of horse, not the kind of horse to be supplied to the City on the contract now under consideration.

He further testified that he had sold some horses to them that brought on an average between $90 and $100, but not one of them would be passed on a City contract; that he sold a pair of horses for them for the price of $425 which were represented as sound, but proved unsound and were rejected.

Albert Milikovsky testified that they bought horses where they could; there were plenty of firms giving up their business of hauling with horses and using trucks. He admitted that they never handled a contract for 300 horses since the war, but had a contract for 150 horses and got the horses from all over the country — out West or right in the city; the only bid they had made for business with the City was to sell the City’s rejected horses.

Mr. Watson, the Director of the Department of Supplies, testified that he visited the stable of plaintiffs and made inquiry by correspondence out West and an investigation of his own, which proved to his satisfaction that the plaintiffs were not in a position to give the City of Philadelphia first class service for 300 horses; that he knew Connelly could fill the contract, as he had done on other occasions, while the Milikovskys had not previously had a City contract. He sent inspectors to get information, and their statements convinced him that the plaintiffs were not qualified. He visited their place and saw no horses of the calibre required, and there were no people around the stable of the class that wanted horses of that kind.

Connelly testified that he had sold second-hand horses for Milikovskys, but no horse purchased from them by him ever went to the City.

Schneider, a veterinarian practicing in the neighborhood of plaintiffs’ stable, testified that their stable never was in very good shape; was not a clean stable; not kept up to the mark; not a sanitary place, or anything like it; he stated he had examined some horses that came from there and that they were not of A-l type; and that their reputation as to the kind of horses they sell is of a low type.

Tisman, a veterinarian in charge of the City Stables at Fairhill Street and Girard Avenue, and Drake, a City veterinarian, testified to the reputation of plaintiffs, which was that they did not deal in first class heavy horses, but a second grade horse.

Duddy, stable manager for Abbotts’ Dairies, testified that he works a thousand horses bought from Connelly; and that he bought one horse, a year ago, from plaintiffs which was a second-rate horse, not a good horse; that plaintiffs’ place was very untidy, not a proper place to keep a young horse; a makeshift stable, not kept tidy or clean, and did not have proper room in the stalls or ventilation; and there was no" comparison with Connelly’s stable, where there was plenty of ventilation and room for the horses to move around; that plaintiffs sometimes had as many as four and five horses in one stall.

Smith, who buys horses for Ringling Brothers, testified that he has bought a lot of good horses from Connelly in the last ten years; that Connelly supplies good horses and his reputation is the best of any active dealer in Philadelphia.

Eastlack, a horse dealer of Gloucester, testified that when he wants the best type of horse he goes to Connelly, and when he wants a second, third or fourth class horse he goes to plaintiffs.

Wilgus, who is in the lumber business and a dealer in horses, testified that he buys horses from Connelly and that he never had any trouble with a horse bought from him; that he has bought horses from plaintiffs not of the type purchased from Connelly; that plaintiffs sell second-hand horses; that they bought used-up horses from him; and that he had bought a few horses from plaintiffs for which he paid from $40 to $75 and one horse $135.

Thorn, a farmer who deals in horses at Runnemede, testified that he has done business with Connelly for twenty years, and has bought horses from plaintiffs “to my sorrow — got them down home and had the expense of taking them down and the expense of bringing them back;” that the horses looked good, but “fell down” on him; and that was the kind of horse they handled.

Stanley, a horse dealer in Westville, testified that he sold plaintiffs rejected horses, and had not been paid for the last batch; that on account of a pair of horses sold about October, there is a lawsuit with them over a check on which payment was stopped.

Waters, who is in the coal business, testified that he buys horses from Connelly, and during thirty-five or forty years he has bought thousands of horses from him of the very best; that Connelly’s reputation as to the kind of horse he deals in is of the best; but the reputation of plaintiffs is not so good, and he has had a lot of trouble with them; their general reputation is that they handle second-hand horses, cheap horses; his trouble was caused by misrepresentation of horses; that he bought two horses from plaintiffs, hitched them up the next morning and one backed out and dropped over dead.

Bender, a horse salesman employed by plaintiffs to sell their horses, testified that he sold very few, because the horses were misrepresented by plaintiffs. That they gave him several horses to take out and directed him to represent them to be good working horses; he sold one to the Eureka people for $175; they kept the horse for a couple of days, he broke a wagon and nobody would buy him; that the witness showed him to several people and was told he ought to be ashamed of himself with a horse like that. He testified that he never saw a first class horse in plaintiffs’ stable; that they did not handle first class horses, to his knowledge, and that he had discussed it with lots of other people, and he knows every horse dealer in Philadelphia and has been in the horse business fifteen years and around plaintiffs’ stable ten years.

Findings of fact.

1. Thomas F. Watson, Director of the Department of Supplies, advertised for sealed proposals to supply 300 horses to be used by the City of Philadelphia.

2. In answer to the advertisement, a bid was made by the M & I Auction Company to supply the horses for $159 each, or a total sum of $47,700; and a bid by Paul Connelly of $173, making a total of $51,900.

3. The contract was awarded by the Director to Paul Connelly.

4. Paul Connelly has been a satisfactory bidder for supplying horses to the City of Philadelphia on previous occasions. Plaintiffs never had a contract to provide horses to the City of Philadelphia.

5. Before awarding the contract, the Director made careful inquiry as to the reputation of plaintiffs and their ability to fulfill the contract and was convinced plaintiffs were not the lowest responsible bidders, but that Connelly was the lowest responsible bidder. In the exercise of the discretion vested in him as Director of the Department of Supplies of the City of Philadelphia, he awarded the contract to Connelly.

Conclusions of law.

1. Defendant, Thomas F. Watson, Director of the Department of Supplies, has not abused his discretion in awarding the contract to Paul Connelly.

2. Plaintiffs are not entitled to an injunction restraining the execution of the contract to Paul Connelly.

3. Plaintiffs are not entitled to have the contract awarded to them.

4. The bill should be dismissed.

5. Plaintiffs to pay the costs.

Of the twenty-five requests for findings of fact presented on behalf of plaintiffs, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 16th, 23rd and 24th are affirmed.

The 14th, 15th, 17th, 18th, 19th, 20th. 21st, 22nd and 25th requests for findings of fact are refused.

Of the eleven requests for conclusions of law presented on behalf of plaintiffs, the 1st and 8th are affirmed; and the 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 10th and 11th are refused.

The eight requests for findings of fact and the three requests for conclusions of law presented on behalf of defendants are affirmed.

It is ordered, adjudged and decreed as follows:

1. That the bill in equity filed in this case is dismissed.

2. That the plaintiffs pay the costs.

3. The prothonotary is directed to give notice to the parties or their counsel of record of the filing of this decree nisi.


author: Shull, Dep. Att’y-Gen.,

text:
    In re Domestic Animals Killed by Dogs.
    July 1, 1929.
   Shull, Dep. Att’y-Gen.,

You request that you be advised upon the matter of a claim of $281.50 for damages paid by the Commonwealth for sheep killed by dogs in Mercer County.

The record discloses that the owners of the dogs killing the sheep are nonresidents of Mercer County, and your chief inquiry is whether the whole sum may be collected from one of the owners who is responsible, and whose dog was unlicensed, the other, whose dog was licensed, is not the owner of property, and, further, you wish to be advised whether only one-half the sum sought to be collected shall be from each party.

The authority of the Commonwealth to collect from owners of dogs killing sheep arises by legislative enactment. We, therefore, begin with Act of May 11, 1921, P. L. 522, relating to loss or damage to livestock destroyed by dogs. Said act provides, inter alia, that a justice of the peace and an auditor of the municipality shall appraise the damage sustained and if possible ascertain the owner or owners of dogs by which the damage was done; that, upon approval of such report by the Secretary of Agriculture, he shall draw his check for the amount of loss from the Dog Fund. And, further, it is provided that:

“Section 26. . . . Any owner or keeper of such dog or dogs shall be liable to the owner of such livestock or poultry, in a civil action, for all damages and costs, or to the Commonwealth to the extent of the amount of damages and costs paid by the Commonwealth, as hereinafter provided. . .
“Section 29. . . . Upon payment by the State of damages of livestock or poultry by dogs, the rights of the owner of such livestock or poultry against the owner of a dog, to the extent of the amount of damages so paid by the State, shall inure to the benefit of the State. . . .”

Preliminarily, we may state that the matter of the one person having a licensed and the other an unlicensed dog is not a material factor under the presentation and determination of the specific information you are seeking. The solution of the problem comes from a different angle. Both dog owners here are in the wrong and both violators of the statute in permitting their dogs to be at large in the night-time. It was this negligence and failure to observe the provisions of the statute which occasioned the damage to the sheep. Doubtless, no witness would be able to tell which sheep whs killed by the one dog or the other; neither is such testimony required to render either or both liable. If I have a proper conception of the facts, the two dogs were together discovered killing and injuring a certain number of sheep belonging to the owner, who subsequently received the money for his loss or damage from the Commonwealth as provided by the statute. This money is now sought to be recovered, not under the statute cited at section 26, where the owner of the sheep had a civil action for all damages and costs against the owner of the dogs, but, the Commonwealth having paid the claim, under section 29 the right of the owner of the sheep against the owner of the dog or dogs inures to the benefit of the State to the extent of damages so paid by the State.

The statute having thus fixed the status of the Commonwealth, we turn to the ascertainment of the position or relation of liability of the defendants and whether they may be sued jointly or severally where the dogs are not owned by the same parties. This seems to be the crux in the inquiry which you have submitted.

Where there are two joint trespassers, both or either may be sued, and if process is had against one, such one cannot be relieved from liability by showing that the other participated in the illegal act: Burk v. Howley et al., 179 Pa. 539. If these defendants were joint tortfeasors, the action would be joint, but in order to be made liable jointly, it must appear that they were aeting in concert, with a common intent; their act of negligence and illegal trespass must be concurrent to render them liable: Klauder v. McGrath, 35 Pa. 128. In other words, joint tortfeasorship may only be affirmed when there is shown to be a community of interest in the purpose of the undertaking with authority to control and direct the conduct of each other in the project engaged upon: Brobston v. Darby Borough, 290 Pa. 331; Betcher v. McChesney, 255 Pa. 394.

From these authorities it must be concluded that these defendants cannot 1>8 sued together or jointly in the same action because there could not likely be established a concert of purpose or community of interest between the owners of the dogs to have the dogs join in the destruction of the sheep. It then becomes necessary to institute actions in severalty, and if their purpose is not joint but several, to determine in what manner the extent of liability of each may be established.

At common law the owner of a dog was not liable for its bite until scienter was established. By this is meant that the vicious propensities of the dog must have been known to the owner prior to the time when the wrong was committed. We need not, however, draw lines of distinction between actions on the case or in tort and that of trespass, but that between actions that are joint or against the defendants severally. The defendants in the instant case, the owners of the dogs which killed the sheep, were not joint owners, but each was the owner of one of the dogs doing the damage, as in the case of Adams v. Hall and Cootwire, 2 Vt. 9, wherein it was said by Hutchinson, J.: “. . . Hall was under no obligation to keep the other defendant’s dog from killing sheep; nor .vice versa. Then, shall each become liable for the injury done by the other’s dog merely because the dogs, without the knowledge or consent of the owners, did the mischief in company? We think not. ...”

And in Van Steenburgh and Gray v. Tobias, 17 Wendell’s Reps. 562, it was held: “. . . Owners are responsible for the mischief done by their dogs; but no man can be liable for the mischief done by the dog of another unless he had some agency in causing the dog to do it. When the dogs of several persons do mischief together, each owner is only liable for the mischief done by his own dog. ...”

The syllabus to this case is: “A joint action does not lie against several owners of dogs by whom the sheep of a third person have been worried or killed.” This case is apt in its discussion where one dog may be young, small and feeble and incapable of mischief by himself, and yet if a joint action lie, his master may be accountable for the injury caused by the large ferocious dog. The illustration used is “An ox and a calf belonging to different owners, reaching through the fence, throw it down and enter the enclosure of another at the same time; it would be unjust that the owner of the small animal should be holden to pay the damage done by the larger. . . . The jury in this case, as in most cases of wrong, get at the real damages in the best way they can:” Russell v. Tomlinson, 2 Conn. 206. Buddington v. Shearer et al., 20 Pickering (Mass.), 477, is of like effect: “. . . Where the injury was done by two dogs, together, belonging to several owners, it was held that each owner was liable only for the damage done by his own dog and not for the whole damage done by the two dogs.”

This case is significant, in that it discloses or points out a method by which the damages may be arrived at by the jury where the dogs of several owners did the injury, and the court reasons as follows: “There may be some difficulty in ascertaining the quantum of the damage done by the dog of each, but the difficulty cannot be great. If it could be proved what damage was done by the one dog and what by the other, there would be no difficulty; and on failure of such proof, each owner might be liable for an equal share of the damage if it should appear that the dogs were of equal power to do mischief and there were no circumstances to render it probable that greater damage was done by one dog than by the other. But whatever the difficulty may be, it can be no reason why one man should be liable for the mischief done by the dog of another.” The reasoning of the last case cited is followed in Partenheimer v. Van Order, 20 Barbour, 479 (Supreme Court of New York State), “Syl.:”

“Where cows belonging to several owners are found in the garden of an individual, committing a trespass, each owner is liable for the damage done by his own cow and no more.
“And in the absence of any proof as to the amount of damage by each cow, the law will infer that the cattle did equal damage.”

The method of arriving at the measure of damages to which each owner of the dogs would be liable in the foregoing cases cited from other states was approved by Agnew, J., in Little Schuylkill Navigation R. R. & C. Co. v. Richards’s Admin’r, 57 Pa. 142, wherein the culm or dirt from various coal-mining operations was washed into a dam, thereby destroying its usefulness as a water power.

You are, therefore, advised that actions may be instituted against both of these parties, severally, for the recovery from each of the amount of damages which it may be shown by the evidence his dog had done in the destruction of the sheep, or suit may be instituted against one of the owners, and if the jury find against such one the full sum paid by the State, no suit could be prosecuted against the other; but if the suit against the one produces only a part of the sum paid by the State, then suit may be brought against the other for the balance.

Prom C. P. Addams, Harrisburg, Pa.