author: Reed, P. J.,

text:
    Denny’s Adoption.

      J. Earle Ogle, D. P. Weimer and John P. Connelly, for petitioners.

      Percy Allen Bose, Phillip N. Shettig, Arthur A. Nelson and Daniel G. Murphy, for respondents.
    Aug. 27, 1928.
   Reed, P. J.,

On June 11, 1927, Jacob Milton Murdock and Annie Y. Murdock, his wife, presented their petition, praying the court that an order be made decreeing that Jacob Milton Murdock Denny be adopted by them and “that he shall assume the surname of your petitioners, that is to say, he shall be hereafter known as Jacob Milton Murdock III, and that he shall have the rights of a child and heir of your petitioners,” etc.

In accordance with the provisions of the act of assembly, the court fixed Wednesday, June 22, 1927, at 9.30 o’clock A. M., at the court-house in Ebensbúrg, as the time and place for a hearing on said petition, with an order that notice be directed to John Denny, the surviving father of the said Jacob Milton Murdock Denny, of the time and place of hearing.

On June 20, 1927, by agreement of counsel for the petitioners and counsel for John Denny, the hearing was continued until Tuesday, Aug. 2, 1927, at 9 o’clock A. M.

On Aug. 1, 1927, John Denny, the father of the said Jacob Milton Murdock Denny, presented his petition for a rule to show cause why the proceeding should not be dismissed and why the Act of Assembly of April 4, 1925, P. L. 127, whereunder the said petition was presented, should not be declared unconstitutional, and asking that, “pending the determination of the said rule, all proceedings on said petition for adoption to be stayed.” No action was taken by the court on this petition, and on Aug. 2, 1927, a similar petition was presented, upon which no action was taken by the court. An answer was then filed on said Aug. 2, 1927, by John Denny, the father of Jacob Milton Murdock Den.ny, wherein he denied the matters set forth in the petition of Jacob Milton Murdock and Annie Y. Murdock, and especially denying that he had abandoned his son, and [averred] that the court had no jurisdiction to decree the prayed-for adoption in this case. The court then proceeded with the hearing and heard the evidence which was adduced by the parties in this proceeding.

The evidence on the part of the petitioners was to the effect that Jacob Milton Murdock Denny was ten years old on May 22, 1927, and that his mother was killed when he was twenty months old, or on Jan. 13, 1919. In September, 1918, Mr. and Mrs. Denny and their child went to live with the Murdocks, and since that time this child had lived continuously with them up until May, 1927, when he was taken away for a short time and returned, and is still living with the Murdocks, the petitioners; that he has been in the care, custody and control of them all this time and that he is attending school, and that he has been provided for by them with the exception of a few presents, a few dollars which was occasionally given to him by his father, and a couple of suits of clothes which his father sent him when he was about five years old, on two different occasions. There was no objection at any time by the father to the continuance of the relationship which existed between the boy and his grandparents; in fact, the father lived with Mr. and Mrs. Murdock a number of months after the death of his wife, when he moved to the Fort Stanwix Hotel in the City of Johnstown, where the petitioners resided; after remaining there for some time, he went to Pittsburgh and was remarried. The evidence also discloses that after his remarriage he and his wife visited the petitioners, but, notwithstanding the fact that he had remarried and had his home in Pittsburgh, the father never asked the boy to come and live with him in his new home. It further appears that after having lived with his second wife for some time, she secured a divorce from him on the ground of infidelity.

The evidence further discloses that the petitioners are people who have the respect and confidence of the people in the community in which they reside; that their characters are irreproachable, and that their financial standing is such as to enable them to give this boy a good home, a good education and the best of moral and religious training; and, in fact, that is just what they have been doing for the boy up until the present time.

The evidence also discloses that on or about May 25, 1927, the father, who had been residing in New York City with his present wife (having been remarried again after being divorced from his second wife), came to the home of the Murdocks for the express purpose of discussing the adoption of the boy by the petitioners, at which time the father said that it was the only thing to do, stating that the matter had been troubling him for some months and that he wanted it done quickly and wanted the petitioners' lawyer to look after the matter. There was much more said at this time about the wonderful home that the boy had, and then it was agreed upon verbally that the adoption should be made.

Prior to May, 1927, according to the testimony, the father had not been to the home of the Murdocks to see his boy for several months. The evidence is not very clear as to whether or not he had been there since Christmas of 1926; it further appeared that during all the time that the boy had been with his grandparents there had never been any attempt on the part of the father to take the boy away from them, or to have him live in any other home or place. During all this time, with the exception of the matters heretofore referred to, the father never offered to, or attempted to, maintain, support or in any manner exercise any control over his son.

This testimony on the part of the petitioners was corroborated to some extent by other witnesses who were familiar with the facts in the case, and a great number of witnesses were also called whom it was admitted on the part of the respondent would have testified as to the character and reputation and financial standing of the petitioners in the community in which they lived.

There was considerable evidence adduced on the part of the petitioners which showed the moral delinquency of the father after the death of his first wife, during the time he lived with his second wife, and during the time he was living with his present wife before their marriage, for the purpose of showing that the conduct of the father in connection with his lack of interest in the child’s welfare by leaving him entirely in the custody and control of his grandparents, in pursuing a course of conduct which indicated'his intention to abandon his child, and for the purpose of showing that it would be to the best interest of the child’s welfare that he be adopted by his grandparents, the petitioners. This testimony was unanswered either by the father or his wife, and it was said by Judge Gawthrop of the Superior Court, in his opinion sustaining the lower court in the habeas corpus proceeding between the same parties: “At the hearing, the respondent produced testimony which abundantly established the fact that the father was not at that time a fit person to have the custody of the boy. It would serve no useful purpose to review the evidence supporting this conclusion. It is sufficient to remark that it discloses such a course of misconduct on the part of the father and his present wife as requires us to refuse to the father any control of the son at this time. Neither appellant nor his wife took the witness-stand for the purpose of refuting the charges against the former.” Therefore, this court, in considering the case, must take as a verity all of the evidence in regard to the conduct and character of John Denny, the father of the boy, and it was held by the Court of Common Pleas of this county, in its opinion filed in the habeas corpus proceeding, in order to get possession of this child, “that the testimony, to say the least, raises a very grave doubt as to the fitness of the petitioner to have the custody of his child; that it is to the best interest of the child that it should remain in the custody of the respondent and his wife; that the petitioner (John Denny) has no legal right to the possession of the child in question.”

. It is true the respondent did call some witnesses whose veracity could not be questioned to testify in his behalf as to what he did and as to what he had told them he did for his son. Of course, that part of the testimony as to what he told them he did cannot be considered on the ground of its being hearsay evidence; the other testimony, though, was regular and should be carefully considered, but it, in the main, supported the evidence of the petitioners as to what the father had done in the way of being interested in his boy, to the effect that he would visit him, send him some presents, and occasionally give him some money, but as we read this evidence carefully, there was no concrete, positive testimony which showed that John Denny, the father, during all these years, interested himself sufficiently to support, maintain or educate his child, or to provide another home for him, although he was in a position, especially while living in Pittsburgh, to have taken his son into his own home.

The question, then, which confronts the court under all these facts is whether or not the petitioners have made out a case in which the court is warranted in decreeing an adoption.

One of the serious questions in the case when the hearing was held was whether or not the Act of April 4, 1925, P. L. 127, was constitutional. This difficulty is out of the way because of the opinion of the Supreme Court in the case of Thompson’s Adoption, 290 Pa. 586, wherein it has been held that this act is constitutional.

The other question is whether or not the evidence in this case will warrant the court in finding that the consent of the father is unnecessary by reason of his abandonment of his child. Section 2 of this act reads as follows:

“Consents Necessary to Adoption. Consent to the adoption is necessary, as follows:

“(a) Of the person proposed to be adopted if over twelve years of age, and of said person’s husband or wife, if any.

“(b) Of the adopting parent’s husband or wife, unless they jointly adopt such person.

“(d) Of the parents or surviving parent of the person proposed to be adopted, except that in the case of an illegitimate child the consent of the mother only is necessary, unless the father has acknowledged such child; but the consent of a parent who has been adjudged a lunatic or habitual drunkard or who has abandoned the child is unnecessary, provided such fact is proven to the satisfaction of the court or judge hearing the petition, in which case such court or judge shall so find as a fact.”

Section 4 provides: “If satisfied that the statements made in the petition are true and that the welfare of the person proposed to be adopted will be promoted by such adoption, and that all the requirements of this act have been complied with, the court or judge shall make a decree so finding and reciting the facts at length and directing that the person proposed to be adopted shall have all the rights of a child and heir of such adopting parent, or parents, and be subjcet to the duties of such child; but otherwise shall make a decree refusing the adoption and dismissing the petition.”

It will be seen, therefore, that there are two requirements to be proven on the part of the petitioners before an adoption can be decreed. The first is, the abandonment must be proven; and, second, this abandonment must be proven to the satisfaction of the court, and the court must so find as a fact. Therefore, the fitness of the adopting parents cannot enter into the case unless the evidence warrants the court in finding that the father by his course of conduct towards his son warrants it in finding that he had abandoned his child. Abandonment in its most general acceptance of the term means to depart from without any care as to what becomes of the object abandoned, and the courts have defined it in various terms.

In the case of Beech’s Adoption, 7 D. & C. 505, Judge Trimble, on page 507, states:

“In Pennsylvania, from June 11, 1879, until the passage of the Adoption Act of 1925, desertion of children by parents destroyed all their natural rights, because adoption followed as if they were dead: Act of June 11, 1879, § 10, P. L. 142. Section 1 of the Act of May 19, 1887, P. L. 125, authorized adoption when the parents, from drunkenness, profligacy or other causes, neglected or refused to provide for children for a year or upwards and the child’s representative gave consent. The Act of 1925 does not aifect parents’ rights until it is found by decree that the parents are insane or habitual drunkards or that they have abandoned their children.

“In Booth v. Van Allen, 7 Phila. 401, abandonment is defined: ‘To forsake entirely; to renounce and forsake — to leave with a view never to return.’ There are other similar definitions, as in 1 Corpus Juris, 3: ‘To renounce all care or protection of; totally to withdraw ourselves from an object; to lay aside all care for it; to leave it altogether to itself.’

“These definitions do not have sufficient extent of meaning to reach all the conditions in which abandonment may occur, for it is not difficult to see how the submission of children to debauchery, depravity or vice without dissolution of family ties and separation of parents from them will leave the same, or, perhaps, worse effects than forsaking with an intention never to return.”

Many cases have been cited as to what will amount to an abandonment by counsel both for petitioners and respondent, but a summing up of all of these cases brings the court to the conclusion that every finding must depend on the particular facts as shown in the case before the court. A careful study of the authorities cited by counsel for petitioners, as well as counsel for respondent, shows that the courts of the different states are almost evenly divided on the question as to what constitutes abandonment, and it is necessary for this court to decide on which line of cases it will follow, as this question has not been squarely before the appellate courts of our State. We do have, however, the opinion of Judge Thompson, of the Orphans’ Court of Philadelphia County, in the case of Bonnem’s Adoption, 8 D. & C. 146, wherein, on page 147, it is said: “It is needless to say that a court should approach a question of this kind with much caution, as the natural right of a father should not be taken away from him without sufficient cause, but the Adoption Act also requires us to consider the welfare of the child. Applying the reasons and conclusions of law set forth in Kelly’s Adoption, 6 D. & C. 506, and Beech’s Adoption, 7 D. & C. 505, in both of which cases the subject under consideration was discussed at great length, to the facts of this case, we are of the opinion that Carl 0. Bonnem has abandoned his child, Bannard Bonnem, within the meaning of the Adoption Act of April 4, 1925, P. L. 127, and that the welfare of the ‘person proposed to be adopted will be promoted by such adoption.’ ”

In the ease of Winans v. Luppie, 47 N. J. Eq. 802, 20 A. 969, it was said by Judge Dixon, of the Appellate Court, in a case very similar to the one at bar: “We are, therefore, brought to the second question in the cause, whether the mother had abandoned the child and so rendered it inessential to obtain her written consent to the adoption. The statutory notion of abandonment does not necessarily, we think, imply that the parent had deserted the child or even ceased to feel any concern for its interests. It fairly may, and in our judgment does, import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. Such a purpose, clearly manifested, certainly forms a more reasonable ground for permitting judicial discretion to decide whether another may assume these claims and duties than the signature of the parent, which a mere impulse may induce. It does not follow that the purpose may not be repented of, and in proper eases all parental rights again acquired, including this statutory right of preventing adoption by withholding consent; but, when once the abandonment is shown to have existed, it becomes a judicial question whether it really has been terminated or can be consistently with the welfare of the child. When, in pursuance, perhaps, of the abandonment, new ties have been formed and a new station in life has been taken by the child, it might be unjust that, solely because of the parent’s caprice, legal sanction should be refused to the new conditions. Under such circumstances, a court might lawfully deem the abandonment irrevocable, so far as the claims of the parents were concerned.” And Judge Dixon, after reciting the facts in the case, finally concludes: “She had, therefore, within the statutory sense, abandoned her child, and her consent was not legally necessary to the adoption. For these reasons, we think the decree of the Prerogative Court should be reversed and the decree of the Orphans’ Court be affirmed. Unanimously reversed.”

In the case of Wood v. Wood, 77 N. J. Eq. 598, 77 A. 91, it was held in the per curiam opinion (quoting from the syllabus) that: “A girl six years old was placed by the father, with the mother’s consent, in the care of her aunts, with the intention of having her brought up and educated by them. She had a good home, loved her aunts and was loved by them, and was brought up in a much better condition of life than was within the power of her parents to afford. The conduct of the father and mother during all the time she was there, and of the mother after the father’s death, showed their confidence in the aunts and belief that it was for the child’s welfare to remain there. Her father died leaving a large family in poor circumstances; the mother supporting the family by working, making $10 or $12 a week. The mother made no objection to the method of the child’s bringing up, but after the father’s death forcibly seized the child and took her away, apparently to make use of her and to have her ‘rough it’ at home with her younger sisters. Held, that the child’s interest required that she should be kept by her aunts.

“Where the conduct of parents indicated their settled intention to forego parental rights and to leave their child permanently in the care of her aunts, though there was no actual abandonment of the child by the mother, her acts constituted ‘abandonment’ within P. L. (New Jersey) 1902, page 259, as amended by P. L. 1905, page 272, providing that any unmarried person of full age may petition the Orphans’ Court of the county in which a minor child may reside for permission to adopt such child, and that if either parent shall have abandoned the child, the consent of the other parent shall be sufficient, so that the mother’s consent was not necessary to an adoption of this child by her aunts.”

The petitioners in the case at bar have presented a much stronger case by the proven facts than either of the above-cited New Jersey cases, and if the welfare of the child is to be taken into consideration, and that seems to be one of the controlling features in the State of New Jersey under its statute, which is somewhat similar to our own, as well as in several of the other states, there can be no question but what the petitioners in this case should be permitted to adopt this child. No one can read the evidence in this case from an impartial standpoint and say that the welfare of this boy would not be greatly promoted if adopted by the petitioners. Furthermore, the boy, who was past ten years of age. at the time he testified, unhesitatingly said that he preferred to stay with and be adopted by his grandparents.

In Corpus Juris, § 98 C, page 1389, we find the following: “Welfare of Child Primary Consideration. In adoption proceedings, the child is regarded as the ward of the court, and the court has ample authority to make a full examination of all the circumstances of the case. The welfare of the child is the primary consideration, and the court, in its discretion, may grant or deny a petition for adoption.” And on page 1393 we find the following: “Welfare of Child. The welfare of the child is ordinarily the controlling circumstance in applications of this nature. Where it appears upon joint petition of the natural and adoptive parents that the welfare of the child will be promoted by a revocation of the adoption, an order for revocation will be made.”

It appears, therefore, that, by the weight of the authorities, it is the duty of the court to weigh and consider the welfare of the child, and while an adoption may not be had unless the evidence would warrant the court to find as a fact by reason of the conduct of the parent that the child had been abandoned, yet we hold that the welfare of the child also should be very carefully considered by the court before an adoption is allowed.

After a careful review of all of the evidence in this case, we are constrained to believe, and therefore find, that John Denny left his boy, Jacob Milton Murdock Denny, with his grandparents with the intention that they should have, keep, support, educate and control this child without any interference on his part; and we further find that during all the years that the said Jacob Milton Murdock Denny was permitted to remain with his grandparents and be supported and schooled by‘them, John Denny pursued a course of conduct through his moral turpitude and neglect of said boy by permitting him to remain in the possesssion of his grandparents without offering to furnish him another home after he was remarried and had a home of his own in which to take him; without paying anything towards his support; without evincing any considerable interest in his education or his religious training; and by going away without notifying either his son or the grandparents as to his whereabouts; by remaining away from upwards of eight or nine months without writing to his son or the grandparents, or without in any manner apprising them as to his whereabouts; combined with his silence at the time of the hearing when he was charged with abandoning his son, which is sufficient to warrant this court in declaring as a matter of fact and law that the said John Denny abandoned his son within the meaning of the provisions of the act under which these proceedings were instituted.

We further find that the welfare of the said Jacob Milton Murdock Denny will be promoted by the adoption of him by Jacob Milton Murdock and Annie Y. Murdock, his wife, and that all of the exceptions to the decree for an adoption in this case should be overruled, and that the prayer of the petitioners for the adoption of the said Jacob Milton Murdock Denny should be decreed, and in accordance with the above findings of fact and conclusions of law, the court makes the following decree of adoption:

Decree.

And now, Aug. 27, 1928, the court finds as a fact that the welfare of Jacob Milton Murdock Denny, the person proposed to be adopted, will be promoted by such adoption, and that all of the requirements of the Act of April 4, 1925, have been complied with; it, therefore, makes the following

Decree of adoption. ,

And now, to wit, Aug. 27, 1928, it appearing to the satisfaction of the court that the statements made, in the petition are true and that the welfare of the said Jacob Milton Murdock Denny, the person proposed to be adopted, will be promoted by such adoption, and that all of the requirements of the Act of April 4,1925, relating to adoption petitions in adoption proceedings, have been complied with, it is ordered and decreed that the said Jacob Milton Murdock Denny be adopted by the said Jacob Milton Murdock and Annie Y. Murdock, his wife, and shall have all the rights of a child and heir of such adopting parents and be subject to the duties of such child; it is further decreed that the said Jacob Milton Murdock Denny shall assume the name of the adopting parents, to be known as Jacob Milton Murdock III.

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


source: Caselaw Access Project

author: Smith, P. J.,

license: Public Domain

text:
    Stratford v. Stratford.

      T. A. Doherty, for libellant; Van Scoten & Little, for respondent.
    Nov. 21, 1928.
   Smith, P. J.,

The chronology of procedure in above case is as follows:

Aug. 6, 1928, libel filed and subpoenas issued, returnable the first Monday of October, 1928; the latter returned personally served on the respondent Sept. 7,1928. And thereupon by praecipe of libellant’s attorney, filed Sept. 18, 1928, [the case] was placed upon the trial list for Tuesday following the last Monday of October, 1928, but when called for hearing, it appeared to have been prematurely listed for trial because of no court term having intervened, as required by our rules relating to divorce hearings, and it was, therefore, continued to the January, 1929', divorce court.

Oct. 30, 1928, was filed a power of attorney of the respondent, authorizing the law firm of Van Scoten & Little to enter their appearance of record for him, which was done the same day. Whereupon, eo die, the present motion to strike off such appearance by attorney for the libellant substantially for the reason that it was too late, there having been no previous entry of appearance by the respondent, whether personally or by attorney.

No citation of authorities was cited by the attorneys for either party, and we have been forced to our own research, but find no decisions directly in point.

The act of assembly relating to “procedure” in actions for divorce is cited as to time of entry of an appearance by the respondent. This omission was, no doubt, because no decree pro confesso can be entered upon a libel in divorce; and if either party will not attend the hearing, the court is required to inquire, which means take testimony in support of the allegations of the libel ex parte, and decide only on the evidence: Kilborn v. Field, 78 Pa. 194.

The matter of practice is, by the language of the statute, left with the trial court. The act provides that “the said court shall and may make such preparatory rules and orders in the cause that the same may be brought to a hearing and determined, ete.:” Act of March 13, 1915, P. L. 287.

Referring to our own court rules: “Divorce.” Rule XX, section 3. “Where no appearance is entered, the libellant may at any time after the return-day, without special order from the court, proceed to take depositions ex parte before the standing master, ete.”

Section 10 of this rule provides that, within thirty days after the entry of appearance, the respondent’s answer shall be filed, and in default thereof the case may be proceeded in and concluded ex parte, unless the court, upon cause shown, shall otherwise direct; and this must be read in connection with section 7, which states “no testimony shall be taken in behalf of libellant or cross-examination of witnesses be permitted until an answer is filed.” Interpreted by us, that the entering of an appearance for the respondent stays all proceedings at least for thirty days’ period within which to file an answer before evidence can be taken ex parte; and that an appearance without an answer so filed will not entitle respondent to either cross-examine libellant’s witnesses or produce testimony in his own behalf.

It is well understood that there is now no “standing master” for divorce cases in this county, and that in all ex parte hearings the testimony is taken in open court.

It will, therefore, be observed that neither by statute or our court rules is there any express limitation as to time when respondent’s entry of appearance can be made.

The entry of the appearance at bar was made before the case was ready for the trial list, and we are of the opinion in time; it does not appear that the alleged delay has prejudiced the libellant. The case of Paulding v. Paulding, 1 W. N. C. 159, appears to support this conclusion. There, the subpoena on libel charging adultery, issued to September Term, 1874; the examiner’s report was filed and rule for divorce taken Dec. 1, 1874. Dec. 3, 1874, the respondent, not yet having any counsel — presumptively not having previously entered appearance — presented petition to file answer nunc pro tunc, which was allowed on terms, the court saying “she (respondent) was not to be denied a hearing if she came in before a decree made.”

In Daugherty v. Daugherty, 28 Pa. Superior Ct. 327, the court below having allowed an answer to be filed nunc pro tunc after a commissioner had been appointed to take testimony, on appeal, was affirmed; the opinion, without regard to fixed rule or rules of the lower court on the subject, which did not appear, states: “In any event,' the matter is within the discretion of the court; such discretion does not seem to have been arbitrarily exercised.”

The appearance objected to was entered without leave of court, and the attitude of the learned attorney for the libellant on this motion would interpret it as an appearance nunc pro tunc, and, as such, leave should have been asked from the court, and if asked, should have been refused; even so, it would not be subject to the objections arising in the case of Shay v. Shay, 9 Phila. 521, where leave was refused. As at bar, no statutory or court rule requirements have been neglected or violated, we are forced to the conclusion that it was in no sense a nunc pro tunc appearance over which the court has any discretion, but as and when entered before the case was properly on the trial list, it was a matter of right, and, therefore,

Now, to wit, Nov. 21, 1928, motion to strike off appearance is refused.

From Gerritt E. Gardner, Montrose, Pa.


author: Groff, J.,

text:
    Commonwealth v. Stengle.

      Owen P. Bricker and John A. Coyle, for motion.

      Sumner V. Hosterman, District Attorney, and Paul A. Mueller, Assistant District Attorney, contra.
    March 24, 1928.
   Groff, J.,

On Dec. 28, 1927, a complaint was returned to the Quarter Sessions Court of Lancaster County, No. 47, January Sessions, 1928, in which complaint it was charged that Charles Stengle, “the defendant aforesaid, in and upon the body of this deponent, Ralph E. Bueh, unlawfully and maliciously did make an assault, and with force and violence did beat, bruise and ill-treat this deponent, entering his place of business with intent to and did commit an aggravated assault and battery, striking this deponent in the face with his eye-glasses on, cutting this deponent’s eye and face, striking him on top of the head, knocking him on the floor and plunging upon him with his knees, and thereby then and there did unlawfully inflict upon said deponent grievous bodily harm.”

On this complaint an indictment was drawn charging the defendant with simple assault and battery. This indictment was presented to the grand jury at January Sessions, and was returned a true bill. After the first indictment was returned a “true bill,” the district attorney presented a second indictment to the same grand jury, charging aggravated assault and battery, and the motion is to quash the second indictment. The motion to quash, as filed, states that the motion is based on the fact that the same witnesses who were before the grand jury on this indictment testified before the grand jury previously to the same facts, and the grand jury then made a return of the case as assault and battery. It is also- stated in the motion to quash that the grand jury struck out the charges of aggravated assault and battery and felonious assault and battery, and returned simple assault and battery only. It appears that indictments for assault and battery in this county contain three counts, one for simple assault and battery, one for aggravated assault and battery, and one for assault and battery with intent to kill. At the argument it developed that the grand jury had not stricken out anything in the indictment, but that the charge of aggravated assault and battery with intent to kill had been stricken out of the first indictment presented to the grand jury before it was presented. The district attorney then discovered that the complaint warranted, in his opinion, a charge of aggravated assault and battery. He presented another indictment, striking out the charge of simple assault and battery and assault and battery with intent to kill; presented that, and had a true bill returned. While there is no evidence in the case, the above are the facts as presented to the court.

It has been a long and immemorial practice for district attorneys to present as many indictments on one complaint as the complaint warrants. There is nothing in the law that we can find that compels a district attorney to combine more than one crime in any indictment. This same question was raised in Com. v. Morton, Huhn et al., 12 Phila. 595, in which it is said that “the district attorney has the power to frame different bills upon one return in which an offense is specifically set out and other offenses are apparent from the facts stated on the face of the return itself. The returns of committing magistrates are made to the district attorney, that he may prepare the necessary and proper bills of indictment to be laid before the grand jury. Now, what are the proper bills to be framed from the data before him? Are they the offenses as formally or technically stated for which he alone may indict an alleged offender? If this is so, the power of the Commonwealth is greatly at fault, and the most flagrant offenders would, in many cases, go unwhipped of justice because of a want of this needed power in the official pleader.”

It will be noticed in the case at hand that both indictments were drawn on the same complaint. The reading of the complaint shows they were both warranted. They were presented to the same grand jury and, so far as the court is informed, on the same day. The grand jury had not at any time ignored the charge laid in the indictment now being complained about. We can, therefore, see no reason why the indictment should be quashed. The cases cited in defendant’s brief relate to an entirely different class of cases than that now being considered. We, therefore, overrule the motion to quash and direct the district attorney to proceed to trial on the indictment.

Motion overruled.

From George Ross Eshleman, Lancaster, Pa.


author: Henderson, J.,

text:
    Knowles’s Estate.

      Jesse S. Shepard, for appellant.

      Robert M. Boyle, William M. Boenning, Franklin S. Edmonds, J. Warren Brook, Philip S. Moyer and Thomas J. Baldrige, Attorney-General, for Commonwealth.
    Feb. 19, 1929.
   Henderson, J.,

This is an appeal from the appraisement for, and assessment of, transfer inheritance tax. It was heard on petition and answer, and, hence, the facts are all admitted. The appraisement is conceded, as is the tax of 2 per cent, on lineals under the Act of June 20, 1919, P. L. 521. The appeal disputes the additional tax of $40,533.59, being the difference between the total Federal credit allowable, 80 per cent., and the normal Pennsylvania tax, which additional tax is imposed under the Act of May 7, 1927, P. L. 859. The appellant contends that this act is unconstitutional, and that question must now be resolved.

It was passed in order to take advantage of section 301 (b) of the Federal Revenue Act of 1926, which provides as follows:

“The tax imposed by this section shall be credited with the amount of any estate, inheritance, legacy or succession taxes actually paid to any state or territory or the District of Columbia, in respect of any property included in the gross estate. The credit allowed by this subdivision shall not exceed 80 per centum of the tax imposed by this section, and shall include only such taxes as were actually paid and credit therefor claimed within three years after the filing of the return required by section 304.”

The Federal tax imposed by the Revenue Act of 1926 is an excise estate tax. In Frick’s Estate, 268 U. S. 473, Mr. Justice VanDevanter said: “While the Federal tax is called an estate tax and the state tax is called a transfer tax, both are imposed as excises on the transfer of property from a decedent, and both take effect at the instant of transfer.”

It should be noted that this excise is an estate tax; it is a deduction made by the Federal Government from estates for the privilege of transmitting them to one’s heirs or legatees. It is the net estate which vests in the heirs, the portion deducted by the imposition of the tax never having been in them. Furthermore, it is a transfer estate excise laid on the estate as a whole and paid primarily by the residuary legatee (see Newton’s Estate, 74 Pa. Superior Ct. 361), as distinguished from a transfer legacy excise and payable by each legatee.

The Act of June 20, 1919, P. L. 521, to which the act we are considering is a supplement, imposes a transfer legacy excise payable by each distributee, 2 per cent, if lineal and 10 per cent, on others. Ordinarily, unless residuary, such distributees make no contribution to the Federal estate tax.

For convenience we will quote in full the supplemental Act of 1927:

“A supplement, to the Act approved June 20, 1919, P. L. 521, entitled ‘An act providing for the imposition and collection of certain taxes upon the transfer of property passing from a decedent who was a resident of this Commonwealth at the time of his death, and of property within this Commonwealth of a decedent who was a non-resident of the Commonwealth at the time of his death, and making it unlawful for any corporation of this Commonwealth, or national banking association located therein, to transfer the stock of such corporation or banking association, standing in the name of any such decedent, until the tax on the transfer thereof has been paid, and providing penalties, and citing certain acts for repeal,’ imposing additional taxes equal to Federal credits.

“Section 1. Be it enacted, &e., That in order that the Commonwealth may receive the benefit of section 301 (b) of the Federal Revenue Act of 1926, or any other legislation of a similar kind or enacted for a like purpose, which grants a credit on the Federal estate tax for inheritance taxes and transfer inheritance taxes paid to the state governments, additional transfer taxes for State purposes are hereby imposed upon the transfer, in trust or otherwise, of any property taxable under the provisions of the transfer inheritance tax law of this Commonwealth, approved June 20, 1919, P. L. 521, entitled ‘An act providing for the imposition and collection of certain taxes upon the transfer of property passing from a decedent who was a resident of this Commonwealth at the time of his death, and of property within this Commonwealth of a decedent who was a non-resident of the Commonwealth at the time of his death; and making it unlawful for any corporation of this Commonwealth, or national banking association located therein, to transfer the stock of such corporation or banking association, standing in the name of any such decedent, until the tax on the transfer thereof has been paid, and providing penalties, and citing certain acts for repeal.’ Such taxes shall be imposed and be collected, in accordance with the provisions of the transfer inheritance tax laws of the Commonwealth, in the following cases, viz.: Whenever in any estate the total tax paid or payable to the Commonwealth and any other states or territory, at the rates fixed under the inheritance tax laws, shall be less than the total credit allowed by the Federal law for taxes paid to the states, then the tax imposed by this act upon the transfer of such property shall be an' amount equal to the difference between the total credit, allowable by the Federal law for taxes payable to the state governments, and the total taxes actually paid or payable to the Commonwealth and any other state or territory under the inheritance tax laws, and the portion of the increased tax so imposed, which shall be chargeable to each of the respective beneficiaries, shall be ascertained by multiplying the total amount of such increase in tax by a fraction, the numerator of which shall be the amount actually paid or payable by the respective beneficiary to the Commonwealth and any other state or territory under the said inheritance tax laws, and the denominator of which shall be the total taxes paid by all beneficiaries to the Commonwealth and any other state or territory under the said inheritance tax laws.”

It is important to observe that this tax is in addition to that imposed by the Act of 1919, showing thereby that the phrase “total taxes actually paid” means taxes otherwise payable. Such additional tax is imposed in “any estate” upon the transfer of “such property.” This wording clearly provides for a transfer estate excise, as contradistinguished from a transfer legacy excise. This tax is cut out of the whole estate, and it is the net estate alone which passes to the legatees.

The tax is definitely laid by the earlier clauses in the act, and it is ascertained by deducting the taxes payable under the Act of 1919 from the Federal credit permitted by section 301 (b) of the Federal Revenue Act of 1926.

Then follows the last clause of the act apportioning this tax among the respective beneficiaries in proportion to the tax paid by them respectively under the Act of 1919.

There is no notice in the title of the act of this extraordinary provision. It would seem as if the casual legatee should have some notice of the unusual burden attempted to be placed on him.

The clause provides for the apportionment of this tax among “each of the respective beneficiaries.” This might mean all the beneficiaries named in the will, or, as contended by counsel for the Commonwealth, in view of the ruling in Newton’s Estate, supra, only the residuary beneficiaries. In all cases where the residuary estate was small or nil, it would be necessary to apportion it among all the legatees in the way directed by the act. In many wills disposing of a large residuary, the same result would follow, as, for instance, one-half to A, and of the other half, $10,000 each to B, C and D, and the balance to E.

We shall illustrate the unequal operation of such a rule. A collateral legatee of $10,000 in a small estate would pay our normal tax of 10 per cent, or $1000; in one of the size of the instant estate he would pay about $2500, and in a net estate of $8,000,000 he would pay about $5000. Such a method would be confiscatory. It would be measuring a tax by a valuation based on the whole estate and in which the legatee had but a small interest. A legatee should not be asked to pay a varying rate dependent on the size of the whole net estate. That would be taxation run mad. Such a method was upheld in the lower court in Knowlton v. Moore, 178 U. S. 41, 77, and of it the Supreme Court said: “It may be doubted by some, aside from express constitutional restrictions, whether the taxation by Congress of the property of one person, accompanied with an arbitrary provision that the rate of tax shall be- fixed with reference to the sum of the property of another, thus bringing about the profound inequality which we have noticed, would not transcend the limitations arising from those fundamental conceptions of free government which underlie all constitutional systems. On this question, however, in any of its aspects, we do not even intimate an opinion, as no occasion for doing so exists, since, as we understand the law, we are clearly of the opinion that it does not sustain the construction which was placed on it by the court below.”

The clause directing the apportionment of this estate excise among all the legatees is incurably bad. Such an arbitrary classification is forbidden by our Constitution. In Schoyer v. Oil Co., 284 Pa. 189, 197, our Supreme Court said: “The-test of classification is whether it produces diversity in results or lack of uniformity in its operation, either on the given subject of tax or the persons affected as payers. There must be a real distinction between the objects with which the law deals for it to be valid. As stated in Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 155, ‘Classification cannot be made arbitrarily. . . . That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis . . . (page 159). Arbitrary selection can never be justified by calling it classification.”

Furthermore, the title to this act is defective, in that it contains no notice of this extraordinary provision. Section 3 of article m of our Constitution provides as follows: “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in the title.”

In Com. v. Martin, 35 Pa. Superior Ct. 241, President Judge Rice said: “The remaining inquiry is as to the sufficiency of the title. We need not stop to show that if an act contain two or more subjects within the meaning of the constitutional prohibition, the fact that these are clearly expressed in the title would not save it; but it has occurred more than once that, although the act could not be said to contain more than one subject, and although the title was sufficient to give notice of the legislation contained in .some of its provisions, yet, as to other matters, the scope of the act was broader than the title indicated. The general rule applicable to such cases is to sustain the portion of the act of which the title gives notice, if it be in itself a complete and sensible enactment which is capable of being executed, unless it be so linked with the unconstitutional provisions as to lead to the conclusion that the former would not have been adopted by the legislature without the latter.” See, also, Dewhurst v. Allegheny, 95 Pa. 437; Com. v. Caulfield, 27 Pa. Superior Ct. 279, 211 Pa. 644; Com. v. Shaleen, 30 Pa. Superior Ct. 1, 215 Pa. 595; and Fox’s Appeal, 112 Pa. 337.

It can be said without fear of contradiction that the scope of this act is broader than its title. After imposing the supplemental estate excise, the act proceeds to apportion it among all the legatees in a way that is truly oppressive. The title contains no notice of this extraordinary provision, and for this reason it must be stricken down.

Can the balance of the act be upheld with this clause eliminated? We are of opinion that we can and should do so if it is self-contained and does not otherwise offend the Constitution.

That it is self-contained we have already pointed out. The imposition of the tax, the rate and method of collection are wholly independent of the apportionment clause.

We shall now examine the other constitutional objections. It is contended that it offends article IX, section 1, of our Constitution, which provides that “all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax and shall be levied and collected under general laws. . . .”

It is settled that this is an excise tax, and in Knisely v. Cotterel, 196 Pa. 614, it was held that the rule of uniformity did not apply to such taxes and that they might be graduated. See, also, Williamsport v. Wenner, 172 Pa. 173.

■It may be conceded that while graduation of such taxes may- not be arbitrary, nevertheless they are subject to a reasonable classsification. In Com. v. Delaware Division Canal Co., 123 Pa. 594, it was said: “That classification for the purposes of taxation, as a general rule, is a matter for the legislature; it is the uniformity, of taxation according to that classification which is for the courts.” This language was quoted with approval in Heisler v. Thomas Colliery Co., 274 Pa. 458. And, at page 620, our Supreme Court, in Com. v. Canal Co., supra, further said: “It may be conceded, however, that classification should be made according to some reasonable, practical rule, drawn from experience, which would prevent a gross inequality in the burdens of taxation. ‘It must/ in the language of Mr. Justice Agnew, ‘visit all alike in a reasonably practicable way, of which the legislature may judge, but within the just limits of what is taxation.’ ”

We must now, determine, is the classification adopted by the act reasonable, practical and one drawn from experience? It should be pointed out that within the classification it is uniform, every one similarly circumstanced is dealt with practically alike. The logic of human experience is the test to be applied.

The tax is fixed by taking 80 per cent, of the Federal tax less the normal Pennsylvania tax due under the Act of 1919. This means that it is graded as is the Federal estate tax, an exemption of $100,000, then 1 per cent, on the first $50,000, mounting in graded steps till, in the instant estate, it reaches 8 per cent, on the last $300,000. The classification for Federal purposes has been sustained — why not for State taxation? Can we not say of the graded rates that at least, to use an expression arising out of the late war, they are based on the ability to pay. Those rates cannot be regarded as arbitrary or unduly burdensome. The adoption of the Federal classification is obviously germane to the subject-matter. The purpose of the act was to take for Pennsylvania the benefit arising from section 301 (b) of the Federal Reserve Act of 1926. Nothing more need be said justifying the classification. It may be that minor inequalities will arise in the administration of the act, and when they do, an equitable basis for resolving them will be found.

It is claimed that the constitutional mandate as to amending and reviving acts has been violated; suffice it to say that this act is neither a change nor revival, but a supplement to the Act of 1919.

If we have justified the classification, then we have fully answered the contention that the “due process” clause of the Federal Constitution has not been violated. Uniformity of taxation according to the classification made is all that is required: Com. v. Quaker City Cab Co., 287 Pa. 161.

In 12 Corpus Juris, 1190, “due process” is thus defined: “As applied to legislative enactments, due process of law means statutes that are general in their operation and that affect the rights of all alike, and not a special act of the legislature, passed to affect the rights of an individual against his will and in a way in which the same rights of other persons are not affected by existing laws.”

In Giozza v. Tiernan, 148 U. S. 657, it was said: “Nor, in respect to taxation, was the (14th) Amendment intended to compel the state to adopt an iron-clad rule of equality; to prevent the classification of property for taxation at different rates, or to prohibit legislation in that regard, special either in the extent to which it operates or the objects sought to be obtained by it. It is enough that there is no discrimination in favor of one as against another of the same class.”

And in Duncan v. Missouri, 152 U. S. 377, the test of the “due process” guarantee was thus defined: “Due process of law and the equal protection of laws are secured if the laws operate on all alike and do not subject the individual to the arbitrary exercise of the powers of government.”

Again, assuming the classification to be germane, it cannot be said that the act is a special law changing the law of succession. It is a general one, indeed. Cope’s Estate, 191 Pa. 1, is not in point, in that a tax on property was there involved.

The last point raised against the act is that the legislature has no power to delegate its authority. There is no such delegation. The Federal tax is fixed and this act adopts what it finds. But it is contended the act does not stop there, in that it seeks to take the benefit of “any other legislation of a similar kind or enacted for a like purpose. . . .” Suffice it to say that when such a question arises it will be dealt with.

It has been argued, and with considerable force, that the admitted facts show that these appellants are not injured, in that they will pay the Commonwealth of Pennsylvania the exact sum which otherwise they would be compelled to pay the Federal Government, and, hence, they should not complain, and should not be heard as to any constitutional question under the doctrine of Com. v. Haldeman, 88 Pa. Superior Ct. 284, and 288 Pa. 81, and Com. v. Alderman, 275 Pa. 483. Having resolved the constitutional questions, it will not be necessary to consider this doctrine.

The appeal is dismissed, the appraisement and imposition of the tax is sustained and the record is remitted to the Register.


author: Hargest, P. J.,

text:
    Wolf’s Nomination.

      Beidleman & Hull, for exceptions.

      March 16, 1928.
   Hargest, P. J.,

Wickersham and Fox, JJ.,

The Act of April 29, 1925, P. L. 361, which amends the Act of July 12, 1913, P. L. 719, provides, in the 2nd section, amending section 19' of the Act of 1913, as follows : “Any of the candidates for nomination, including candidates for President of the United States, to be voted for at a primary under this act may, at any time before four o’clock on the seventh day next succeeding the last day fixed for filing nomination petitions, withdraw his name as a candidate, by a request in writing, signed by him and acknowledged before a notary public or justice of the peace and filed with the Secretary of the Commonwealth, if such candidate filed his nomination petition with the Secretary of the Commonwealth.”

We construe the words “at any time before four o’clock of the seventh day next succeeding the last day fixed for filing nomination petitions” to refer to the time when the candidate may withdraw, and not to limit the time within which such withdrawal must be filed in the office of the Secretary of the Commonwealth. It appears from the evidence that the withdrawal was received prior to 4 o’clock of the seventh day, which was March 12th, but not in proper form, that the candidate was notified by telephone, and that he transmitted a withdrawal in proper form prior to 4 o’clock of that day.

That being the fact, as we find from the evidence, we are of opinion that he has complied with the law, that the withdrawal of his nomination is complete and that, therefore, there are no nomination petitions to which exceptions can now be filed. For that reason we exclude your evidence and we think there is no occasion for any further testimony.

From Homer L. Kreider, Harrisburg, Pa.


author: Martin, P. J.,

text:
    Commonwealth v. Premier Cereal and Beverage Co. et al.

      Wilhelm F. Knauer, Special Deputy Attorney-General, and Thomas J. Baldrige, Attorney-General, for Commonwealth.

      James F. Masterson, for Premier Cereal and Beverage Company.

      Maurice W. Sloan, for Maryland Casualty Company.
    Jan. 2, 1929.
   Martin, P. J.,

A petition was filed by the Premier Cereal and Beverage Company, averring that during the year 1926 it operated a cereal beverage plant for the manufacture of malt liquor with less than one-half of 1 per cent, of alcoholic content, under a permit issued by the Federal Prohibition Commissioner; that on April 19, 1926, petitioner made application to the Pennsylvania Alcohol Permit Board for registration of its Federal permit, under section 4 of the Act of Feb. 19, 1926, P. L. 16; that the Pennsylvania Alcohol Permit Board illegally and without warrant of law required petitioner to execute and deliver to it, as a prerequisite to the registration of its Federal permit, an application for a permit, accompanied by a bond in the penal sum of $10,000, conditioned for the faithful observance of all laws of this Commonwealth relating to intoxicating liquor, and granted a permit instead of registering petitioner’s Federal permit, which was the only obligation placed upon petitioner by the law; that on Oct. 1, 1926, the Pennsylvania Alcohol Permit Board, after hearing, revoked petitioner’s permit, and on Oct. 20, 1928, entered judgment on the bond and assessed damages at $10,000.

It is alleged in the petition that the Act of Assembly of Feb. 19, 1926, P. L. 16, does not require the holder of a Federal permit to execute a bond, and that petitioner in the application reserved the right to contest the legality of the action of the Pennsylvania Alcohol Permit Board in requiring it to execute the application in that form and to execute the bond.

It is further averred that the Pennsylvania Alcohol Permit Board entered judgment against petitioner on the bond without showing that petitioner had violated any law of the Commonwealth of Pennsylvania or of the United States, and despite the fact that no violation of any of the laws of this Commonwealth or of the United States concerning intoxicating liquor has been committed by the petitioner.

A rule was granted to show cause why the judgment should not be opened and defendant let into a defense and the writ of fieri facias issued set aside.

An answer was filed on behalf of the Commonwealth, which averred that the Premier Cereal and Beverage Company operated a brewery or cereal beverage plant during the year 1926 in the City of Philadelphia, contrary to the provisions of the National Prohibition Act and the rules and regulations promulgated thereunder, and contrary to the provisions of the Act of Assembly of March 27, 1923, P. L. 34, and its Supplemental Act of Feb. 19, 1926, P. L. 16, and the rules and regulations of the Pennsylvania Alcohol Permit Board promulgated thereunder.

It is also denied that petitioner made application to the Pennsylvania Alcohol Permit Board for registration of its Federal permit, and that the Pennsylvania Alcohol Permit Board illegally and without warrant of law required petitioner to execute and deliver, as a prerequisite to registering its Federal permit, an application for a permit accompanied by a bond in the penal sum of $10,000, conditioned for the faithful observance of all the laws of this Commonwealth relating to intoxicating liquor and granted a permit instead of registering petitioner’s Federal permit; and averred that the Premier Cereal and Beverage Company, upon application accompanied by a bond in the sum of $10,000, was granted a permit to operate a brewery or cereal beverage plant in accordance with the laws and regulations of the United States and the Commonwealth of Pennsylvania; and that the permit was required under the provisions of the Act of Feb. 19, 1926, P. L. 16, and the rules and regulations of the Pennsylvania Alcohol Permit Board; that the permit was revoked and judgment entered on the bond.

It is denied in the answer that the Act of Assembly of Feb. 19, 1926, P. L. 16, does not require the holder of a Federal permit to execute a bond, and that petitioner reserved the right to contest the legality of the acts of the Pennsylvania Alcohol Permit Board in requiring it to execute the application and bond. It is averred that the bond was filed in compliance with section 8 of the Act of Feb. 19, 1926, P. L. 16, and article IV, section 3, of the Rules and Regulations of the Pennsylvania Alcohol Permit Board; that the form of the bond is the form adopted by the Pennsylvania Alcohol Permit Board under authority of the act of assembly and rules and regulations of the board; that the damages were assessed in the sum of $10,000 as provided in the bond; that a declaration and affidavit of default were filed at the time judgment was entered, averring that the Premier Cereal and Beverage Company failed to observe the provisions of the Act of Feb. 19, 1926, P. L. 16, and the laws of the Commonwealth of Pennsylvania relating to the manufacture of cereal beverages; that the permit to operate a brewery or cereal beverage plant was revoked and canceled, and the bond forfeited on the grounds set forth in the record of the proceeding before the Pennsylvania Alcohol Permit Board No. 1, 1926, which, with the report of the board, is attached and made part of the declaration and affidavit of default.

A stipulation was filed reciting the circumstances relating to the execution and delivery of the bond and forfeiture of the permit. It was agreed by counsel “that the only issue for the determination of the court under the petition and answer filed in this case is: Does the act require a Federal permittee to secure a State permit and file a bond in the sum of $10,000; or does the act simply require a Federal permittee to register its Federal permit in accordance with section 4 of the Act of Feb. 19, 1926, P. L. 16, without filing a bond?”

Section 4 of the Act approved Feb. 19, 1926, P. L. 16, requires every person, except those specifically exempted by section 5 of the act, holding a Federal permit under the National Prohibition Act to file a true and exact copy with the Pennsylvania Alcohol Permit Board and cause to be registered the name and address of each person to whom the Federal permit is issued, the date of the permit, the date of its expiration and a brief description of the provisions of the permit, which copy shall be filed in its office.

On April 19, 1926, the Premier Cereal and Beverage Company applied to the Pennsylvania Alcohol Permit Board for registration of its Federal permit and filed an application for a State permit and executed á bond in the sum of $10,000, conditioned for the faithful observance of the laws of the Commonwealth relating to intoxicating liquors. A permit was granted, which, on Oct. 1, 1926, was revoked for violation of the National Prohibition Act and the Pennsylvania Act of March 27, 1923, P. L. 34, and its supplement, the Act of Feb. 19, 1926, P. L. 16, and the Rules and Regulations of the Pennsylvania Alcohol Permit Board.

The bond was forfeited and judgment was entered against the Premier Cereal and Beverage Company, as principal, and the Maryland Casualty Company, surety on the bond.

Section 3 of the Act of Feb. 19,1926, P. L. 16, directs that it shall be unlawful for “any person” without a permit from the Commonwealth, except those exempted by section 5, to manufacture within this Commonwealth any alcoholic liquid.

The Premier Cereal and Beverage Company was not exempted by section. 5 of the act, but was subject to the provisions of section 3.

Section 8 of the act directs the condition to be inserted in the bond.

Under section 13, upon learning of any violation of the act or of any rule or regulation promulgated by the board under authority of the act, or of any provisions of the act to which this act is a supplement, by the holder of a permit, the board is empowered to cite such permittee to appear before it to show cause why the permit should not be revoked. If, upon hearing, the board is satisfied that any violation has occurred, it shall immediately revoke the permit.

The board learned of violations .by the Premier Cereal and Beverage Company, cited the company to appear in accordance with the provisions of the act, and, after hearing, being satisfied that violation had occurred, the board revoked the permit. An appeal was taken to the Court of Common Pleas and the appeal was dismissed. The Supreme Court affirmed the decision of the Court of Common Pleas.

Section 3 of the Act of Feb. 19, 1926, P. L. 16, made it unlawful for any person not specifically exempted by section 5 to manufacture or produce any alcoholic liquid without a permit from the Commonwealth. Persons holding a Federal permit are not exempted in section 5. They are required by section 4 to file a true and exact copy with the Pennsylvania Alcohol Permit Board, but cannot conduct the business of manufacturing or producing any alcoholic liquid without a permit from the Commonwealth.

A permit was duly issued to the Premier Cereal and Beverage Company. A bond in the form and with the conditions required by the law was executed and delivered. There was a breach of the condition of the bond which rendered the Premier Cereal and Beverage Company, as principal, and the Maryland Casualty Company, surety, liable under the terms of the bond.

Judgment was properly entered.

And now, Jan. 2, 1929, it is ordered and decreed that the Act of Feb. 19, 1926, § 3, P. L. 16, required the Premier Cereal and Beverage Company to obtain a State permit and file a bond in the sum of $10,000, in addition to registering its Federal permit, in accordance with section 4 of the act. On a breach of the condition of the bond, judgment was entered. No legal reasons have been presented for opening the judgment. The rule to open the judgment and set aside the execution is discharged. An exception is noted for defendant to this action of the court.


author: Stewart, P. J.,

text:
    Keith’s Petition.
    No. 2.

      Francis H. S. Ede and Asher Seip, for petitioners.

      Smith & Paff, for respondent.
    June 25, 1928.
   Stewart, P. J.,

We granted a rule to show cause why an action of ejectment should not be brought within six months. An answer was filed to the rule, and argument was had, and an opinion was filed on April 9, 1928 [11 D. & C. 530], directing that a replication should be filed, which has since been done, and fixing a day for a hearing. From the evidence taken, we find the following facts:

1. Edward J. Keith and Theresa G. Keith, the petitioners, are now in possession of the premises described in the first paragraph of the petition.

2. These petitioners, on May 2, 1927, entered into possession of the said premises by virtue of a lease from the respondent, John Lewis Groner, to them, wherein he leased the premises to the petitioners for a term of six months from May 1, 1927, at rent of $40 a month.

3. The petitioners paid to the respondent rent for the first two months of the term. Thereupon, a dispute having arisen as to the ownership of the property, petitioners paid rent for one month to Edward Broad.

4. Edward Broad and his wife, on Oct. 7, .1927, conveyed the premises in suit to the petitioners.

Discussion.

In the opinion first filed we said, referring to the petition, “It is presumably under the Act of March 8, 1889, P. L. 10, as amended by the Act of April 16, 1903, P. L. 212.” Nothing was said upon the last argument to change that presumption, and it still continues. In Hemphill v. Ralston et al., 278 Pa. 432, the syllabus is: “In proceedings to bring ejectment under the Act of April 16, 1903, P. L. 212, or under the Act of June 10, 1893, P. L. 415, for an issue to quiet title, the proceedings must be instituted by the party in possession, and this finding of fact is jurisdictional and must appear on the record. In neither proceeding is the question of title to be settled in disposing of the rule. If the record does not show which of the parties was in possession, the proceedings will be dismissed. Where the record shows an application for a rule to bring ejectment under the Act of April 16, 1903, P. L. 212, a decree awarding an issue in express terms under the Act of June 10, 1893, P. L. 415, is fatally defective. In such case, the order entered must conform to the case as made out by the pleading and be consistent with the relief prayed for. It seems that an amendment might be allowed in such case to bring the petition and its prayer within the scope of the statute under which assistance is actually sought.” It is now earnestly contended that petitioners do not have possession of the premises; that while as a mater of fact they are still conducting a restaurant business on the premises, they went in admittedly under a lease, and that the real possession is in their lessor, who is a respondent herein, and that the rule of law applies that a tenant cannot dispute his landlord’s title, and that we cannot separate a tenant’s possession from that of his landlord. That rule seems to be well settled in Pennsylvania. In Lessee of Galloway v. Ogle, 2 Binney, 468, the syllabus is: “A tenant cannot resist his landlord’s recovery by virtue of an adverse title acquired during his lease.” In Boyer v. Smith, 5 Watts, 55, Mr. Justice Kennedy said: “The possession of the tenant or lessee being derived from the lessor under the lease became, immediately upon the expiration thereof, the possession of the lessor, and continued to be so afterwards until the former should make a fair surrender of it to the latter. This possession the lessee was bound to deliver, whether his lessor had a good title to the land or not. It would be against every principle of justice, as well as sound policy, to permit a tenant, either during the term of the lease, as long as he continues to enjoy the land under it or after the expiration thereof, to dispute his landlord’s title or right to the possession of the land under any pretence. He is bound not only to surrender the possession at the expiration of the lease, but to pay up all the rent that may be due and in arrear, according to the terms of it. But if he were to be permitted to evade his obligation in this respect by such a juggle as was played here, the rule of law, which has been so wisely established for the protection of landlords or lessors, would be of little or no avail, because it may be practicable, perhaps in every case, for the tenant, at the expiration of his lease, to find a third person who may not only be willing to allege that he has an indisputable title or right to the land, but also willing to give the tenant a new lease of it, as was done here, without allowing the first lessor time sufficient to resume the possession, however anxious he may be to do so.” In Thayer v. Society of United Brethren, 20 Pa. 60, the syllabus is: “Where a lessee at the time of the execution of the lease is not the occupant of the land leased, and he takes possession under and in pursuance of the lease, he cannot claim title to the land without first surrendering the possession. But if the lessee were in possession at the time the lease was executed, he may resist a recovery by proving that he accepted the lease in mistake, or was induced by fraud or misrepresentation to accept it. Without some proof of fraud or mistake, a lease executed when the lessee was in possession of the land is valid, and must be followed by all the incidents of a lease under which the lessee goes into possession. The mere fact that the tenant has a better title than the landlord does not of itself raise the presumption that the lease was a fraud or was accepted through mistake.” See, also, McGinnis v. Porter, 20 Pa. 80. In Ward v. Philadelphia, 4 Cent. Repr. 662, the syllabus is: “As a general rule, a lessee is not permitted to impeach or in any way to call in question the title of his landlord, except in cases of fraud, misrepresentation or mistake. If an owner of land is in possession and, with full knowledge of his own title, takes a lease from a stranger, he will not, in the absence of fraud, misrepresentation and mistake, be permitted, during the existence of the term, to assert his own title against his lessor or as a defense to the payment of rent. The same rule applies to a tenant holding over.” The general principle is thus well settled, and it may be that the action of the court in making this rule absolute will, upon the trial of the ejectment, result in no real advantage to the petitioners; but that is not the question before us. An examination of many cases shows that almost without exception the lower courts have been reversed because they attempted to decide the law of the case upon a hearing such as this. In one of the latest cases, Heller et ux. v. Fishman et al., 278 Pa. 328, Mr. Chief Justice Moschzisker said: “Even were we to assume (but not decide — for we are as yet ignorant of defendants’ answer thereto) the correctness of plaintiffs’ contentions as to the manifest invalidity of the tax sale and the effect of Samuel Fishman’s warranties of title, and, further, that the trial of this case will develop nothing for a jury to consider, still we would be obliged to hold that a proceeding under the Act of 1903 was the proper course to pursue, for in Canal Co. v. Genet, 169 Pa. 343, 347, we said disputed facts to be passed on by a jury are not essential to the remedy under the act; and that ‘the facts required . . . are . . . petitioner’s possession and the adversary’s denial of his title,’ adding, ‘when these appear, the issue is to be awarded, and if it should turn out at the trial that the dispute was not over facts, but over the law resulting from them, this would not affect the remedy any more than it would affect an equitable ejectment.’ ” In Clark v. Clark et al., 255 Pa. 574, the same learned judge said: “In reaching the conclusion just stated, the learned court below overlooked the true intent and purpose of the legislation under consideration, as clearly indicated in the title and by the provisions of the statute now before us. To begin with, the act in question is announced as legislation ‘to settle title to real estate,’ and the language employed therein plainly shows such to be its real purpose: Spangler v. Trogler, 228 Pa. 217, 226; Foster’s Petition, 243 Pa. 92, 95; Mildren v. Nye, 240 Pa. 72, 74; but the provisions of the statute also make it obvious that all issues necessarily involved in the determination of title to the real estate in controversy, are to be settled in the eventual ejectment proceeding contemplated by the act, and not on the rule to show cause why ejectment should not be brought; and so we have recently held in passing upon a like statute: Titus v. Bindley, 210 Pa. 121, 124-125. On this preliminary rule, the inquiry is not to determine who has title to the land in controversy, but whether there is a dispute as to the title between a petitioner in actual possession and a respondent out of possession, who claims or has ‘an apparent interest in or title to the real estate.’ Counsel for the plaintiff very tersely and correctly sum up the situation at bar thus: ‘The appellant presented to the proper court her petition alleging the jurisdictional facts, as required by the Act of April 16, 1903, P. L. 212, and a rule issued. The respondents, appellees, in answer to the rule, did not deny any jurisdictional fact averred in the petition, but alleged in substance that, under the will of her husband and the laws of the Commonwealth of Pennsylvania, the petitioner acquired only a life estate in the land, and that they are the owners thereof, subject to her life estate, and, because of her life estate, they cannot bring an action of ejectment, as they are not entitled to possession.’ ” He then goes on to refer to numerous decisions of the Supreme Court which are confirmatory of the limited question which is now before the court. It is useless to amplify this discussion.

And now, June 25, 1928, rule heretofore granted on Feb. 27, 1928, is made absolute, and John Lewis Groner is directed to bring his action of ejectment within six months from Feb. 28, 1928, the date of service of said rule upon him. In default thereof, judgment will be entered under the provisions of the 2nd section of the Act of March 8, 1889, P. L. 10.

Prom Henry D. Maxwell, Easton, Pa.

NÓTE. — Ward v. Philadelphia, 4 Cent. 662, is also reported 18 W. N. C. 561.


author: Landis, P. J.,

text:
    City of Lancaster v. Brown et al.

      Harry L. Laub, City Solicitor, for plaintiff.

      W. Hensel Brown, for defendants.
    July 7, 1928.
   Landis, P. J.,

The defendants are the owners of certain land fronting on President Avenue, in the said City of Lancaster, there being on the western side of the said avenue 444 feet 3 inches and along the eastern side thereof 484 feet 3 inches. Included in the said measurements is a certain street, 66 feet wide, on each side, which is laid out on the city plan of the said City of Lancaster, but is not yet opened. This street is called West Frederick Street. The City of Lancaster has constructed water-mains along said President Avenue in front of the said land, and has rendered to the defendants a bill for $2 per foot for all the land owned by them on both sides of said avenue, including that portion which will be occupied by West Frederick Street. The defendants are willing to pay an assessment on their land at the rate fixed, except on that portion which is embraced within West Frederick Street, namely, 66 feet on each side of President Avenue. They contend that, as West Frederick Street on the city plan covers this 132 feet of land, the city has no right to make an assessment upon it.

The assessment of property for municipal improvements is an exercise of the taxing powers of the State, delegated to the municipality: Olive Cemetery Co. v. Philadelphia, 93 Pa. 129. Municipal assessments rest upon statute alone, and, where not based upon express legislative authority, cannot be sustained upon any theory of special benefit to the property assessed: Wilson v. Allegheny City, 79 Pa. 272. In Penn Iron Co., Ltd., v. City of Lancaster, 25 Pa. Superior Ct. 478, it is said: “While it is no part of the ordinary and necessary duties of a municipal corporation to supply its citizens with gas and water, it is, nevertheless, true that it may lawfully do so. Such contracts are not made by a municipal corporation by virtue of its powers of legal sovereignty. ... If the power is granted to a borough or city, it is a special private franchise, and may be for the emolument and advantage of the city and for the public good; but when such a corporation engages in things not public in their nature, it acts as a private individual, no longer legislates but contracts, and is as much bound by its engagements as a natural person.”

By the Act of March 21, 1836, § 2, P. L. 134, it was enacted, “that for the purpose of introducing into the City of Lancaster a sufficient supply of fresh and pure water, the mayor, aldermen and citizens of said city be and they are hereby authorized and empowered to purchase and hold, in fee simple, or for any less estate, any water power or powers near or convenient to the said city, or any lands, tenements or hereditaments to which any water power or powers may be appurtenant, with full power the same, or any part or parts thereof, to grant, bargain, sell, alien, convey, mortgage, pledge, charge, encumber and demise and dispose of at their will and pleasure.” The 7th section provided that “the said mayor, aldermen and citizens of Lancaster, in select and common councils assembled, shall have full power and authority to pass, ordain and enact all laws and ordinances necessary to enable them to convey the said water through the city in all directions, and to fix hydrants or fire-plugs wheresoever they may deem proper, and to fix and determine the uniform rates or prices to be paid by the citizens for the use of the said waters. . . .”

By section 2 of the Act of April 1, 1837, P. L. 125, it was enacted that “the mayor, aldermen and citizens of Lancaster, in select and common councils assembled, in addition to the powers they already have, shall have full power and authority to lay, assess, levy and collect a tax, to be called ‘the water tax,’ which tax shall be laid and assessed upon, and levied and collected in the manner that other taxes are laid, assessed, levied and collected, from all lots whereon any dwelling-house, warehouse, stables, or any other improvements whatever, are now or may hereafter be erected, situated along or within one square each way, on both sides of any street or streets through which pipes are, or hereafter may be, laid for conducting the water from the water-works in the said city for the use of the same: Provided, that the said tax shall not be as high by one-half on property in the streets through which the pipes are not laid as in those in which they are laid. . . .”

In no special acts of assembly applicable to the supplying of water to the citizens of Lancaster is there any provision where the councils were authorized to lay water-mains and levy the cost thereof against the property fronting on the streets upon which said water-mains are laid. The city at that time, however, was under a special charter, and was not then, as it is now, under the general law which provides for the government of cities of the third class.

The Act of May 23, 1889, P. L. 277, provided for the incorporation and government of cities of the third class. By section 2, article xii, of that act it was provided that “any city which now has the title to any water, gas or electric light works by conveyances to the same in its corporate name, or which may hereafter erect or purchase water, gas or electric light works under the provisions of this act, are hereby empowered to create a department to be called the water and lighting department, and for the organization and government of the same the councils are hereby authorized and empowered to divide the city into three districts for the election of a board of commissioners. . . .” By section 5 of the same article it was provided that “it shall be the duty of the board to take charge of the water and lighting department so created as aforesaid. . . . They shall purchase such materials and supplies as may be required for keeping the works in good repair, and have charge and control of all constructions, repairs, enlargements and extensions of the works, and shall conduct and manage the affairs and business of the department in accordance with law and the directions of the city councils.” By subsequent sections, when extensions of main-pipes were to be made through any streets of the city, a list of all owners of houses, lots and buildings on each side of the streets through which said pipes were extended was directed to be made, and the owners were to be charged at such rate per foot as city councils might by ordinance fix; that the charges should be called frontage water tax and should be collected and recovered in the manner provided in the act for the recovery of municipal liens; and that whenever any pipes for the conveyance of water should be laid in any of the streets or highways within such city, the owners of the ground in front of which the same should be laid should pay for the expense thereof such sum for each foot of the front of their ground upon said streets as the city councils might by ordinance direct. This act was followed by the Act of June 27, 1913, P. L. 568, wherein section 1 of article VII declared that “the executive and administrative powers, authority and duties of every city of the third class shall be distributed into and among five departments, as follows: 1. Department of Public Affairs. 2. Department of Accounts and Finance. 3. Department of Public Safety. 4. Department of Streets and Public Improvements. 5. Department of Parks and Public Property.”

In Com. v. Elbert, 244 Pa. 535, it was decided that “the effect of the Act of June 27, 1913, P. L. 568, is to empower the council of third class cities, where the title to the water-works therein located is not in the name of the commissioners of water-works, by ordinance to supersede the board of water commissioners and take into its own hands the administration of the affairs previously committed to that body.” See, also, Central I. & S. Co. v. Harrisburg, 271 Pa. 340.

It would, therefore, seem that the Councils of the City of Lancaster had the right to take over the full management of the water-works owned by the city by reason of thfr purchases made under the local acts. In pursuance of this authority, the councils adopted the Ordinance of April 10, 1926, which provided that “whenever any water-main or mains shall be extended in any streets, alleys or highways within the limits of the City of Lancaster, Pennsylvania, a front-foot assessment shall be levied by the bureau of water upon all properties fronting upon the said streets, alleys or highways, at the rate of $1.60 per foot on each side of the said street, alley or highway in which said main is laid or extended: Provided, however, that on any street, alley or highway in which it is impossible or impracticable to lay said main in the centre of said street, the Superintendent of the Department of Public Safety may direct mains to be laid on both sides of said street at the curbs, in which case the assessment per front foot shall be $2. . . .” By section 2, the Superintendent of the Department of Public Safety was directed to “levy, or cause to be levied, the water frontage assessment for the installation of said main or mains and certify the same to the City Treasurer;” and section 3 directed that “in all corner lots an allowance shall be made of one-third the length of their front, but such allowance shall be always and only on the street or highway having the longest front, and in case both fronts are of equal dimensions, the allowance shall be made in the street in which the pipes shall be laid, but in no case shall the allowance exceed 60 feet on any corner lot.”

It is certainly the theory of the law that the assessments shall be levied because of the supposed benefit which will be derived by the property owner in front of whose lot the pipes are laid. But in the present case, though the paper title to the land fronting upon President Avenue may still be in the defendants, yet, as a matter of fact, the city has laid down in its city plan West Frederick Street over this land. No improvements can be there made by the defendants except at their own risk, and whenever the street is opened, the defendants will only receive as compensation the value of the land without any improvements. A city has no right to levy an assessment against property owners whose lots face upon unopened streets. In Coxe v. Philadelphia, 47 Pa. 9, it was decided that, in the absence of special provisions, the acts authorizing local assessments for municipal improvements contemplate the improvement of regularly opened streets only, and, therefore, do not authorize the improvement of a street which has been merely laid out upon the city plan; and in Philadelphia v. Baird, 1 W. N. C. 126, that a municipal lien cannot be filed for water-pipe laid in a private place which has never been dedicated to the public. See, also, Harrisburg v. Brightbill, 6 Dist. R. 438; Park Avenue Sewers, 169 Pa. 433. In Kilcullen v. Webster, 260 Pa. 263, the court held that, though laid out, it is not a street within the meaning of the acts authorizing the construction of sewers in the streets of the city at the expense of the owners of property fronting thereon until it has been opened by authority of law. It seems to us that the same principle should apply in a case like the one we are now considering. This street has, to all intents and purposes, been taken by the city; at least, to such an extent as to prevent it from levying and collecting such an assessment.

We are of the opinion that judgment in this case should be entered in favor of the defendants, and this is accordingly done.

Judgment on the case stated for the defendants.

Prom George Ross Eshleman, Lancaster, Pa.


author: Patterson, P. J.,

text:
    Henderson’s Estate.

      R. A. Henderson, for petitioners; George M. Meyers, for respondents.
    July 31, 1928.
   Patterson, P. J.,

Samuel Henderson, late of the Borough of Bellwood, Blair County, Pennsylvania, died testate on Sept. 21, 1903, and by his last will and testament, duly probated, devised, in the third paragraph of said will, a certain tract of real estate in Antis Township to his son, William J. Henderson, and his wife, Laura J. Henderson. And by the fourth paragraph of said will, the testator devised to Alfred J. Henderson, another son, a certain tract of land adjoining the tract devised to William J. Henderson and wife, provided, however, that the said William J. Henderson should have the “right to the use of the barn and other out-buildings to shelter his stock and crops until such time as he can erect buildings on his own land, and also one-third (&) of the fruit on Alfred’s land until such time as he can raise fruit trees on his own land. And Alfred J. Henderson shall pay to William J. Henderson the sum of $500.00 toward the erecting of a barn and other buildings, at the rate of $100 per year, beginning with the first year after my death, and at the death of Alfred J. Henderson, the portion of land bequeathed to him shall go to his children, and if his wife, Nora Henderson, survive him, she shall receive one-third of the crops raised on his part of the farm, during her natural lifetime or so long as she shall remain his widow.”

William J. Henderson and Alfred Henderson continued to live on said respective tracts until Alfred’s death, which occurred March 31, 1918, and thereafter the said William J. Henderson and the family of Alfred J. Henderson continued the same occupancy of the property until May 3, 1921, when the widow and heirs of Alfred Henderson sold and conveyed the property so devised to Alfred J. Henderson to William S. Tumbaugh and Esther Turnbaugh, his wife, the deeds for same containing the following provision: “Under and subject to the payment of a certain mortgage ... as well as subject to the charge on said land, given to William Henderson under the provisions of the will of Samuel Henderson, deceased.” And the occupancy of said respective properties continued thereafter to the date of the filing of this petition, which is for rule to satisfy the lien of record. .

It is admitted that no settlement between William J. Henderson and Alfred J. Henderson was ever made according to the terms and stipulations of the last will of Samuel Henderson, deceased. And it is further admitted that the $500 referred to in said will is, and always has remained, an unpaid and fixed charge upon the land devised to Alfred J. Henderson. It is contended on the part of the petitioners that the said sum of $500 due and owing to William J. Henderson and charged against the land now owned by petitioners is subject to a credit for certain rental charges due and owing by the said William J. Henderson to the estate of the said Alfred J. Henderson, deceased, and the present owners of the Alfred J. Henderson tract of land, for use and occupancy of the barn and other buildings mentioned in said last will.

The rule of law, as laid down by the appellate courts in Pennsylvania, ordinarily does not permit unliquidated claims as a set-ofi: against fixed charges upon land. However, since the rights of the respective parties to this proceeding have their inception in the will of Samuel Henderson and since the immediate parties, namely, William J. Henderson and Alfred J. Henderson, continued to occupy their respective tracts of land for many years after the death of the testator, and since the petitioners became the successors in title to the Alfred J. Henderson tract with knowledge of the unsettled provisions of the will of Samuel Henderson, it seems to be the part of equity to demand that the parties hereto should have a fair and unprejudiced right to establish their claims. The Orphans’ Court Act of June 7, 1917, § 9 (k), P. L. 363, provides: “The jurisdiction of the Orphans’ Court, whether separate or otherwise, shall extend to and embrace proceedings for the discharge of real estate of decedents from the lien of debts of decedents and for the discharge of real and personal estates from the liens of legacies, annuities, dower and recognizance and other charges.” And in Wingett v. Bell, 14 Pa. Superior Ct. 563, it is held, in construing the Act of Feb. 24, 1834, P. L. 70, as follows: “By the terms of the act, all parties interested may be brought into the litigation. This includes the executor of the will and the heirs or devisees, and extends to an alienee who is clearly embraced in that portion of the act which directs notice to be served on such other persons as may be interested in the estate: Mohler’s Appeal, supra. The rights of all of them may be considered and adjusted. The proceeding is to be ‘according to equity.’ ”

Decree. — Now, July 31,1928, demurrer is, therefore, overruled and respondent allowed fifteen days in which to file his answer to said petition.

Prom Robert W. Smith, Hollidaysburg, Pa.