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March v. March.
sel fee. An award of alimony would be
improper under the circumstances as they Divorce Alimony — Counsel Fee - Pay
now appear. ment.
It is ordered that the rule be made absoTo a libel in divorce charging the wife with lute and the libellant is hereby ordered to desertion and adultery, the respondent replied charging her husband with adultery, and de- pay the respondent the sum of forty dollars manding trial by jury. Subsequently she asked for the purpose of paying her counsel for for alimony pendante lite and counsel fee. Held, the preparation and conduct of her defense that an allowance will be made for counsel fee.
to the libel. Under the circumstance appearing from the record, alimony at this time would be improper.
After an interval of several months, the husband not having paid the counsel fee, an attach
The libellant failing to make such payment for contempt was asked. Held, as no time for payment was fixed in the orignal order, the ment, a rule to show cause why an atattachment must be denied; but a new order, tachment should not issue for contempt of requiring payment within thirty days, was made. Court was granted. On this rule the folNo. 138, August Term, 1916.
lowing opinion was filed. Rule to show cause why counsel fee and
October ist, 1917. Ross, J.—The Court alimony should not be awarded to respond-granted a rule on the plaintiff to show cause
why he should not pay alimony and counsel ent.
fees in the above named case to Clara J. Rule for attachment.
March. On December 26th, 1916, an W. B. Gemmill and R. P. Sherwood for opinion was filed and the following order
"And now, December 26th, 1916; It is Logan & Logan, contra.
ordered that the rule be made absolute December 26th, 1916. Ross, J.-The and the libellant is hereby ordered to pay libellant in this case seeks a divorce from his the respondent the sum of forty dollars for wife, Clara J. March, because, as he alleges, the purpose of paying her counsel for the she has deserted him and because she has preparation and conduct of her defense in committed adultery with a person who is the libel.” named in the libel.
It appears that the libellant has not comThe respondent filed her answer, denying plied with that order. As no definite time the allegations charging her with adultery,
was set in the order for the payment of said and averring that the reason for her leaving fee, it would not be proper for the Court her husband was because he has committed at this time to grant the prayer of the adultery with various females named in the respondent's petition and adjudge the libelanswer, at the time specified in the answer.
lant in contempt of Court; but the followShe further avers that she was compelled to
ing qualification to the order heretofore
made is now entered. leave her husband because he was afflicted with a venereal disease which he contracted
The libellant, John H. March, is order: by adulterous practice and because of his ed to pay the sum of forty dollars to the cruel and barbarous treatment of her,
She respondent for counsel fee in the prepararesists the application for divorce and asks tion and conduct of her defence to the for a trial of the facts by a jury.
charges contained in the libel for divorce The respondent now asks for alimouy from this date, or be adjudged in contempt
filed in the above case, within thirty days and counsel fee to enable her to refute the
of Court. charges made by the libellant. There was no testimony presented to the court which
The rule granted in this case is hereby would enable us to determine the financial discharged at the cost of the libellant. condition of respondent. Indeed, no testimony of any kind was presented to the court; but from the admissions of the attorneys made during the argument of the rule and answer we are inclined to grant the respondent the sum of forty dollars as coun
C. P. of
Lackawanna Co. councilmen was informal because it was not
a regular nor a special meeting; and there Pfahler v. Borough of Dunmore.
is no record or minute of such a meeting. Borough—Ordinance Delegating Power-entitled to wages up to March 21, because
The theory of the plaintiff is that he is Removal of Policeman-Act May 14, he was not finally discharged, as he claims, 1915, P. L. 312.
until that time; but the action of the councilA borough council has exclusive authority un- men on that date was clearly without validder the Borough Act of May 14, 1915, P. L. 312, ity in law, and was not effective for any to summarily remove a policeman from office for purpose. proper cause, and may, by ordinance, delegate to the chief of police the right to exercise that au- The real question in the case is: was the thority subject to the supervisory control of the action of the chief of police proper under the council.
present borough law? Plaintiff claims that That authority is not abridged by the clause the chief of police had no authority to disin the Act of 1915 giving the burgess certain con- miss nor suspend a policeman. One of the trol of the police with the power to suspend a policeman pending the action of the council.
provisions of the Borough Act of 1915 re
lating to police is as follows: "The borRule for new trial.
ough police shall be under the direction of
the burgess, as to the time during which, F. E. Boyle for plaintiff.
the place where, and the manner in which, J. W. McDonald for defendant.
they shall perform their duties. The bur
gess may, for cause and without pay, susApril 23, 1917. EDWARDS, P. J.-Plain-pend any policeman until the succeeding tiff was a policeman of the Borough of regular meeting of council, at which time Dunmore and has brought suit for his the council may discharge or reinstate such
policeman.” The same act of assembly also wages, covering a period of nearly two provides that "borough councils may appoint months, from January 24 to March 21, and remove" policemen. It is clear that 1916. The jury was instructed to find a the power to remove policemen is vested exverdict for the defendant.
clusively in the council. As to the partiular
method by which this power may be exerThe ordinance in force in the borough in cised, whether by direct and initiatory ac1916 provides, inter alia, that the chief of tion on the part of the council, or by an orpolice shall have power and authority to dinance directing the chief of police to act summarily dismiss or remove from office subject to the supervisory control of the any officer for various enumerated causes, council--this is a question to be di termined among which is that of intoxication. Any by the council itself, as it has done in this officer so removed shall have the right to instance by the enactment of the ordinance have his case passed upon by the borough referred to. I am of the opinion that the council if, within ten days, he make requst ordinance is valid, and that the borough in writing to the council for a hearing, such council of Dunmore still has the right to request to be served upon the president of appoint a chief of police and to define his the council. There can be no dispute as to powers, notwithstanding the fact that under the facts disclosed by the evidence. The chief the new borough law the burgess has cerpolice dismissed the officer for intoxication, tain supervisory control over the police and on January 24, 1916. The officer does not has the power to "suspend" a policeman. deny the charge; but he failed to make re. It is not for the courts to question the quest in writing to the council for a hear- right of the legislature to enact legislation ing as provided in the ordinance. For this not prohibited by the constitution, although reason the plaintiff failed to make out a it seems an anomaly in municipal legislacase.
tion to confer upon the burgess of a borough, There seems to have been an informal regardless of his qualifications, a part of the
duties usually performed by a chief of meeting of the councilmen on March 21,1 1916, at which time plaintiff was informed police. In the case at bar, the plaintiff was that he was discharged; in other words, lawfully removed, and for a
good reason. that the action of the chief of police was The rule for a new trial is discharged "sustained. We say that this meeting of the ! and a new trial is refused.
n. 0. V.
C. P. of
Berks Co. agent may reasonably be presumed to have Sanitary Casket Protector Co. v. Fisher. authority to make, they may be given in evi
dence to show the fraud by which the subPrincipal and Agent Authority of Agent-scription was procured.” See also Acetylene
Representations in Sale of Stock-Admis- Co. v. Smith, 10 Pa. Sup. Ct. 61, 64; Phila. sions,
Motor Speedway Asso. v. Sale, 25 Dist. Rep.
1101, 1103. Where the representations made by an officer of The representation that the company was a corporation to obtain a stock subscription are such as he may reasonably be presumed to have operating two plants, one at Reading and authority to make, they are admissible to show the other at Hamburg, related to the status the fraud by which the subscription was procured. of the company, and was material. We do
In an action by a corporation on a note taken not consider that there was any error in the for a stock subscription, the defendant'testified that the president of the corporation gave him in- admission of the evidence. formation showing that certain representations The next question then was whether made by the secretary of the company in order to these representations were false. The desell the stock were false. Held, admissible as an fendant stated in direct examination that at admission by the company.
the time the alleged false representations Rules for new trial and for judgment were made the plaintiff company was not
operating two plants as stated in the letter.
Upon cross-examination by plaintiff's counJoseph R. Dickinson for rule.
sel as to the source of this information, he John B. Stevens, contra.
answered that Mr. Heinly, the president of
the company, told him that they did not May 14, 1917. WAGNER, J.-Plaintiff have two plants. brought suit against defendant upon a prom- The fifth reason of a new trial complain's issory note dated February 4, 1911, for $250 of the admission of this evidence upon the which defendant had executed and given to ground that it is mere hearsay. This inforplaintiff. The defense to the note was that mation having been elicited by plaintiff's it had been given to plaintiff in payment of counsel upon cross-examination, could hardly the sale by plaintiff company through its be assigned by plaintiff as a reason for a new secretary, E. W. Billman, of 25 shares of trial
. Neither is this hearsay evidence, but the capital stock of plaintiff company, and an admission by the company through its that plaintiff was induced to purchase the president. The question as to whether or shares through certain misrepresentations in not the company was operating two plants writings made by E. W. Billman at the time at the time the letter was written, after of the sale.
plaintiff's witnesses had testified in rebuttal, The misrepresentations relied upon were was hardly any longer a disputed one. Mr. those contained in a letter of January 21, Heinly, the president of the company, when 1911, to the defendant, signed E. W. Bili- asked whether they had two plants in operman, Secretary, wherein as an inducement ation and where they were, answered that for defendant to purchase, he represented, they had two plants, one at Reading and inter alia, that the plaintiff company was one at Hamburg, and that they "had them operating two plants at that time, one at in operation. The Hamburg plant was Reading and the other here (meaning Ham- just being equipped at that time." This burg, Pa.). This letter was offered in evi- answer clearly shows that the Hamburg dence and objected to unless it be shown plant was not then in operation. When that E. W. Billman had authority from the asked by the court with reference to the corporation to make false representations Hamburg plant, we have (N. of T., p. 13): binding the company.
"Q. The question was whether it was in There was no question but that E. W. operation ? A. In the spring. Billman, as secretary, was authorized to sell Q. The question is: Was it in operation for the company these 25 shares. Having at that time-were you operating it at that this power of sale he certainly had the im- time, January, 1911? A. Not in January, plied power to give information concerning no sir.” the company whose shares he was offering The former secretary, E. W. Billman, for sale. In Custer v. The Titusville Gas testified that the Reading piant was in opand Water Co., 63 Pa. 381, it is held: eration at the time he made the representa"Where the representations are such as the tions, and the Hamburg plant was undergo
have forfeited the rights to hold their offices
for entering into contracts with the American
Hose Company No. 1, of Tamaqua, of
which they were at the time members, for
the hauling of coal, garbage and other mating improvements. There seems to be no erials for the said Borough of Tamaqua, for question from the evidence of the officials of which services the hose company were paid the company that when these representa
various sums of money. tions were made on January 21, 1911, they
Facts sufficient to decide this case are set were false at least as to the Hamburg plant. forth and admitted in the pleadings. The
Defendant testified that upon receipt of American Hose Company No. 1 of Tamaqua this letter he went to Hamburg, showed it is a corporation of the first class, organized to Mr. Heinly, the president, and was as- for the purpose of rendering assistance to sured by him that the statements herein con- citizens in the extinguishment of fires, and tained were true. That, relying upon the
pays death benefits to the families of de-
was employed by the Borough during the
for which large sums of money were paid.
its Council, entered into a contract with the It was a case for the jury to determine.
hose company by which the hose company
etc., during a period of five years, for the
installments. In the making of these con-
Schuylkill Co tracts between the Borough and the hose
company, it is contended that the defendants
violated Section 66 of the Criminal Code of
May 28, 1907, P. L. 262--Councilmen 262.
Section 66, of the Act of March 31, 1860,
P. L. 382, provides as follows:
“It shall not be lawful for any council-
institution, to be at the same time a treas-
to the president and directors, who shall re-
such officer, nor shall any member of any
ested in any contract for the sale or furnish-
ing of any supplies, or materials to be J. O. Ulrich for writ.
furnished to, or for the use of any corporaA. L. Shay, contra.
tion, municipality or public institution of
which he shall be a member or officer, or for August 29, 1907. JOHNSON, P. J.-- which he shall be an agent, nor directly nor This is a proceeding in quo warranto, in indirectly interested therein, nor receive any which the Court is asked to oust the de- reward or gratuity from any person interfendants from their offices as Councilmen of ested in such contract or sale; and any perthe Borough of Tamaqua.
son violating these provisions, or either of The question here to be determined is them, shall forfeit his membership in such whether the defendants, members of the corporation, municipality or institution, and Town Council of the Borough of Tamaqua, his office or appointment thereunder," etc.
The Act of May 28, 1907, P. L. 262, It behooves him to do so, if he be willing to provides :
do his whole duty, and a plea of ignorance “That it shall not be lawful for any bur- in such a case would show neglect and want gess or member of council of any borough, of diligence on the part of the officer." or any officer, agent or employe thereof, to The Deputy Attorney General, William be in any way interested either directly or M. Hargest, in this case, speaking of the indirectly, in any contract for the sale or Acts of Assembly referred to, has well said: furnishing of any supplies or materials to be "They were enacted in the interest of the furnished to or for the use of such borough, public, not only to prevent graft and the or to receive any reward or gratuity from awarding of contracts or private gain to any person interested in such contract or councilmen, but also to prevent contracts sale; nor shall any such burgess, member of being given to favored persons or corporacouncil, officer, agent or employe of any tions at perhaps higher prices than the same borough be a member of any partnership or service or materials could be obtained elsea stockholder or officer of any corporation, where. or an agent or employe of any individual, "To prevent pecuniary benefit to any partnership, or corporation, in any way in- public official was not the only mischief terested in any contract for the sale or furn- sought to be remedied. The evil was ishing of any supplies or materials to be broader, and the remedy intended to be furnished to or for the use of, or any work more comprehensive, than the mere financial to be done for, such borough; and any per- interests of the councilmen. If councilmen son violating these provisions, or any of are prevented from being directly or indithem, shall forfeit his office or appointment rectly interested in any contract for the sale in such borough," etc.
or furnishing of supplies by a corporation of Section 66, of the Act of March 31, the second class organized for profit, but 1860, is broad in its terms, and provides : may, in behalf of the borough, contract ad
"Nor shall any member of any corpora- libitum with corporations of the first class in tion or public institution, or any officer or which they are mer pers, the remedy sought agent thereof, be in any wise interested in to be applied by these Acts of Assembly is any contract for the sale or furnishing of not complete.” any supplies or materials to be furnished to We are quite sure that to permit memor for the use of any corporation, municipal-bers of a fire company such as this to enter ity or public institution, of which he shall be into contracts with a Borough Council of an agent, nor directly nor indirectly inter which they are members, is to open the road ested therein, nor receive any reward or to recklessness, extravagance and temptagratuity from any person interested in such tion, the very things which the Acts of contract or sale."
Assembly cited were intended to prevent. This section does not confine the interest Louis Pfeil, one of the defendants, was to a money or pecuniary interest coming di- the secretary of the American Hose Comrectly to the member of the corporation or pany, and therefore, comes clearly within institution. These defendants, members of the provisions of the Act of May 28, 1907, the American Hose Company, were inter- P. L. 262. ested in the company and in the contracts The demurrer to the defendants' answer made with the company, and for their com- was overruled without writing an opinion, pany to enter into contracts as here com- on the understanding with counsel of both plained of, with the Town Council of sides that it was merely for the purpose of Tamaqua, of which they were meinbers, is hearing some evidence before the court alone against public policy and in violation of both without a jury. Evidently counsel for dethe letter and the spirit of Section 66 of the fendants misunderstood the court, for withAct of March 31, 1860.
out any hearing of evidence before the court These defendants could not serve two the defendants asked for a jury trial. But masters. They could not, under the law, as sufficient facts are set forth and admitted contract with themselves.
in the pleadings, the decree meant temporarNo doubt the defendants did not intend ily to overrule the demurrer should now be to violate any law, but, as said in Com. ex vacated. The demurrer should be sustained, rel. Whitehouse v. Harris, 248 Pa. 573, “It and the defendants should be ousted from is a public officer's duty to acquaint himself their offices as Councilmen of the Borough with the statutory laws respecting his office. i of Tamaqua.