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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 attachment for contempt was asked. HELD, as no time for payment was fixed in the orignal order, the attachment must be denied; but a new order, requiring payment within thirty days, was made. No. 138, August Term, 1916.

The libellant failing to make such payment, a rule to show cause why an attachment should not issue for contempt of Court was granted. On this rule the following opinion was filed.

October 1st, 1917. Ross, J.-The Court

Rule to show cause why counsel fee and alimony should not be awarded to respond-granted a rule on the plaintiff to show cause why he should not pay alimony and counsel fees in the above named case to Clara J. March. On December 26th, 1916, an

ent.

Rule for attachment.

W. B. Gemmill and R. P. Sherwood for opinion was filed and the following order

rules.

Logan Logan, contra.

December 26th, 1916. Ross, J.-The libellant in this case seeks a divorce from his wife, Clara J. March, because, as he alleges, she has deserted him and because she has committed adultery with a person who is named in the libel.

The respondent filed her answer, denying the allegations charging her with adultery, and averring that the reason for her leaving her husband was because he has committed adultery with various females named in the answer, at the time specified in the answer. She further avers that she was compelled to leave her husband because he was afflicted with a venereal disease which he contracted by adulterous practice and because of his cruel and barbarous treatment of her. She resists the application for divorce and asks for a trial of the facts by a jury.

The respondent now asks for alimouy and counsel fee to enable her to refute the charges made by the libellant. There was no testimony presented to the court which would enable us to determine the financial 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

entered:

"And now, December 26th, 1916; It is ordered that the rule be made absolute and the libellant is hereby ordered to pay the respondent the sum of forty dollars for the purpose of paying her counsel for the preparation and conduct of her defense in the libel."

It appears that the libellant has not com

plied with that order. As no definite time

was set in the order for the payment of said fee, it would not be proper for the Court at this time to grant the prayer of the respondent's petition and adjudge the libellant in contempt of Court; but the following qualification to the order heretofore made is now entered.

The libellant, John H. March, is ordered to pay the sum of forty dollars to the respondent for counsel fee in the preparation and conduct of her defence to the charges contained in the libel for divorce filed in the above case, within thirty days from this date, or be adjudged in contempt

of Court.

The rule granted in this case is hereby discharged at the cost of the libellant.

C. P. of

Pfahler v. Borough of Dunmore.

Lackawanna Co. councilmen was informal because it was not a regular nor a special meeting; and there is no record or minute of such a meeting. The theory of the plaintiff is that he is Borough Ordinance Delegating Power-entitled to wages up to March 21, because Removal of Policeman-Act May 14, he was not finally discharged, as he claims, 1915, P. L. 312.

A borough council has exclusive authority under the Borough Act of May 14, 1915, P. L. 312, to summarily remove a policeman from office for proper cause, and may, by ordinance, delegate to the chief of police the right to exercise that authority subject to the supervisory control of the council.

That authority is not abridged by the clause in the Act of 1915 giving the burgess certain control of the police with the power to suspend a policeman pending the action of the council.

Rule for new trial.

F. E. Boyle for plaintiff.

J. W. McDonald for defendant.

until that time; but the action of the councilmen on that date was clearly without validity in law, and was not effective for any purpose.

The real question in the case is: was the action of the chief of police proper under the present borough law? Plaintiff claims that the chief of police had no authority to dismiss nor suspend a policeman. One of the provisions of the Borough Act of 1915 relating to police is as follows: "The borough police shall be under the direction of the burgess, as to the time during which, the place where, and the manner in which, they shall perform their duties. The burgess may, for cause and without pay, sus

April 23, 1917. EDWARDS, P. J.-Plain-pend any policeman until the succeeding tiff was a policeman of the Borough of Dunmore and has brought suit for his wages, covering a period of nearly two months, from January 24 to March 21, 1916. The jury was instructed to find a verdict for the defendant.

regular meeting of council, at which time the council may discharge or reinstate such policeman." The same act of assembly also provides that "borough councils may appoint and remove" policemen. It is clear that the power to remove policemen is vested exclusively 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 determined 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 legisla

case.

tion to confer upon the burgess of a borough, regardless of his qualifications, a part of the duties usually performed by a chief of police. In the case at bar, the plaintiff was lawfully removed, and for a good reason.

There seems to have been an informal meeting of the councilmen on March 21, 1916, at which time plaintiff was informed that he was discharged; in other words, 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.

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 eviFisher.dence to show the fraud by which the sub

Principal 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. Motor Speedway Asso. v. Sale, 25 Dist. Rep. 1101, 1103.

sions.

Where the representations made by an officer of a corporation to obtain a stock subscription are such as he may reasonably be presumed to have authority to make, they are admissible to show the fraud by which the subscription was procured. In an action by a corporation on a note taken for a stock subscription, the defendant testified that the president of the corporation gave him information showing that certain representations made by the secretary of the company in order to sell the stock were false. HELD, admissible as an admission by the company.

The representation that the company was operating two plants, one at Reading and the other at Hamburg, related to the status of the company, and was material. We do not consider that there was any error in the admission of the evidence.

The next question then was whether these representations were false. The defendant stated in direct examination that at the time the alleged false representations

Rules for new trial and for judgment were made the plaintiff company was not

n. o. v.

Joseph R. Dickinson for rule.
John B. Stevens, contra.

operating two plants as stated in the letter. Upon cross-examination by plaintiff's counsel as to the source of this information, he answered that Mr. Heinly, the president of the company, told him that they did not have two plants.

The fifth reason of a new trial complains of the admission of this evidence upon the ground that it is mere hearsay. This information having been elicited by plaintiff's counsel upon cross-examination, could hardly be assigned by plaintiff as a reason for a new trial. Neither is this hearsay evidence, but

May 14, 1917. WAGNER, J.-Plaintiff brought suit against defendant upon a promissory note dated February 4, 1911, for $250 which defendant had executed and given to plaintiff. The defense to the note was that it had been given to plaintiff in payment of the sale by plaintiff company through its secretary, E. W. Billman, of 25 shares of the capital stock of plaintiff company, and an admission by the company through its that plaintiff was induced to purchase the shares through certain misrepresentations in writings made by E. W. Billman at the time of the sale.

president. The question as to whether or not the company was operating two plants at the time the letter was written, after 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. Bill- 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 Hamburg, Pa.). This letter was offered in evidence and objected to unless it be shown that E. W. Billman had authority from the corporation to make false representations binding the company.

There was no question but that E. W. Billman, as secretary, was authorized to sell for the company these 25 shares. Having this power of sale he certainly had the implied power to give information concerning the company whose shares he was offering for sale. In Custer v. The Titusville Gas and Water Co., 63 Pa. 381, it is held: "Where the representations are such as the

just being equipped at that time." This answer clearly shows that the Hamburg plant was not then in operation. When asked by the court with reference to the Hamburg plant, we have (N. of T., p. 13): "Q. The question was whether it was in operation? A. In the spring.

Q. The question is: Was it in operation at that time-were you operating it at that time, January, 1911? A. Not in January, no sir."

The former secretary, E. W. Billman, testified that the Reading piant was in operation at the time he made the representations, and the Hamburg plant was undergo

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ing improvements. There seems to be no question from the evidence of the officials of the company that when these representations were made on January 21, 1911, they were false at least as to the Hamburg plant. Defendant testified that upon receipt of this letter he went to Hamburg, showed it to Mr. Heinly, the president, and was assured by him that the statements herein contained were true. That, relying upon the strength of this letter he gave the note upon which suit was brought in payment of the stock. When subsequently he discovered the truth as to these representations, he returned the stock to the plaintiff, who refus ed to accept it but sent it back to him. We do not consider that there is anything in this case to warrant the granting of a new trial. It was a case for the jury to determine.

Rules for new trial and for judgment n. o. v. are discharged.

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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 materials for the said Borough of Tamaqua, for which services the hose company were paid various sums of money.

Facts sufficient to decide this case are set forth and admitted in the pleadings. The American Hose Company No. 1 of Tamaqua is a corporation of the first class, organized for the purpose of rendering assistance to citizens in the extinguishment of fires, and pays death benefits to the families of deceased members, out of a fund supplied by the payment of dues. The hose company was employed by the Borough during the garbage and other material, for the Borough, years 1914 and 1915 in the hauling of coal, for which large sums of money were paid. On March 7, 1916, the Borough, through its Council, entered into a contract with the hose company by which the hose company agreed to collect and remove garbage, refuse, etc., during a period of five years, for the sum of $14,000.00, to be paid in monthly installments. In the making of these contracts between the Borough and the hose company, it is contended that the defendants violated Section 66 of the Criminal Code of 1860, and the Act of May 28, 1907, P. L. 262.

Section 66, of the Act of March 31, 1860, P. L. 382, provides as follows:

"It shall not be lawful for any council

The act of March 31, 1860, P. L. 382, does not confine the interest of a member of town council man, burgess, trustee, manager or director to a money or pecuniary interest coming directly to the member of the corporation.

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of any corporation, municipality or public institution, to be at the same time a treasurer, secretary or other officer, subordinate to the president and directors, who shall receive a salary therefrom, or be the surety of such officer, nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies, or materials to be furnished to, or for the use of any corporation, municipality or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale; and any person violating these provisions, or either of them, shall forfeit his membership in such corporation, municipality or institution, and his office or appointment thereunder," etc.

The Deputy Attorney General, William M. Hargest, in this case, speaking of the Acts of Assembly referred to, has well said:

"They were enacted in the interest of the public, not only to prevent graft and the awarding of contracts or private gain to councilmen, but also to prevent contracts being given to favored persons or corporations at perhaps higher prices than the same service or materials could be obtained else

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 be in any way interested either directly or indirectly, in any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of such borough, or to receive any reward or gratuity from any person interested in such contract or sale; nor shall any such burgess, member of council, officer, agent or employe of any borough be a member of any partnership or a stockholder or officer of any corporation, where. or an agent or employe of any individual, partnership, or corporation, in any way interested in any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of, or any work to be done for, such borough; and any person violating these provisions, or any of them, shall forfeit his office or appointment in such borough," etc.

Section 66, of the Act of March 31, 1860, is broad in its terms, and provides:

"Nor shall any member of any corporation or public institution, or any officer or agent thereof, be in any wise interested in any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of any corporation, municipality or public institution, of which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale."

This section does not confine the interest to a money or pecuniary interest coming directly to the member of the corporation or institution. These defendants, members of the American Hose Company, were interested in the company and in the contracts made with the company, and for their company to enter into contracts as here complained of, with the Town Council of Tamaqua, of which they were members, is against public policy and in violation of both the letter and the spirit of Section 66 of the Act of March 31, 1860.

"To prevent pecuniary benefit to any public official was not the only mischief sought to be remedied. The evil was broader, and the remedy intended to be more comprehensive, than the mere financial interests of the councilmen. If councilmen are prevented from being directly or indirectly interested in any contract for the sale or furnishing of supplies by a corporation of the second class organized for profit, but may, in behalf of the borough, contract ad libitum with corporations of the first class in which they are members, the remedy sought to be applied by these Acts of Assembly is not complete."

We are quite sure that to permit members of a fire company such as this to enter into contracts with a Borough Council of which they are members, is to open the road to recklessness, extravagance and temptation, the very things which the Acts of Assembly cited were intended to prevent.

Louis Pfeil, one of the defendants, was the secretary of the American Hose Company, and therefore, comes clearly within the provisions of the Act of May 28, 1907, P. L. 262.

The demurrer to the defendants' answer was overruled without writing an opinion, on the understanding with counsel of both sides that it was merely for the purpose of hearing some evidence before the court alone without a jury. Evidently counsel for defendants misunderstood the court, for without any hearing of evidence before the court the defendants asked for a jury trial. But as sufficient facts are set forth and admitted 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.

These defendants could not serve two masters. They could not, under the law, contract with themselves.

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