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a month, in discharge of his liability for Hassler, J., October 4, 1924. --On July the support and maintenance of the com- 5, 1024, we discharged a rule to strike off plainant. If a release by the complain- plaintiff's statement in this case, and exant of her right to support is essential, tended the time for the defendant to file the worils "in discharge etc.” contained an affidavit of defense fifteen days. On in the third agreement, are very signiti- July 10), 1924, within the fifteen days alcant. The defendant, at the time these lowed, the defendant filed an affidavit of proceedings were brought, had carried defense raising a question of law. On out his part of the arrangement. Ap- July 22, 1924, after the fifteen days' exparently under the decisions, the com- iension of time for the defendant to file plainant is required to do the same. AS

As an affidavit of defense had expired, judgsuming the correctness of these view's ment, upon plaintiff's motion, was and the applicability of the rules ex- teredd against the defendant for want of pressed to the facts of the case, it follows an affidavit of defense, for $5752.50. that the following order must be made : Ind now, July 20, 1924, the rule to

That this judgirent should not have show cause why the order made May 24. been entered after the affidavit of de1924, directing the defendant, James H. fense raising a question of law was filed Pengelly, to pay $60 per month for the is shown in Section 20 of the Act of May support of his wife, Katie 11. Pengelly, 14, 1915, P. I.. 483. It provides that the should not be vacated is made absolute, defendant, in the affidavit of defense and said order is hereby vacated, to which he must file to prevent judgment, which action the complainant excepts may raise any question of law without and such exception is hereby noted.

answering the averments of fact in the statement of claim, which questions of

law shall be disposed of by the court. C. P. of

Lancaster Co. The defendant in this case, in filing an

affidavit of defense raising a question of Wagner Bros. Co. v. Douglas

law within the fifteen days allowed in our opinion, therefore, did all that was neces

sary for him to do to prevent judgment. Statements-Veed not contain matters | The judgment should not have been en

tered, and must be stricken off. of defense-affidavit raising question of law Practice Act of Vlay 14, 1915, P.

The affidavit of defense raising a question of law is without merit. The state

ment sets forth a good cause of action rule to strike off a plaintiff's

as required by Section 9, of the Act of statement was discharged and the time for 1915, supra. It is not necessary for the filing an affidavit of defense extended fifteen plaintiff to allege in the statement that it days to file an affidavit of defense, and within that time the defendant filed an affidavit is either a domestic or a foreign corporaraising a point of law, a judgment subse- tion, for even a foreign corporation can quently entered for want of an affidavit of defense is improperly entered and should be recover under the facts set forth in the stricken off.

statement of claim. Nor is it necessary It is not necessary for a statement to set for it to state that Frances F. Douglass, forth whether the plaintiff is a foreign or do

one of the defendants, is a married womestic corporation or that one of the defenddants is a married woman and the wife of man, wife of the other defendant, and the other defendant or whether or not she whether or not she signed the note upon signed the note on which suit is brought as surety, nor is it necessary for the plaintiff to which the suit is brought as surety. Neistate that the note was protested in order to ther is it necessary for the plaintiff to

These are all matters of defense.

state that the note was protested in or

der to hold the makers. If any, or all, of Rule to strike off judgment.

these matters are such facts as will preI. Indrew Frantz and I. U Starlings, vent the plaintiff recovering judgment for rule.

against one or both of the defendants,

they are matters of defense and must be H. Edgar Sherts, contra.

set forth in affidavits of defense, denying

L. 483.



hold the makers.


the averments of facts contained in official ballot contained the names of the plaintiff's statement of claim.

two candidates and no others, that Daniel We find the alleged questions of law H. Himmelreich received 81 votes and raised against the defendants, and per- Lulu Wolfe received 64 votes, and no mit them to file affidavits of defense to votes were cast for any other candidate; the averments of fact contained in the that Daniel H. Himmelreich was alone statement of claim within fifteen days of declared elected; that the board of school the date of filing this opinion.

directors of Alsace Township in January Rule to strike off the judgment is made of 1924 appointed Walter Y. Levan, the absolute.

respondent, to fill the alleged vacancy in the office to which Lulu Il'olfe was right

fully entitled by virtue of the election, C. P. of

Berks Co.

She concludes her suggestion by asking Commonwealth ex rel Wolfe v. the court to award a writ of 910 warLevan

ranto against Walter Y. Levan.

The court, thereupon, granted a rule on the respondent to show cause why the

writ should not issue, returnable June 21, Elections— Township school board-1924, and the matter later came before

the court for argument, the single point Certificate of election-School Code, Sec. pressed being whether or not the sugges222_0110 warranto.

tion, assuming the truth of all the allega

tions, is sufficient for the issuance of the In a suggestion for a writ of quo warranto

Writ. the relator set forth that at a township electoin at which there were only two candi- Counsel for the respondent contends dates for school director, she was elected to that the writ should not issue, because, the school board, that she was not declared elected, and that the school board appointed first, a certificate of relator's election was the respondent to fill the alleged vacancy. not executed in accordance with Section Respondent opposed the writ because a certiticate of relator's election was not exeuetea 222 of the School Code, and, second, the in accordance with Section 2.22 of the School relator has not demanded admission to Code, and because the relator had not de- ! the board, manded admission to the board. Ordering the writ to issue, Held, (1) that relator's The first objection, as to the absence prima facie right as the successful candidate of a certificate of election, seems to be at the election being assented to the nonproduction of a proper certificate issued in fully answered by the following language accordance with the provisions of Section of Justice von Voschzisker, in Com. ex 22. of the School Code is immaterial; and (2) that the appointment of respondent by

rel., Gast v. Kelly; (1917), 255 Pa. 175, the school board was an implied refusal of 181: “So far as concerns the fourth admission to the relator making demand on her part for admission useless.

ground of complaint, it is true the act of

June 13, 1840, P. L. 683, Sec. 1, provides Rule to show cause why writ of quo ihat the inspectorsand judge of election warranto should not be issued. Rule ab- shall make out a certificate for each persolute.

son chosen as

a township offi

cer, which certificate shall be delivered P. Herbert Reigner, for the relator and to the person so chosen,' and that Sec. 14 rule.

of the Act of April 3, 1851, P. L. 320, 11. Robert Ilays, for the respondent.

provides that borough elections are sub

ject to all the laws regulating township Bertolet, J.. July 26, 1924.-On June elections, 'so far as applicable. The re2, 1924, Lulu Wolfe filed her suggestion lator did not receive the certificate called for a writ of quo warranto, and set forth for by these acts of assembly; but he did that at a regular election held on Novem- ; secure one from the clerk of the court to ber 6), 1923, in Alsace Township, Berks which the election officials had made County, two school directors were to be their return, and, so far as the evidence elected; that there were only two candi-1-hows, such was the customary credendates, Daniel H. Ilimmelreich on the Detials presented by councilmen in the Bormocratic ticket, and Lulu Il'olfe on the ough of McKees Rocks. Whether or not Republican ticket; that at the election the this certificate would, under ordinary cir




cumstances, be sufficient, makes but little Q. S. of

Washington (o. difference here, for, since it is freely ad- In re Application of J. L. Tressell mitted by the respondent that the realtor

for a Detective license received a substantial majority of the votes cast at the election, it follows he was entitled to a proper certificate; or, Act of May 23, 1887Judicial discreto put the proposition in another way, his tion--Competency and integrity of appliprima facie right as the successful candidate at the November election being as-cant-Not Substituted for public official sented to, the non-production of a proper - ct not to be used as referendum vote certificate showing that fact, so far as

of people. the present controversy is concerned, is

The Act of May 23. 1887, P. L. 173, vests in immaterial. “It is by the public expres- the court of quarter sessions authority to sion through the ballot box appoint private detectives,

necessary and expedient. that title is derived to an elective office; “No such license shall be granted. until the certificate of the board of canvassers integrity of” the applicant has been made.

satisfactory proof of the competency and is merely evidence of the person to whom The function of such appointee is to make

investigations for hire or reward, and not to the majority of votes was given. The take the place and perform the functions of

a constable or police officer. certificate may, indeed, be conclusive in a

Where the applicant has been a candidate controversy arising collaterally, or be- for the office of constable and defeated, the

court will not set aside the will of the peotween the person holding it and a strang- ple so publicly declared, by the subterfuge

of pretending to appoint such defeated caner, but when this proceeding is instituted didate a private detective, with the underin the name of the people, it loses its con- functions of a public officer.

standing that he shall in fact perform the clusive character, and becomes only The testimony of an applicant to the ef

feet that, while serving as chief of police prima facie evidence of the right': during the period of two years, he :nade but Brightly's Leading Cases on Elections, p. tives his competency as an officer it being

two arrests for liquor law violations, noga+35, quoting from People v. Cook, 8 X. as much the duty of a chief of police to enY. 67. See also McCrary on Elections, force the law, as a constable. Sec. 37 +

Application for detective license under As to the second objection, that the re .lct of May 23, 1887. Refused. lator did not appear before and demand 1. Salem Flack. Tisq., for applicant. admission to the board, it need only be said that the board by proceeding in Jan

J. Olan Yarnall and J. Ilbert Reed, uary, 1924, to appoint the respondent to Esqs., for remonstrants. the office, impliedly refused the relator

Cummins, J., August 18, 1924. The admission. Following this action by the petitioner has made application for a board, any demand on the part of the re-private detective license, proposing to oplator for admission would necessarily rate said agency in the borough of Calhave been useless.

lifornia, Pennsylvania, agrecable to the Il'ith reference to Section 223 of the provisions of the Act of May 23, 1887, P. School Code requiring a contest within 1.. 173. This act vests in the court of 10 days after the day of election, its pro- quarter sessions authority to make such visions are not applicable, for, as was appointments when, in the discretion of said in Haves v. Boyle, (1914), 12 Pa. the court, it is necessary and expedient, C. C. 236, that section does not apply to but provides that “no such license shall an election contest to determine which be granted, until satisfactory proof of the candidate holds title to the office, but ap- competency and integrity of the appliplies only where the controversy involves cant has been made. The function of the validity of the entire election itself.

such appointee, as disclosed by the act,

is to make investigations for hire or reLet a writ of quo warranto issue. ward. It is not the purpose of the act that such appointee shall take the place past admitted service must speak for itof and perform the functions of a con- self. stable or police officer, but that his ser- It must not be understood from the vices shall be of a private nature. For conclusions herein reached, that the court this reason he is permitted and expected will not, in a proper case, make an apto receive compensation from those who pointment of the nature prayed for. All employ him, while for a public officer to that we decide is that we cannot make do so would constitute extortion.

this appointment for the reasons, firstThe applicant in this case was for that it would constitute in substance an about two years, the chief of police of overriding of the will of the people desaid borough, having been recently dis- clared in a public election, and secondmissed from that office by the town

that the applicant's admitted previous council. He was likewise a candidate in record in the enforcement of the prohithat municipality, at the last general bition laws does not establish his compeelection, for the office of borough con

tency as an officer. stable, in which election contest he was

To those interested in law enforcement defeated by a considerable majority. In may the court suggest that the employthe present proceeding, apparently those ment of a private detective, whose idenwho supported the applicant in his recent tity is not known, is more effective than campaign (they themselves profess to be the employment of one who is known by such) are supporting him now by evi- the law breakers. May the court also dence, letters and petitions, and those add that it is as much the duty of a chief who opposed him then, oppose in the of police to enforce our laws as that of

Within the jurisdictional same manner his present application. It a constable. is claimed by the applicant that those limits of the municipality, their authority who opposed his election as constable, in this regard is concurrent. We refer to the town council who dismissed him and this because police officers too frequently the remonstrants who now oppose his neglect or refuse to prosecute violations appointment, represent the lawless ele of the law, unless they occur openly on ment, and the court is now asked to so

the public streets. hold, pass judgment upon the character

And now, to wit, August 18, 1924, for and motives of those who voted at this the reasons set forth in the foregoing adelection, and in substance to revoke the judication, the application of J. L. Treswill of the people as publicly declared in sell for a detective license, is refused. that election by the subterfuge of pretending to appoint him a private detec-C. P. of tive, with the understanding that he shall

Meinig v. Miller et al., County in fact perform the functions of a public officer. This the court has no right to

Commissioners do for reasons which are obvious.

Those in favor of the application claim that in their community there are fre

Taration-County taxes-Assessment quent violations of the prohibition laws.

-AppealUniformity of assessments This, we regret, is doubtless true, and their desire for better law enforcement is

--Statutes ConstructionTaxationcommendable, but the applicant's own Act of April 19, 1889. testimony to the effect that, during the two years that he served as chief of po

Appellant's property lice, he himself brought but two prosecu-court, on refusal of the county commission

county purposes at $100,000. On appeal to tions for violations of our liquor law, ers to lower the assessment, the evidence of does not give promise of any real im- The ratio of assessment to value on other

its value ranged from $50,000 to $135,000. provement in law enforcement, even if properties in the same locality was shown the other circumstance above referred to fair value of the property was $100,000. and

to be from 30 to 60 per cent. Held, that the permitted of his appointment. The in- that the assessment should be reduced to tegrity of the applicant has been estab- $50,000, in view of the rule that assessments lished, but not his competency, as his

Berks Co.



for years.

The Act of April 19, 1889, P. L. 37, con

must be uniform.

cerning appeals from assessments for county mination of the Court of York County, purposes, provides as follows:

"That any owner of real estate or taxable property in in Kister's Petition, 9 Dist. R. 64, is this Commonwealth, who may feel aggrieved cited. That case unquestionably supports by the last or any future assessment or valuation of his real estate or taxable property, the contention of the appellee, and we may appeal from the decision of the county have been unable to find another case, commissioners." Held, that appeals lie not only from the regular triennial assessment, either in the lower courts or in the apbut also from assessments in intermediate pellate courts, where the question has

been considered, but with due respect to Kister's Petition, 9 Dist. R. 64, not followed.

the views of the learned judge who de

cided that case, we are unable to agree Ippeal from county assessment.

with his conclusions or the reasoning II. F. Kantner, for appellant.

upon which his conclusions are based. dan B. Rieser, Commy Solicitor,

An examination of the opinion in that

case shows that he not only held that the contra.

Act of April 19, 1889, applied only to Biddle, P. J., oth judicial district, spe- triennial assessments, but he also inticilly presiding, October 11, 1923.-This mated his opinion that the act was unis an appeal of E. Richard Meinig from constitutional on several grounds. Some the assessment for the year 1923 placed years later the question of the constituby the county commissioners on his tionality of the act was considered by property located in the borough of Wy- the Supreme Court in the case of Rockomissing. When he was notified that hill I. & C. Co. v. Fulton County, 204 the property had been assessed at la. 44, where the reasons given by the $100,000, he appealed on the appeal day Court of York County in the other case, to the county commissioners, and the upon which he based his opinion that the matter was heard by them. They re-act was unconstitutional, were considfused to lower the assessment, where-ered by the Supreme Court and were upon he took this appeal to this court held to be untenable. In view of this, under the Act of April 19, 1889, P. L. we think that his conclusion as to the 37.

application of the act is not entitled to as The fair market value of the prop

much weight as it would otherwise reerty of appellant at the time that this ceive. assessment was made was $100,000. If we apply the reasoning of the Su

The ratio of assessment to market preme Court in the case in 204 Pa., just value in the borough of Wyomissing is mentioned, to the present case, we feel 50 per cent. for real estate similar to that that the only logical conclusion that can of the appellant.

be reached is that it was the intention of The court has jurisdiction of the the legislature to give to property ownpresent appeal.

ers the right to appeal from assessments The assessment of the appellant's in the intermediate years as well as from property should be reduced from the triennial assessments. $100,000 to $50,000, in order that the

The language of the act itself is : rate of taxation against it may be uni- "That any owner of real estate or taxform with that of similar real estate in able property in this Commonwealth, the same community.

who may feel aggrieved by the last or The principal contention of the appel- any future assessment or valuation of lee in this case is in regard to the juris- his real estate or taxable property, may diction of the court, the county con- appeal from the decision of the county tending that the determination of the commissioners," etc. The italics in this county commissioners is final and that case are ours. the Act of April 19, 1889), P. L. 37,


The Supreme Court, in commenting under which this appeal was taken, ap- on this, said page 47 ): "If there is one plies only in the case of triennial assess- question more than another, in our sysments and not to assessments made in tem of self-government, which arouses the years between triennial assessments. the interest of the citizen, it is that of

In support of this position, the deter-'the imposition of taxes; it comes home

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