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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, 1924, 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 words "in discharge etc." contained an affidavit of defense fifteen days. On in the third agreement, are very signifi- July 16, 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. Apparently under the decisions, the complainant is required to do the same. As suming the correctness of these views and the applicability of the rules expressed to the facts of the case, it follows that the following order must be made:

And now, July 26, 1924, the rule to show cause why the order made May 24. 1924, directing the defendant, James H. Pengelly, to pay $60 per month for the support of his wife, Katie W. Pengelly, should not be vacated is made absolute, and said order is hereby vacated, to which action the complainant excepts and such exception is hereby noted.

C. P. of

July 22, 1924, after the fifteen days' extension of time for the defendant to file an affidavit of defense had expired, judgment, upon plaintiff's motion, was tered against the defendant for want of an affidavit of defense, for $5752.50.

en

That this judgment should not have been entered after the affidavit of defense raising a question of law was filed is shown in Section 20 of the Act of May 14, 1915, P. L. 483. It provides that the defendant, in the affidavit of defense which he must file to prevent judgment, may raise any question of law without answering the averments of fact in the statement of claim, which questions of law shall be disposed of by the court. Lancaster Co. The defendant in this case, in filing an

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affidavit of defense raising a question of law within the fifteen days allowed in our opinion, therefore, did all that was necessary for him to do to prevent judgment. The judgment should not have been entered, and must be stricken off.

The affidavit of defense raising a question of law is without merit. The statement sets forth a good cause of action as required by Section 9, of the Act of 1915, supra. It is not necessary for the plaintiff to allege in the statement that it is either a domestic or a foreign corporation, for even a foreign corporation can recover under the facts set forth in the statement of claim. Nor is it necessary for it to state that Frances F. Douglass, one of the defendants, is a married woman, wife of the other defendant, and whether or not she signed the note upon which the suit is brought as surety. Neither is it necessary for the plaintiff to state that the note was protested in order to hold the makers. If any, or all, of these matters are such facts as will prevent the plaintiff recovering judgment against one or both of the defendants, they are matters of defense and must be set forth in affidavits of defense, denying

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 permit them to file affidavits of defense to the averments of fact contained in the statement of claim within fifteen days of the date of filing this opinion.

Lulu Wolfe received 64 votes, and no votes were cast for any other candidate; that Daniel H. Himmelreich was alone declared elected; that the board of school directors of Alsace Township in January

Rule to strike off the judgment is made of 1024 appointed Walter Y. Levan, the absolute.

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respondent, to fill the alleged vacancy in the office to which Lulu Wolfe was rightfully entitled by virtue of the election. She concludes her suggestion by asking the court to award a writ of quo warranto 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,

the court for argument, the single point

Elections-Township school board-1924, and the matter later came before Certificate of election--School Code, Sec. pressed being whether or not the sugges

222-Quo warranto.

In a suggestion for a writ of quo warranto the relator set forth that at a township electoin at which there were only two candidates for school director, she was elected to the school board, that she was not declared

tion, assuming the truth of all the allegations, is sufficient for the issuance of the writ

Counsel for the respondent contends that the writ should not issue, because, 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 cer222 of the School Code, and, second, the relator has not demanded admission to the board,

tificate of relator's election was not excucted in accordance with Section 222 of the School Code, and because the relator had not demanded 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 Moschzisker, in Com. ex

222 of the School Code is immaterial; and

(2) that the appointment of respondent by rel., Gast v. Kelly, (1917), 255 Pa. 475, the school board was an implied refusal of 481: "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 that the inspectorsand judge of election shall make out a certificate 'for each person chosen as * * a township officer, which certificate shall be delivered P. Herbert Reigner, for the relator and to the person so chosen,' and that Sec. 14

Rule to show cause why writ of quo warranto should not be issued. Rule absolute.

rule.

H. Robert Mays, for the respondent.

*

of the Act of April 3, 1851, P. L. 320, provides that borough elections are subject 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-shows, such was the customary credendates, Daniel H. Himmelreich on the De- tials presented by councilmen in the Bormocratic ticket, and Lulu Wolfe 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 Co.

difference here, for, since it is freely ad- In re Application of J. L. Tressell

mitted by the respondent that the realtor received a substantial majority of the votes cast at the election, it follows he was entitled to a proper certificate; or,

for a Detective License

Act of May 23, 1887—Judicial discre

to put the proposition in another way, his tion-Competency and integrity of appli prima facie right as the successful candi

date at the November election being as-cant-Not Substituted for public official sented to, the non-production of a proper-Act 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

appoint
when
private detectives,
necessary and expedient.

deemed

"No such license shall be granted, until satisfactory proof of the competency and integrity of" the applicant has been made.

The function of such appointee is to make investigations for hire or reward, and not to

The take the place and perform the functions of

a constable or police officer.

Where the applicant has been a candidate court will not set aside the will of the peo

immaterial. It is by the public expres-the court of quarter sessions authority to sion through the ballot box that title is derived to an elective office; the certificate of the board of canvassers is merely evidence of the person to whom the majority of votes was given. certificate may, indeed, be conclusive in a controversy arising collaterally, or be-for the office of constable and defeated, the tween the person holding it and a strang-ple so publicly declared, by the subterfuge er, 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. clusive character, and becomes only The testimony of an applicant to the effect that, while serving as chief of police prima facie evidence of the right': Brightly's Leading Cases on Elections, Ptives his competency as an officer; it being 435. quoting from People v. Cook, 8 N. Y. 67. See also McCrary on Elections, Sec. 374."

of pretending to appoint such defeated can

standing that he shall in fact perform the

during the period of two years, he made but

two arrests for liquor law violations, nega

as much the duty of a chief of police to enforce the law, as a constable.

Application for detective license under
Act of May 23, 1887. Refused.

J. Salem Flack. Esq., for applicant.
J. Olan Yarnall and J. Albert Reed,
Esqs., for remonstrants.

As to the second objection, that the relator did not appear before and demand admission to the board, it need only be said that the board by proceeding in January, 1924, to appoint the respondent to 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 erate said agency in the borough of California, Pennsylvania, agreeable to the

have been useless.

With reference to Section 223 of the provisions of the Act of May 23, 1887, P. This act vests in the court of School Code requiring a contest within 173. 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 Hayes v. Boyle, (1914), 42 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 the validity of the entire election itself.

Let a writ of quo warranto issue.

cant has been made. The function of such appointee, as disclosed by the act, is to make investigations for hire or reward. 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 contency 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 same manner his present application. It a constable. Within the jurisdictional 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 in fact perform the functions of a public officer. This the court has no right to do for reasons which are obvious.

Those in favor of the application claim that in their community there are frequent violations of the prohibition laws. This, we regret, is doubtless true, and

Berks Co.

Meinig v. Miller et al., County
Commissioners

Taxation-County taxes-Assessment
-Appeal-Uniformity of assessments

their desire for better law enforcement is-Statutes Construction-Taxationcommendable, 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 police, he himself brought but two prosecutions for violations of our liquor law, does not give promise of any real improvement in law enforcement, even if the other circumstance above referred to permitted of his appointment. The integrity of the applicant has been established, but not his competency, as his

Appellant's property was assessed for court, on refusal of the county commissioncounty purposes at $100,000. On appeal to ers to lower the assessment, the evidence of its value ranged from $50,000 to $135,000. properties in the same locality was shown to be from 30 to 60 per cent. Held, that the fair value of the property was $100,000, and that the assessment should be reduced to $50,000, in view of the rule that assessments

The ratio of assessment to value on other

must be uniform.

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

cerning appeals from assessinents 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 val

uation 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 either in the lower courts or in the aponly from the regular triennial assessment, but also from assessments in intermediate pellate courts, where the question has

years.

Kister's Petition, 9 Dist. R. 64, not followed.

Appeal from county assessment.

H. F. Kantner, for appellant.

Adam B. Rieser, County Solicitor,

contra.

been considered, but with due respect to the views of the learned judge who decided that case, we are unable to agree with his conclusions or the reasoning upon which his conclusions are based.

An examination of the opinion in that case shows that he not only held that the Act of April 19, 1889, applied only to Biddle, P. J., 9th 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 Pa. 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.

The ratio of assessment to market value in the borough of Wyomissing is 50 per cent. for real estate similar to that of the appellant.

The court has jurisdiction of the present appeal.

The assessment of the appellant's property should be reduced from $100,000 to $50,000, in order that the rate of taxation against it may be uniform with that of similar real estate in the same community.

If we apply the reasoning of the Supreme Court in the case in 204 Pa., just mentioned, to the present case, we feel that the only logical conclusion that can be reached is that it was the intention of the legislature to give to property owners the right to appeal from assessments in the intermediate years as well as from the triennial assessments.

The language of the act itself is: "That any owner of real estate or taxable property in this Commonwealth, 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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