Kaiser vs. Kaiser.

and bearing of the parties when before us was such as to lead us to believe the testimony of the wife instead of that of her husband. The wife, while in an embarrassed financial condition and compelled to make her own way in the world, impressed us as a woman of considerable education and natural refinement, with a delicate and proper solicitude for her own good name, and a commendable sense of duty to her child. The wife's manner was such as to convince us of the truthfulness of her statements. The husband, while not naturally entirely bad, has permitted his weaknesses to so overcome him as to cause us to doubt the sincerity and truthfulness of many of his state

ments.

From the evidence we find the facts to be that on the day prior to the birth of her child, while the libellant and respondent were living at Williamstown, New Jersey, the respondent was compelled to go to a maternity hospital in Philadelphia where she might be cared for in child-birth, because her husband had so neglected her and failed to provide for that event at their home as to render it dangerous to the respondent's life and health to remain there, and that while the respondent was in the hospital under the circumstances stated the libellant departed from Williamstown with another woman, leaving the respondent to provide for herself as best she could; that later the libellant and respondent lived together again, residing at Williamstown, New Jersey, Coshocton, Ohio, and Terre Haute, Indiana, during which period the libellant left the respondent several times, coming back to her at intervals, at the same time corresponding and associating with other women; that the libellant spent most of his money foolishly and criminally, while his wife and child were sadly in need of better support and maintenance; that during most of the time the libellant and respondent lived together the libellant was abusive to his wife in language and conduct, and at times inflicted on vital parts of her body severe blows with his hands and fists; that finally the libellant contaminated his wife with a loathsome disease, from the effects of which it took her a long time, by constant care, and at great expense, to free herself; that on account of the continued course of cruel treatment of her by her husband the respondent, after her husband had left her again in the latter part of June, 1908, refused to go back and live with him again, although requested by him to do so; and that the respondent since that time has made her own living, and a living for her daughter, mostly by teaching school, first in Philadelphia, and later in Montana, where she went for the benefit of her daughter's health.

The course of conduct maintained by this husband toward his wife constitutes just ground for a divorce under the Act of March 13, 1815, 6 Sm. L., 286, which authorizes the granting of a divorce "when any husband shall have, by cruel and barbarous treatment, endangered his wife's life, or offered such indignities to her person, as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family." "It has always been the rule in Pennsylvania, that any unjustifiable conduct on the part of either the husband or the wife which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as seriously to impair the bodily health or endanger the life of the other, or which utterly destroys the legitimate ends and objects of matrimony, constitutes cruelty, although no physical or personal violence may be inflicted, or even threatened, or reasonably apprehended." Russell vs. Russell, 37 Pa. Superior Ct., 348. In the present case both mental suffering and physical violence were inflicted on the respondent. It is true the wife in this case did not actually withdraw from her husband's house on account of his conduct toward her. The fact is that he left her, at the time of their final separation, at the home of her mother, where the libellant and respondent had gone because they had nothing to live on elsewhere, and the respondent refused afterwards to live with her husband again because of his cruel treatment of her. At the time of their separation the libellant actually had no

Kaiser vs. Kaiser.

home in which he and his wife were living, and therefore it was impossible for the respondent to "withdraw from his house and family." But it was because of her husband's cruel treatment of her theretofore that the respondent refused to go and live with him again, which was equivalent to a withdrawal from his house and family, and the case is within the true spirit and meaning of the provision of the statute quoted.

ΟΙ

When a husband, by his cruel conduct, compels his wife to leave him, or to live apart from him, he is not entitled to a divorce from her on the ground of desertion. We shall sign a decree of divorce in this case, but we shall sign a decree in favor of this wife instead of in favor of her husband.

In re State Hospital Exempt from Special Tax on Opium, etc.

State hospitals-Purchase of drugs-Exemption from tax.

Under the exemption clause of the Act of Congress known as the "Harrison Act" the proper state officials may purchase opium or cocoa leaves without being required to register and pay the special tax mentioned in the act, for the purposes of a state hospital but the superintendent of such hospital or other person attached thereto cannot make such purchases and be exempt.

THE OFFICE OF THE ATTORNEY GENERAL.

Harrisburg, Penna.

March 19, 1915.

Miss Fannie A. Dougherty,

Supt., Cottage State Hospital,
Phillipsburg, Penna.

Dear Miss Dougherty:

Your favor of the 10th inst. addressed to the Attorney General is at hand. You inquire whether as officials of a State Hospital, you are exempt from the provisions of the Act of Congress entitled "An Act to provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound deal in, dispense, sell, distribute or give away opium or coca leaves, their salts, derivatives or preparations, and for other purposes."

This Act known as the "Harrison Act," provides "That officers of any State Government or of any county or municipality therein, who are lawfully engaged in making purchases of the above named drugs for state, county or municipal hospitals or prisons, shall not be required to register and pay the special tax as herein required."

This language exempts only officers of any State Government or of any county or municipality therein. The Superintendent and other persons attached to State hospitals are not officers of State Government, and therefore the Act, in my opinion, does apply to them.

If it is desirable to have purchases of the drugs mentioned in the Act made by proper officers of the State Government for your institution, such purchases could be made by the proper State officials and they would not be within the terms of the Act.

Moll vs. Morrow, City Controller, et al.

Cities of the second class-Act of June 27, 1913-Public morals commission -Special commission-Constitutionality of act-Sec. 20, Art 3 of the Constitution.

The Act of June 27, 1913, creates a bureau of public morals in the Department of Public Safety in cities of the second class, consisting of seven directors appointed by the mayor and confirmed by council and subject to removal by the mayor. The board had full power to investigate questions affecting public morals and to enforce the police laws and prosecute violations thereof and to that end they have the right to exercise such police powers as were necessary and there was detailed from the Department of Public Safety for the use of such board such policemen and detectives as the board required. Held that the act did not create a new department, but instead created a special agency for the performance of a municipal function and for that reason it was unconstitutional and in violation of Sec. 20, Art. 3 of the Constitution, which provides: "The General Assembly shall not delegate to any special commission any power to

perform any municipal function whatsoever."

Demurrer. No. 218 January Term, 1915. C. P. Allegheny County.

Kerin & Behen, for plaintiff.

Charles A. O'Brien, City Solicitor, and B. J. Jarrett, Assistant City Solicitor, for defendants.

MACFARLANE, J., February 25, 1915.-The bill questions the constitutionality of the act of June 27, 1913, P. L. 638, "providing for the creation of the Bureau of Public Morals in the Department of Public Safety in cities of the second class, defining its purposes, and providing for the payment of expenses incurred thereby." The first section creates a Bureau of Public Morals in the Department of Public Safety in cities of the second class for the purpose of investigating and acting upon all questions and conditions arising from sex relationship affecting public morals. The second section provides for a board of seven directors appointed by the mayor and confirmed by council, the directors, who are subject to removal at the pleasure of the mayor, to elect from their own body a superintendent. Section 3 confers full power on the board to investigate conditions growing out of sex relationship affecting public morals and to enforce laws and prosecute violations in matters of sex relationship and for that purpose they shall exercise such police powers as may be necessary, the business and policies of the board to be determined by a majority vote. Section 4 provides that there shall be detailed such policemen and detectives as the board may require from the regular police and detective force, subject to the approval of the director of the department of public safety, and during the time they are detailed they shall be subject to the orders of the board of directors through the superintendent and be responsible to the board. The board may appoint and employ additional investigators. Section 5 provides for the employment of clerical help.

This board of directors is not a bureau in the department of public safety, and calling it so does not help matters. The directors have full power to direct the work of the bureau and have dominion over all "sex relationship affecting public morals." The detail of policemen and detectives from the regular force is subject to the approval of the director of the department, but he must obey the requisition and his only discretion is in approving the choice of individuals. The men are subject to the board of directors only. "The disguise is so thin that it can scarcely be called one," Perkins vs. Phila., 156 Pa., 554. All other bureaus are subordinate to and under the control of the heads of departments of which they are a part. This only is equal in authority and power. There is no question that the legislature can establish almost any form of government it pleases and that it may subdivide municipal functions, create departments, bureaus and other agencies and change them. But the question is not determined

Moll vs. Morrow, City Controller, et al.

by what might have been done. There has been created for cities of the second class a form of government. This bureau is alien from it in every characteristic. By the Act of March 7, 1901, P. L. 20 (3 Purdon, 3009), the executive power is vested in the mayor. Nine executive departments are established, changed to ten by the Act of April 1, 1909, P. L. 84 (5 Purdon, 5757). The heads of departments must present annual reports to the mayor. Their accounts are subject to examination. Councils may provide by ordinance for bureaus, clerks and furnish information to the mayor or councils. nates must give bonds. The department of public safety is under the charge of one director and the administration of police affairs is in charge of this department. There is a system of supervision and control, making it a responsible government.

officers. Departments must All the heads and subordi

The Act of 1913 does not create a new department. Without any amending or repealing clause it establishes a separate board of directors to administer a part of the police affairs of the city, expressing, but not carrying out, the intention to create a bureau. It creates neither a bureau nor a department subordinate to the mayor in whom is vested the executive power of the city. It is a special agency for the performance of a municipal function.

Section 20, Article III of the Constitution, is that, "The general assembly shall not delegate to any special commission * * * any power to

* perform any municipal function whatever." This forbids the delegation of the police power to any special board of directors. Under the existing municipal government this board is special and distinct. This is the real intent and purpose of the act.

* *

The objection to the Penn Avenue commission was that the commissioners were independent of the proper municipalities and not agents of the city. They were not municipal officers. They were special for a special purpose. Judge White said: "It is true that, before a set of commissioners can be elected for the improvement of any street, the councils must pass an ordinance directing the improvement and authorizing an election of commissioners. But that exhausts the powers of the councils in the premises, except to demand a bond, as above stated. The commissioners derive all their powers directly from the Act of Assembly. By the express terms of the Act the powers are delegated to the commissioners and not to the city. * I understand this twentieth section of Article 3 as a positive prohibition against municipal functions being exercised by anybody, except the regular municipal authorities." Referring to municipal agents or employees, he said: “They cannot be an independent body, they cannot have the municipal power delegated to them, so as to be beyond removal, supervision or control from the regular municipal authorities." Mellon vs. Pittsburgh, 21 P. L. J., 185 (O. S.). In Perkins vs. Phila., supra, an act abolishing the commissioners of public buildings and transferring the building formerly under their control to the control of the department of public works was held to violate this section of the constitution. It was held that this was creating another commission, even though the director was by general law an officer of the city. The special and unusual power givển him to be exercised in a special manner with reference to one particular building constituted a special commission delegated to him. It was immaterial that the municipal functions were being exercised by the head of the department of the municipal government, for the commission was special.

The public morals board of directors is not beyond removal, it is beyond control. It is created by the legislature not as a part of the established system. It is a special agency for a special and limited purpose. The act is clearly in conflict with the fundamental law. The great evils of special commissions led to the adoption of this section and it

Moll vs. Morrow, City Controller, et al.

prohibits not only those of identical character but all others coming within its plain meaning.

We think the title of the act is sufficient to direct attention to the fact that the bureau will incur expenses and that it will perform its functions through agents and employees and this would include the appointment of a superintendent.

We are unable to see any conflict between it and Section 7, Article III, prohibiting laws granting powers or privileges where the granting of such powers and privileges shall have been provided for by general law. The remaining objection that the act is special legislation was not pressed. So far as it applies to cities of the second class, it is general.

February 25, 1915 the demurrer is overruled and the defendants are directed to answer within fifteen days.

The Act of June 8, 1911, providing for the filing by a foreign corporation with the Secretary of the Commonwealth of a power of attorney containing a statement showing the title and purpose of the corporation, the location of its principal place of business in the state and its post office address within the state, to which process in any suit served on the Secretary of the Commonwealth may be sent, meets the requirements of Sect. 5 of Art. XVI of the Constitution relating to this subject and registration under the act is sufficient. The act repeals the Act of April 22, 1874, upon the same subject.

The registration by such corporation and the naming of the place of business as Philadelphia and the naming of the agent there is sufficient compliance with the act to authorize bringing suit in Pittsburgh, although the latter city has not been registered with the Secretary of the Commonwealth as a place of business and the company is actually engaged in business there.

Demurrer to statement of claim. No. 700 April Term, 1915, Docket D. C. P. Allegheny County.

Evans, Noble & Evans, for plaintiff.

George M. Hosack, for defendant.

CARPENTER, J., March 23, 1915.-This cause comes into the Common Pleas by appeal from the County Court. The action was brought to recover a balance alleged to be due for goods and merchandise sold and for work and labor done by plaintiff for defendant. It appears by the opinion of Judge Kennedy that defendant admitted a balance due plaintiff and paid same after suit brought.

After appealing, plaintiff filed in this Court a statement of claim in which certain facts not in the original statement are set out, and which raise the question here argued.

In the first statement plaintiff did not specify where it was incorporated, but in the second it says that it is "a corporation organized under the laws of the State of West Virginia," and that it "did on the 26th day of July, 1911, register its said Company in the office of the Secretary of the Commonwealth of Pennsylvania in compliance with the Act of the General Assembly of Pennsylvania * * * approved the Sth day of June, 1911, P. L. 710." Plaintiff attaches to and makes part of its statement a copy of the certificate of registration. The certificate states the name of the corporation, the fact that it is chartered under the laws of West Virginia, that its principal office is at Bridgeport, Connecticut, and its principal office in Pennsylvania is in Philadelphia, and gives its location. It