In re Application of Chilcott. Act April 3, 1872, P. L. 804- -Local option-Triennial election. Under the Act of April 3, 1872, P. L. 804, East Deer Township was created a local option district-now, by sub-division, consisting of three townships and two boroughs, at a triennial election, February 16, 1915, some of the subdivisions voted "wet" and some "dry"; the whole territory created by the Act voted "Dry"; by a majority of six votes-Held, that the vote not in the separate sub-divisions, but in the whole territory, as originally existing at the passage of the Act, determines the rights or non-rights to licenses. In re Application of Joseph F. Chilcott for retail liquor license in the Township of East Deer. No. 1428 March Sessions, 1915. Q. S. Allegheny County. McKee, Mitchell & Alter, for remonstrants. BROWN, J., April 26, 1915.-The remonstrants object to the granting of a license to the applicant for the reason that on February 16, 1915, at a general election (under the Act of April 3, 1872, P. L. 804), held in each of the municipalities (together comprising the local option district known as East Deer Township under said act), the number of votes cast in favor of granting licenses was 323, and the number against 329. By the Act of 1872 the voters of East Deer Township were authorized to vote at the next municipal election-and triennially thereafter-for or against the granting of licenses for the sale of intoxicating liquor; and whenever it should appear from the returns of an election that there was a majority in said township against the granting of licenses, no licenses should be issued for the sale of liquors therein until at a subsequent election the voters should vote in favor of licenses. The territory comprising the township of East Deer at the passage of the Act has since been sub-divided, and now consists of the townships of East Deer, Springdale, and Frazer and the Boroughs of Springdale and Cheswick. At said election the result in said sub-divisions was as follows: While the sub-division, now known as East Deer Township, voted wet by a majority of seven, the territory comprising East Deer Township as created by the Act of 1872 voted dry by a majority of six. East Deer Township as it existed in 1872, having been created a local option district by the act of that year, became and continued to be a local option unit that could not be changed by its subsequent division into separate municipalities for other purposes. Every voter within the territorial local option unit as a whole had an interest in the undivided whole of the unit territory, and the right to vote upon the question of "wet" or "dry" as affecting the whole-a right that could not be taken from him by a subdivision of the whole into five separate municipalities; a right-by analogy— such as a purchaser of a lot in a plan of lots and streets dedicated to the public use would have in all the streets and highways in said plan. To hold that the whole local option East Deer territory created by the Act of 1872 might be sub-divided into several municipal divisions, and In re Application of Chilcott. that each of the subdivisions (regardless of the right of the unit whole, of which it is a part) might settle for itself the question of license or no license, would be sweeping aside the plain legislative intent of the act-an intent that the local option unit as a whole was to be the subject of contest at the polls on the question of license or no license. The vote not in the separate municipal divisions singly but in the original East Deer Township as a unit whole settles the present controversy: Rassau vs. Campbell, 236 Pa., 455; Fed. St. & P. Valley Pass. Ry. Co. vs. Pgh., 226 Pa., 419. License refused. CONCURRING OPINION. COHEN, J., April 26, 1915.-To the above application for license to sell liquors remonstrance has been filed, based upon the fact that under the Act of April 3, 1872, P. L. 804, a license can not be granted, for the reason that at a general election held on the 16th of February, 1915, in the several municipalities which together constitute the local option district formerly known as East Deer Township, the number of votes cast in favor of granting licenses was 323 and that against the granting of licenses amounted to 329. By virtue of the said above recited Act East Deer Township, among others, was authorized to vote triennially thereafter for or against the granting of licenses for the sale of intoxicating liquors. It provided further that whenever the result of the election showed a majority in any of the said townships against the granting of the same, no license could be granted for the sale of liquors until such time thereafter as at a subsequent election the voters should vote in favor of licenses. The territory comprising the Township of East Deer at the time of the passage of the Act in question has since been sub-divided, and not consists of the townships of East Deer, Frazer and Springdale, and the Boroughs of Springdale and Cheswick. On the 16th day of February, 1915, at the election held under the Act of 1872 to vote for license or no license the result was as follows: which result indicates that the territory now known as East Deer Township voted "wet" by a majority of seven votes, whilst the territory comprising East Deer Township as it existed at the time of the passage of the Act of 1872 voted "dry" by six votes. It is contended by the remonstrants that East Deer Township having been made a local option district, the particular territory then comprising the township of that name was a unit established by the provisions of the said Act of Assembly and is impossible of change by reason of any later sub-division of the separate municipalities of the original territory comprising East Deer Township: Citing Parsons vs. Winslow, 1 Grant, 160. We have been referred to no case in our Courts of Appeal that definitely decides the precise question involved herein, namely, the mode of counting the votes cast in order to ascertain the result, whether as a whole or separately. That is, whether each separate portion of the original territory of East Deer Township should be controlled by its own vote, or whether In re Application of Chilcott. subject to the result of the combined vote of the various divisions of the criginal territory. We can not, however, ignore the analogy arising from the principles announced in the case of Rassau vs. Campbell, 236 Pa., 455, and Federal Street and Pleasant Valley St. Ry. Co. vs. Pittsburgh, 226 Pa., 426, as well as in Joyce on Intoxicating Liquors, Sec. 379, wherein it is set forth that a subsequent change of boundaries of a sub-division does not affect the operation of a local option law adopted therein the boundaries being regarded as those named at the time of the adoption of the law, so that if a part or sub-division in which local option is in force is annexed to another sub-division, the local option law has been held to remain in force in the parts so annexed until the voters of the original territory have repealed it. As already indicated, these cases as cited by both parties hereto do not directly determine the question involved as to the manner in which the votes should be counted, but they are each strongly indicative of the theory of the remonstrants, that the votes should be counted as a whole, each sub-division being subject to the result when so counted, and not by the particular result of the vote within its own territorial boundaries. We are of opinion that the decision of the late Judge Ewing in Bunting vs. Witherow, 15 Dist. Rep., 334, cited by applicants for the license, which adopted the theory that each particular sub-division was granted or refused licenses to sell liquors upon the basis of the vote of that particular sub-division of the original territory, has been overruled by the principles declared in our Courts of Appeal in the case cited above, which though not absolutely deciding the question at issue herein, are nevertheless inconsistent with the theory of counsel for the license applicants, as well as with the conclusions drawn in the case of Bunting vs. Witherow, supra. The creation of new municipalities out of East Deer Township as originally constituted territorially, does not affect the operation of the Act of 1872 over the entire territory which comprised the Township of East Deer at the time of the passage of the Act of 1872. It follows, therefore, that a majority of the voters of said original Township of East Deer having voted for no license, that under the terms of that Act of 1872 and in obedience to its provisions, it would be unlawful to grant licenses for the sale of liquors in any part of said township as originally constituted. To hold that one section of East Deer Township as originally constituted could by its vote destroy the unit established by the Act above cited, would be to deprive the inhabitants of the remaining sections of the original territory of the enjoyment of protection against licenses or the privilege of licenses according to them on the basis of a unit vote of the entire original territory, which was clearly the intent of the legislature as expressed by the terms of the Act of 1872 above referred to. The remonstrances filed in the case are therefore sustained, and the petition for license in the above case, and all kindred applications now pending, are hereby refused. Union Trust Company vs. Pittsburgh-Buffalo Company. Corporation mortgages-Foreclosure property in parcels. -Postponing time of sale-Selling A Coal Company gave a mortgage to a trustee to secure a bond issue, the mortgage covering five separate and distinct coal mines. The Coal Company became involved financially and receivers were appointed for it, who took charge and operated the mines. The trustee of the mortgage received permission to forclose, and filed a bill in equity for that purpose. Held, the Court might postpone the time of sale until such period as would conduce to the best interest of all parties concerned, allowing a reasonable time for the Company to make other financial arrangements and avoid a sale in a period of depression. In directing a sale of the property, the Court ordered each mine to be sold separately, beginning with the most valuable mine. In Equity. No. 1241 October Term, 1914. C. P. Allegheny County. Reed, Smith, Shaw & Peai, for plaintiff. Stone & Stone, McIlvain & Murphy, S. S. Robertson and Walter Lyon, for defendants. FORD, J., January 23, 1915.-This is a bill in equity filed by The Union Trust Company of Pittsburgh, alleging that a mortgage dated April 29, 1910, made by the Pittsburgh-Buffalo Company, is in default, and praying that the mortgage, together with mortgages supplemental thereto, be adjudged liens upon the properties covered thereby, and that a master be appointed to make sale of the mortgaged premises. In his answer John H. Jones, one of the receivers of the Pittsburgh-Buffalo Company, denied the right of the Pittsburgh-Buffalo Company to make the mortgages and alleged that the mortgages were unauthorized and invalid. The answer and supplemental answer of the Pittsburgh-Buffalo Company, F. R. Babcock, John W. Ailes and John H. Jones, Receivers, sets forth that during the past year conditions respecting the coal business rendered it impossible to make sale of the properties of the Coal Company, but they believed that if given time the properties can be sold to better advantage and at prices resulting in the payment of the moneys due the plaintiff, and of the whole or part of the amounts due the unsecured creditors. In his separate answer John H. Jones, Receiver, says that delay in selling the properties will not endanger the secured creditors, and may result in payment of the unsecured creditors. Prior to the taking of testimony on October 12, 1914, it was agreed that testimony should be received and the Court determine only the question affecting the validity of the mortgage, counsel filing the following stipulation: "If it shall be decided by the Court that the mortgage in this suit is a valid mortgage, the Court shall upon further hearing determine the time and order of sale, which matter has been reserved by the Court." Thereafter on November 14, 1914, Findings of Fact and Conclusions of Law were filed, and therein the validity of the mortgages was sustained, and it was decided that: "The mortgage of April 29, 1910, made by the Pittsburgh-Buffalo Company to The Union Trust Company of Pittsburgh, and the mortgages supplemental thereto, are valid mortgages and liens upon the property covered thereby. On January 6, 1915, after due notice, a further hearing was had for the purpose of determining: (a) The time or times at which the properties shall be sold. (b) Whether the properties shall be sold together or sold separately and at different times, and Union Trust Company vs. Pittsburgh-Buffalo Company et al. (c) If sold separately, the times and order of sale. Together with such direction or requirement respecting the sale of the properties as may be equitable. From the pleadings and the evidence we find the following FACTS. 1. The mortgage or deed of trust upon which this proceeding is based includes a number of separate properties, designated as plants and situate in the Counties of Allegheny, Washington and Greene in the State of Pennsylvania. 2. The plants are located and in size are as follows: (a) The "Marianna Mines" are located on North Ten Mile Creek in Washington County, and contain about 5,328 acres of coal. The mines have been operated, and are equipped with steel tipples, steel washery, a fan, boiler and power houses, air compression and other necessary machinery and appliances, constituting a complete and elaborate equipment. The property held by the company includes 700 acres owned in fee, upon which is erected boiler and power houses, 353 dwelling houses of which 238 are of brick with electric light, water, etc. The property known as the Marianna is the most valuable of the mortgaged premises, representing and in value being about eighty per centum of the value of all the properties described in the mortgages. (b) The Hazel mine is located at Canonsburg, Washington County, contains about 600 acres of coal, and is equipped with modern machinery. In addition to the coal, the Company owns about 204 acres in fee, part of which consists of lots situate within the lines of the City of Canonsburg. (c) The Francis mine is situate in Washington County, about one mile west of Burgettstown. It consists of 817 acres of coal and 721 acres of surface, together with a well equipped mining plant. (d) The Johnetta mine is located on the east bank of the Allegheny River, about thirty-three miles from Pittsburgh, contains 3,798 acres of coal lands and 500 acres held by the Company in fee. Upon the last mentioned land there is erected a coal mining plant, a clay mining plant, 116 dwelling houses and other necessary buildings. (e) The Bertha mine is situate near Bruceton in Allegheny County, contains about 39 acres of coal, the Higbe tract of 52 acres, and 24 acres in fee, with a power house, tipple and other necessary equipment. 3. Each of the mines is developed, track siding and required connections made with railroads. The machinery necessary to the mine working is in place, is suitable for the purpose and is in good condition. The power houses, dwellings and other buildings were constructed for and are adapted to the business conducted by the Company. 4. As to values the properties may be considered in the order following: a. The Marianna. b. The Hazel. 5. Shortly after their appointment on December 6, 1913, the receivers, acting by authority of the District Court of the United States, commenced operations in the Marianna, the Hazel, the Francis and Bertha mines, and continued operations in the Marianna until in November last; the Hazel, the Francis and the Bertha are yet in operation. The operating of the Marianna resulted in a profit over and above the cost of mining. In the |