In re Registration of Voters in Redstone Township No. 1. elector of the county or ward, as well as to the person claiming to be registered. 18. On the following day after the assessments have been completed, viz: September 2, 1915, the Assessor shall make return to the county commissioners of the "ORIGINAL REGISTRY LIST" revised and completed, and they shall proceed thereupon to make out a complete list in ALPHABETICAL ORDER of all persons so returned as taxables in said election district and furnish the same, together with the necessary election blanks, to the officers of the election in such election district on or before seven o'clock in the morning of the election and no man shall be permitted to vote at the election that day whose name is not on said list, unless he shall make proof of his right to vote as required by law. 19. In voting districts where temporary voting places are or may be established, the duties set forth in 16 above shall be performed by the Assessor at his place of residence in said election district. 20. The Court of Common Pleas of the proper county, or any law judge thereof at chambers, ON THE APPLICATION OF ANY QUALIFIED ELECTOR OF THE WARD OR COUNTY, UNDER OATH, WHICH OATH MAY BE MADE AT ANY TIME BEFORE THE DAY OF ELECTION, shall call the Assessor and the complainant before it or him, by citation or rule to show cause, and shall hear the parties and dispose of the subject in a summary manner, as to law and justice shall belong, and shall, if need be, order the Assessor to correct the registry accordingly, and the said court or judge may enforce such order by attachment as in proceedings for contempt. CRIMES AND PENALTIES. 1. If any Assessor SHALL KNOWINGLY ASSESS ANY PERSON AS A VOTER WHO IS NOT QUALIFIED or shall wilfully refuse to assess any one WHO IS QUALIFIED, he shall be guilty of a misdemeanor in office and liable to a fine of $1,000 and two years' imprisonment. Sec. 19, Act 1874, P. L. 40. 2. Any Assessor WILFULLY REGISTERING ANY FALSE STATEMENT OF AN ELECTOR OR REGISTERING AS THE MEMBER OF A POLITICAL PARTY one whom he knows not to be such, OR EXCLUDING FROM A PARTY REGISTRY OR ENROLLMENT ANY VOTER whom he knows to be entitled thereto, and any elector who shall WILFULLY MAKE FALSE AFFIDAVIT OR STATEMENT TO ANY ASSESSOR with intent to procure THE FALSE PARTY ENROLLMENT OR REGISTRATION OF HIMSELF OR ANY OTHER VOTER, in any such case the party so offending is guilty of a misdemeanor and liable to a fine of $1,000 and one year's imprisonment. Secs. 10 and 11, Act 1913, P. L. 1047. 3. Any person HAVING OR ATTEMPTING TO HAVE HIS NAME ILLEGALLY, FALSELY AND FRAUDULENTLY PLACED ON THE EXTRA ASSESSMENT LIST FOR ELECTION PURPOSES is guilty of a misdemeanor and liable to not less than one year's imprisonment, and LIKEWISE ANY PERSON WHO SHALL AID OR ABET ANY OTHER PERSON in any such false representation or attempt. Sec. 38, Act 1869, P. L. 64. 4. ANY PERSONS (Registrar, Assessor, Assistant Assessor, Political Committeeman, Political Worker, County Commissioner, Clerk or any other citizen) who shall FRAUDULENTLY ALTER, ADD TO, DEFACE OR DESTROY ANY LIST OF VOTERS shall be guilty of a misdemeanor and liable to a fine of $500 and two years' imprisonment. Sec. 19, Act 1874, P. L. 40. 5. When the "ORIGINAL REGISTRY LIST" is returned to the office of the County Commissioners it becomes a public record belonging to a In re Registration of Voters in Redstone Township No. 1. public office and any person who shall thereafter ALTER, deface or falsify such record by falsely and fraudulently ADDING THERETO NAMES OR STRIKING THEM THEREFROM, likewise ANY ONE WHO MAY PROCURE OTHERS TO DO SO, OR WHO ARE IN ANY WISE CONCERNED THEREIN SHALL BE GUILTY OF A MISDEMEANOR and liable to a fine not exceeding $2,000 and IMPRISONMENT NOT EXCEEDING SEVEN YEARS, and if a public officer he SHALL BE REMOVED FROM OFFICE and the office declared vacant by the Court passing sentence upon him. Sec. 171, Act 1860, P. L. 424. Fayette County, ss: SWORN RETURN. Personally appeared before me Assessor of the Election District of........ who after being duly sworn deposes and says that the foregoing return is true, faithful, honest and correct, the said return contains a total number of.......... (to be written out) electors, being therein........ boarders. Sworn and subscribed before me this A. D. 1915. housekeepers and day of CERTIFICATE OF COUNTY SOLICITOR. I hereby certify that I have carefully examined the within and foregoing return of Assessor of the election district of ...., and am satisfied the same is correct or sub stantially so and that the said has carefully, faithfully and honestly endeavored to comply with the "Instructions and Directions to Assessors" and with the law in all important particulars. ORDER OF COURT. County Solicitor. Now, October 12, 1914, this matter came on to be heard; and now, October 15, 1914, upon and after due consideration and for reasons set forth in opinion herewith and opinion at No. 145 December Term, 1914, it is ordered and directed as follows, viz: I. That the names of Bowle Jackson (and 68 others named in order filed), be and the same are hereby stricken from the Registry List of Redstone township election precinct No. 1 and that Virgil C. Hess, Assistant Assessor of said election precinct proceed forthwith to correct said Registry List accordingly. II. That the insert referred to in 3 of opinion herewith, fastened in the Registry List between the letters V and W, containing a list of 251 names, being no part of the record, be taken, extracted and removed from the Registry List of Redstone township election precinct No. 1. III. That the County Commissioners shall not include any of the said 320 names (being the 69 hereby stricken from the Registry List and the 251 included in the said insert) in, but must omit and exclude all of them from the alphabetical list which they shall have prepared and delivered to the officers of the election for Redstone township election precinct No. 1. BY THE COURT. Attest: WM. MCCLELLAND, Prothonotary. Bruce et al. vs. O'Neill. Injunction Restraint of Trade joinder of Parties. Contract Proof of Damages Mis The court will restrain by permanent injunction an ice dealer who sold out his business, receiving a valuable consideration therefor, and entering into an agreement not to engage in said business in his own name or as agent for another for a period, of three years within a limited and defined territory from violating the terms of his agreement, Lack of proof of irreparable damages is not ground for dismissing a bill to restrain the violation of an express contract founded upon a valuable consideration. Misjoinder of parties should be raised in the answer or by demurrer. J. C. Bily, for plaintiff. A. D. P. Miller, for defendant. STATEMENT OF THE CASE. CARPENTER, J., June 25, 1915.-Prior to October 3, 1914, the defendant and John M. Bruce, one of the plaintiffs, were engaged in the business of handling and selling ice in the City of Pittsburgh, each having customers in the Produce Yards of said city. On the date mentioned they entered into an agreement by which the defendant O'Neill sold and transferred his business to said Bruce and agreed not to re-enter said business nor to engage therein in his own name or as agent for any other person or corporation, for a period of three years. On the 21st of December of the same year Bruce leased his ice ponds, ice business and certain personal effects used in the business of storing ice, to Metz, the other plaintiff. In violation of his agreement the defendant engaged in selling ice in the Produce Yards, as an employe of F. Eble and actively solicited orders until restrained by injunction. OPINION. There is no controversy respecting the controlling facts in this case. The agreement of defendant not to engage in business was based on a valuable consideration and was for a limited period. Defendant, while not denying that he had sold out his business for the sum specified in the agreenient, and admitting that he had signed the contract; sought to prove that Bruce had made certain promises of employment which he had failed to keep. The averments in the answer and the offers to prove an alleged parol agreement are insufficient to overcome the terms of the written instrument. The latter is brief but specific. The consideration was substantial and there is no allegation in the answer that it was inadequate. It is true that although the agreement is broad enough in its terms to prevent plaintiff from entering into the ice business, it is quite manifest that it was intended to apply only to local business and especially to the place in which both parties carried on business, to wit, the Produce Yards in Pittsburgh. It is to prevent defendant from violating his agreement in this particular that the bill is filed. Whether Metz is or is not a proper party to the bill is of no practical importance. He has a contract which to some extent is dependent for its value on the agreement of O'Neill not to engage in the business for three years. Joining him as plaintiff does not injuriously affect any right of defendant. The alleged misjoinder of parties is not raised in the answer nor was any demurrer filed. Lack of proof of irreparable damages is not ground for dismissing a bill to restrain the violation of an express contract founded upon a valu Bruce et al. vs. O'Neill. able consideration. The sole question here is, whether the Court will Jermit a party to make a contract, receive the cash consideration, then treat his agreement as a piece of waste paper. The plaintiffs are clearly entitled to a permanent injunction. ORDER. And now, to wit, June 25, 1915, it is ordered that the foregoing opinion, together with findings of fact and conclusions of law be filed, and that a decree nisi be entered, directing that the preliminary injunction heretofore granted be made permanent. Nuisance Buechel vs. Streng. -Restraint by Bill in Equity-Form of Decree-Specific Stipulations as to Operations. In a bill in equity to enjoin the noisy operation of machinery in a junk shop where it appears that the operations caused discomfort to an extent that would warrant a restraining injunction, if not in a reasorable degree minimized, an injunction will not be issued to abate the nuisance, if defendant files a stipulation to operate his plant in accordance with certain specific requirements fully set forth. Bill in equity. No. 180 April Term, 1915. C. P. Allegheny County. Charles E. Martin, for plaintiff. H. Fred Mercer, for defendant. BROWN, J., May 24, 1915. - Bill by plaintiffs against defendants to enjoin the noisy operation of machinery in his junk establishment and creat:on of noxious odors affecting the health and comfort of plaintiffs and their family in their home property at No. 3628 Penn Avenue in the City of Pittsburgh. Answer by defendant denying an unreasonable use of his plant or noisy or noxious operations therein. FINDINGS OF FACT. 1. Plaintiffs are owners and residents of a house and lot at 3628 Penn Avenue in the City of Pittsburgh. 2. Defendant is lessee of an adjoining property used by him as a junk plant. In this plant he operates a machine for cutting metal into marketable sizes. This cutting and the turning of a large cogwheel cause considerable noise to the discomfort and annoyance of plaintiffs and members of their family; and other discomforts arise at times from defendant's using and burning materials from which noxious odors arise. 3. Both properties are in a residential section. 4. Aside from these discomforts, there is considerable noisy discomfort from railway cars, heavy trucks and other street traffic passing plaintiffs' property. 5. While the noises and noxious odors coming from defendant's property cause discomfort to plaintiffs to an extent that would warrant the restraining force of an injunction, if not in a reasonable degree minimized and abated-the testimony clearly establishes that they may to a reasonable extent be minimized so as to permit defendant to carry on his business: (a) By avoiding the use and burning of noxious materials. Buechel vs. Streng. (b) By maintaining his storage of scrap material at a heighth not exceeding eight feet. (c) By operating his cutting machine from the date of this decree for a period of forty days, at ten hours a day, so as to reduce the large and high pile of scrap to a heighth not exceeding eight feet; and thereafter not more than two and one-half hours daily, from nine and one-half A. M. till noon. (d) By erecting within a period of fifty days from the date of this decree and thereafter maintaining a two-line fence-the lines not less than six inches apart; and filling the space between the lines with sand, so as to create a non-conductor of sound, shutting off in a large degree the noise at present resulting from said cutting and cog-wheel while in operation. The location and construction of the fence to be as indicated in the testimony taken at the hearing. 6. If the defendant for himself, his heirs, successors and assigns, files of record within ten days of the entry of this decree a stipulation to abide by the findings in paragraph five, then no injunction shall issue. CONCLUSIONS OF LAW. Plaintiffs are entitled to an injunction unless within ten days of the entry of this decree, defendant shall file of record a stipulation to operate his plant in accordance with the requirements set out in paragraph five of the Findings of Fact. DISCUSSION. Upon the facts this case is ruled by Collins vs. Wayne Iron Works, 227 Pa., 327, in which, Mr. Justice Moschzisker, delivering the opinion, said: "The entry of the injunction is, in some respects, analogous to the publication of a penal statute; it is notice that certain things must be done or not done, under a penalty to be fixed by the Court: Sullivan vs. Jones & Laughlin Steel Co., 222 Pa., 72. Such a decree should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and when practicable it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ. In the present instance, the only definite thing that the defendant is ordered to do is 'to abate the nuisance complained of in said bill.' As the evidence does not show any improper or negligent operation of the machinery, and as the defendant's conclusion as to what constitutes a reasonable and normal person' may well differ from that of the plaintiff, it would seem that the only safe way to comply with the decree would be to entirely stop the running of its machinery. Where the facts and equities call for it, a chancellor is required to give relief by injunction; but such injunction should never go beyond the requirements of the particular case; and under no circumstances should a decree be entered the apparent practical effect of which will be to close an industrial plant, if it is possible to frame another form of decree which will give such relief as the plaintiff is entitled to. No one is entitled to absolute quiet in the enjoyment of his property; he may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells. Here, in measuring the relief to be given, the close proximity of the railroad and the noise of the great number of trains that pass over it, should be considered as affecting the standard of comfort normally prevailing in the locality in question. In a case like the present where the annoyance arises from the conduct of a business which is not a nuisance |