Hatfield's Estate.

* * *

own peculiar facts, and is not to be stretched." From Countess de Noailles' Estate, 236 Pa., 213, we quote the language of the Supreme Court with respect to this case: "We have heretofore said of it that it was decided upon its own peculiar facts and is not to be stretched. One of the two reasons given by the Court below in Lewis' Estate for holding that it was liable to collateral inheritance tax, was that as the executor and legatees had requested and consented that a complete administration and distribution of the whole estate comprehended in the account should be had in Luzerne County, under Pennsylvania laws, by a Pennsylvania Court, and not as is usual in mere ancillary accounting transmitted to a foreign forum, they could not have the benefit of this departure from the general rule without taking that benefit with its burdens. It was for this reason that the decree was affirmed." It is noted that one of the facts of Lewis' Estate, supra, set forth on page 213, is, "that the property and fund for distribution has never been out of this Commonwealth, that for a period of five years prior to the death of testatrix, all the property recited in the account, that is all the securities comprehended in the inventory, was in the custody and control of Mr. Hilliard of Wilkes-Barre, afterwards this executor, who was acting under a power of attorney to invest and reinvest, and for at least twenty years before that was in the custody and under the control of Mr. F. V. Rockafellow, also of Wilkes-Barre, as agent." In the case at bar the estate for distribution is only a part of the decedent's assets, and the only resemblance between it and Lewis' Estate, supra, is that the parties agreed that the ancillary administrator here should distribute the fund to the legatee, without sending it to the domicile, and have it resent to her by decree of the domiciliary Court. It would be stretching Lewis' Estate, if we applied it as authority for the facts in this case, for there complete administration and distribution of the whole estate under the Pennsylvania laws was had, while here there is but partial administration of the personal property of a non-resident. It must be conceded that if Jennie A. Rodgers had not agreed that distribution of this fund would be made to her here, and if it had been made to the domiciliary executor, and by that representative to her, no tax would be imposed. The mere fact that she and the ancillary administrator agreed that this direct method of distribution should be adopted, would not make her legacy subject to taxation. Intangible personal property belonging to estates of non-resident decedents, is not taxable, because of the principle of law which fixes its situs in the jurisdiction of its owner. Whether or not property is taxable, is determined by the law at the instant of death: Handley's Estate, 181 Pa., 331. It is clear that this property was not taxable at the decedent's death, and the agreement thereafter between the parties interested that a direct instead of a circuitous distribution should be made, cannot relate back to the instant of death, and operate to make that taxable which without the agreement was exempt. We believe this to be the correct interpretation of the law, because of the repeated warning not to stretch the doctrine of Lewis' Estate. supra, and the Commonwealth's claim will be disallowed.

Rafferty vs. City of Pittsburgh.

Municipal Improvements-Charge of the Court-General and Special BenefitsMeasure of Damages.

A new trial will be refused; where the verdict was for the defendant in a case involving damages to the plaintiff's property, alleged to have been caused by the change of grade made in accordance with the terms of a city ordinance; where the jury had made a view, and both sides were accorded a full opportunity to submit evidence, the only question being as to the charge of the Court as to general and special benefits and measure of damages, and there was apparently nothing in the charge that would likely mislead the jury on any material question.

Motion for a new trial, No 2153 January Term, 1915. C. P, Allegheny County.

J. M. Stoner & Sons, for plaintiff.

Charles A. O'Brien, City Solicitor, for defendant.

CARPENTER, J., June 12, 1915.-On December 18th, 1913, plaintiff presented his petition to Court setting forth the facts that constitute the basis of this controversy and praying that he be allowed to appeal from the award of the Board of Viewers; that an issue be framed and the cause tried in accordance with the course of the common law. The petition recites in detail the passage of an ordinance changing the grade of Federal Street, North Side, City of Pittsburgh, the actual grading of said street, the fact that the Board of Viewers had not allowed petitioner any compensation for damages to his property fronting on said street and alleges that his property was in fact damaged.

The Court awarded an issue. When the cause came on for trial the jury was permitted to visit the premises before hearing any testimony. A number of witnesses were called by each side and the contentions of the respective parties to the controversy fully and clearly presented by able counsel. The verdict was in favor of defendant. Plaintiff's counsel filed a motion for a new trial setting forth thirteen reasons in support of his motion, all of which refer to alleged errors in the charge. At the argument an additional reason was filed that has no reference to the charge. In the first reason it is claimed that the Court did not state to the jury any measure of damages to guide them in determining the issue, and in the second that whatever might be gathered from the instructions as a statement of the measure of damages was erroneous.

It will be conceded that if these reasons are supported by the facts disclosed on inspection of the charge, the complaint is well founded. Inasmuch as the jurors had seen the premises and heard testimony as to values, before and after the physical changes had taken place, and were repeatedly told that they were to determine whether the plaintiff's property was injured, and if so, how much, and were to consider whether the change in grade had resulted in any special benefit, and that if, on the whole, they concluded that the change that was made by raising the grade damaged plaintiff's property as it was, then damages for the loss must be allowed unless they concluded that as against the damage and loss there was a corresponding increase in value or benefit to the property, these reasons do not appear to be well founded.

Plaintiff was allowed to prove the expense to which he was put and the jury was instructed that his expense was an element to be taken into ccnsideration in passing upon the question of damages. If there was error in the instructions as to general and special benefits, as complained of in the third and fourth reasons for new trial, the error is manifest, as the language used leaves no room to doubt what was meant. It may be that

Rafferty vs. City of Pittsburgh.

the excerpt quoted does not clearly state the real difference between general and special benefits, but inasmuch as the jury was told in plain terms that general benefits are the benefits that affect the whole community and result from some public improvement such as this was, and special benefits are those that accrue to the property immediately affected, the instructions do not appear to be erroneous.

It may be said of the fifth, sixth and seventh reasons assigned for new trial, as has been said respecting the third and fourth, the language does not leave any room to doubt what was meant, or at least was not so intended. It was well understood by the jury that the sole question to be determined was: What effect did the raising of Federal Street have on plaintiff's property? Was it worth more or was it worth less after the raising of the street, that is, in so far as its value was affected by the change? In determining this the jury was allowed to take into consideration the expense incident to the raising of the building and making necessary changes to conform to the new grade.

In view of the verdict the eighth and ninth specifications of error need not be discussed. The answer to plaintiff's point was not a qualification, but merely called attention to certain matters that were deemed of sufficient importance to be kept in mind in reaching a conclusion respecting the very questions suggested in the point. This point was affirmed though the usual words "as affected by the change" were omitted. The jury could scarcely have misunderstood what was meant by the language used in either the point or the answer. If the market value of the property was found to be less immediately after the change than it was immediately before, it is but reasonable to assume that the jury would find that the change in value was due to the physical change that had taken place.

The alleged inadequacy of the charge; the failure to present plaintiff's case fairly, and undue emphasis of the "special benefits" feature of the case, complained of in the eleventh, twelfth and thirteenth reasons, do not appear to be well founded when the charge as a whole is read. It is scarcely probable that the verdict was influenced by the matters referred to in the fourteenth reason. Having re-examined the charge in the light of the reasons urged for new trial and having considered every phase of the case, the theory on which the trial was conducted by counsel for both parties, the opportunity given to examine the premises, etc., no sufficient reason has been discovered to warrant the setting aside of the verdict.

New trial refused.

Perry Township School District vs. Martin.

Public Schools-Election of Supervising Principal-Duties of-Injunction.

Under the school code of May 18, 1911, P. L. 309, it is not necessary for a supervising principal, in a school district of the third class, where he is not required to teach in any of the schools, to receive the votes of more than a majority of the members of the school board in order to render his election valid, even where his brother is a member of the board.

The duties of a supervising principal are not the same as those of a teacher, but rather those of a district superintendent.

Bill for injunction. C. P. Fayette County. In Equity, No. 784.

Umbel, Robinson, McKean & Williams, for plaintiff.

E. Dale Field, for defendant.

VAN SWEARINGEN, P. J., September 28, 1915.-The allegations of the bill are admitted by the answer, and upon these pleadings the case has been submitted for final determination. The facts are these:

1. On May 15, 1915, at a meeting of the board of directors of the school district of Perry Township William H. Martin was nominated for the office of supervising principal of the public schools of that district and received the votes of four of the seven members of the board and was declared elected. One of the four members of the board who voted for Martin was his brother. Martin received the votes of a majority of all the members of the board, but not the votes of three-fourths of them.

2. The supervising principal of said school district is not required to teach in any of the schools. The district is a school district of the third class.

The prayer of the bill is that Martin be restrained from acting as super. vising principal of said schools, it being contended that he was not lawfully elected to that office. A preliminary injunction was awarded upon the filing of the bill. Section 1207 of the school code of May 18, 1911, P. L. 309, provides: "No teacher shall be employed in this Commonwealth, by any board of school directors, who is related to any member of the board, as father, mother, brother, sister, husband, wife, son, daughter, stepson, stepdaughter, grandchild, nephew, niece, first cousin, sister-in-law, brotherin-law, uncle, or aunt, unless such teacher receives the affirmative votes of three-fourths of all the members of the board." The contention is that the term "teacher" as used in that section of the code includes a supervising principal, and therefore that a supervising principal, to be legally elected, when one of his said relatives is a member of the school board, must receive the affirmative votes of three-fourths of all the members of the board. We cannot agree with that contention. Article XII of the school code is devoted to "Teachers and Supervising Principals." The first seven sections of that article, including Section 1207 of the code, relate exclusively to teachers. The next two sections relate to the dismissal and disqualification of principals and teachers. The next four sections relate to the salaries of teachers. Then, under a new and separate sub-head, section 1214 provides: "The board of school directors of any school district of the third or fourth class which has no district superintendent may employ, for a term not exceeding three years, a supervising principal of a part or all of the public schools of said school district. Every supervising principal shall have the same qualifications as are herein required for a superintendent of schools." There is no necessary connection between sections 1207 and 1214. The qualifications for superintendents are fixed by sections 1102 and 1103. Section 1133 provides: "The board of school directors in every school district of the first and second class shall, and in every district of the third class may, by a majority vote of all the members thereof, elect a

Perry Township School District vs. Martin.

properly qualified person as district superintendent, together with such properly qualified assistant district superintendent as it deems wise." Section 403 provides: "The affirmative vote of a majority of all the members of the board of school directors in every school district in this Commonwealth, duly recorded, showing how each member voted, shall be required in order to take action on the following subjects: (3) "Appointing or dismissing district superintendents, assistant district superintendents, associate superintendents, principals, and teachers;" (4) "Appointing tax collectors and other appointees."

The situation is that, otherwise than as excepted, all the officers mentioned in Section 403 are to be elected by the votes of a majority of all the members of the school board. The only exception noted is in Section 1207 in cases of certain teachers. While a "supervising principal" is not mentioned either in the exception to or in the general provisions of Section 403, that officer would be classed more naturally under the head of "district superintendents" than under that of "teachers." A supervising principal in a school district of the third class may be elected by the school board only in case the district has no district superintendent. About the only difference between a district superintendent and a supervising principal, except in name, is that a district superintendent is elected for a term of four years, while a supervising principal may be elected for any term not exceeding three years. The duties of a supervising principal, while not specified, would seem to correspond most nearly with the duties of a district superintendent. The duties of a supervising principal are not the same as those of a teacher. In the Perry Township school district the supervising principal is not required to teach in any of the schools. The qualifications required for a supervising principal are the same as those re-. quired for a superintendent. A supervising principal would come very appropriately under the head of "other appointees" mentioned in Section 403.

"The exception of a particular thing from general words proves that, in the opinion of the lawgiver, the thing excepted would be within the general clause had the exception not been made." Brown vs. Maryland, 15 Wheaton, 419; Commonwealth vs. Summerville, 204 Pa., 300. Under Section 403 of the school code the votes of a majority of all the members of the school board are all that is required for the election of district superintendents, assistant district superintendents, associate superintendents, prin-. cipals, and teachers. An exception is made by Section 1207 in case of a teacher having a relative as therein noted a member of the school board. Had such exception not been made by Section 1207 all teachers would have come within the provisions of Section 403. The exception of certain teachers, however, from the provisions of Section 403 is not sufficient, in our opinion, to draw with it automatically supervising principals. If it did, it might be hard to see why it would not draw with it also district superintendents, and if district superintendents, certainly assistant district superintendents and associate superintendents? But if such had been the intention of the legislature it surely would not have mentioned "teachers" only in Section 1207 of the school code. If it be argued that there would be as much wisdom in making the provisions of Section 1207 applicable to supervising principals as to teachers, the answer is that the legislature has not yet seen fit so to apply them. Our conclusions of law, therefore, are:

1. That the affirmative vote of a majority of all the members of the board of directors of this school district is all that is required for the election of a supervising principal.

2. That the supervising principal elected by a majority of all the members of the board should not be restrained from performing the duties: of the office and receiving the emoluments thereof.