Automobile Club vs. East McKeesport,

any time paid to defendant a fine or fine and costs, for not blowing their horn.

To this bill defendants have demurred, pointing out that the Borough bas, under the law, the control of the streets, and that it is for the Borough authorities to decide whether warnings of any kind are necessary upon a street, and that there is nothing in the automobile law which in any way forbids the erection of warnings different from those there provided for; and further, that none of the matters complained of, except the mere maintenance of the signs, are chargeable in any way to the Borough, the prosecutions complained of being carried on before a Justice of the Peace, who is not an officer of the Borough, and by the High Constable, for whose actions it is in no way responsible. We are of opinion that all these grounds of demurrer are well taken, and in addition we are unable to see what standing the plaintiff has to maintain the bill. The demurrer is therefore suslained. We are unable to see how the plaintiff could, by any amendment, make the bill good, but it is allowed to do so within twenty days after notice hereof, and in default of such amendment the bill will be dismissed, on motion.

Mothers' Pension Law.

Mothers' pensions-Persons included in Act-Act of April 29, 1913.

The Act of April 29, 1913, relating to Mothers' Pensions and providing for payments to indigent, widowed or abandoned mothers applies only to mothers who are widowed or have been deserted, and not to those who are merely indigent. A mother whose husband is in an Insane Asylum does not come under the Act.

Fon. A. W. Powell,

Sir:

Auditor General,

Harrisburg, Pa.

January 18, 1915.

This Department is in receipt of your letter of December 18th, 1914, stating, in substance, that the Board of Trustees appointed for the County of Luzerne to carry into effect the provisions of the Mothers' Pension Act of April 29, 1913, P. L. 118, has recommended payment of a pension to Mrs. Sarah Strack, and asking to be advised whether, under the facts stated in your said letter and appearing from the record and recommendation of said Board of Trustees. the said Mrs. Sarah Strack is within any of the classes of mothers to whom pensions may be granted under the provisions of said act. The material facts appearing from the record and recommendation of said Board of Trustees are that the said Mrs. Sarah Strack is the mother of two children whom she is unable to support in her own home without assistance, and that her husband is living, but has been an inmate of an insane asylum since September 28, 1911.

The question involved under your inquiry is whether it was the legislative intent, as expressed in the enactment of our Mothers' Pension Law, to authorize the payment of a pension to a mother placed in the circumstances disclosed by the report and recommendation of the Trustees in this

case.

The main purpose of the act, as expressed in its title, is:

"To provide monthly payments, as approved by the trustees, to indigent, widowed, or abandoned mothers, for partial support of their children in their own homes.”

By the first section the Governor is authorized to appoint boards of trustees in each county desiring to avail itself of the provisions of the Act, to whom

Mothers' Pension Law.

"shall be intrusted the carrying into effect of the provisions of this act, to provide monthly payment, as approved by the trustees, to indigent, widowed, or abandoned mothers, for partial support of their children in their own homes."

Under the act payments are to be made jointly by the state and the county in which the pensioner resides. The language of the act is vague and its meaning consequently obscure in many particulars. Its real purpose and intent may be gathered only from a consideration of the entire act viewed in the light of its manifest purpose. When the act was passed and signed, it, of course, contained no punctuation. In preparing the law for publication in the Pamphlet Laws, it became the duty of the proper clerk in the office of the Secretary of the Commonwealth to so punctuate the act as to give expression to the intent of the legislature as he understood that intent from the language used. The language of that portion of the title, and of the first section of the act used to describe the classes or kinds of mothers intended to be included within the provisions of the act, as punctuated and printed in the Pamphlet Laws, reads as follows: "Indigent, widowed, or abandoned mothers." At first glance this language would seem to indicate three classes of mothers, viz: (a) "Indigent;" (b) "Widowed;" and (c) "Abandoned."

If this construction be adopted, then the present applicant, Sarah Strack, would be included within the first classification, viz: "Indigent mothers." Under this construction, any mother who is indigent would be included within the act, although her husband is living and living with her and their children.

Again, any widowed mother or any abandoned mother, would be within the strict letter, but not the spirit, of the second and third classification, although she might not be indigent. Consideration of the results flowing from the adoption of this construction, therefore, indicates that the legislative intent was not to provide pensions for indigent mothers, widowed mothers, and abandoned mothers, but rather to provide pensions for widowed or abandoned mothers who are indigent. Technical rules of construction and of punctuation are not to be applied where their application would overthrow the spirit, scope and purpose of the law, but I am of opinion that the proper construction of the language of the title and of the first section of this act would be to consider the adjective "indigent" as modifying the nominal phrase "widowed or abandoned mothers," rather than as modifying the noun "mothers."

It is not necessary, however, to decide the question you have raised upon technical rules of construction, for it is provided in the third section of the act that:

"The trustees shall in no case recommend payment to any widow (ed) or abandoned mother until they are thoroughly satisfied that the recipient is worthy in every way, and that, in order to keep her children in her own home, a monthly payment is necessary;"

The word "widow" in the above quoted portion of this section should manifestly be read "widowed." An examination of the official copy of the act shows that the Pamphlet Laws agree with that copy, but it is clear that all widows are not intended to be included within the act, but only such widows as are the mothers of children whom they are unable to support in their own homes without assistance.

The word "indigent" does not appear in this section, but its place is supplied by a description of the kind of widowed or abandoned mothers entitled to the benefits of the act, viz: those to whom monthly payments are necessary in order to keep their children in their own home. It is, therefore, perfectly clear, when the first section of the act is read in con

Mothers' Pension Law.

nection with the third, that no pension can be recommended or granted to any mother except a widowed or abandoned mother who is indigent.

The only question remaining is whether a mother whose husband is an inmate of an insane asylum is an "abandoned" mother, within the meaning of this act? Although the word "abandon," like the word "forsake," may be used to describe both good and evil action, and differs from the word "desert," which is generally used to describe unjustifiable conduct involving some breach of duty, yet, in my opinion, the word "abandoned" as used in this Act of Assembly is equivalent to the word "deserted," and is used to describe a mother whose husband, by his conscious act, has, in violation of his duty to support her and his children, deserted or abandoned her and them.

The present case necessarily appeals to the sympathies of the officials charged with the administration of the law, and if such cases had been toreseen, provision might have been made for the relief of mothers situated as is the present applicant, but it is our duty to construe the law as it is written, and you are accordingly advised that a pension cannot legally be paid under the act in question upon the within mentioned recommendation.

Very truly yours,

J. E. B. CUNNINGHAM, First Deputy Attorney General.

Pittsburgh Coal Company vs. Kirby,

Justice of the Peace-Appeals—Payment of Costs Act of May 29, 1907.

Under the Act of May 29, 1907, regulating appeals from Justices of the Feace, a defendant having given bail absolute for debt, interest and costs is entitled to a transcript for an appeal without the payment of any costs and this includes the cost of transcript, appeal, oath, certificate, etc.

Sur demurrer to return to writ of alternative mandamus. No. 1003 January Term, 1915. C. P. Allegheny County, Pa.

Johnston & Rose, for plaintiff.

Wm. C. Stillwagen, for defendant.

SHAFER, J., December 28, 1914.-It appears from the petition and answer that the plaintiff herein was defendant in an action before J. J. Kirby, an Alderman of the City of Pittsburgh, the defendant herein, and for the purpose of taking an appeal gave bail absolute in the sum demanded by the alderman for debt, interest and costs, as required by the Act of May 29, 1907, and demanded of the alderman a transcript to be filed in the County Court, and that the alderman refused to give such transcript unless the plaintiff would pay the costs of the transcript, oath of appeal, certificate, etc., amounting to $1.50, in accordance with the Act of May 23, 1909. The Act of 1907 provides for appeals from Justices, and for the payment of the costs in the case before making such appeal, "provided, however, that if any appellant shall give good and sufficient bail absolute for the payment of debt, interest and costs that have and will accrue on affirmation of the judgment, the appellant shall not be required to pay any costs before taking an appeal." It is claimed by the defendant that the payments in question are payments of fees due him, and not costs within the meaning of the Act, citing the case of Musser vs. Good, 11 S. & R., 247. It is there pointed out that costs are an allowance to a party for expenses incurred in conducting his suit, while fees are compensation to an officer for services

rendered in a cause.

Pittsburgh Coal Company vs. Kirby.

It is further pointed out in that case, however, that the same charge for services which as between party and officer is a fee, as between the parties to the cause is costs. If the defendant's contention as to the meaning of the word "costs" in the Act is correct, the result would be that a party might appeal from the judgment of the Magistrate without paying any of the Magistrate's fees or the fees of the constable. That the fees mean, as contended for by plaintiff, further appears from the change made by the Act of 1907, modifying the Act of 1901. The Act of 1901 had provided that the defendant upon giving bail should be required to pay only the costs of appeal, and these words were left out of the Act of 1907 and in place of them it was said, defendant shall not be required to pay any costs before taking an appeal. This is clearly pointed out in the opinion of Judge Reed of the Common Pleas of Jefferson County in the case of Snyder vs. Baur, 18 D. R., 639.

We are, therefore, of opinion that the return to the writ of alternative mandamus is insufficient and that the demurrer must be sustained, and judgment is now entered on the demurrer for the plaintiff, and a writ of peremptory mandamus is awarded as prayed for; costs to be paid by the defendant.

Board of Education vs. Pittsburgh.

Municipal improvements Consequential damages-Right of School District

to recover

The Board of Public Education of the City of Pittsburgh cannot recover consequential damages from the City by reason of the change of grade in a street. The provisions of the Constitution on such matters relate only to private property.

To allow the recovery of such damages would be taking the peoples money out of one pocket and putting it in another, as the boundaries of the City and School District are coterminous.

Sur motion for judgment on special verdict. No. 533 October Term, 1913. C. P. Allegheny County, Pa.

J. Rodgers McCreery, for plaintiff.

Charles A. O'Brien, City Solicitor, and Lee C. Beatty, for defendant.

SHAFER, J., December 28, 1914.-The case arises upon an appeal from the award of a Board of Viewers in the matter of the grading of Second Avenue, and from the verdict it appears that before the consolidation of the school districts of the City of Pittsburgh, by law, the Forbes school district was the owner of a lot on Second Avenue, on which was erected a school house; that on March 22, 1912, after the consolidation of the School Districts of the City of Pittsburgh, the building had been removed and the lot was vacant and unimproved; and that upon that day an ordinance was passed changing the grade of Second Avenue, and that the damage to the lot by reason of the change of grade was $722.75.

The question, therefore, is whether the School District of the City of Pittsburgh, which is coterminous with the City, can recover from the City consequential damages for the change of grade of a street in front of its school property. We are of opinion that it cannot, for two reasons: first, because the right to recover consequential damages for a change of grade rests solely upon Article 6, Section 8, of the Constitution, which provides for compensation for the taking of private property, that municipal and other corporations vested with the privilege of taking private property for public use shall make full compensation for property taken, injured or destroyed by the construction of their works, highways, or improve

Board of Education vs. Pittsburgh.

ments; and Article 1, Section 10, of the Constitution, which provides that private property shall not be taken or applied to public use without authority of law; and the Acts of Assembly made to carry out this provision of the constitution in like manner apply to private property. A second reason which is valid in this case, even though the reason first given be inapplicable, is the fact that the School District and the City are coterminous, and that for the City to pay money to the School District would simply be putting the people's money out of one pocket into another. And what was said in the case of Directors of the Poor vs. School Directors, 42 Pa. St., 21, as to the taxation of property of one municipal body by another is applicable.

It is, therefore, ordered that judgment be entered for the defendant on the verdict.

In re Braddock Avenue.

Municipal improvements—Viewers-Findings of fact-Act of June 23, 1911.

Under the Act of June 23, 1911, the viewers in a municipal improvement case should make findings of fact and conclusions of law, such as will enable the Court to pass upon exceptions that may be raised and upon their failure to do so the Court will refer their report back for that purpose.

Sur exceptions to report of viewers.

Allegheny County, Pa.

No. 1518 July Term, 1914. C. P.

Charles A. O'Brien, City Solicitor, and H. M. Irons, Assistant City Solicitor, for City of Pittsburgh.

J. McF. Carpenter, representing D. J. Kennedy.

Geo. J. Kambach, representing Bailey-Farrell Co.

D. K. Ferree, representing Marie Walker.

Robert M. Ewing, representing Mathilda Kraure.

SHAFER, J., December 12, 1914.-The first exception to the report is that the viewers failed to make findings of fact and conclusions of law, as required by the Act of June 23, 1911, P. L. 1123, and this we find upon inspection, and the admission of counsel, to be the case.

The third exception is that the Viewers failed to consider certain items of damage incurred by the exceptants. The findings of fact and conclusions of law required by the statute are intended to enable the Court to determine just such questions as are raised in the third exception. The second exception is that the Viewers made no findings in regard to an alleged contract between the City of Pittsburgh and the Pennsylvania Railroad Company, as to the raising of the grade of the street in question. While it is not very apparent to us how such contract can affect the rights of the exceptant against the City, it seems to us that the Viewers should nake a brief statement of any facts which, although they may think them irrelevant, may in any view of the law have a bearing on the case, if they are desired to do so by the parties. This will greatly facilitate the disposition of such matters when presented to the Court upon exception. We are not now in position to pass upon the matters raised by the second and third exceptions, but will send back the report to the viewers for the purrose of having findings of fact and conclusions of law added to it.

The first exception is therefore sustained, and it is ordered that the report herein be referred back to the Viewers, with dirction to add to it findings of fact and conclusions of law and return it to the Court within twenty days.