Hummell vs. Supreme Conclave of Heptasophs. Beneficial Insurance-Death of Beneficiary-New Certificate- -Instructions In 1898 a benefit certificate was issued and the wife of the insured was named as the beneficiary. In 1909 the wife died and a new certificate was issued and the beneficiary was named as "step-daughter, Jennie Hummell." The insured died in 1912 in good standing. The order refused to pay, because (1) a step-daughter cannot be legally designated a beneficiary, and (2) the member did not comply with the Statute of Maryland and the laws of the Order insofar as to constitute her a beneficiary by way of dependency. At the trial it was urged that plaintiff had no legal standing, because she did not belong to either class mentioned in the statute and laws of the Order. The Court held that plaintiff was not required to prove dependency as of the time of issuing the certificate as the signature of the officers to the new certificate was alone sufficient evidence that all things required by the law had been done. The Court also instructed the jury that plaintiff could not recover as a step-daughter, not coming within the class to be designated under the laws of the Order. Verdict for plaintiff and on motion for a new trial, Held: That the instruction as to dependency was error. That while not designated as dependent, this might have been shown by evidence. That the instruction that there could be no recovery as a step-daughter was also error, and that evidence as to the relationship and plaintiff's position in the household should have been submitted to the jury. New trial granted. Opinion granting new trial on Our own motion. Term, 1912. Docket B. C. P. Allegheny County. S. R. McClure, for plaintiff. Langfitt & McIntosh, for defendant. No. 2838 October HAYMAKER, J., February 19, 1915.-The plaintiff, Jennie Hummell, recovered a verdict for the amount stipulated in the benefit certificate issued to Walter J. Cake, a member, by which the defendant agreed to pay out of its benefit fund to "Step-daughter Jennie Hummell" the amount therein expressed. At the conclusion of the trial we refused the point that under the law and the evidence the verdict must be for the defendant. The defendant is a fraternal beneficial association incorporated under the laws of the State of Maryland. Walter J. Cake, the deceased, became a member of the subcrdinate conclave called "Cap Sheaf Conclave No. 159 of the Improved Order of Hepta sophs," located in Pittsburgh, on October 18, 1898, and a benefit certificate duly issued to him bearing that date. While it does not appear in the proofs that his wife was designated as the beneficiary, it so appears in the brief of defendant's counsel. It appears in the evidence that the wife died in May, 1909. On July 29, 1909, a new certificate was duly issued, presumably upon the death of his wife, to Walter J. Cake, in and by which it contracted to pay to "step-daughter Jennie Hummell" a certain sum of money within a specified period after proof of death of that member. Cake died July 7th, 1912, in good standing with the order, and proper proofs of death were duly furnished. The defendant admits its liability to pay the amount of the last cetrificate; that the plaintiff is the beneficiary named in that certificate; but denies that she is the proper beneficiary under the laws of Maryland and the by-laws and constitution of the order, because (1) a step-daughter cannot be legally designated a ben eficiary, and (2) the member did not comply with the Statute of Maryland and the laws of the order insofar as to constitute her a beneficiary by way of dependency. The plaintiff in her statement of claim alleges not only that the defendant is liable by reason of the designation of her as step-daughter in the certificate, but also because she came within the class of dependents, named in the Statute and the laws of the Order. Thus it is plain that the Order knew from its own records, if its present contention is true, that, when it issued its new certificate of July 29, 1909, the Hummell vs. Supreme Conclave of Heptasophs. beneficiary therein named could by no possibility recover in the future, though the member died in good standing, for it now says that she never did have, and does not now have, any legal standing, because she belonged to neither class mentioned in the Statute and the laws of the Order. In the first place the defendant says that this beneficiary cannot recover because sections 290 and 291 of the defendant's general laws stand in her way, section 290 reading as follows: "Each applicant for beneficiary membership shall enter upon his application the name or names, residence and relationship or dependence of the person or persons of the classes recognized by our laws to whom he desires his benefit paid * * and the same shall be entered in the Benefit Certificate according to his direction." Section 291 reads: "The benefit may be made payable to any one or more persons of any of the following classes only; Class Second. * * To any person who is depending upon the member for maintenance (food, clothing, lodging or education) in either of which cases written evidence of the dependency within the requirements of the laws of the order must be furnished to the satisfaction of the Supreme Secretary before the Benefit Certificate can be issued. The word evidence means sworn and legal proof." In the second place payment is refused on the ground that the plaintiff does not come within the second class mentioned, to wit: members' children, etc. On the trial we held that the plaintiff was not required to prove dependency as of the time of issuing the certificate, or that the application was made in that way, on the ground that the certificate having been issued, and bearing the signatures of the proper officers, that alone was sufficient evidence that all things required by the law had been done before the certificate issued. We now think this was a mistake. It would have been proper had the plaintiff been designated a dependent in the certificate, but such was not the case, she having been designated as "step-daughter" only. What the plaintiff would have shown was done by the member, by way of designating her a dependent, at the time he changed his beneficiary and a new certificate was issued to her, we have no means of knowing, but if she can show that the deceased member applied to have her designated as a dependent and complied with the law in that regard, we think she could recover as a dependent, even if the certificate did not so designate her. We think we were likewise in error when we instructed the jury that she could not recover as a step-daughter because not coming within the class to be designated, under the laws of the order. There was considerable evidence to show that the plaintiff was always regarded as a daughter by the deceased and was one of his household, and until a few years ago she had no knowledge of the existence of any other relation between them than that of parent and child. We are of opinion now that the family relationship between the plaintiff and the deceased member should have been submitted to the jury, and not taken from them by us, and if such relation sufficiently existed in fact, there is respectable authority for holding that she could have recovered as the member's child, notwithstanding her designation as step-daughter. We, therefore, in the interest of justice, on our own motion, order a new trial in this case. Susman vs. Board of Public Education. Constitutional Law-Res Adjudicata Republican Form of Government-Due Process of Law-Act of May 18, 1911, P. L. 309. A Bill in Equity was filed by a taxpayer in the District Court of the United States to restrain a school board from levying and collecting taxes under the provisions of the Act of May 18, 1911, P. L. 309, known as the "School Code." It was alleged that the Act infringed Article 4, Section 4 of the United States Constitution as well as the 14th amendment in that it denied a republican form of government and took property without due process of law. From the record it appeared that the same act had been passed upon by the Supreme Court of Pennsylvania and held constitutional. Held: That ail matters except constitutional questions were res adjudicata. That the State of Pennsylvania had a republican form of government, and it was for Congress to determine whether any State was guaranteed a republican form of government. That the 14th amendment was not infringed in that the Act of May 18, 1911, provided a due process of law, while Pennsylvania legal procedure furnished other means of safe guarding plaintiff's interests. In Equity. No. 9 May Term, 1915. United States District Court for Western District of Pennsylvania. Andrew G. Smith, William H. Dodds and J. Norman Martin, for plaintiff. J. Rodgers McCreery, for defendant. ORR, J., November 5, 1915. — This suit is before the Court upon bill and answer. The bill sets forth that the plaintiff is a citizen of the State of Virginia. That he is the owner of certain real estate in the City of Pittsburgh, which is subject to and liable to taxation for municipal and local purposes, including the maintenance of public schools. That the defendant is an organized board or body of persons appointed by the Judges of the Court of Common Pleas of Allegheny County, Penna., and authorized by an Act of Assembly to represent the School District of Pittsburgh in its corporate capacity, which said school district was constituted a municipal corporation by an Act of the General Assembly of the State of Pennsylvania, approved the 18th day of May, 1911, P. L., 309. That by said Act of Assembly, among the powers conferred upon the defendant, was a power of taxation, and of creating indebtedness by virtue of which the real estate of the plaintiff and others may be charged with the payment of certain sums of money. That the defendant pretending to exercise the discretion of ascertaining the amount of funds required for the maintenance of schools, has, within the limitations provided by the said Act of Assembly, namely, two mills, undertaken to levy, assess and direct the collection of taxes as they see proper, and to borrow money upon the credit of such taxing power, without a vote of the people. That the said tax is not in the nature of a special assessment wherefrom the plaintiff and others would have a right to appeal, or wherein they would have their day in court; but is a general tax, unconditional and absolute in its nature, in default of payment of which property may be seized in execution and the plaintiff and other taxables may be liable to imprisonment. That defendant is without right or authority to levy a school tax for the reason that the said Act of Assembly is unconstitutional, in offending against the Constitution of the United States, Sec. 4 of Article 4, which guarantees to every State a republican form of government, and in furthering offending against the 14th Amendment of the Constitution of the United States, in that said law abridges the privileges and immunities of citizens of the United States, and may have the effect of depriving the plaintiff and other tax payers of property and liberty, without due process of law. The bill prays for an injunction to restrain the defendant from levying a school tax and for general relief. * Susman vs. Board of Education. The answer does not deny any of the material averments of the bill. It does contain the averment, however, that in a certain proceeding instituted by one Jacob Minsinger, a tax payer and resident of the City of Pittsburgh, in the Court of Common Pleas No. 3 of Allegheny County, at No. 222 August Term, 1911, and certain proceedings had in the Supreme Court of the State of Pennsylvania, upon appeal of said proceedings, as the same are reported in 236 Pa. St., 327, the same questions were raised as in the present bill and by said Supreme Court decided. By reference to that case it is found that the Supreme Court had before it the questions as to whether the School Code was in violation of any provision of the Constitution of Pennsylvania, and the special constitutional questions raised in this case. The Supreme Court of Pennsylvania decided all the questions against the contention of the plaintiff in the bill. The decision of that court that the Act of Assembly does not violate the terms of the Constitution of Pennsylvania should be accepted by this court as conclusive upon that particular question. It is, of course, not conclusive upon this court upon the questions whether the Code is in contravention of the Constitution of the United States. As to the alleged violation of Art. 4, Sec. 4 of the Constitution, little need be said. As to whether the State of Pennsylvania has been guaranteed a republican form of government by the United States, is a question which is not difficult of decision. That the State has a republican form of government is a matter of such common knowledge that this court is affected thereby. Moreover, whether a republican form of government has been guaranteed to any particular State is a matter for Congress only to decide: Luther vs. Borden, 7 How., 1. Further, there does not seem to be any case which is authority for the proposition that an act of the Legislature of the State, with a republican form of government and so recognized by Congress, can be held invalid under the provisions of Art. 4, Sec. 4 of the Constitution. With respect to the contention that the levy of the tax by the defendant, and the consequences thereof, are without due process of law and deprive the plaintiff and other tax payers of the equal protection of the law, some observations should be made. Sec. 524 of the act provides, "The total annual school tax levy made in any one year by any school district * * shall not be less than five, nor more than six mills on the dollar of the total assessment of all property assessed and certified for taxation thereunder." After quoting that section the opinion of the Supreme Court of Pennsylvania proceeds to state: "Practically the Legislature itself has fixed the tax levy at a maximum of six mills, and simply leaves to its agents the privilege of collecting not less than five mills in any one year. This cannot properly be objected to as unrepublican or as an unlawful delegation of legislative power to an unrepresentative body." Briefly, plaintiff's contention with respect to this branch of the case is that the School Code makes no provision for appeal or contest by the tax payer and therefore deprives him of a constitutional right. But Sec. 531 of the Code makes the levy "subject to like provisions and restrictions as exist and shall exist in the cases of all other taxes assessed in this Commonwealth." In view of this provision, the general procedure in the matter of taxation should be considered. It will be noticed that the amount to be paid by the taxable is based upon the assessment of property. Property owners receive notice of the assessment of their property for taxation. Either actual notice is given them, or constructive notice is given by legislative action fixing the time at which the assessment is to be made. The property owner having been notified, he may be heard upon the propriety of the assessment and may appeal therefrom to the courts. Again, proceedings to recover unpaid taxes Susman vs. Board of Education. are not instituted until after public notice by advertisement is given, and until after a claim therefor is filed in the prothonotary's office of the proper county. Upon such claim in said office a writ of scire facias issues, to which, after service thereof by the sheriff, an affidavit of defense may be filed. There is another remedy which the tax payer may have in Pennsylvania, and that is by a bill in equity to restrain the collection of taxes illegally assessed against his property, for Pennsylvania has not yet applied to its citizens the strict rule of the United States that taxes must be paid in the first instance, after which, under certain conditions, suits may be instituted to recover the same. Without further elaboration, it is sufficient to state that this court finds nothing which would justify the plaintiff in believing that any of his constitutional rights have been invaded. The bill must be dismissed. Bond vs. Bond. Divorce Master-Causes Not Embraced in Report-Exception. When more than one cause for divorce is set forth in the libel, a master's report should show a complete finding on each cause or show that the libellant had elected to proceed on one or more and had withdrawn the others. On exception, a report will be referred back to the master for a specific finding on each cause alleged in the libel. Libel in divorce. No. 2219 January Term, 1914. C. P. Allegheny County. Blakeley & Calvert, for libellant. FORD, J., September 30, 1915. This is a libel in divorce filed by the husband. On October 28, 1914, a Master was appointed to take the testimony and return the same to the Court, together with his report of the proceedings had before him, and his opinion thereon. Thereafter, on July 24, 1915, the Master, having attended to his duty, made report wherein he found, inter alia, the first ground of divorce, to wit: desertion, as charged, to be properly established by the evidence, and further that the second and third grounds, as charged in the libel, are not passed upon. To the report of the Master, the respondent excepts, alleging that the libel sets up three causes of divorce, desertion, cruel and barbarous treatment, and indignities to the person. It does not appear that the second or third cause was withdrawn, or that the libellant elected to proceed only on the first cause. The parties libellant and respondent were entitled to separate findings of fact upon each of the causes alleged in the libel. It may be that the Court, passing upon it de novo, might proceed without such finding, but we deem a complete finding by the Master upon the matters submitted to him, as necessary for the proper and final disposition of the cause. The exception is therefore sustained and the report referred to the Master for correction, that he report a finding on the second and third causes of divorce alleged in the libel. |