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Rieck Company vs. The Fort Pitt Taxicab Company.

Constitutional Law-Foreign Attachment—Act of June 21, 1911, P. L. 1097.

Section 3, Article III, of the Pennsylvania Constitution, is complied with when in enacting an amendment to an amended section of the original act, the amended section is set out fully as the basis for the re-enactment, instead of repeating the unamended section of the original act.

A rule to dissolve a foreign attachment will be discharged when plaintiff's statement sets forth a good cause of action.

The Act of June 21, 1911, P. L. 1097 is constitutional.

Rule to show Cause. No. 1023 October Term, 1915. C. P. Allegheny County.

S. S. Robertson and H. R. Birmingham, for plaintiff.

L. C. Barton, for defendant.

Peter Glick, for garnishee.

REID, J., November 18, 1915. This is a rule to show cause of action and why the attachment should not be dissolved. The action is foreign attachment in trespass, the defendant being a foreign corporation.

The Statement of Claim filed is a sufficient showing of a cause of action, and the only matter to be considered is whether the attachment should be dissolved.

The grounds for the motion to dissolve are: (1) The unconstitutionality of the Act of June 21, 1911, P. L. 1097, explicitly extending the right to issue such attachment against foreign corporations whether in actions ex contractu cr ex delicto; and (2) that the act is not germane to the original Act of June 13. 1836.

The contention as to unconstitutionality is based upon the fact that the Act of 1911 purports to amend the Act of June 13, 1905, P. L. 76, without having separately and independently published the provisions of section 44 of the original act. This is claimed to be in contravention of Sec. 6, Art. 3, of the constitution.

The Act of 1905 properly and explicitly sets forth the language of Sec. 44, of the act proposed to be thereby amended. The Act of 1911, instead of repeating the unamended language of the original act, took the amended act as the basis for re-enactment and properly quoted its terms at length.

In our opinion, this was a compliance with the requirements of the constitution that "no law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length."

It is apparent that the law which the legislature sought to amend by the statute under consideration was, not the original Sec. 44, but another amended section 44, having its complete entity by virtue of the previous Act of 1885, and when that has been finally set forth and re-enacted it would be a mere work of supererogation to require the displaced section to be also published at length.

That the republication of the amended section is sufficient is ruled in Wilson vs. Downing, 4 Supr. Ct., 487; In Re Emsworth Borough, 5 Supr. Ct., 29; Merritt vs. Whitlock, 200 Pa., 50.

The provisions of the Act of 1911 are germane to those of the original Act of 1836. That sections 44 and 76 must be considered together has been expressly held in the case of Commonwealth vs. Baxter Co., 235 Pa., 179. The rule to dissolve the attachment must be discharged.

And now, November 18, 1915, upon hearing, the rule ex parte defendant granted upon the plaintiff to show cause why the foreign attachment in the above entitled case should not be dissolved is discharged.

Certiorari

Costello vs. Pennsylvania Company.

-Appeal—County Court-Common Pleas Act of April 9,

1915, P. L. 48.

The Act of April 9, 1915, P. L. 48, relating to the review by the Common Pleas Court of cases tried in the County Court apparently provides that the proceeding by certiorari was intended to merely review the technical and limited "record" as such, and not introduce an entire new practice by requiring the court to examine the testimony; as it can scarcely be maintained, that the Legislature proposed to provide two independent methods of reviewing the testimony-one by certiorari, and the other by an appeal, which latter method specifically provides for judgment upon the whole record.

Certiorari. No. 223 January Term, 1916. C. P. Allegheny County.

Bradley McK. Burns and W. D. Stewart, for plaintiff.

Dalzell, Fisher & Hawkins, for defendant.

REID, J., November 18, 1915.-This case is before us on a writ of certiorari to the County Court to remove the record in the case of Costello vs. The Pennsylvania Company, No. 1441, 1915, of that court. The action there as appears from an inspection of the record brought up was one of trespass for slander. The case was tried in the court below before a jury and a verdict rendered for plaintiff. Thereafter on motion of defendant's counsel judgment was entered in that court for defendant N. O. V. The final order of the court below was:

"It is accordingly ordered that the evidence taken upon the trial of this case be transcribed and filed so as to become part of the record, and juryment is now entered in favor of defendant, upon the whole record, non obstante veredicto."

The "specification of error" filed in the case before us assigns the foregoing order as the error complained of.

Counsel for plaintiff in error contends that it is the duty of this court to scan the testimony taken in the court below and which is returned from that court, "as part of the record," and from such examination to determine whether or not the trial court erred in entering the judgment non obstante veredicto. They maintain that the court of common pleas must not limit its scrutiny to the "record" in the technical and usual acceptation of that term, but must consider an enlarged and much more extended record resulting from the certifying of all the testimony taken in the trial "as a part of the record." The certification relied upon in this case is that which is provided for in the Act of April 22, 1905, P. L. 286, which requires the court to certify the evidence to make it part of the record.

* * *

Section 9 of the Act of May 5th, 1911, P. L. 198, establishing the county court has (at page 202) the following provision: "Any party shall be entitled to a writ of certiorari to remove the record to any court of common pleas of said county in the manner as now provided by law in regard to writs of certiorari issuing out of said common pleas

* * * ""

An appeal to the Superior Court from the final judgment upon such certiorari is provided for in the Act. The amendatory Acts of April 2, 1913, P. L. 21, May 23. 1913, P. L. 310, and April 9, 1915, P. L. 48, all contain a re-enactment of the above quoted provision in those identical words.

The last mentioned Act, April 9, 1915, P. L. 48, in amending section 9, which contains the provision for certiorari as above stated, provides a method for taking appeals both in jury and non-jury cases which clearly indicates that any error committed by the court below in deducing con

Costello vs. Pennsylvania Company.

clusions from the facts testified to or in determining the law is to be reviewed on appeal and not upon certiorari. The concluding paragraph of the Act of 1915 (p. 53) is as follows:

"In disposing of the application for leave to appeal, the court of common pleas may, in its discretion, direct the entry by the county court of such judgment as may be proper on its whole record, and from such order of the common pleas court an appeal shall lie to the Superior Court of Pennsylvania."

It is apparent that the proceeding by certiorari was intended to merely review. the technical and limited "record" as such and not introduce an entirely new practice by requiring the court to examine the testimony, as it can scarcely be maintained that the legislature proposed to provide two independent methods of reviewing the testimony-one by certiorari, and the other by an appeal, which latter method specifically provides for judgment upon the whole record.

The Act of March 21st, 1806, 4 Sm. 332, may properly be applied here. It provides:

"In all cases where a remedy is provided, or duty enjoined or anything directed to be done by any act or acts of assembly of this Commonwealth, the directions of said act shall be strictly pursued."

To review the record of the lower court for errors apparent upon the face of that record certiorari is the proper remedy. To review the errors if any, of that court in applying legal principles or in determining facts, the remedy provided is by an appeal.

There being no error apparent upon the face of the record in this case, we must overrule the specification of error and affirm the judgment of the county court.

ORDER

And now, November 18, 1915, specification of error to the record of the county court filed in the above entitled case is hereby overruled and the judgment of said court is affirmed.

In re Election of Alderman.

Alderman——Election of—-Eligibility for Office—Courts—Jurisdiction of.

Where the eligibility of an alderman-elect to hold the office has been raised on the ground that he was not a resident of the ward for one year next preceding the election, his election should be regularly certified by the Prothonotary to the Secretary of the Commonwealth, who should submit the commission to the Governor for his signature. The question involved is a matter for the courts to determine.

OFFICE OF THE ATTORNEY GENERAL
Harrisburg, Pa.

Hon. Cyrus E. Woods,

December 7, 1915.

Sir:

hand.

Secretary of the Commonwealth,

Harrisburg, Pa.

Your favor of the 3rd inst. addressed to the Attorney General, is at

You request an opinion upon the following facts:

The commission of William H. Hackman as Alderman of the 12th Ward of the City of Easton will expire on the first Monday of December, 1915. The Prothontary of Northampton County has duly certified to the Secretary of the Commonwealth, as required by law, the election of Asher Mutchler as Alderman of said Ward, and also the acceptance of said Asher Mutchler of said office.

That the records in your Department show that a vacancy will exist in said office and that the certificate of the election of Asher Mutchler and his acceptance are in regular form.

The said William H. Hackman has filed a protest upon the ground that Asher Mutchler is not qualified to serve in said office, for the reason that he has not resided within the 12th Ward of the City of Easton for one year next preceding his election, and therefore, under Article V, Section II of the State Constitution, is not eligible.

He supports his petition by a certificate of the County Commissioner's clerk and by three ex parte affidavits, showing that said Asher Mutchler was not a resident of the 12th Ward of the City of Easton for one year preceding his election.

This raises the question whether the Secretary of the Commonwealth should transmit to the Governor for his signature, a commission to Asher Mutchler and whether the Governor should issue the same, or, in view of the protest, whether said commission should be withheld. This question being a matter which must be determined by the courts, the practical effect is whether the proceedings should be a mandamus to compel the Secretary of the Commonwealth to certify the commission to the Governor, or whether after the commission issued, it should be a quo warranto to test the right of Asher Mutchler to the office.

If the Secretary of the Commonwealth declined to issue this commission, he would be required to determine in the first instance, at least, not only the legal question involved in the construction of Article V, Section II of the Constitution, as applicable to this controversy, but he would also be required to determine the fact as to whether Mutchler was eligible for election to the office.

If the Secretary of the Commonwealth determined that Asher Mutchler was not eligible, he would then be in a position of coming to a determination which contradicted the records in his office.

In re Election of Alderman.

The Secretary of the Commonwealth is not equipped to try and determine questions of fact.

I therefore advise you that, inasmuch as the certificate of election and the acceptance of Asher Mutchler to the office of Alderman of the 12th Ward of the City of Easton, is regular, and inasmuch as the records of your office show that a vacancy is about to exist, you should issue the commission so that the matter may be tested in the courts by proper proceedings in quo

warranto.

In coming to this conclusion I have not overlooked the opinions of this Department in Stidfole's case, 28 Pa., Co. Ct., 389, or Fox's case, 1st Dist. Rep., 513, and there is language in these opinions which might seem not to be in harmony with the opinion herein expressed, but when analyzed, the cases do not conflict.

In Stidfole's case, the records of the Secretary of the Commonwealth did not show that there was any vacancy to be filled by Stidfole's election, and therefore, withholding the commission, was not in any wise impeaching such records. Moreover, the question was a pure question of law as to how many justices of the peace the Borough of Tamaqua was entitled to.

In Fox's case there was also the pure legal question as to the number of justices of the peace the Borough of Shamokin was entitled to have, and no question of fact to be decided by the Secretary of the Commonwealth.

Where the records of the Secretary of the Commonwealth show a vacancy exists and he has the certificate of an election regularly made by the Prothonotary of the county and the acceptance of the office by the person certified as elected, you should transmit the commission to the Governor for his signature and not attempt to determine questions of fact which might impeach not only the records of your own office, but the regularity and legality of the certificate of the Prothonotary of the county.

Very truly yours,

WM. M. HARGEST,

Deputy Attorney Gereal

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