Dunn, Assignee, etc., v. Gibson

Mr. Dunn purchased the property, and the lease in question was assigned to him on December 6, 1919. Mr. Gibson from that time, paid the rent to the agent of Mr. Dunn.

The notice that the lease would terminate, at the expiration of the current year, was served on Mr. Gibson on December 12, 1919. It read as follows: "We wish to notify you that the property now occupied by you at the above address, formerly belonging to Fred G. Morganroth has been sold to Edward J. Dunn.

Mr. Dunn will require possession of this property, at the expiration of the present lease, namely, April 8, 1920. He has instructed me to notify you, that he will take possession of the premises at this time, and has also notified us to continue collecting his rent until the lease expires."

(Signed) J. T. JACKSON COMPANY,

J. D. Ray, Secretary."

Mr. Dunn, also, on December 27, 1919, gave a written notice, under his own signature, stating that he wanted to be sure that the notice from Jackson & Co. has been served. He also informed Mr. Gibson, in this notice, that he would not renew the lease but intended to move into the property at the expiration of the lease, on April 8, 1919.

On May 13, 1920, Mr. Dunn notified the said tenant that he would begin proceedings to evict him, because he failed to vacate at the expiration of his term.

On June 1, 1920, Judgment was entered against the defendant under an amicable action of ejectment, as provided in the lease.

The only exception to the proceedings, other than the failure of the landlord to sign the lease, relates to the error in the notice, which gives the date of the expiration of the term as April 8th, instead of May 11th, the correct time.

The notice was given more than four months before the expiration of the term. The defendant admits that he was not misled by the error, that he was well aware that the term expired on May 11th, and not on April 8th.

In the notice that he received it was distinctly stated that he was to remove at the expiration of his term. There was no attempt to disturb him in his possession before May 11th, 1920.

Dunn, Assignee, etc., v. Gibson

In fact, no action was taken for twenty days after that date, and he had ample time to seek a new home.

He stands upon a technical error which did not deceive him. He has no defence on the merits or in law.

The case of Jalass vs. Young, 3 Pa. Superior Ct., 422, is directly in point. In that case there was a mistake by giving the expiration of the term as April 19, when the true date was March 19th. As in our case, the notice required the vacation of the premises at the expiration of the term. The Court said:-"The misstatement, as to the end of the term, could not mislead the tenant, who of course knew when the current year expired. It conformed, substantially, to the statutory requirements and was served more than four months before the actual close of the year." To the same effect is Wanger vs. Raymond, 104 Pa., 33. In that case there was also a mistake in date. True, it was "a manifest blunder", but the Court ruled;-"It was explicit and clear, however, in this, that possession was demanded, at the expiration of the lease. This was sufficient."

When the defendant received the notice he was advised that Mr. Dunn was the owner of the premises by purchase. The defendant recognized the new landlord by paying the rent to him. He had notice from Mr. Dunn himself, as early as December 27th, that the latter was the owner of the property and also that he intended to occupy the same at the expiration of the tenant's lease. He again stated that he wanted the premises at the expiration of the tenant's term.

And now June 22nd, 1920, the rule to open the judgment is discharged.

Court of Common Pleas of Montgomery County

Long v. School District of Cheltenham Township

A. files his bill in equity to restrain B. a school district from issuing certain bonds. At an election duly held, by the assent of more than three fifths of all the electors voting, the proposed increase of indebtedness which in the aggregate was more than seven per cent of the assessed valuation was approved. A. contended that the bond issue is not legal First: that the amendment approved Nov. 4, 1913, amending Article 9, by adding Section 15, was unconstitutional as being in violation of the provision of Article 18. relating to future amendments: Second: that a school district is not a municipality within the meaning of the fifteenth section of Article 9.

The first contention as to the constitutionality of Section 9, is not tenable because Article 18 given its proper construction both as to the use of words and as to the punctuation means that no amendment if once submitted shall again be submitted to the people in less than five years, and as the people are ruling body therefore once they have approved of an amendment as was done in this case it becomes a part of the constitution, the second objection that the amendment does not permit a school district from borrowing more than seven per cent of the assessed valuation must be determined by a construction of Section 8, Article 9, together with the amendment known as Section 15, of the said article.

A municipal corporation as used in this section means only such corporation created by the government for political purposes and having subordinate and local powers of legislation a school district is a quasi corporation, and the school directors are not municipal officers and notwithstanding that under the school code they have a right to have a corporate seal and enjoy certain enlarged powers, yet they are not municipal in the sense in which such are meant by the constitution.

Nor does the powers aforesaid conferred by Section 15, Article 9, in any way affect school districts, because in no place in the law have school districts ever been endued with the powers to construct waterway, etc., as set forth in said section. Therefore the defendants must be restrained from issuing bonds as proposed because the increase is beyond the 7 per cent and not allowed by the constitution.

Equity.

No. 4, April Term, 1920.

Hearing on Bill and Answer.

Evans, High, Dettra & Swartz, Attorneys for Complainant.

Larzelere, Wright & Larzelere, Attorneys for Defendant.

Opinion by Miller, J., July 19, 1920.

By stipulation in writing duly filed this cause, in which the facts are not in dispute, was heard on bill and answer.

We make the following

FINDINGS OF FACT

1. George W. Long, the complainant, is a citizen of Pennsylvania, a resident of the school district of Cheltenham Town

Long v. School District of Cheltenham Township

ship, in the County of Montgomery, in said State, and a taxpayer therein, being liable under the laws of the state to pay taxes (inter alia) for the support and maintenance of the public schools of said district and any indebtedness which it may incur. Lest it be thought the matter has been overlooked, we note that the jurisdiction of the court has not been properly invoked. The bill is not a tax-payers' bill, which is essentially a class bill and can be filed only in the common interest of all the tax-payers of the district to prevent the wrongful expenditure of its moneys or the wasting of its assets: Schlanger, appel., vs. West Berwick Boro., 261 Pa. 605. Such a bill must be filed in the name of and for the class, for otherwise every tax-payer would have a separate right to file a bill in his own name and right and a multiplicity of suits and great confusion might result: Wilson, appel., vs. Blaine et al., 262 Pa. 367. However, as the suit was brought for the sole and definite purpose of testing the validity of the loan hereinafter mentioned and this technical point was not raised in the oral arguments or written briefs, we shall not permit it to defeat the real purpose of the suit and shall dispose of it on the only issues of law intended to have been raised, thereby rendering the prompt and direct final decision as to them which is desired by both parties. The bill should be amended, how

ever.

2. The defendant is a school district under the act of May 18, 1911, P. L. 309.

3. The last assessed valuation of the taxable property in the School District of Cheltenham Township was $13,428,220, and the amount of its existing indebtedness is $171,751.15, being less than two per centum of the former.

4. To build, equip and furnish a new High School building at Elkins Park; to make alterations to the present High School building; and to purchase the ground necessary for, and build thereon equip and furnish a new school building at Ashbourne, with play-ground attached, the Board of School Directors of the defendant, by appropriate proceedings, determined to increase the indebtedness of the district by the sum of $1,150,000, whereby its total indebtedness would then amount to the sum of $1,321,751.15, or 9,8431 per centum of the last assessed valuation of taxable property in the district.

5. The proposal was submitted to the electors of the dis

Long v. School District of Cheltenham Township

trict at a special public election held on February 28, 1920, and assented to by them 571 of those voting at said election favored the proposed loan and 216 of their number opposed it. It was, therefore, assented to by more than three-fifths of the electors of the district voting at said election.

6. The defendant is thus seeking to create a debt, which, with its existing indebtedness, will, in the aggregate, exceed 7%, but will be less than 10%, of the assessed valuation of taxable property in the District, is about to offer to the public for purchase its bonds evidencing such increased indebtedness, and intends to enter into contracts to carry out the purposes already stated.

7. The amendment known as section 15 of Article IX of the Constitution of Pennsylvania, which, in regular course, was submitted to the people for their approval at the general election held on November 4, 1913, had not, theretofore, been submitted to, or defeated by, them.

8. Alleging that if such debt is created, bonds sold and improvements made as contemplated, it will result in an unlawful increase in the tax payable by, and irreparable injury to him, for which he has no adequate remedy at law, the complainant seeks equitable relief and, inter alia, prays that the defendant be restrained and enjoined from incurring the indebtedness mentioned and from issuing and selling bonds to secure the same.

9. It is found as a further fact and hereby certified that the amount, or value of the interest really in controvresy in this case is greater than fifteen hundred dollars.

10. Some of our findings of fact are set forth in greater detail than they are to be found averred in the bill. In order to do so, we have felt free to refer to the proceedings in the Quarter Sessions in connection with the creation of the proposed loan, because, as we understand it, none of the actual facts of the case is in dispute.

DISCUSSION

The legality of the proposed loan is questioned on two grounds and as they have no connection with each other, or, in other words, as neither is involved in, or dependent upon, the other, they will be discussed separately.

The first attacks the validity of the amendment known as the fifteenth section of Article IX of the state constitution in that