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Craig v. First Presbyterian Church, 88 John E. Malone, for appellee. Pa. 46.

Submitted no paper book. An act of assembly can not be declared void unless it violates the constitution February 24, 1915. Opinion by cleary, palpably, plainly and in such man- ORLADY, J. ner so as to leave no doubt or hesitation

The indictment in this case charges a in our minds.

violation of law, viz.: “ It shall be unFletcher v. Peck, 6 Cranch U. S. 87.

lawful for any person to drive or move Sharpless v. The Mayor, 21 Pa. 164. Eakins v. Raub, 12 S. & R. 330.

or transport on or across or along any P. R. R. v. Riblet, 66 Pa. 164.

public highway, or in wagons or in railComth. v. Butler, 99 Pa. 535.

road cars or other vehicles, any animal Comth. v. Keary, 198 Pa. 500.

affected with any disease mentioned in Comth. v. Moir, 199 Pa. 543.

sec. 9 of this act, or with any disease now

or hereafter adjudged and proclaimed New Brighton Boro v. Biddle, 201 by the State Live Stock Sanitary Board, Pa. 96.

to be of a transmissible character, except It is the effect not the purpose of an act which determines its constitutionality. State Live Stock Sanitary Board, or any

upon permission in writing from the P. R. R. v. Riblets, supra.

member, officer, or agent, of the Board." The several provisions of the act of The defendant filed å demurrer alleging 1913 surely, “ have a proper relation to that no indictable offense was set out; each other," and all the details, con- that the act under which the indictment stitute parts of a scheme to accomplish was drawn is unconstitutional, as it vioa single purpose. They “relate to the lates sec. 3, of art. 3, of the commonsame subject”; “ and have a common wealth of Pennsylvania, in having more object." See also Comth. v. Pflaum, 50 Pa. Su- tional as it confers legislative powers

than one subject ; that it is unconstituperior Ct. 55.

upon the State Live Stock Sanitary It is clearly germane to the preserva- Board; that it failed to set forth that tion of the health of domestic animals the animal suffering with tuberculosis to prevent the transportation of any

sick

was a domestic animal, or was one of animals of any kind.

the animals defined in sec. I of the act, The act is not a delegation of legis- which was sustained by the Court. lative authority.

The construction placed upon this Com. v. McKnight, 16 Dist. R. 869. statute of July 22, 1913, P. L. 929, is

Pa. Telephone Co. v. So. Bethlehem, entirely too narrow and refined to meet 16 Dist. R. 878.

the substantial and vital demands of this Locks' Appeal, 72 Pa. 481.

important legislation. The act in quesFoster Twp. Road Tax, 31 Super. 51. tion is the last declaration of the legislaMcGownell's License, 209 Pa. 327. tive will starting in 1897, and it has been

Even if the Act of July 22, 1913, is enlarged in nearly every succeeding sesunconstitutional the indictment should sion of the assembly, so that the act of have been sustained under the Act of 1913 stands as a codification of all pre30th March, 1905, P. L. 78.

vious legislation relating to the subjects Section 3 of that Act is practically embraced in its title, which is as follows: identical with Section 26 of the Act of "An Act relating to domestic animals; 1913.

defining domestic animals so as to inThe fact that an indictment was drawn clude poultry; providing methods of imunder an unconstitutional section of a proving the quality thereof, and of preStatute did not render it invalid where venting, controlling, and eradicating disit constituted a good indictment under eases thereof; imposing certain duties another section of the Statute.

upon practitioners of veterinary mediState v. Vandenburg, 159 Mo. 230, 60 cine in Pennsylvania; regulating the S W., 79.

manufacture and sale of tuberculin, mal22 Cyc. Page 3, Sec. 8.

lein and other biological products for use with domestic animals; defining the mestic animals and providing methods powers and duties of the State Live of improving the quality thereof. It has Stock Sanitary Board, and the officers been repeatedly stated that our only duty and employees thereof; fixing the com- and our only power in scrutinizing an pensation of the Deputy State Veterin- act with reference to its constitutionality arian; and providing penalties for the is, to discover what, if any, provision violation of the Act.'

of the constitution it violates. The preIt cannot be open to controversy that sumption is always in favor of the conbut one purpose is sought by this en- stitutionality of an act of assembly, and actment, which is intended to embrace it cannot be declared void unless it viothe whole subject-matter, and a fair ex- lates the constitution clearly, palpably, amination of the body of the act, as sug- plainly, and in such manner as to leave gested by the comprehensive title, would no doubt and hesitation: Commonwealth lead any inquiring mind to an examin- vs. Moir, 199 Pa. 543. The interpretaation of its contents.

tion of a statute should be determined by The restricted definition of " domestic its paramount purpose, rather than by animal” was enlarged so as to embrace the details through which that purpose is any equine or bovine animal, sheep, goat, to be accomplished. The subject may pig, dog, cat, or poultry. Every pro- have but one object, while the measure vision in the statute reasonably and di- necessary for the attainment of that obrectly related to the general subject-ject may necessarily embrace many submatter of the legislation, and each pro- ordinate subjects, differing in their navision was considered necessary to carry ture and particular effect, yet all contriinto effect the beneficent purposes of the buting to it, and comprising within the enactment. The method adopted by the principal subject everything which the legislature of enforcing the general pro- nature of the subject of a title reasonvisions of the act was clearly within its ably suggests as necessary or appropripower, and in defining the authority and ate for the accomplishment of its exduties of the State Live Stock Sanitary pressed purpose, is sufficiently indicated Board, and the officers and employees by such title: Commonwealth v. Jones, thereof, are so necessarily related to the 4 Pa. Superior Ct. 362: Commonwealth preventing, controlling, and eradicating v. Pflaum, 50 Pa. Superior Ct. 55. the diseases against which the enactment The several provisions of the act have is directed, that each is germane to the a proper relation to each other and all general subject. The powers and duties the details constitute essential parts of devolved upon the State Live Stock the general design to accomplish a single Sanitary Board and its officers, are but purpose, and each relates to the same an enumeration of methods referred to subject which is the common object of in sec. 6, and are clearly within the the enactment. The legislature cannot power therein defined. Such legislation delegate its power to make a law; but it would be of no effect unless the power can make a law to delegate a power to to enforce its provisions was lodged determine some fact or state of things somewhere. This Board was deemed upon which the law makes, or intends the most efficient agency for preventing, to make its own action depend: Mccontrolling and eradicating disease, and Gonnell's License, 209 Pa. 327; Foster enforcing the prescribed penalties for Township Road Tax, 32 Pa. Superior violation of the act. And every power Ct. 51. As was said in Locke's Appeal, given to the Board was deemed to be 72 Pa. 491, “ There are many things directly and immediately necessary to upon which wise and useful legislation accomplish the expressed objects of the must depend, which cannot be known to statute. With this authority vested in the law-making power, and must, therethe Board, the compensation of its em- fore, be a subject of inquiry and deterployees and all other expenses follow as a mination outside of halls of legislation.". reasonable provision, and all are germane See also C., M. & St. Paul R. R. v. to the one object which relates to do- | Minn., 134 U. S. 413; Elwell v. Comstock, 100 Minnesota, 261. Railroad v. Commonwealth v. Falk (No. 2). Railroad, 206 U. S. 314; Saratoga v. Constitutional law Domestic animals Gas Co., 191 N. Y. 125, and the recent

-Acts of April 27, 1909, P. L. 189 Minnesota Rate Case, 230 U. S. 380.

and July 22, 1913, P. L. 928. The list of dangerous diseases enumerated in the act, rendered it vitally An indictment for selling infected animals important to provide that the inspection without permission of the State Live Stock and care of affected animals and the Sanitary Board and notifying the purchaser,

“contrary to the form of the act of the gendisposition of carcases of such, should eral assembly in such case made and probe under the control of experienced per- vided,” is valid under the Acts of July 22, 1913 sons, both for the treatment of such and and April 27, 1909. the prevention of epidemics, and for

Appeal No. 89 of October Term 1914 preservation of the records, which result from judgment of Q. S. of Lancaster could only be secured by organized bodies County, sustaining a demurrer to an inof men, who were specially trained in dictment for unlawfully selling infected that department of learning.

cattle. The act is intended to regulate the transportation of any animal, wild or do- HASSLER, J., see 31 Law Review 184).

(For opinion of the Court below, mestic, having a transmissible disease. The purpose is avowedly to prevent, con- the Court below in sustaining the de

The error assigned was the action of trol and eradicate diseases of domestic animals, but it is just as proper to regu- the demurrer.'”

murrer as follows to wit: 'We sustain late the transportation of elk, deer or foxes when they may be the means of John M. Groff District Attorney, spreading infectious diseases among do- Coyle & Keller, A. H. Woodward, J. E. mestic animals as it is to prescribe the B. Cunningham and John C. Bell, Atmanner of transporting the well-known torney General, for appellant. barn or herd stock. The act is framed in clear, unambiguous words and is

Even if the Act of July 22, 1913, is meant to apply to all animals under the unconstitutional the indictment should control of man.

have been sustained under the Act of The defendant did not ask for a biul 27th April, 1909, P. L. 189. of

Sections of that Act is practically by any of the provisions of the act which identical with Section 27 of the Act of are fully indicated by the title. Even 1913. if the act of July 22, 1913, is at all doubt under an unconstitutional section of a

The fact that an indictment was drawn ful, as to its constitutionality, which is Statute did not render it invalid where not admitted, the indictment was good it constituted a good indictment under under the Act of March 30, 1905, P. L. another section of the Statute. 78, which is in substance the same as sec. State v. Vandenburg, 159 Mo. 230, 26 of the act before us, and is still in force. It made no difference under | 60 S. W. 79.

22 Cyc. Page 3, Sec. 8. what particular section of a statute the indictment may have been drawn, nor John E. Malone, for appellee. are the infirmities of such section of the indictment thereunder material, provided

Submitted no paper book. the indictment be good under some other section of a statute which is valid: 22

February 24, 1915. Opinion by

ORLADY, J.
Cyc. p. 3, sec. 8. See also State v.
Vandenburg, 159 Missouri, 230; 60 S.

For the reasons given in CommonW. Repr. 79.

wealth v. Falk, No. 90, October Term, The judgment is reversed, the record | 1914, the judgment in this case is reto be remitted to the court below with versed and the record remitted to the a procedendo.

Court below with a procedendo. (Sec two following cases.)

(Sec preceding and following cases.)

Common Pleas-- Law

Commonwealth v. Weber.

fense is as specifically set out in one as

the other and both acts are in force. Constitutional law Domestic animals

For the reasons given in Common-Acts of April 27, 1905 and July 22, wealth v. Falk, No. 90 October Term, 1913

1914, the judgment in this case is re

versed and the record remitted to the An indictment for failure to report a case of tuberculosis to the State Live Stock Sani- court below with a procedendo. tary Board “contrary to the form of the Act

(See two preceding cases.) of the General Assembly in such case made and provided” which does not specify. Sec. 9 of the Act of July 22, 1913, 1. L. 928 is good and valid under Act of March 30, 1905, Sec. I, P. L. 78 even though the Act of 1913 were unconstitutional as both Acts are in force. Appeal No. 91 of October Term 1914

Hoover v. Haefner. from judgment of Q. S. of Lancaster

Evidence County sustaining a demurrer to an in- Deeds - Purchase money dictment for failure to report case of

Assumpsit for goods detained transmissible disease of cattle.

Affidavit of defense - Depositions (For opinion of the Court below,

Rule of Ĉ. P. Court XV, Sec. 2, HASSLER, J., see 31 Law REVIEW 184). page 19.

The error assigned was as follows: The sum named and receipted for in a deed

1. The Court erred in sustaining the as the consideration, is only prima facie demurrer to the indictment, as follows: evidence, and the amount actually agreed upon

as the consideration may be shown. "As we are of the opinion that the

Where, in a suit for purchase money the Act of 1913 is unconstitutional, we sus plaintiff claims on an express agreement to tain the demurrer."

assume liens amounting to $20,800 and pay a

fixed sum of $4,200, he can not recover a less John M. Groff, District Attorney, sum that $4,200, if the liens aggregate more Covle & Keller, A. H. Woodward. J. E.

A granter cannot waive the tort and bring B. Cunningham and John C. Bell, At- assumpsit against the grantee for certain pertorney General, for appellant.

sonal property detained on the premises by

the grantee, in the absence of anything further Edwin M. Gilbert, for appellee.

to show a conversion or sale of it.

A deposition can not be admitted in evi

dence if taken at a place other than that menFebruary 24, 1915 Opinion by tioned in the notice. ORLADY, J.

Under Section 2, Rule XV of the Rules of

Common Pleas the depositions of an aged and The indictment in this case concludes Court is satisfied that the witness could not

infirm witness is not admissible unless the contrary to the form of the Act of the personally attend the trial, and this should General Assembly in such case made and be shown, not by an interested party to the provided, and against the peace and suit but by the witness's physician. dignity of the Commonwealth of Penn

It is proper to refuse to send to the jury

on application made after the jury has retired, sylvania" and does not specify the ninth an affidavit of defense a portion of which section of the Act of July 22, 1913, P. L. had been admitted in evidence. 928, which the learned trial judge in the court below held to be unconstitutional,

Rule for a new trial. C. P. of Lanand for that reason sustained the de

caster County. murrer filed by the defendant. Conced- B. F. Davis, for plaintiff and rule. ing this to be true, which we do not do, yet the indictment was clearly a good

John E. Malone, contra. one and valid under the first section of the Act of March 30, 1905, P. L. 78, to P. J.

March 27, 1915. Opinion by LANDIS, which the offense charged is as applicable as to the ninth section of the latter The plaintiff in her statement declared statute. The identification of the of- that, being the owner of certain houses,

Nos. 242 and 244 West Orange Street, agreed to be paid, but is not conclusive." and Nos. 241 and 243 West Grant Street, Therefore, the plaintiff having brought she made a deed for the same to the de- an action for unpaid purchase money fendant, on or about June 9, 1911; that of a lot of ground, as the testimony as the consideration, as set forth in the said to the price agreed upon and the amount deed, was $25,000.00, but that no money paid was conflicting, the question was was paid ; that the defendant took the said to have been properly submitted to property subject to a dewer of $3,000.00, the jury. In Long v. Reed, 16 Pa. C. C. a mortgage of $7,000.00, and a second R., 110, it appeared that the plaintiff mortgage of $10,800.00, and the differ- had sold land to the defendant for the ence, being the sum of $4,200.00, was to consideration, as expressed in the deed, be, but has never been, paid, and it is, of $10,600.00. The evidence tended to therefore, still due and owing to her. show that the transaction was to accomShe also claimed that she was, in addi- plish the same purpose as an ordinary tion, the owner of a lot of household mortgage. The plaintiff brought a suit goods and furniture, and that the same, in assumpsit to recover an alleged unpaid being on the premises thus conveyed, balance of the purchase money. The were taken possession of by the defend- defendant offered evidence to show that ant, and he, having refused to deliver the purchase money expressed was not the same up to her, is indebted for the the real consideration, but that $6,000.00 same to the amount of their value, which of debts owing to him was the true conis $449.58.

sideration. The Court admitted the eviThe uncontradicted evidence showed dence, and a verdict having been entered that the property was conveyed to the in favor of the defendant, a new trial defendant as above stated, and that the was refused. In Nichols r. Nichols, 133 consideration in the deed was 25,000.00. Pa., 438, it was said: “ But it is perfectly The defendant, however, asserted that well settled law that receipts, whether this consideration was only nominal, and contained in deeds or elsewhere, are not that, as there were liens against the conclusive of the payment of money, but land in excess of what have been set only prima facie proof, and always open forth in the statement, the consideration to explanation. Thus, an acknowledgwas, at the suggestion of the defend- ment of the purchase money in the body ant's son, fixed at $25,00.00, as“ it looks of a deed, and a receipt endorsed, are better,” and he, the defendant, was to not conclusive evidence of such

paypay nothing

ment." See, also, Baeder's Estate, 224 The first question urged on the part Pa., 452; Townsend v. Lacock, 222 Pa., of the plaintiff is, that the defendant 330. This question would seem to be cannot contradict the consideration as

settled. stated in the deed. It seems to us that The plaintiff now urges that the liens this question, if correct, would be as against the premises, outside of her morthurtful to the plaintiff as to the defend- gage of $6,000.00, which she satisfied.

The receipt on the deed for the aggregated only $24.710.50, and that she, whole of the purchase price is signed in any event, was entitled to the differby the plaintiff, and she, if such is the ence between that sum and $25,000.00 law, would be equally bound and es- It will be seen that the plaintiff declared topped by her said receipt, as he would upon an express contract. She did not be as to the consideration. We do not, claim the difference between the total of however, think that either proposition is all the liens and $25,000.00; but definitely correct. The real consideration and the asserted that the agreement between hercontemporaneous agreement can be in- self and Haefner was, that he was to quired into, if an agreement as to the pay her $4,200.00. In the charge to the

was really made. In Rimestone jury, the Court called attention to the v. Reifsnyder, 4 Sup., 78, it was held testimony presented on her behalf, and that, " ordinarily, the deed is prima facie said: "Now, only if you believe that there evidence of the amount of consideration was such an arrangement made at that

same

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