ePub 版

man had no jurisdiction in the case, as man which was affirmed by the Court the period of 60 days had elapsed after below was illegal. It was as follows: the commission of the alleged offense in “ And for the said offense, he is senthe complaint." (5)

tenced to pay a fine of fifty dolars and " 7. The uncontradicted proof before costs of twenty-eight dollars and ninety the Alderman was that none of the cents, and in default of the payment of physicians could say to a certainty that said costs and fine, to be committed to said patient, Alberta Kauffman, had the the jail of Lancaster County for the perdiphtheria or symptoms thereof at the iod of ten days." time your petitioner attended said child,

TENTH. The complaint of Jere G. and your petitioner testified that it had Mumma, the Health Officer, upon which not such symptoms." (0)

the suit was based, is defective in this: The Court below in their opinion said It alleges that the offense occurred on inter alia:

the 7th day of June, 1914, and for sev“ It was amended by the Act of April eral days prior thereto, and the com22, 1903, P. L., 244, by adding: ‘Pro- plaint itself was made August 19, 1914, vided, however, that all actions for the more than sixty days thereafter, which recovery of any fine or penalty, for the offense was barred by the act of limitaviolation of any of the provisions of this tions. Act, shall be commenced within sixty days from the commission of the offense,

B. F. Davis, for appellant. and not afterwards.' This proviso is The Board of Health did receive noomitted in the Act of 1909 and is no por- tice of the case from the physician who tion of that law, which is complete in succeeded Dr. Evans. It therefore had itself. The point raised by the defend- no cause of complaint. ant's counsel hat, under the Act of Meux v. Bell., i Hare 73 (23 Eng. 1903. the proceedings, not having been Chan.). commenced within sixty days, were too Shultz v. Wall, 134 Pa., 262. late, cannot for this reason be sus

The action was barred by limitation, tained." (7)

not having been brought within sixty “In the interests of the public health,

days. it seems to me that this law should be

36 Cyc., 1096-7, 1152. construed with strictness against all per

Endlich on Int. of Statutes, Sec. 85. sons who, under it, have a duty to per

People v. Henwood, 82 N. W., 70. form. I do not think that it is enough

Crosby v. Patch, 18 Cal., 438. for the defendant to say, 'I did not know.'

People v. Koenig, 21 N. Y. Sup., 283. If a physician can evade all responsibility Com. v. Sifred, 104 Pa., 179. by not knowing, the Act of Assembly is

Com. v. Vetterlin, 21 Sup., 587. practically negatived and its provisions

York Gazette Co. 7. York Co., 25 Surendered futile. Therefore, under all

perior, 517 the circumstances here presented, I am Com. V. De Camp, i 77 Pa., 112. of the opinion that the defendant failed

Acts in pari materia must be construed in this case to do his whole duty, as re

together. quired by law, and, for this reason,


Appeal of Pittsburgh A. & M. P. Ry. think his appeal ought not to be sus- Co., I Penny.. 419. tained. (11)

Daniels z. Com., 7 Pa., 371. On appeal error was assigned (1-7 and Com. 2. Potts, 79 Pa., 164. 11) as above and also the following:

Section 21 of the acts of 1895 and Eighth. The Court below erred in 1903, being still in force, the act of 1909 affirming the judgment against the de- can not take effect without the said secfendant as to the costs of the suit, no tion of the act of 1895 as amended. provision having been made in the Act State v. Leich, 78 V. E. Rep., 189. of Assembly for the imposition of costs.

Culver v. People, 43 N. E. Rep., 812. NINTH. The sentence of the alder- That there is no repeal by implication.

[ocr errors]

Re Contested Election of Barber, 86 practising in this Commonwealth who Pa., 392. Opinion 400.

shall treat or examine any person for or Kilgore v. Com., 94 Pa., 497.

afflicted with diphtheria to forth with Part of the sentence was the payment make a report in writing to the health of the costs $28.90.

authorities of the township, city or borThe act is silent as to costs and they ough giving in the report certain facts cannot therefore be imposed.

in regard to the case. The defendant Com. v. Barnhart, 22 Dist. Rep., 246.

was convicted before the Alderman and Wadlinger on Costs, 236.

having obtained the proper allocatur apBrightly on Costs, 130-1.

pealed the case to the Court of Quarter

Sessions, which, after hearing without a Chas. W. Eaby, Asst. Dist. Atty., jury sustained the conviciton. John 11. Groff, District Attorney, and Two facts appear in the testimony. Coyle & Keller, for appellee.

The case treated was diphtheria and the The appeal brings up nothing but the doctor failed to report the case. The record.

two elements essential to conviction were Com. v. Layton, 45 Super., 582.

present. The defendant interposed the Peet v. City of Pittsburgh, 96 Pa., 218. defense that he did not know the disease

Whether his explanation The unrepealed sections of the Act of was present. 1895 as amended by the Act of 1903

was credible was to be determined by the have nothing to do with the failure of à justice and the court respectively and physician to report a contagious disease both came to the conclusion that the deand the limitation therein does not ex

fendant was guilty. We are satisfied tend to the Act of 1909 which is com

that upon the merits, the conviction of plete in itself.

the defendant was just. However, the The question of costs can not now be consideration of the testimony is unnecraised.

sary on our part. The proceeding being Thompson v. Preston, 5 Super., 154.

a summary conviction and not accordCom. v. Menjou, 174 Pa., 25.

ing to the course of the common law, the

case comes before us as if on certiorari: It was not a case of “ Not guilty.” Crawford Co. v. Barr, 92 Pa., 360.

Ruhlman v. Commonwealth, 5 Binney, Com. v. Moore, 22 C. C. Reps., 321.

24; Diamond Street, Pittsburgh, 196 Pa., The costs incident to the proceeding 254 : Venango Co. Licenses

, 58 Pa. Su

perior Ct., 277, and Commonwealth v. follow as a part of the sentence imposed Layton, 45 Pa. Superior Ct., 582. We on the convicted defendant.

are therefore not concerned as to the Northampton v. West, 28 Pa., 173. Lancaster Co. v. Brinthall, 29 Pa., 38. limited as to the regularity of the pro

testimony in the case, but our inquiry is Gannon v. Gamble, 10 Watts, 382. South Bethlehem Connolly, 3

ceedings. In this view of the case there

are but two matters left for us to conMontg., 142.

sider. In any event the Superior Court, un- The first is the claim of the statute of der Section 8 of the Act of June 24, limitations. The Act of June 18, 1895, 1895, P. L., 212, has power over costs.

P. L., 205, is an act“ to provide for the Lyons ?. Means, i Super Ct., 608, p.

more efficient protection of the public 013

health in the several municipalities of Opinion by TREX- this commonwealth," and as amended by LER, J.

the Act of April 22, 1903, P. L., 244,

provides that suit for the recovery of the The defendant is a practising physi- fine for violation of the act must be cian and as such was charged with fail- commenced within sixty days from the ing to make report of a case of diph- commission of the offense and not aftertheria which he treated. Section of | wards. The Act of May 14, 1909, P. L., the act of May 14, 1909, P. L., 855. 855, under which the defendant was conmakes it the duty of every physician victed is an act, “ to safeguard human


May 14, 1915.

life and health throughout the common- to the payment of costs. The costs folwealth, by providing regulations for the low the judgment, and are incident to it. control of certain communicable diseases None of the penalties mentioned in our and the prevention of infection there- Criminal Code, 31 Mar., 1860, P. L., 404, from, and prescribing penalties for the specifically include costs.

At common violation of said regulations.” The latter law the defendant was liable for costs act specifically repeals various sections after indictment found, whether he was of the Act of 1895, leaving but the title, convicted or acquitted on the trial and the' enacting clause and sections 12, 20 it was not until the Acts of 22 Septemand 21. Section 12 requires principals ber, 1791, 3 Sm. Laws, 37, and of 20 of schools to refuse admission of chil- March, 1797, 3 Sm. Laws, 281, were dren, except upon certificate of a physi- passed, that the defendant when accian. Section 20 relates to members of quitted was relieved of this duty. The boards of health and section 21 provides preamble of the Act of 1797 recites that a penalty for the violation of the provi- the defendant when acquitted is “equally sions of the act and as amended by the | liable to costs of prosecution as if he Act of 1905, P. L., 244, requires prose- were convicted." This was the case as cutions to be brought within sixty days to defendants charged with crime before after the offense has been committed. a justice of the peace and acquitted, and It is argued that these two acts being the 13th section of the Act of 1791. in pari materia the limitation of sixty supra (still in force, Lehigh Co.. days within which suit must be brought Schock, 113 Pa., 373), was passed to cure applies to the latter act. To this we can- this evil. These acts left the defendant not assent. The Act of 1909 does not upon conviction still liable for costs. We purport to be an amendment of the Act think this rule applies to defendants of 1895. It provides a complete system whether convicted of crimes which are in itself, places new penalties upon its indictable or of offenses which are tried violation and repeals practically the en- in summary manner without a jury. tire Act of 1895 except as above noted. Furthermore by a general law, the The Act of 1895 is therefore left with Act of 17 April, 1876, P. L., 29, the its unrepealed sections and the penalty legislature has given the court jurisdicfor its violation can still be invoked as tion of the costs in summary convicagainst those who offend against the sec- tions. That act provides “ that upon the tions which still remain. We know of allowance of an appeal in cases of sumno rule or construction which would mary conviction the appeal shall be upon take a provision of the penalty clause, such terms as to payment of costs and which as we have stated can still be in- entering bail as the court allowing the voked under what remains of the old act appeal shall direct.” The general pracand incorporate it into the Act of 1909. tice in such cases is to require the deThere is certainly nothing to indicate fendant to enter bail for the costs which that the legislative mind contemplated have accrued and which may accure to any such result.

be paid if the conviction is sustained. It The other matter is the question of would be an anomaly to hold that a decosts. The justice of the peace who fendant who does not appeal need pay sentenced the defendant imposed the no costs, and one who appeals and is costs upon him although the Act of 1909 | convicted must pay them. We conclude supra under which he was sentenced that the defendant having been conprovides merely for the imposition of a victed is liable for the costs. fine, and imprisonment in default of pay- All the assignments of error are overment and says nothing as to costs. The ruled and the order of the Court is afdefendant argues that as no costs are firmed. Appellant for costs. mentioned in this act none can be imposed. We think, however, that in our state, the rule prevails that the conviction nf the defendant renders him liable

Common Pleas--Equity. is a beneficial society, located and hav

of law :

Vol. XXXII.) FRIDAY, JUNE 4, 1915. [No. 31

The Lady Franklin Council No. 85 of Pennsylvania Daughters of Liberty ing its lodge room in the City of Lancaster. It has a large membership, the

exact number of which cannot now be Ida Neff v. Chas. V. Schied, et al., Members stated. Among its members are Jeff

and Officers of Lady Franklin Council, No. Snyder, George Staines, John D. Ruth,

85, of Pennsylvania Daughters of Liberty. Ida E. Remley, and Mary C. Kauffman, Beneficial societiesRights of members all of whom were, at the time of the

-By-laws and rules Unbecoming Council of said organization. The plainconduct-Refusal to attend tribunals of society-Jurisdiction of equity- tiff became a member of said Lady Mandamus-Waiver of notice.

Franklin Council on June 28, 1905, and

she continued to be a member thereof One who becomes a member of a beneficial until June 16, 1909, when she received society accepts and is bound by the rules a notice from Albert McCutcheon, the adopted for its government, whether they be Recording secretary of said Lodge, that called a constitution or by-laws, provided they are not in contravention of the laws of the she had been expelled from the Order. Commonwealth.

It appears that, on May 5, 1909, John Such member is bound to resort to the tri- C. Reese, who was also a member of this bunals of his order, and their judgments are Order, preferred the following charges to be transferred to courts of law because of against her: an adverse decision.

** Conduct unbecoming a Daughter of Laws and rules of a beneficial society in Liberty. accordance with which a member was expelled for contempt for refusing to plead and stand Ida Neff, did, on Wednesday, March

“ ist. That the above named sister, trial when accused of “unbecoming conduct” and “ using improper language for calling a 31st, A. D. 1909, at a stated session fellow-member a liar, are valid and binding held on the date just mentioned, in the on such member, and the court will not set

presence of a large number of members aside such proceedings and reinstate the member expelled.

present, under the head of suggestions Where a member appears at a hearing of for the Good of the Order, and during charges made within the lodge, this constitutes an argument, the said sister, Ida Neff, a waiver of any irregularities in the notice did, then and there, deliberately use thereof.

In such case a bill for reinstatement by very ugly language to Brother J. C. mandamus would be the proper remedy.

Reese and others, also members of the

Council just mentioned. Bill in equity to reinstate plaintiff to 2nd. That upon circumstantial evimembership in defendant society. C. P. dence, the said Ida Neff did, upon difof Lancaster County, Equity Docket No. ferent occasions, publish and reveal to 6, page 1.

and in the presence of people who were B. F. Davis, for plaintiff.

not members of the Daughters of Lib

erty, as to the business that was conH. Frank Eshleman, for defendant. ducted during the session of Lady

Franklin Council, No. 85, Daughters of March 27, 1915. Opinion by LANDIS, Liberty.

"Fraternally submitted, J. C. Reese. [recital of pleadings].

(Council Seal)."

Thereupon, on May 12, 1909, a comThe case was then duly heard at the mittee was appointed by the Council to regular term of Court, and from the pass upon the said charges. testimony there presented, the Court now! On May 26, 1909, the committee as

P. J.

[ocr errors]


sembled, and the charges being read to she is expelled from this Council. Also Mrs. Neff, who was present, she was notify Pride of Conestoga Council and requested to plead guilty or not guilty. Sylvania Council of the expulsion of She refused to do so, and the trial com- Sister Neff.” mittee thereupon heard three witnesses, When the charges were presented, the and decided to adjourn until later, and Secretary took a copy of them to the then prepare a report. On June 1, 1909, plaintiff's home, but she was not there. the committee reported to the Council He then sent them by special delivery, as follows:

but his letter was returned, “Refused." “ Lancaster, Pa., June ist, 1909. After the report of the committee was "To Lady Franklin Council, No. 85, made to the Council, namely, on June 9, Daughters of Liberty.

1909, he gave her a notice to be present “The undersigned committee, ap- two weeks later, by placing the same unpointed to investigate the charges pre- der the door of her residence, she being ferred by Bro. John C. Reese against absent. This was the notice of the conSister Ida Neff, respectfully report as tempt proceedings. After the Council follows:

acted, he gave her notice of her ex“ The committee met on Wednesday pulsion, and she, on July 2, 1909, apevening, May 26th, 1909, at half-past pealed to the Appeal Committee of the seven, for the purpose of hearing the State Council. The following is a copy case, and, after having heard three (3) of her appeal: witnesses for the prosecution, Sister Ida "The undersigned, a member of Lady Neff said she had no business there, and Franklin Council No. 85, respectfully apshe had business in the Council room, peals to your committee from the action and immediately left the room. We of said Council in expelling the undertherefore, consider her guilty of con- signed, Ida Neff, from said Lady Franktempt, according to Law 13, Sec. 9, lin Council, No. 85, D. of L., for conGeneral Laws, and recommend that tempt to the committee in the charges Sister Ida Neff be expelled from the preferred against her by Bro. John C. Council. The minutes of the committee, Reese, when she did not stay to hear the a copy of the evidence taken, and all evidence. The words in question being the papers pertaining to the trial, as copies from notice received by appellant, required by Rule 6, Sec. 1, are herewith June 22nd, 1909, from Albert Mcplaced in the custody of the Council. Cutcheon. Rec. Sec. of Lady Franklin “ Fraternally submitted,

Council, No. 85, D. of L., of Lancaster (Seal of Council)

Pa., of which said Council appellant “Jeff Snyder, Chairman, was, and is, a member in good standing, George Staines, Sec'y, a copy of said notice being attached hereJohn D. Ruth,

to. Ida E. Remley,

“ The ground upon which this appeal Mary C. Kauffman,

is taken are as follows: Committee."

“ ist. No copy of the charges were On June 16, 1909, the report of the ever received by or served upon appelcommittee was read, and the following lant, although demand was made by her action, as appears by the Minutes of the to the Rec. Sec., A. M. McCutcheon, Council, was taken: “On motion of for a copy of same, the said McCutcheon Brother Scheid, the report of the com- refusing to comply with her demand. mittee was received and a ballot was “ 2nd. The offense alleged in the taken in which there were 32 black balls notice of expulsion above referred to for out of 33 members to expel Sister Neff. contempt to the committee, etc., applyThe Councilor expelled her from this ing to the committee which heard the Council.”. Following this appears the case, could not have been the charge additional entry: “On motion of Brother originally made, and, therefore, the acLong, the Recording Secretary was in- tion of the Council in expelling appelstructed to notify Sister Ida Neff that 'lant was unjust and illegal.


« 上一頁繼續 »