Schell's Estate.

shown, nevertheless, in the present case we feel that with the spirit of enmity existing on the part of this ward and her husband-the husband especiallywe think better results can be reached by the guardian of the ward's choice being appointed and the present guardian relieved from his embarrassing position.

We hope the transfer of the funds may be reached without the expense incident to the filing of an account, which would of necessity deplete the small amount in the hands of Zechman, the present guardian.

We have confidence in the new guardian, else we would not appoint him, but we want him to fully realize that he is responsible for every dollar that comes into his hands, and that if any article is necessary for the ordinary comfort of this child, he is to purchase it and pay for it from the funds in his hands. And we want him further to fully realize that he is not supposed to hand over this money, or any part of it, to this husband or to his wife.

And now, to wit, April 18, 1925, for the reasons as expressed in this opinion, the citation is made absolute; E. G. Zechman is relieved from the guardianship of Mabel Specht Schell, and M. H. Walter is appointed as her guardian in his stead, he to enter into bond in the sum of $800, conditioned for the faithful performance of his duties as such guardian, with A. A. Bingaman, C. H. Wolfley and Calvin Schell as sureties, which bond, having been presented to the court, is hereby approved. The duties of the new guardian to begin on this date.

Smith v. Becht et al.

Mandamus - Jurisdiction Common Pleas of Dauphin County-Acts of June 14, 1836, and June 19, 1913.

1. Want of jurisdiction may be taken advantage of at any stage of a proceeding. 2. A court is bound to take notice of a question of jurisdiction, although no objection was made on the ground of want of jurisdiction.

3. Jurisdiction is a matter of law which a court must judicially notice.

4. Courts of Common Pleas in Pennsylvania had no authority to issue a writ of mandamus until such authority was conferred upon them, to a very limited extent, by the Act of June 14, 1836, P. L. 621.

5. Under the Act of June 14, 1836, the Court of Common Pleas of Dauphin County had no jurisdiction by mandamus of the Public School Employees' Retirement Board of the Commonwealth of Pennsylvania, and such jurisdiction was not conferred by the Act of June 19, 1913, P. L. 526.

5. The Court of Common Pleas of Dauphin County has jursidiction by mandamus of the Superintendent of Public Instruction of Pennsylvania, but it was held in this case that such jurisdiction ought not to be exercised.

Mandamus. C. P. Dauphin Co., Commonwealth Docket, 1924, No. 69.

Robert W. Beatty, for plaintiff.

Philip S. Moyer, Deputy Attorney-General, for defendant.

WICKERSHAM, J., Feb. 2, 1925.-The plaintiff, alleging in his petition that he was duly elected April 11, 1922, to the office of County Superintendent of Public Schools of Delaware County for a term of four years, and that, having attained the age of seventy years Sept. 16, 1923, he was retired by the defendants under the provisions of the Public School Employees' Retirement Act of July 18, 1917, P. L. 1043, on June 30, 1924, and that since that date the defendant, the Superintendent of Public Instruction, has refused to place petitioner's

Smith v. Becht et al.

name on the payroll and to issue a voucher and requisition upon the proper officers for the payment of his salary, prayed the court for a writ of mandamus, directed to the defendant, the Superintendent of Public Instruction, and the defendants, the Public School Employees' Retirement Board, commanding the Superintendent of Public Instruction to issue a voucher and requisition upon the proper officer for the payment of his salary, and compelling the said Public School Employees' Retirement Board to countermand and withdraw the said order and notification terminating his employment and to reinstate him to said office, whereupon a writ of mandamus was issued by this court in the alternative form.

The return of the defendants admits the averments of fact contained in the petition of the plaintiff. Defendants contend, however, that the exercise of the powers and duties of the said office by the plaintiff since June 30, 1924, became unlawful, for the reason that he was retired by the Public School Employees' Retirement Board of the Commonwealth of Pennsylvania, to take effect on that date, in accordance with the provisions of paragraph 2 of section 14 of the Act of July 18, 1917, P. L. 1043. The defendants deny the legal conclusions contained in the seventh, eighth and ninth paragraphs of the plaintiff's petition.

The plaintiff demurred to the return of the defendants and the case was heard by the court on petition, return and demurrer.

It will be observed that this is an effort on the part of the plaintiff, A. G. Criswell Smith, to compel the members of the Public School Employees' Retirement Board of the Commonwealth of Pennsylvania, by mandamus, to countermand and withdraw the order and notification terminating his employment and to reinstate him to said office. We do not think this court has any jurisdiction to issue a writ of mandamus to the said defendant board. The question of jurisdiction was not raised, either by the learned Attorney-General or by counsel for the plaintiff. Want of jurisdiction, however, may be taken advantage of at any stage of the proceeding: Stearly's Appeal, 3 Grant, 270; and we are bound to take notice thereof, even though no objection is made on the ground of want of jurisdiction: City of Lansing v. Chicago, M. & St. P. Ry. Co. (Supreme Court of Iowa), 52 N. W. Repr. 195; Kline v. Kline, 57 Iowa, 386, 10 N. W. Repr. 825. It is a matter of law which the court must judicially notice. It is not like the ordinary case of limitations or presumptive bar from lapse of time, determination of which may depend upon the proof of the cause: Berrett v. Oliver et al. (Supreme Court of Maryland), 7 Gill. & J. 191-207.

The writ of alternative mandamus originally issued against “J. George Becht, Superintendent of Public Instruction, and the State Retirement Board." Later, we permitted the plaintiff to amend the caption by stating the parties defendant as follows: "J. George Becht, Superintendent of Public Instruction, and Charles J. Becht, Charles A. Snyder, Samuel M. Goodyear, Aaron S. Kreider, Robert E. Laramy, Grace G. Swan and Lucy W. Glass, members of Public School Employees' Retirement Board of the Commonwealth of Pennsylvania."

The Courts of Common Pleas in the State never were authorized to issue the high prerogative writ of mandamus until it was conferred in a very limited form by the Act of June 14, 1836, P. L. 621, which declares that they shall, within the respective counties, have the like power with the Supreme Court to issue writs of mandamus to all officers and magistrates elected or appointed in or for the respective county or in or for any township, district or place within such county, and to all corporations being or having the chief

Smith v. Becht et al.

place of business within such county: Wolf v. Com., 64 Pa. 252; Com. v. Wickersham, 90 Pa. 311. The defendants, who compose the members of the Public School Employees' Retirement Board of the Commonwealth of Pennsylvania, are not officers and magistrates elected or appointed in and for the County of Dauphin, nor are they a corporation being or having a chief place of business within such county, nor are they included among the parties named in the Act of June 19, 1913, P. L. 526, conferring jurisdiction upon the Court of Common Pleas in which the seat of government is or may be located to issue writs of mandamus to the officers and boards in said act more fully set forth: Farnham v. The Pennsylvania State Board of Examiners for Registration of Nurses et al., 15 Dauphin Co. Reps. 38.

We have jurisdiction to issue the writ against J. George Becht, Superintendent of Public Instruction, but it ought not to be exercised. It appears from the pleadings that the plaintiff, after he attained the age of seventy years, was retired by the defendants, the members of the Public School Employees' Retirement Board of the Commonwealth of Pennsylvania, as county superintendent, on June 30, 1924. The Superintendent of Public Instruction could not place his name on the payroll and issue a voucher and requisition upon the proper officers for the payment of his salary unless he was reinstated by said board. We have no jurisdiction to compel the said board to reinstate him by writ of mandamus. It appearing that the plaintiff is no longer county superintendent of Delaware County, he is, therefore, not entitled to receive his salary as such officer, nor to have granted the prayer of his petition for a writ of mandamus commanding the Superintendent of Public Instruction to issue a voucher and requisition upon the proper officer for the payment of his salary.

For the reasons we have given, the proceeding is, therefore, dismissed, at the cost of the plaintiff.

From Sidney E. Friedman, Harrisburg, Pa.

Mine Inspectors.

Mine Examining Board-Appointment of mine inspector fifty years old— Acts of June 9, 1911, and May 17, 1921.

Under section 3, article xix, of the Act of June 9, 1911, P. L. 756, and section 3 of the Act of May 17, 1921, P. L. 831, relating to the qualifications respectively of bituminous and anthracite mine inspectors, the Mine Examining Board, except in the cases covered by the provisos contained in the statutes, may not grant a certificate of qualification to a candidate for the office of mine inspector who has reached his fiftieth birthday, even though he possesses all the other qualifications required by the act.

Department of Justice. Opinion to Hon. Joseph J. Walsh, Secretary of

Mines.

-

GOLLMAR, Dep. Att'y-Gen., June 9, 1925. — Your favor of the 13th ult., addressed to the Attorney-General, is at hand. You ask to be advised whether the Mine Examining Board is justified in refusing to grant a certificate of qualification to an applicant for the office of mine inspector who has reached his fiftieth birthday, even though he possesses all the other qualifications required by the act.

Section 3, article XIX, of the Act of June 9, 1911, P. L. 756, relating to the qualifications of bituminous mine inspectors, provides:

Mine Inspectors.

"The qualifications of candidates for the office of inspector shall be certified to the Examining Board and shall be as follows:

"The candidates shall be citizens of Pennsylvania, of temperate habits, of good repute as men of personal integrity, in good physical condition and shall be between the ages of thirty and fifty years: Provided, however, That any inspector appointed under the provisions of the act of May fifteen, one thousand eight hundred and ninety-three, or under the provisions of this act, shall be eligible for reappointment, even if beyond fifty years of age, if in good physical condition."

Section 3 of the Act of May 17, 1921, P. L. 831, relating to the qualifications of anthracite mine inspectors, provides as follows: "... They shall be citizens of this Commonwealth and residents of the anthracite region, of temperate habits, of good repute, of personal integrity, in good physical condition and not under thirty or over fifty years of age: Provided, however, That any person who is now serving as inspector under the provisions of the act of June eighth, one thousand nine hundred and one, . . . and its amendments, shall be eligible for appointment, even if beyond fifty years of age, if in good physical condition."

...

The qualifications as to age in both of these acts of assembly are the same in effect and intent, if not in language.

"When the word 'between' is used with reference to a period of time, bounded by two other specified periods of time, such as between two days named, the days or other periods of time named as boundaries are excluded:" Richardson v. Ford, 14 Ill. 332; Winans v. Thorpe, 87 Ill. App. 297.

"The word 'between,' when used in speaking of the period of time between two certain days, generally excludes the days designated as the commencement and termination of such period:" Kendall v. Kingsley, 120 Mass. 94; People v. Hornbeck, 61 N. Y. Supp. 978.

"'Between,' when properly predicable of time, is intermediate:" Bouvier's Law Dictionary, 340.

The language of the Act of 1921, relating to anthracite mine inspectors, clearly intends that a candidate shall not be more than fifty years of age. "The words of the statute, if of common use, are to be taken in their natural, plain, obvious and ordinary significance:" Philadelphia & Erie R. R. Co. v. Catawissa R. R. Co., 53 Pa. 20. The ordinary acceptance of the use of the word "over" in connection with a term of years is "more than" or beyond. A man who has reached the fiftieth anniversary of his birth has lived more than or beyond fifty years and is, therefore, in the language of the act, over fifty years of age. Both of these acts of assembly were passed for the purpose of providing for the health and safety of persons employed in and about the coal mines of Pennsylvania. The legislature undoubtedly had this in mind in stating the qualifications of the candidates for this office. Under the statutes quoted, it has stated that certain qualifications are necessary to those whose duty it is by inspection to properly safeguard the health and safety of those employed in and about the mines. A certain age is a necessary requirement for a person applying for qualification as a mine inspector.

Except in the case of the provisos contained in the act, I am, therefore, of the opinion that the Examining Board cannot legally grant a certificate of qualifications to a candidate for the office of mine inspector who has reached his fiftieth birthday, even though he possesses all the other qualifications required by the acts of assembly referred to above.

From C. P. Addams, Harrisburg, Pa.

VOL. 7-2

Czechoslovak Catholic Church Charter.

Corporations Incorporation ·Corporation of the first class "Catholic"-False pretence and false premises.

1. Upon an application for incorporation of a religious organization to support the public worship of Almighty God in accordance with the faith, doctrine, discipline and government of the Czechoslovak National Catholic Church of America, where it appears that the members of the organization believe in the truth of the fundamental doctrines upon which all religious institutions are built, the court cannot say that the organization is based upon false pretences and false premises. 2. The word "Catholic," without any prefix to the same, does not signify any particular religion, but is simply a word pertaining to the whole Christian church. The presence of that word in the title of a proposed corporation is not a sufficient reason for refusing incorporation.

Application for incorporation. C. P. Allegheny Co., July T., 1924, No. 1207. Before Swearingen, Cohen and Kline, JJ.

W. M. Mahan, for petition; Joseph M. Friedman, contra.

KLINE, J., Jan. 3, 1925.—The petitioners in this case seek to be incorporated as a religious organization, under the name of St. Cyrill and Method Czechoslovak Catholic Church of Tarentum, Pennsylvania.

The purpose for which said corporation is formed is to support the public worship of Almighty God in accordance with the faith, doctrine, discipline and government of the Czechoslovak National Catholic Church of America.

Exceptions were filed, and it is upon these exceptions that the case is now before us.

The exceptants allege that the purposes of the organization are based on false pretence and false premises, and the lack of necessity of this new religious cult.

How can we say that a religious organization is based upon false pretences and false premises when the object of the corporation is to support the public worship of Almighty God and its members believe in the truth of its fundamental doctrines, which are the cornerstone upon which all religious institutions are built. The note that was struck upon the Rock of Plymouth was but the grand prelude to the swelling anthem of civil and religious liberty; and those who laid the foundation stones of this Republic in framing the fundamental law of our land well realized this when they embodied in our Constitution the right of every one to worship Almighty God according to the dictates of his own conscience; to which so much of American success is attributable.

There is also a complaint of the word “Catholic" being used in the name.

The term "Catholic" is defined to be of or pertaining to the Holy Christian Church; in accordance with the decrees of the seven general councils; not heretical; not schismatic. Also universal in reach; comprehensive; general; the original sense. It is a term applied to the whole of the Christian church, such as the Holy Catholic, Apostolic and Roman Church; Greek Catholic Church, the Catholic Apostolic Church and contained in the confession of faith of many of the Protestant churches of to-day.

Therefore, the word "Catholic," without any prefix to the same, does not signify any particular religion, but is simply a word pertaining to the whole Christian church.

After a careful consideration of the exceptions and the evidence taken relative to the same, we are of the opinion that they should be dismissed.

From William J. Aiken, Pittsburgh, Pa.