Commonwealth ex rel. v. Hibbs et al.

Commonwealth's counsel contend that immediately before May 31, 1911, the burden reconstructing and maintaining Beaver Run bridge rested upon Westmoreland County; and that the Sproul Act did not shift such burden to the Township of Salem or to the Commonwealth of Pennsylvania.

The learned counsel representing the County of Westmoreland contend that, because the Township of Salem, in 1897, constructed Beaver Run bridge, and because, under the laws existing in 1897, said township was obligated to build and maintain said bridge the Commonwealth of Pennsylvania, under the provisions of the Sproul Act, assumed the burden of reconstructing and maintaing this bridge when it took over Route No. 187, of which the said Beaver Run bridge forms a part.

The counsel on both sides agree that the decision of the court in the instant case depends upon the proper construction of section 34 of the Sproul Act. It is conceded that Beaver Run bridge forms a part of Route No. 187. The disputed question is, whether said bridge "has been or might properly be built, according to any existing laws," by the Township of Salem. In 1897 Beaver Run bridge was built by the Township of Salem in accordance with laws then existing. This is not disputed.

However, after March 15, 1911, and prior to May 31, 1911 (when the Sproul Act was enacted), the burden of reconstructing and maintaining this bridge rested on the County of Westmoreland.

After March 15, 1911, and before the enactment of the Sproul Act (May 31, 1911), Beaver Run bridge could not properly have been built by Salem Township in accordance with the laws then existing.

In Com. ex rel. v. Bird, 253 Pa. 364, the bridge in question formed part of Route No. 17, and was a wooden structure 100 feet long, which had been constructed pursuant to a proceeding under the 35th section of the Act of June 13, 1836, P. L. 551, by the County of Bradford, as a county bridge; which proceedings were entered of record; and thereafter said bridge had been maintained and repaired by the said county: Held, that the burden of reconstructing and maintaining said bridge rested upon the County of Bradford.

In Manchester Township v. Wayne County Commissioners, 257 Pa. 442, the County of Wayne in 1898, by proceedings under the Act of June 2, 1887, P. L. 306, had appropriated a turnpike road situate in Manchester Township. After such appropriation the said road had been maintained by said township until 1916, when the supervisors of the township applied to the Court of Common Pleas for a writ of mandamus, requiring the County Commissioners of Wayne County to maintain and repair said appropriated road. The court below awarded the writ and the Supreme Court, on appeal, affirmed the judgment. The appropriated turnpike was not a state highway under the Act of May 31, 1911, P. L. 468. This case did not involve the construction of a bridge.

In Com. ex rel. v. Grove, 261 Pa. 504, a writ of mandamus was awarded requiring the County Commissioners of Centre County to maintain and repair' two bridges along Route No. 56. Route No. 56 had been a turnpike road, which, on Jan. 27, 1908, was appropriated and paid for by Centre County. The petition for mandamus was filed in 1916.

In that case, the bridge had not been built by College Township; and said township was not required by any law existing either in 1908 or on May 31, 1911, to build said bridges.

In other words, in 1908, when the turnpike was condemned by Centre County, the duty of maintaining these bridges rested on that county; and after the

Commonwealth ex rel. v. Hibbs et al.

passage of the Act of March 15, 1911, P. L. 21 (March 15, 1911), the duty of maintaining said bridges rested upon Centre County. It was held that the Act of May 31, 1911, P. L. 468, did not shift this burden from the county to the Commonwealth.

In the above case, the Supreme Court, in affirming the judgment of the court below, said: "By the repealing Act of March 15, 1911, P. L. 21, the duty of maintaining the two bridges involved in this proceeding was reimposed upon the County of Centre, and that duty continues to rest upon it under section 34 of the Act of May 31, 1911, P. L. 468: Com. ex rel. v. Bird, 253 Pa. 364.” We are of opinion that the instant case cannot be distinguished in principle from Com. v. Grove, 261 Pa. 504.

The legislature has the power to classify the highways of the Commonwealth, and to impose the burden of the construction or maintenance of each class either upon the Commonwealth or upon a particular municipal division in which such highway is located.

The cost of the construction of a bridge may be imposed on a county, while the maintenance of said bridge may be imposed upon a township or other municipality through which it passes; for the construction and maintenance of highways is delegated to the legislature.

Speaking of this subject, the Superior Court in Com. v. Bowman, 35 Pa. Superior Ct. 410, 414, says: "There is no constitutional obligation on any municipal district to maintain public highways. The duty is imposed by statute, and it is a matter of legislative discretion whether a highway shall be maintained by the county or by a local municipal district. . . . A county bridge and the approaches thereto are a part of the public highway, often wholly in one township, and are erected and maintained at the charge of the county, but no one contends that the township may not be relieved from the cost of such part of a public highway by proper proceedings in the Court of Quarter Sessions. In such a case, all of the taxpayers of the county are required to contribute to the erection and maintenance of the bridge, which, before it was made a county charge, was a burden upon the local district. Highways are for the use of the public generally, and if, by reason of difficulty of construction or cost of maintenance, it is deemed advisable that one of them be constructed or maintained out of the county fund, taxpayers of another township or borough have no standing to object on the ground of inequality of taxation."

We are constrained to hold that the phrase "any existing laws," as used in section 34 of the Sproul Act of 1911, relates to the time of the enactment of said Sproul Act.

In Jonesboro v. Cairo & St. Louis R. R. Co., 110 U. S. 192, the facts were as follows: The citizens of the City of Jonesboro, in 1868, voted to subscribe $50,000 to the capital stock of the Cario & St. Louis Railroad Company. When the vote was taken the city was not authorized by the laws of Illinois to make such subscription. However, in 1869, an act was passed by the Legislature of Illinois ratifying such subscriptions as had previously been voted by the electors of any city. In 1870 the State of Illinois adopted a new constitution, which contained the following proviso: "No . . . city . . . or other municipality shall ever become subscribers to the capital stock of any railroad or private corporation. . . . Provided, however, that the adoption of this article shall not be construed as affecting the right of such municipality to make such subscriptions where the same have been authorized, under the existing laws, by a vote of the people of such municipalities prior to such adoption."

Commonwealth ex rel. v. Hibbs et al.

Refering to the above proviso of the Constitution of Illinois, the United States Supreme Court, in the case above cited, says: "We are of opinion that the right of the city to make the subscription in question and to issue bonds in payment thereof was saved by the above proviso. . . . The phrase 'under existing laws' in the section of the Constitution referred to relates, we think, to the time of the adoption of the Constitution, rather than to the time when the vote of the people was in fact taken."

In the instant case, we are constrained to hold that the phrase, “any existing laws," in section 34 of the Sproul Act, refers to laws existing at the time of the adoption of said Sproul Act; and does not refer to laws which were in existence in 1897, when Beaver Run bridge was built.

In other words, the expression, "any existing bridge, or any new bridge, which has been or might properly be built according to any existing laws, by the townships," comprehends only bridges that had been built by townships under laws which were still in existence when the Sproul Act was enacted; and also new bridges, which might properly be built by townships under laws existing, or in force, when the Sproul Act was enacted.

At the time when the Sproul Act was enacted, the law under which Salem Township had built Beaver Run bridge was not in existence-it having been repealed March 15, 1911, by the Act of March 15, 1911, P. L. 21-six weeks before the passage of the Sproul Act.

Here there was proof that in recent years an employee of the State Highway Department made slight repairs upon the Beaver Run bridge, but no special authority so to do was shown. We are of the opinion that the duty of constructing and maintaining this bridge was not thereby transferred from the County of Westmoreland to the Commonwealth of Pennsylvania: East White Land Township v. Chester Co., 235 Pa. 579; Winters v. Koontz, 60 Pa. Superior Ct. 134.

The learned counsel for the respondents earnestly contend that, inasmuch as the duty of constructing and maintaining this highway (Sproul Route No. 187) is imposed upon the State, the duty of constructing and maintaining bridges thereon should be imposed upon the State—thus giving the State undivided jurisdiction and exclusive control over such highway.

We agree that the jurisdiction and control of the Commonwealth over state highways should include all bridges forming parts of such highways. However, the legislature has decreed otherwise. If a change in the law is desired, the appeal therefor must be made to the legislature-not to the courts.

Decree.

And now, Aug. 10, 1925, this case came on for hearing upon petition, answer and proofs, and was argued by counsel, and, after due consideration, it is ordered, adjudged and decreed that a writ of peremptory mandamus issue, commanding and directing Elliott L. Hibbs, James F. Torrance and John P. Kilgore, County Commissioners of Westmoreland County, forthwith to maintain and repair the said bridge described in the said petition, and place the same in good, proper and safe condition, suitable and sufficient to accommodate public travel, at the proper expense of the County of Westmoreland; and commanding and directing the said Weber A. Arter, controller of said county, to advertise for bids for the performance of the work and the purchase of the materials necessary in the maintenance and repair of the said bridge, and otherwise to perform the duties required by him to be done under the acts of assembly in such cases made and provided; and that the costs of this proceeding be paid by the County of Westmoreland.

VOL. 7-31

Gibson v. Gillespie.

Pleading and practice-Practice Act of 1915-Trespass-Counter-claimSet-off-Contract-Rule to strike off.

1. In trespass, where plaintiff, who had contributed funds to a syndicate for the selling of stock, alleged that the funds were lost by mismanagement or misappropriation, a rule to strike off a counter-claim or set-off was discharged.

2. The general rule that set-off or counter-claim is well pleaded only in contract is not without exception, and the rule does not appear to have been changed by the Practice Act of 1915.

Rule to strike off counter-claim or set-off. C. P. Allegheny Co., April T., 1925, No. 849.

Before Evans, Drew and Carnahan, JJ.

Thorp, Bostwick, Stewart & Reed, for plaintiff.

Reed, Smith, Shaw & McClay, for defendant.

CARNAHAN, J., May 8, 1925.-The form of this action is that of trespass. It is based upon a verbal contract, under which money was given to defendant to invest in certain stock. Representations, according to the statement of claim, were made to the firm of Gibson & Zahniser by the defendant and by an agent of the defendant respecting a proposed syndicate, which was to confine its dealings to this particular stock. Because of these representations, the plaintiff firm made its contribution and joined the syndicate. The defendant received the money, but instead of applying it to the use and benefit of the plaintiff firm and the syndicate, fraudulently converted it to his own use. The plaintiff, therefore, wants damages.

The defendant denies the averment of agency, and he also denies that he induced or solicited the plaintiff firm to join the syndicate. There was such a syndicate, and the plaintiff firm was a member of it. The defendant did receive the money which the plaintiff firm contributed, and, claiming that he was acting for the syndicate, did invest it by purchasing the stock as contemplated in the agreement; but the market price dropped and creditors so pressed him that all of the money so invested, including the sum contributed by the plaintiff firm, was lost. The defendant denies that he fraudulently converted any of the money to his own use, averring that he faithfully carried out the terms of the agreement. Whether there was to be a profit or loss, the members of the syndicate were to share in it according to their respective contributions.

The defendant, furthermore, sets up a counter-claim. He says that the plaintiff firm was to contribute twice as much as it actually paid, and he wants the balance of the contribution so agreed to and promised.

This rule is to strike off the counter-claim, or set-off, because it has no place in an action of trespass. The denial of agency is, of course, not included in the rule.

As a general rule, no set-off or counter-claim can be properly pleaded in an action of trespass. But the rule is not without exception. Set-offs and counter-claims have been so allowed, and the Practice Act of 1915 does not appear to have changed the rule in this respect. This proceeding is based upon a verbal contract, whatever it may have been. The plaintiff could properly have brought an action of assumpsit as well as trespass. The mere form of the action does not necessarily change the rights of the parties. According to the pleadings, there was but one agreement or contract. Both the claim and the counter-claim arise out of that contract, which was a verbal one. There may,

Gibson v. Gillespie.

possibly, be some question as to whether the defendant, throughout the transaction, was acting for himself individually or as the representative of the syndicate. No such question was raised in the oral argument or in the briefs of counsel. Nor has any question been raised as to whether the alleged promise to contribute an additional sum of money was based upon any consideration which would sustain an action to recover upon it.

We are not satisfied that this rule should be made absolute, nor do we feel that the plaintiff should be estopped from renewing his application in the form of a motion or otherwise at the time of trial.

Order.

And now, to wit, May 8, 1925, motion to strike from the record the set-off or counter-claim of defendant is discharged, with leave to plaintiff to renew his said application, at the time of trial, by motion, objection to the admission of evidence on said claim or otherwise.

From William J. Aiken, Pittsburgh, Pa.

King's Estate.

Executors and administrators-Letters of administration to son-Decedents' estates-Act of May 13, 1925, P. L. 598.

The register of wills has no authority to refuse letters of administration on a father's estate to a son because the son had farmed for his father on shares where the son is otherwise competent and was not indebted to his father at the time of the latter's death.

Appeal from decision of register of wills. O. C. Lancaster Co.
Charles E. Workman, for appeal; Harold G. Ripple, contra.

SMITH, P. J., July 9, 1925.-The intestate left two sons, Robert A. King and Lindley King, each of whom petitioned the Register of Wills of Lancaster County for letters of administration on their father's estate, and to each letters were refused. From the decision denying letters to him Lindley has brought this appeal.

Clause (c) of section 1 of the Act of May 13, 1925, P. L. 598, provides: "Whenever letters of administration are by law necessary, the register having jurisdiction shall grant them in such form as the case shall require to the surviving spouse, if any, of the decedent, or to such of his or her relations or kindred as by law may be entitled to the residue of his or her personal estate, or to a share or shares therein. . . ."

There is no surviving spouse. The appellant is entitled to a share in the residue of the estate and is in the nearest degree of consanguinity with the decedent. The law prefers him, and the register exceeded his discretionary power in denying him the right to administer the estate unless he is incompetent, and there is no evidence of anything which reflects on his competency. The naked facts, as here, that a son had farmed for his father on the shares does not adversely affect competency. To predicate incompetency to a son because of such a relationship seems to be a perversion of the statute. To say that a son who, from his habits and experience, is exceptionally qualified to administer an estate shall be denied that privilege solely for the reason that he had farmed for the intestate would not be consistent with the purpose of the act, which does not contemplate the impeaching of the family's