Dethoff v. City of Reading School District.

priated sufficient funds to permit it legally to contract for the erection of the said museum and art gallery."

This latter allegation the defendant answers by saying that it is entirely insufficient in law to base an injunction, because it does not aver "that there will not and cannot be sufficient funds in the treasury (of the defendant) at the time such contract may be entered into to discharge the obligation created thereby." Also, that it is not averred "that such contract, if entered into, will create an indebtedness in excess of the constitutional limit of indebtedness." And, further, that the bill does not aver "that there was not sufficient funds in the treasury (of the defendant), unappropriated at the time the contract was authorized and executed, to meet the obligation created thereby."

These latter objections of the defendant to the plaintiff's bill must also be sustained. The test is not whether the defendant had in its treasury at the time the plaintiff's bill was filed and before letting the contract for a museum sufficient funds to carry out the contract. But the question is rather "Would there be such funds in the treasury and were they there when the contract was let?" If there was unappropriated money in the treasury in sufficient amount at the time the contract was let, no injunction could issue: Booth v. Weiss, 15 Phila. 159. But the law does not require any money to be in the treasury as a prerequisite of a school district's right to contract. It is sufficient if provision is made for the collection of an annual tax sufficient to pay the interest and principal of the obligation incurred within thirty years: Constitution of Pennsylvania, art. Ix, § 10, 1 Purd. Dig. 199.

And now as to the allegation that the erection of a museum is illegal and its erection as a separate building is not contemplated by the law. As stated above, a court of equity will not interfere with a municipal corporation when it acts within the authority given it by law, and it is only when it transcends those legal limits that it is amenable to a court of equity by way of injunction: 2 Story's Eq. 955, note a. The question then is, "Did the defendant school district transcend the legal limits of its powers?"

That a school district has a right to establish a museum is clearly set forth in section 401 of the "School Code" as follows: "The board of school directors in every school district in this Commonwealth . . . may establish, equip, furnish and maintain the following additional schools or departments for the education and recreation of persons residing in said district, which said additional schools or departments, when established, shall be an integral part of the public school system in such school district, and shall be so administered, namely: High schools, . . . evening schools, kindergartens, libraries, museums," etc.

The constitutional authority for this act of assembly is found in article X, section 1, of the Constitution of Pennsylvania, as follows: "The general assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this Commonwealth above the age of six years may be educated." In Hart v. Sharpsville Borough School District, 2 Ches. Co. Reps. 521, the court held that the term "education" includes the cultivation of morality as well as the attainment of knowledge and intellectual culture.

In view of the foregoing provision of the "School Code," which expressly authorizes the establishment of museums by a school district, there can be no doubt as to the authority of the defendant in this case in appropriating money for a museum. Neither does the establishment of such a museum in a separate building appear to be an abuse of discretion by the defendant, in view of

Dethoff v. City of Reading School District.

the broad powers contained in the foregoing statute and in the decisions already cited.

For these reasons, the preliminary objections filed by the defendant to the plaintiff's bill must be sustained.

And now, to wit, April 20, 1925, the court, upon due consideration, sustain the preliminary objections in the answer to the plaintiff's bill, and the plaintiff is hereby required to amend his bill accordingly within thirty days from this date; otherwise the said bill to be dismissed, with costs.

From Wellington M. Bertolet, Reading, Pa.

Pine Grove National Bank v. Dietrich.

Practice, C. P.-Motion to strike off affidavit of defence—Affidavit—Acts of April 9, 1915, and May 14, 1915.

1. Under the Act of April 9, 1915, P. L. 72, a motion to strike off an affidavit of defence based on matters of record need not be supported by an affidavit.

2. Such motion must set out and specify the parts of the affidavit of defence which plaintiff contends violate the provisions of the Practice Act of May 14, 1915, P. L. 483.

Motion and rule to strike off affidavit of defence. C. P. Schuylkill Co., March T., 1925, No. 262.

J. L. M. Channell, for plaintiff; George Reed, for defendant.

KOCH, J., July 27, 1925.-The plaintiff contends that the affidavit of defence fails to set forth but a single allegation of fact in each paragraph and that the paragraphs are not consecutively numbered, and that it does not, therefore, comply with the provisions of the Practice Act of 1915, P. L. 483. The defendant contends otherwise and asks us to dismiss the rule because there is no affidavit subjoined to the motion for the rule in verification of the matters stated in the motion.

The Act of April 9, 1915, P. L. 72, which requires an affidavit in support of the facts alleged in any petition, or in any paper in the nature of a petition, does not apply to a motion based on matters of record. The 21st section of the Practice Act provides: "That the court, upon motion, may strike from the record a pleading if it does not conform to the provisions of the act." Such motion is necessarily based on matters of record, and all that our Rule of Court No. 32, paragraph 3, requires is that "All motions must be in writing, and when based upon matters or facts appearing upon the face of the record, such matters and facts must be specified and set out by such motion." But when the matters or facts do not appear upon the face of the record, paragraph 4 of said rule requires that the facts be set out in a petition and sworn to by the party in whose behalf the motion is made, his agent or attorney. We think the plaintiff, in making his motion, failed to comply with the rule of court, because his motion does not set out and specify the parts of the affidavit of defence which he contends violate the provisions of the Act of 1915. There is nothing specific about the motion; it is too general. We are not called upon to specify what parts of the affidavit of defence, if any, are made in violation of the Practice Act.

And now, July 27, 1925, the motion is denied and the rule is discharged. From M. M. Burke, Shenandoah, Pa.

Wolfe's Disbarment.

Attorney-at-law-Disbarment-Conviction of crime-Pardon.

1. The pardon of an attorney convicted of receiving stolen goods does not prevent the court from subsequently disbarring him for proper cause, even though the cause is discovered in the subject-matter for which he has been pardoned.

2. An attorney who, in the course of his business as pawnbroker, makes a practice of receiving stolen goods from known thieves and representing himself as able, in his professional capacity, to aid them in procuring immunity from the law, should their criminal acts be detected, and thereby encourages and solicits further business of this unlawful character, his conduct in this respect being deliberate and systematic, will be disbarred.

Petition of the Law Association of Philadelphia. C. P. No. 2, Phila. Co., Sept. T., 1924, No. 10129.

F. B. Biddle and F. C. Newbourg, Jr., for petitioner.
Isaac Levy, for respondent.

GORDON, JR., J., Dec. 29, 1925.-The respondent, a member of the bar, was tried and convicted of the crime of receiving stolen goods, and in February, 1923, was sentenced to not less than one nor more than two years in the Eastern Penitentiary. After serving ten months of this sentence, he was pardoned by the Governor of the Commonwealth on the recommendation of the Board of Pardons. Thereafter, in December, 1924, the petition before us was presented by the Board of Censors of the Law Association, asking for the disbarment of respondent because of his conviction of the offence stated and as a person shown, by his criminal acts, to be unworthy of that trust and confidence which is essential in an officer of the court, and unfit to be accredited to the public as a trustworthy and reliable attorney.

The respondent makes answer to the petition: First, that he was not guilty of the offences for which he was convicted; and, second, that his pardon completely wipes out the offences and all their consequences and places him in the same position as if he had never committed them, and that, therefore, he cannot be disbarred because of them.

Considering the second of these answers first, we cannot agree that a pardon has the effect contended for by the respondent. Doubtless, a pardon does wipe out a conviction and all its consequences and completely relieves the person pardoned of all present disabilities and future responsibility to the State for the acts committed. It does not alter moral character, however, nor change the natural consequences of the disclosure of the real character of the individual. It cannot wipe out the act which he committed, or deprive the court of the right to protect itself and the public from the dangers of entrusting the high and responsible office of attorney to irresponsible and morally oblique persons. Disbarment is not a punishment, although its consequences may work hardship. It is not resorted to by way of discipline, but to rid the profession of the unfit. The duty of the court to disbar an unworthy attorney is analogous to the duty of a principal to discharge an untrustworthy agent. It involves self-protection and fair dealing with others. The weight of authority is to this effect: Ex Parte Wall, 107 U. S. 265; Barach's Case, 279 Pa. 89 (in which an acquittal in a Federal court of a criminal charge is held not to prevent a subsequent disbarment by a state court on the same charge); Dickens's Case, 67 Pa. 169; Gates's Case, 17 W. N. C. 142; Kennedy's Disbarment, 178 Pa. 232; 6 Corpus Juris, § 45, page 587.

We have considered with great care the case of Ex Parte Garland, 4 Wallace, 333, which the respondent contends holds that the pardon removes the

Wolfe's Disbarment.

right to disbar. While the language of the Supreme Court of the United States in that opinion is broad, the actual decision of the court turns upon an entirely different question. In that case Congress had passed an act providing that no person should be admitted to the Federal courts without having first taken an oath in which he declared that he had never borne arms against the United States. Garland had borne arms against the United States, but had been pardoned by the President, and the Supreme Court held that the act prescribing the oath was ex post facto and unconstitutional, as partaking of the nature of a bill of pains and penalties and depriving the President of the power of pardon. This is entirely different from deciding that the court could not have refused to admit Garland or disbarred him, had it deemed his conduct in the past such as to disclose that he was an unfit person to practice as an attorney. We, therefore, conclude that the pardon of the respondent does not prevent us from disbarring him for proper cause, even though the cause is discovered in the subject-matter for which he has been pardoned. The only effect of a pardon is to prevent a disbarment on the basis of the conviction (Matter of Emmons, 29 Cal. App. 121), which, when secured, dispenses with the necessity for proof of guilt: In re Gottesfeld, 245 Pa. 314.

This brings us to a consideration of the first answer of the respondent, in which he denies his guilt as a receiver of stolen goods. In considering that question, we must ignore the record of the respondent's conviction of crime and treat the matter as if he had never been charged with, or convicted of, receiving stolen goods, requiring the proof of his misconduct independent of the record in the criminal case. For this purpose it was agreed, at the hearing, that the notes of testimony taken at the trial should be considered as if presented at the hearing of this rule. We have considered that evidence with care, and are forced to the conclusion that, prior to his indictment, the respondent, in addition to his activities as a practicing attorney, conducted the business of a pawnbroker; that in this business he made a practice of receiving stolen goods from known thieves; that he represented himself as able, in his professional capacity, to aid them in procuring immunity from the law, should their criminal acts be detected, and thereby encouraged and solicited further business of this unlawful character; and that his conduct in this respect was deliberate and systematic.

The respondent has thus disclosed a character which, if known, would have prevented his original admission to the bar, would have required his disbarment had the facts been brought to the attention of the court immediately after, but independent of, his conviction, and which a proper regard for the dignity, honor and responsibility of the profession requires us to discountenance and condemn by removal from the roll of attorneys. As was said by the Supreme Court in 245 Pa. 314, supra: "In his high office the attorney-atlaw is a minister of justice; he ceases so to be when, whether in the line of his professional work or outside of it, he prostitutes his knowledge of the law and the skill he has acquired therein to thwart the law by deceit and falsehood in its one and only purpose, viz., to accomplish distributive justice among men." This, in a different line of activity, the respondent has done. Should we longer accredit him to the public as worthy of trust and confidence? We think not.

Justice Mercur tersely defined the duties of the court to the public in relation to the personnel of the bar when he said In re Samuel Davies, 93 Pa. 116: "By admitting him, the court presents him to the public as worthy of its confidence in all his professional duties and relations. If afterwards it comes to the knowledge of the court that he had become unworthy, it is its duty to

Wolfe's Disbarment.

withdraw that endorsement and thereby cease to hold him out to the public as worthy of professional employment."

We are not unmindful of the thought which has been urged upon us with forceful sincerity that the length of time which elapsed between the conviction of the respondent and the filing of the petition under consideration (covering a considerable period served in prison, the granting of the pardon and a return to some activity in practice) suggests that a disbarment now would savor of further punishment for a wrong long since committed, expiated and pardoned. This consideration has prompted us to move slowly and with careful deliberation in the matter, and would have been controlling against disbarment had we approached the question from the punitive or correctional standpoint. Our decision is reached from no such consideration. By purging the bar of one who, by his acts, has forfeited the confidence of the court, we are vindicating the honor and high standing of the profession, and justifying public confidence in those whose trustworthiness we have publicly endorsed by admitting them to the bar and retaining them on the roll of attorneysat-law.

The petition of the Law Association is, therefore, granted; said respondent is hereby disbarred from the office of attorney in this court, and the prothonotary is directed to strike his name from the roll of attorneys and to give notice of this action to the Orphans' Court of Philadelphia County and to the Supreme and Superior Courts of Pennsylvania.

Croxton's Estate.

Transfer inheritance tax-Land in other states sold under testamentary direction — Equitable conversion - Frick v. Pennsylvania—Act of June 20,

1919.

The proceeds of land outside of Pennsylvania sold by the executor of a deceased resident of the Commonwealth under a testamentary direction which works an equitable conversion, becomes subject to transfer inheritance tax under the Act of June 20, 1919, P. L. 521, on being brought within the jurisdiction for purposes of distribution.

Frick v. Pennsylvania, 45 Sup. Ct. Rep. 603, 69 U. S. (L. Ed.) 692, distinguished. Exceptions to decree of the judge who sat at preliminary hearing, dismissing the appeal from the decision of the Register of Wills, assessing inheritance tax. O. C. Phila. Co., July Term, 1925, No. 2052.

Powell, Ludlow & Schaeffer, for exceptions; Wm. M. Boenning, contra.

VAN DUSEN, J., Jan. 8, 1926.—A Pennsylvania testatrix owned real estate in Ohio, which she directed her executor to sell, and she then distributed it as money. The executor took out ancillary letters in Ohio and sold the real estate. He now has the proceeds in his hands as executor at the domicile, to be ultimately accounted for to our courts and to be distributed by them. We attach no importance to the fact that the proceeds are also on deposit in a Pennsylvania bank. If the cases of Miller v. Com., 111 Pa. 321; Williamson's Estate, 153 Pa. 508; and Vanuxem's Estate, 212 Pa. 315, be still the law, inheritance tax must be paid in Pennsylvania.

It was argued that the decision of the Supreme Court of the United States in Frick v. Pennsylvania, 45 Sup. Ct. Rep. 603, also reported in 69 U. S.