date. And the Act of 1841 being part of the same "It is very clear that under these enactments, system, these are also the 'duties' referred to in the office of assessor is not one of continuous sec. 89 of the second Act of 1834, the same phrase employment and compensation. He has specified occurring in each is to be given the same inter- duties to perform, at specified times, and pretation: Gonder v. Estabrook, 33 Pa. 374. generally within specified limits as to the Being moreover a mere amendment of the section number of days allowed for their performin question, the Act of 1887 is to be read into that ance. He can claim no compensation for of 1834 as if its provisions had always been there: the performance of any other service nor for anysee McKibben v. Lester, 9 Ohio, 627; People v. thing done by him at other times by way of preSweetser, 1 Dak. 308; Ludington v. U. S. 15 Ct. paring himself for the performance of those imof Cl. 453, and has no other force than to change posed upon him, nor for the employment, in the the specific enactment it refers to, in the single performance of the latter, of any number of days particular in which it departs from the same: see in excess of that allowed therefor. It may well Dilley v. Luzerne Co., 8 C. C. 162. It cannot, be, that with the increase of population and the therefore, operate to repeal by implication the subdivision of property, the same degree of preAct of March 9, 1865, P. L. 290, (cited as not ex-cision in the making of triennial assessments will pressly repealed, in Price's Ind. Loc. Laws, 88), require, from time to time, an enlargement of that which provides that the pay of assessors, in the allowance. Manifestly, however, the Legislature county of Berks, shall be $2.50 per day for each is the sole judge of whether the time therefor has and every day actually engaged in the discharge arrived and how far it shall go. Thus, the period of their duties.' By virtue of this enactment, of thirty days under the Act of 1834, proving insec. 89, Act of 1834, had no application to Berks adequate by 1841, was extended to sixty days by county; and of course a mere amendment of that the statute of that year. But the latter limit as specific section, without any words of repeal capa- yet remains unchanged by the only power comble of reaching existing statutory provisions other petent to change it, and while it so remains, asthan that recited and re-enacted with the altera-sessors are bound, if they can, to complete the tion referred to, cannot affect a statute itself pro- assessments within that number of days, to return viding a substitute, in Berks county, for the sec- within the same their assessments, whether comtion amended. But the Act of 1865, in its turn, pleted or not, and to be restricted, for the work must be construed as part of the system created they have done, to a compensation not exceeding by the then existing laws, an exception as to the appointed per diem during that period. CerBerks county being established in the rate per tainly, an assessor who has accepted his office diem for the duties to be performed under those within this limitation cannot go beyond it. If, in laws, in order to make their operation, in the mat- view of it, he applies himself to preparing for the ter of compensation, to accord with what was work in advance of its inception, it must be predeemed just and proper in that county: see sumed that he does so in order to enable himself Thomas v. Hinkle, 126 Pa. 478, 483. That being fully to satisfy the demands of the statute, not to the manifest purpose of the Act of 1865, the rule lay ground for a claim against the county for requiring statutes to be so interpreted as to re- which there is no warrant in the law. There may strict their effect to their scope and object, and to be various particulars in which a conscientious avoid any change in the existing law beyond assessor may feel himself in need of preparation. what is necessary to serve these: Maxw. Int. He may be conscious of an insufficiency in arithStat., 96, forbids the assumption that compen-metic, in penmanship, in his knowledge of the sation was intended to be given to assessors, in real estate market, etc.; and he may very propBerks county, for anything for which they were erly devote some of the time intervening between not entitled to compensation under the previous his election and the issuance of the commissioner's statutes. In other words, the term 'duties,' used precept to the acquisition of such skill and inforin the Act of 1865, refers to the same thing as the mation in these matters as may be indispensable term used in the Acts of 1834, 1841 and 1887; and to him, or at least will greatly aid him in the perwhilst, in Berks county, the rate of pay demand- formance of his duties when the occasion for their able by assessors is $2.50 per day for every day performance shall have arrived. It would scarcenecessarily employed, in the discharge of their ly occur to anyone to claim compensation for time duties, the question what those duties are, when thus spent. Yet, in principle, there seems to be they begin and when they end, i. e., the question no difference between such a claim and that here for what service and for how many days' service set up, and 'principles are tested by taking exassessors in Berks county are entitled to pay, is treme cases': Philadelphia v. Scott, 81 Pa. 80, 88. to be settled by reference to the provisions of the It follows that under no circumstances can an asActs of 1834 and 1841. sessor demand pay for more than sixty days em ployed in making his return to the precept for a say that it will not be in the line of this sugges327 triennial assessment. But if, for any reason, he tion. Neither the assessors nor the commissionis able to complete the assessment and make his ers can split up the days fixed by the Legislature, return in less than sixty days, he is bound to do so as to double or treble, or in any degree inso, and his compensation in such case will neces-crease, the compensation given by it to the offisarily be measured, not by the maximum period cers for any one day, or for the entire number of allowed, but by the number of days employed by days. That would be a mere evasion of the stathim upon the work after the receipt of the pre- ute. cept. As regards this work, his 'duties,' in the sense in which the term is used in the statutes of that the foregoing decision be filed in the office of "And now, to wit, January 6, 1896, it is ordered 1834, 1841, 1865 and 1887, begin at that point of the prothonotary, and that he forthwith give notime. Before, he has no warrant to proceed with, tice thereof to the parties or their attorneys, in and is not and cannot be engaged in, the making conformity with the Act of April 22, 1874, P. L. of the assessment, and no amount of gratuitous 109, sec. 1." oath taking can alter that fact. The law, however, The plaintiff filed exceptions, that the Court gives him compensation only for the days spent erred in finding that the plaintiff was entitled to in the performance of his official duties, not for pay for 53 days only, at $2.50 per day, and not time employed by him in preparing himself for finding that he was entitled to pay for 131 days, their performance, before they began. If in this at the same rate. result of the law as it stands there is any hard-gument, dismissed, and judgment The exceptions were, after arship, relief must be looked for from the Legisla- the plaintiff for $143.65. entered for ture, not from the Courts. The plaintiff took this appeal, and assigned as error the finding that he was entitled to $143.65, instead of $262. W. Oscar Miller, county solicitor, for appellee. The Act of 1834 and its supplement of 1841 impose no penalty upon the assessor for failure to return the assessment within sixty days. It hardly seems reasonable to so construe the language of the Act as to preclude the possibility of a longer time than sixty days being required to perform the duties imposed upon him. that the Act of 1887 should not be so limited as We submit to restrict it to a period of sixty days only. "It seems hardly needful to add that there is no authority in the county commissioners to allow the plaintiff extra pay for the excess over so and The case was submitted on paper books. D. Ermentrout and C. H. Ruhl, for appellant. so many hours employed by him in the work of The special Act fixing the pay of assessors was making the assessment on any or each of the fifty-repealed by the general Act of 1887, and that Act three days during which the precept was in his was passed to make the pay uniform throughout hands, an expedient suggested at the argument. the State. The law says that the assessment shall be returned within sixty days from the receipt of the precept, i. e., sixty days of twenty-four hours each: Kane v. Com., 89 Pa. 522; Opin. of Justices, 45 N. H. 590; Hyde v. White, 24 Tex. 137; Pulling v. People, 8 Barb. (N. Y.) 385; Haines v. State, 7 Tex. App., 33. It fixes no number of hours per day to be given to the work. If the eight hour law, Act of April 14, 1868, P. L. 99, has any application, directly or by analogy, to the case of assessors, it can only be by way of furnishing a measure for the minimum number of hours to be December 7, 1896. WILLARD, J. Whether the so employed each day, where that is sufficient to appellant was necessarily employed one hundred complete the work within the period limited. and thirty-one (131) days or twice that number in Where it is insufficient for that purpose, it is the making the assessment of the. Twelfth ward of duty of the assessor to put upon the accomplish- the city of Reading, as we view the law is imment of his task as many of the twenty-four material. Certain it is, that an assessor cannot hours of each day as shall be consistent with a assess until furnished with a sufficient precept by due allowance for rest, etc., and for each of these the commissioners of the proper county for that days not exceeding sixty, he is entitled to $2.50. purpose. For services performed during the life The law thus imposes a limit, not only upon the of his warrant he is entitled to pay. To allow him number of days to be consumed, but also upon compensation for one day's services prior to his the compensation to be allowed. If the former receipt of the precept implies the right to give shall, in any instance, be found to be absolutely him compensation for every working day in the inadequate to the completion of the work by the year. assessor, apart from the mere question of his per- The Legislature has prescribed that he shall sonal qualifications, there will not, perhaps, be return his assessment within sixty days after the any difficulty in finding within the provisions of issuance of the precept. If that is not sufficient, our law a satisfactory remedy. But it is safe to it is for the Legislature to provide the remedy. Common Pleas. January 2, 1897. Davis v. Wood and Grau. By the Act of March 9, 1865, P. L. 290, assessors in the county of Berks are to receive as compensation $2.50 per day for each and every day actually engaged in the discharge of their duties. By a proper construction of that Act in connection with the Acts of April 15, 1834, and April 22, 1846, the duties of the assessors begin when they receive their precepts to assess and end on the C. P. No. I. return of the assessment within sixty days thereafter. Nor is this changed or modified by the Act of 1887, P. L. 195. Section 89 of that Act is, viz: "It shall be the duty of each assessor and assist-Practice-Affidavit of defence-Interpleader bond. ant assessor to keep an account of the several days by him actually employed in the performance of his duties and to make returns of the same to the commissioners of the county, verified by his oath or affirmation, and for each day necessarily so employed he shall receive the sum of $2.00." Under the terms of this section he is to keep an accurate account of his time and is to be paid for each day employed in the performance of his duties. But as his duties begin with the receipt of the precept and end within 60 days thereafter, it is idle to argue that this appellant is entitled to be paid for 131 days. The learned Judge, before whom this case was tried, found as matter of fact that the appellant served just 53 days from the receipt of the precept to the return of the assessments, and he found the further fact that in preparing for, completing and entering the assessment he was employed 78 additional days, which time was necessary to enable him to do his work. In the able opinion, however, the learned Judge decided that the appellant was only entitled to be paid for 53 days. Upon that opinion, which is clear, exhaustive and convincing, the judgment is affirmed. H. B. In an action upon a sheriff's interpleader bond it is not necessary to file an affidavit of defence. Eldred v. Richardson, 7 WEEKLY NOTES, 130, followed. Rule for judgment for want of sufficient affidavit of defence. This was an action brought upon a sheriff's interpleader bond. It appeared that the issue upon the interpleader had been decided against the claimant and that the judgment under which the execution issued was unpaid. The defendant filed a suggestion that they were not required to file an affidavit of defence in an action on a sheriff's interpleader bond. John Weaver, for the rule. A sci. fa. sur sheriff's interpleader bond does THE COURT. Rule discharged. Eldred v. H. B. WEEKLY NOTES OF CASES. 329 priety of reversing on account of the erroneous remark of the Judge at nisi prius, but concurs with the majority of the Court as to the right to reverse on the ground of excessive damages. VOL. XXXIX.] FRIDAY, JAN. 15, 1897. [No. 17 Alexander K. McClure and Frank McLaughlin, Appeal of the Times Publishing Company, Supreme Court. July '95, 212. January 28, 1896. Smith v. The Times Publishing Co. et al. defendants, from the judgment of the Common Pleas No. 3, of Philadelphia County, in an action of trespass, brought by William B. Smith. follows: 66 This was an action brought to recover for a libel. The statement set out that the defendant maliciously published on October 2, 1892, a defamatory libel of and concerning the plaintiff as plaintiff,) skips," then and there meaning that "Dandy Mayor,' (meaning the said the said plaintiff was a fugitive from justice and Trial by jury-Constitutional law-Power of Su- had left the city of Philadelphia for the purpose preme Court to review action of Court below in of escaping prosecution for crimes and offences refusal of new trial-Act of May 20, 1891, sec. committed by him against the law). "Col. Wil2, P. L. 101—Excessive damages as ground for liam B. Smith," (meaning the said plaintiff) reversal-Practice-Charge of Judge, how made "shakes Philadelphia dust from his feet. A sudpart of record-Refusal to withdraw juror- den flight to the West." "His legacy of bogus Remarks of counsel and Court. The constitutional provision that the right of trial by jury shall be as heretofore extends only to the substantial features of the system; these substantial features are the number twelve, and the requirement of unanimity in the verdict, it does not extend to subsequent steps between verdict and judgment. The Act of May 20, 1891, section 2, P. L. 101, is not unconstitutional. Before the adoption of the Constitution, a Court might set aside a verdict and grant a new trial, and so far as a jury trial is concerned the Act simply sub jects the action of the Judge or Court below in refusing a new trial to a review in the appellate Court, giving it authority to make such an order upon consideration of the testimony, as the Court below ought to have made. DEAN, J., dissents. The Supreme Court may by the Act of 1891 reverse a judgment, set aside the verdict on which it is based, and order a new trial, on the ground that the damages as shown by the testimony are improper, although the Court below has been guilty of no error during the trial. checks, protested notes, and bad debts. Escaping prosecution." "The gallant colonel is at last overwhelmed by his financial irregularities and dares not wait to meet the issue." ex-Mayor William B. Smith suddenly shook the "Overwhelmed with debt, dust of Philadelphia from his feet this week and I started West, leaving behind a legacy of bogus checks, protested notes and broken contracts. This time the gallant colonel left for good. It was on Wednesday that his ill-omened star westward took its way." And on October 3, 1892, another defamatory libel, concerning the plaintiff, as follows: "Billy's" (meaning the said plaintiff) "last said plaintiff had obtained unlawfully and fraudugrab" (thereby then and there meaning that the lently certain moneys with intent to cheat and defraud). said plaintiff) "would let nobody escape this "The dandy mayor" (meaning the time," (thereby then and there meaning that the 28, 1892, had obtained unlawfully and fraudulentsaid plaintiff on or about Wednesday, September To make the charge of the Judge at nisi prius a portion of the record, it must affirmatively appear that the charge was filed by the Judge himself or by his express direction, ly certain moneys from a large number of perevidenced by his signature either to the charge itself or to the bill of exceptions. A refusal to withdraw a juror, where no reason for the motion to withdraw appears on the record, cannot be considered on appeal. sons with intent to cheat and defraud). "Plastered with bogus checks" (thereby then and there meaning that said plaintiff had obtained unlawfully and fraudulently certain moneys from certain persons by passing fraudulent and unlawful checks for the payment of money drawn upon banks by the said plaintiff for the purpose of obtaining money by means of false pretences and with the intent to cheat and defraud). "Col. STERRETT, C. J., concurs with DEAN, J., as to the pro- zens." "A trained sharper's great work." "BeSmith's autograph as a legacy to his fellow citi DEAN, J., would reverse on account of a remark made by the Judge in the hearing of the jury and reiterated in the charge, although dissenting from the ground upon which the reversal is placed by the majority of the Court. fore he emigrated to the West the enterprising however, that it has been pretty thoroughly levcolonel gathered in all the money that was not ied upon by various people. chained down, and his friends say that his bad "One of the neighbors said last night that she debts will run into many thousands of dollars." saw Colonel Smith and his wife take their de"The sudden emigration of ex-Mayor William B. parture on Wednesday morning. First the galSmith has caused more excitement in the way of lant colonel came to the door and made a recontalk about bogus checks and bad debts than this noissance, after which he boldly issued upon the town has known since the dandy mayor's great steps with a huge valise in his hand. Mrs. Smith grab game administration. There are those followed him, carrying a hand bag. They walked who contemplate his latest move without reflect- rapidly in the direction of the Broad street staing that they are out of pocket, but they seem to tion. Their daughter had gone on the previous be the ones with whom the enterprising colonel night to Germantown, where she will live with had not succeeded in striking up an acquaintance. the parents of her husband, who is dead. Their Everybody else is in mourning. Colonel Smith's son, a bright young man of twenty, is living list of acquaintances possessing more or less down town, where he is employed." "Among boodle was something that would appal an ordi- the victims. It was learned yesterday that one of nary sharper, but with the majority of them the Colonels Smith's victims was the firm of Spaeth, irrepressible Billy,' as the boys jocularly greet- Krautter & Hess, brewers, at Lehigh and Gered him, seems to have maintained himself upon mantown avenues. Smith passed three bogus a negotiable footing to the last. The story of checks upon them for sums of more than $1000, his sudden departure last Wednesday for the besides borrowing money from individual memWest, as published in the Times yesterday, was bers of the firm. the sensation of the day. With the bogus checks, "In the City Hall and from business men in the protested notes, broken contracts and bad debts vicinity of his saloon on South Penn square he which he left behind as a legacy to the city that obtained considerable sums of money a few days had proudly elevated him to its chief magistracy, before his departure. A cigar dealer said: 'He hundreds were plastered, yet, as showing the slapped me on the back and asked me how much wonderful popularity of the man, there were few money I had about me. I replied, "Oh, a few who exhibited heated indignation over the matter, dollars." "Lend me fifty," he said. I gave him and many of the victims expressed the hope that fifty dollars. I thought he was good as gold. I wherever he might go he would continue to do would have cheerfully advanced him $500. Don't put this in the paper, though, or he may come well. It all seemed like corroboration of Bar "A short time ago Colonel Smith, with his famous wink, informed some of his most pressing creditors that he had John Betz, the many times millionaire brewer, on his string, and expected to get money from him to pay off all his obligations. He talked a great deal about establishing a rathskellar in the basement of the new Betz building and a roof garden on top. He did spend some time with Mr. Betz at Sea Girt during August, and his creditors believed his story that the great brewer was backing him." "The saloon complications. The complications that beset Luke Nield's saloon upon the departure of Colonel num's theory, that people like to be humbugged. back.' Some of the remarks made by the Sunday pedestrians, who always halt at the Times bulletin board, were especially instructive. Everybody seemed to know 'Billy' Smith, and they invariably expressed the greatest delight over the announcement of his latest exploit. One individual rubbed his hands, and gleefully remarked to his companion: 'I've said all along that Smithy would come out ahead.'" "The house he rented. One man of some anxiety as to the colonel's abrupt departure was conveyancer Daniel H. Buck, from whom he had rented the house he recently occupied at 1426 Mt. Vernon street, Mr. Buck acting as agent for Grant Megargee, the owner of the property. Colonel Smith leased the house for Smith will, to some extent, be adjusted to-day. one year, and had occupied it only seven months, Ex-constable James J. Keating bought the outfit so that a claim can be made against him for five at last week's sale and there have been other months' rent. Mr. Buck was on the point of claimants, but a new boss now steps in in the person of Sam Quay, the well-known proprietor of writing to him to call at his office and settle existing accounts when he learned of his flight. To- the old Quay Mansion, used as a road house on day he expects to make an inspection of the Falls road below Monument road. A transfer of house in order to see if there is any furniture in it. the license, which is in Luke Nield's name, is im"The neighbors say that Colonel Smith moved practicable, and Quay will act in the same capaa lot of furniture into the house last spring, and city as did Colonel Smith-'general manager." they have not seen any of it come out. They think, He is a relative of Senator Quay. |