Commonwealh vs John Denchek

THIRTEENTH: That the action of the plaintiff in this bill in requiring possession of the defendant's property for the defaults mentioned in the demand of the 7th April, 1916, and procuring the appointment of a receiver by its bill at No. 537 Equity Docket, was unjustified, without warrant and unlawful; that it is now its duty to restore its property to the defendant company as near in statu quo as of the date of such unlawfui interference as is reasonably possible, paying the costs of the receivership and all other costs, outlay and expenses incident thereto; as also damages to the defendant company for its unlawful act; and further that the unlawful action of the plaintiff was, in equity a suspension of the defendant's right to the possession, care and operation of its property and that it is entitled, by proper decree, to an order of restoration for the unexpired term or portion of the three years provided in the agreement of the 7th July, 1915.

Commonwealth vs John Denchek

Criminal Law-Indictment-Indictable Offense-Act of April 27, 1905. An indictment charged defendant with permitting certain people to assemble in the bar room of his hotel in Williamstown, Dauphin County, in violation of an order issued by B. Franklin Royer, being then and there the acting Commissioner of Health of the Department of Health of the Commonwealth of Pennsylvania. The order was as follows:

"By authority of the powers vested in me as Commissioner of Health and as authorized by the Act of April 27, 1905, your Board of Health is directed to close all public places of entertainment, including*** saloons *** and to prohibit all meetings of every description until further notice from this Department., Held, sustaining motion to quash the indictment, that the offense charged in the indictment was not the offense defined in the Act of April 27, 1905, P. L. 312, and that the indictment charged no indictable offense.

The violation of an order of the Commissioner of Health or of any one acting for him is not the offense defined in Section 16, of an Act of April 27, 1905.

The order, the violation of which was charged in the indictment, was not an order to defendant and was not operative upon him.

Motion to quash indictment, Quarter Sessions of Dauphin County, No. 64, January Sessions, 1919.

M. E. Stroup, District Attorney, for plaintiff.

L. C. Carl and O. G. Wickersham for defendant.

Kunkel, P. J., June 6, 1919.

This indictment is drawn under the Act of April 27, 1905, P. L. 312, creating a Department of Health and defining its powers and duties, and purports to charge the defendant with the offense defined in Section 16 of that Act. The ground

Commonwealh vs John Denchek

of the motion to quash is that the indictment does not charge any criminal or indictable offense. The defendant was indicted for permitting certain people to assemble in the bar room of his hotel in Williamstown, in this County, in violation of an order issued by B. Franklin Royer, being then and there the acting Commissioner of Health of the Department of Health of the Commonwealth of Pennsylvania. The order read as follows:

"By the authority of the powers vested in me as Commissioner of Health and as authorized by the Act of April 27, 1905, your Board of Health is directed to close all public places of entertainment including *** saloons *** and to prohibit all meetings of every description until further notice from this Department."

This, it is clear, is not the offense defined by the Act of 1905. The statutory offense is the violation of any order or regulation of the Department of Health. The order, which the indictment alleges was violated by the defendant, was not the order of the Department of Health which the Act declares in Section 1, shall consist of a Commissioner of Health and an advisory board and which by Section 5, is given the power to draw up such reasonable orders and regulations as are deemed by said Board necessary for the prevention of disease and for the protection of the lives and health of the people of the State. The violation of an order of the Commissioner of Health or of anyone acting for him is not the offense defined in Section 16. In this respect the indictment fails to charge the defendant with an indictable offense.

Moreover, the indictment alleges that the order referred to was issued to "your Board of Health." What Board of Health is meant does not appear. It directs such Board to close all public places of entertainment including saloons, etc. If the Board intended was the Board of Health of the County, if there be any such Board then the order was directed to that Board and intended to operate and clearly operated only upon it. There is no allegation in the indictment that the Board of Health, to which it was addressed, obeyed the direction or order issued to it by the acting Commissioner and thereby made it an order operating upon the owners or managers of public places of entertainment. Thus it appears that the order, the violation of which is charged, was not an order to the defendant and was not operative upon nor bound him.

For these reasons, we think the indictment charges no indictable offense. The motion to quash is theerfore sustained; and the indictment is accordingly quashed.

Prison Labor

Mines and Mining

Mines and Mining-Fireboss

A man who came to this country with his parents while he was a minor, whose father died and whose mother married a citizen of the United States while he was a minor, is a citizen of the United States and is eligible for a certificate as mine fireboss.

Attorney General's Department. Opinion to Seward E. Button, Chief of Department of Mines.

Hargest, Deputy Attorney General, June 4, 1919.

We have you letter of the 16th inst., enclosing the letters of Mine Inspector Bell of the 22nd Bituminous District, dated May 8, and 13, which letters are herewith returned.

You ask to be advised whether Horace Brown, who is an applicant for a fireboss certificate is a citizen.

I understand that Horace Brown came to this country with his parents. His father having died his mother married an American citizen while he was still under the age of twentyone years. There seems to be no doubt that this makes him a citizen of the United States without naturalization.

The leading case on this subject is that of United States vs Kellar, 13 Fed. Rep. 82. Justice Harlan of the Supreme Court. of the United States wrote the opinion, in which it was held:

"Upon the marriage of a resident alien woman with a naturalized citizen, she, as well as her infant, so dwelling in this country, become citizens of the United States as fully as if they had become such in the special mode prescribed by the naturalization laws."

In Kreitz vs Behrens and Myers, 17 N. E. 232, it is held: "Minor children of foreign parents whose mother, after the death of the father, remarries a citizen, become citizens." There are many other cases to the same effect.

I therefore advise you that Horace Brown is a citizen of the United States.

Prison Labor

Prison Labor-Employment of Convicts

The Prison Labor Commission has no authority to employ inmates of the Eastern Penitentiary in cutting and sewing rag rug stock for private concerns.

Attorney General's Department. Opinion to E. J. Lafferty, Secretary and Treasurer, Prison Labor Commission.

Prison Labor

Collins, Deputy Attorney General, June 5, 1919.

This Department is in receipt of your communication of the 27th ult. requesting an opinion upon the following question, namely, whether the Prison Labor Commission has the power to provide for the employment of inmates of the Eastern State Penitentiary "in the cutting and sewing of rag rug stock" for a private concern.

The powers and duties of the Prison Labor Commission are such as are created and imposed by the Act of June 1, 1915, P. L. 656, providing a system of employment and compensation for the inmates of the Eastern Penitentiary, Western Penitentiary and other correctional institutions.

The character of the labor at which the inmates of the foregoing institutions may be employed, pursuant to the provisions of the Act, is fixed by Section 1 thereof as follows:

"Such labor shall be for the purpose of the manufacture and production of supplies for said institutions, or for the Commonwealth or for any county thereof, or for any public institution owned, managed, and controlled by the Commonwealth, or for the preparation and manufacture of building material for the construction or repair of any State institution, or in the work of such construction or repair, or for the purpose of industrial training or instruction, or partly for one and partly for the other of such purposes, or in the manufacture and production of crushed stone, brick, tile, and culvert pipe, or other material suitable for draining roads of the State, or in the preparation of road building and ballasting material."

In an opinion of this Department rendered by Attorney General Brown to the President of the Board of Inspectors of the Eastern State Penitentiary, dated October 25, 1918, in passing upon the right of the Eastern State Penitentiary to contract with the United States Government for war work by the inmates of that institution, there was an extensive review of the law relative to the subject of the employment of convict labor in this Commonwealth. It was there held, following former rulings of this Department

"That it was the intendment of the Prison Labor Act of 1915 to delegate the entire matter of the supervision and compensation of the inmates in the said State Institutions, to the Prison Labor Commission and that the officials of these institutions have no further authority or jurisdiction in the premises. * **If there is any authority to employ the inmates of that or any other State correctional institution in such work,

Banks and Banking

it would have to be exercised by and through the Prison Labor Commission."

It was further held in said opinion that

"The purposes for which convict labor in the State correctional institutions in this State may be engaged is defined by Section 1 of the Act of 1915 above quoted, limiting the same to the manufacture and production of supplies for 'said institu tions or for the Commonwealth or for any county thereof, or for any public institution, owned, managed and controlled by the Commonwealth.""

It was consequently held that the Eastern State Penitentiary was without authority to contract with the United States Government for its inmates to do war work.

In an opinion of this Department to Mr. John E. Manifen, Chairman of the Prison Labor Commission, dated June 17, 1916, (Attorney General's Reports 1915-1916, page 534) rendered by Deputy Attorney General Kun, in answer to an inquiry of said Commission whether pursuant to said Act it might manufacture supplies for troops of foreign countries, and holding that the Commission was without power to do so, it was said:

"However beneficial the doing of other work might be in the way of preventing idleness and increasing the funds of your Commission, there is no legal authority to employ the prisoners except as specifically authorized by the Act above quoted."

The principle stated in the above cases was followed in a ruling to you, in an opinion rendered by Deputy Attorney General Hargest on May 9, 1919, ruling that the sale of "materials produced by inmates of such institutions was limited to the provisions of Section 4 of the Act."

The foregoing citations carry the clear conclusion that the Prison Labor Commission cannot lawfully employ the inmates of the Eastern State Penitentiary or other like institutions at labor such as that mentioned in your above communication.

Banks and Banking

Banks and Banking-Acts of February 11, 1895, and May 21, 1919

The Banking Department should render bills to the various banking institutions of the State, for the year 1918, under the Act of February 11, 1895, and not under the Act of May 21, 1919,