Public School Employes

alia, to cause the deductions from the salary of a contributor to be made, are made applicable only in case of the employment of a person "to whom this act may apply." In an opinion of this Department to you, rendered by the writer hereof, dated June 10, 1919, it was held that there must be at least ten years' service to entitle a person to retire for superannuation, such retirement, as above stated, being compulsory at the age of seventy and optional at sixty-two. It will be seen that only those entering the service after sixty are necessarily prevented by age from being retired for superannuation. For disability retirement there is an express requirement of ten years' service. It has been urged, however, that notwithstanding the fact that a person enters upon school employment at an age which will necessarily prevent his required ten years' service before the age of compulsory retirement has been reached, yet the deductions from his salary should, nevertheless, be made, and he be given the benefit thereof upon his withdrawal or separation from the service.

After a very careful consideration of this proposition, I am clearly led to the conclusion that the Act does not warrant such a procedure. The plain and express purpose of this measure is to set up a system for the retirement of public school employes as the term "retirement" is therein defined, with an accompanying "retirement allowance" for life, this allowance consisting of "state annuity plus the employe's annuity," and the implication necessarily follows that the Act does not apply to a person whose utmost tenure of service prior to the age fixed for compulsory retirement will be too brief to entitle him to such "retirement" and become the beneficiary of the prescribed "retirement allowance" in connection therewith. While it is true that a contributor upon withdrawal from the service is entitled to receive the benefit of his accumulated deductions in manner as prescribed in Section 12, it is not contemplated from the outset of his employment that this is the sole possible benefit he may receive or the only end to which his contributions may lead. If this were the case, it would not be a retirement system, but merely a method of saving.

The number affected by this ruling will be few. As above pointed out, only those entering upon employment after the age of sixty are necessarily excluded by reason of age from superannuation retirement, and compulsory contributions cease at sixty-two. It would serve no useful purpose to exact these deductions for this brief period, and we may safely conclude that the Act does not so intend,

State Hospital for Criminal Insane at Fairview

You are, therefore, advised that deductions should not be made from the salary of a person entering upon public school employment at an age which precludes a superannuation retirement.

State Hospital for Criminal Insane at Farview.

State Hospital for Criminal Insane at Fairview-Appropriation The plans and specifications for an additional ward to the hospital for criminal insane at Fairview, must be revised so as to bring the cost of the structure within the appropriation made by the legislature at the session of 1919.

Attorney General's Department. Opinion to G. von Phul Jones, Esq.

Hargest, Deputy Attorney General, November 26, 1919. We have your favor of recent date in behalf of the Trustees of the State Hospital for the Criminal Insane at Farview.

The facts upon which you request an opinion are as follows: The last session of the Legislature made certain appropriations to this institution, among them the following:

"For erecting and constructing an additional ward, the sum of one hundred thousand dollars ($100,000), or so much thereof as may be necessary."

The Act making these appropriations also provides:

"It is further provided that by reason of the fact that the land contains building stone, brick clay, and brick plant and lumber, the said board of trustees may and are hereby authorized and empowered to construct and erect buildings, roads, walks, fences, pipe-lines, conduits, ducts, mains, reservoirs, dams and greenhouses, sewage-disposal plant and the work of clearing land and grading, in whole or in part, as they may deem advisable by the employment of such inmate labor as is advisable, and employ such other labor, skilled and unskilled, as may be necessary.'

The drawings and specifications prepared for the ward to be erected out of the appropriation above referred to, were made some years ago, and when bids were received it was found that the completed building as now planned will cost $209,239.

You ask whether, in view of the language of this appropriation, this ward can be constructed as far as the appropriation is available, or whether the Board of Trustees must revise the plan in such a way as to cut down the size of the building

State Armory Board

without disturbing the general scheme of construction originally adopted.

I have no difficulty in advising you that the latter plan must be carried out. The Legislature did not appropriate $100,000 to build an additional ward according to the plans and specifications which the trustees had theretofore adopted. The appropriation was made entirely for the purpose of erecting "an additional ward" without reference to the character or style thereof.

It must be presumed that in appropriating $100,000 the Legislature was aware of the then existing conditions as to the increased cost of labor and materials. If the Legislature had intended the $100,000 to be appropriated toward the building of a ward, it could have said so. The plain meaning of the appropriation is that a ward should be built; that is to say, ready for occupancy, to cost not exceeding $100,000.

The language of the last paragraph does not authorize a different construction to be put upon this appropriation.

That paragraph of the Act authorizes the trustees to employ the inmates, as far as they may deem it advisable to employ them, in the work of constructing buildings or other improvements. It also authorizes the employment of other labor, skilled and unskilled, for such purposes, and the reason given for such authority is that the land contains raw material for building. The trustees in building the additional ward may employ such inmate labor as they deem advisable and spend $100,000 in addition to the employment of such labor, but there is nothing in the Act which authorizes the trustees to use the $100,000 appropriated for the purpose of "erecting and constructing an additional ward," for the erection and construction of a part of a ward, or a half-finished ward.

I am, therefore, of opinion, and so advise you, that the trustees must revise the plan so as to cut down the building to a size that can be built within the appropriation of $100,000, which revision of course would be made so as not to disturb the general scheme of construction already adopted.

State Armory Board

State Armory Board-Powers-Power to Condemn Property Where, by reason of restrictions in the line of title, owners of land desired by the State Armory Board cannot sell it to the Commonwealth for the use for which it is required, the Board of Public Grounds and Buildings may take such land by condemnation, under the Act of July 15, 1919, P. L. 976.

State Armory Board

Attorney General's Department. Opinion to Benjamin W. Demming, Secretary Armory Board.

Hargest, Deputy Attorney General, November 18, 1919.

This Department is in receipt of your request for an opinion relative to acquiring land in the city of Philadelphia for the purpose of erecting stables in connection with the Squadron Armory for the use of the Pennsylvania National Guard.

I understand that the State Armory Board desires to acquire a piece of land facing two hundred feet on Cuthbert Street, and about fifty feet deep, immediately in the rear of the present Armory owned by the Commonwealth, at 32d Street and Lancaster Avenue, in the city of Philadelphia, which additional land is to be used for the erection of stables in connection with the Squadron Armory.

It appears that in the chain of title to the land which the Armory, desires to acquire, there are restrictions against the erection of stables upto the property, and it has been suggested that the State condemn the property, in which event it would acquire a complete title, not bound by any restrictions.

Fortunately, an Act was passed July 15, 1919, No. 386, by which it is provided:

"That whenever in the judgment of the Board of Commissioners of Public Grounds and Buildings it becomes necessary to purchase additional land for the purpose of adding the same to any of the public lands, parks, arsenals, hospitals or other public institutions of the Commonwealth, or when such purchase has been authorized by law, and an appropriation has been made for such purpose, the said Board of Public Grounds and Buildings shall have the right to purchase or condemn such lands as hereinafter provided.'

The Act of Assembly provides the machinery for such condemnation.

The question is whether the State would acquire a title free from reservations. I am of opinion that it would.

In Kemble vs. Railroad Company, 140 Pa. 16, it is held that "public works authorized by the Legislature cannot be arrested or prevented because someone has entered a covenant that they should not be built."

In Brown vs. Corey, et al, 43 Pa. 504, the court said:

"Nobody will doubt the State might enter and build a railroad on his land-it is equally clear that the State might delegate her right of eminent domain to a corporation or an individual. But then the entry is under the State, and in pur

Commonwealth Trust Co. vs Hummelstown Consolidated Water Co. suance of public law. No covenants or private contracts between citizens can possibly be violated in such a case, because none can stand in the way of State authority. It is a presumption by the soverign of a clear right of sovereignty, in subordination of which the covenants of the deed were made. Had the parties contracted expressly against the exercise of this right, they could not have bound the sovereign-much less can their covenants, made for other purposes, be permitted to have the effect claimed for them."

I am, therefore, of opinion that if the Armory Board certifies to the Board of Commissioners of Public Grounds and Buildings its desire to acquire the land in question, and that the owners cannot sell to the Commonwealth for the purposes for which the land is desired because of restrictions in the title, the Board of Public Grounds and Buildings may, under the Act of Assembly above referred to, condemn the property by the method pointed out in said Act of Assembly. I return herewith the correspondence submitted.

Commonwealth Trust Company vs Hummelstown Consolidated Water Company and Charles H. Kinter, Receiver of Hummelstown Water Company

Corporations-Mortgage-Foreclosure

The relation between a trustee under a mortgage and the holders of bonds secured by the mortgage is created by the deed of trust and limited by it.

There is no implied authority in a trustee under a mortgage to change the status of the bond holders; unless given by the mortgage, express authority could only be given by the bondholders themeslves. Petition for leave to intervene. C. P. Dauphin County, No. 589, Equity Docket.

Paul A. Kunkel, for Petition.

Charles H. Bergner, Contra.

Henry, P. J., Specially Presiding, December 16, 1919.

On May 31st, 1919, this court filed an opinion in the above entitled case with a decree of foreclosure as prayed for in the bill.

On June 6th, 1919, this court made an order overruling and dismissing an "Answer of Bondholders" filed in the case. On June 16th, 1919, Isabel Berg and Lydia King filed their petition averring, inter alia, ownership of bonds of the Hummelstown Consolidated Water Company, denominated as