the school controllers of each thereof shall annually levy and collect tax of not less than one mill, and not exceeding three mills, upon the assessed value of the taxable property of such district, which shall be paid into the school treasury, and shall be applied towards the extinguishment of said bonds and funded debt: Provided, That the whole tax in such school district for any one year shall not exceed the entire rate now allowed by law for school and building purposes. JAMES L. GRAHAM, Speaker of the House of Representatives. No. 87. To establish and define the duties and powers of recorders in cities of the fifth class. SECTION 1. Be it enacted, &c., That the several cities of the fifth class, at the next annual election for city officers succeeding the passage of this act, and every five years thereafter, shall elect a competent person learned in the law, who shall be a duly qualified elector of such city, who shall be styled city recorder of such city, who shall hold said office for the term of five years, from and after the first Monday of April next ensuing his election, who shall be commissioned by the Governor. In case a vacancy shall occur by death, resignation, or otherwise, a successor for the unexpired term shall be elected at the first municipal election that shall be held not less than thirty days after the date upon which the vacancy shall occur, and, in the interim, the office shall be filled by a person qualified as aforesaid, to be appointed and commissioned by the Governor: Provided, That at the municipal election held immediately preceding the expiration of the term of office of any person now exercising the jurisdiction and functions of city recorder, as now established by law, in any city of the fifth class within this Commonwealth, a successor to such person shall be elected, who shall be commissioned and hold said office until the first Monday of April, Anno Domini one thousand eight hundred and ninety-one, and at the municipal election held next preceding the expiration of said last mentioned term, there shall be a person elected for the term of five years, as hereinbefore provided. SECTION 2. The city recorder thus elected and commissioned as aforesaid shall have jurisdiction to hear and determine all charges for violation of any of the ordinances of such city, and shall have and exercise like civil and criminal jurisdiction as justices of the peace and aldermen now have and exercise in this Commonwealth. He shall also have jurisdiction where the sum demanded does not exceed six hundred dollars in all personal action for recovery of moneys arising upon contract either expressed or implied, and for the recovery of damages in actions of trover and conversion, and for trespass upon either real or personal property, and for the recovery of purchase money due upon contracts for the purchase and sale of real estate, unless in actions for the recovery of purchase money for trover and conversion; and for damages for trespass upon real estate as aforesaid, the defendant, or some one in his behalf, shall, at or before the time appointed for trial, make oath that the title to land will come in question, in which case the recorder shall dismiss the proceedings before him and certify the same to the court of common pleas of the proper county; and the prothonotary of said court shall enter the proceedings so certified of record in said court, and thereafter the same shall be proceeded with as if originally commenced in said court. He shall have power and authority to administer oaths, take the depositions of witnesses, and the acknowledgment of deeds and other instruments of writing with like effect as if the same had been administered and taken before a justice of the peace or alderman. He shall and may issue all such warrants of arrest and commitment, writs of attachment, summons, subpoena, and execution, and all such other writs and process as may be necessary and proper, and shall and may do and perform all things that a justice of the peace or alderman now may or can lawfully do, and with like effect. SECTION 3. The said recorder shall have and keep a docket, in which he shall enter and make a record of all suits, trials, judgments, orders, and proceedings instituted, entered, or had before him, and of all process issued by him, with the return thereon, and transcripts of such docket entries and records certified by him to be such under his band and official seal, shall be competent evidence in any court within this Commonwealth in any case where the original would be competent, if produced and offered. The said docket shall be preserved and delivered by the recorder to his successor in office, who shall, in turn, deliver the same, with all other dockets and records belonging to said office, to his successor, and the recorder for the time being shall have like jurisdiction over any judgments, suits, or proceedings recorded or entered therein as was vested in his predecessor by or before whom such judgments were entered, or suits or proceedings were originally instituted or had. SECTION 4. Either plaintiff or defendant shall have the right of appeal from the judgment of such recorder in any civil suit or proceeding to the court of common pleas of the proper county, which appeal shall be taken and the transcript thereof filed with the prothonotary of said court within twenty days from the rendition of such judgment; but no appeal shall be allowed either party in any case until the party appellant shall pay, or caused to be paid, all costs that shall have accrued up to the time of taking such appeal. In case the appeal is entered by the defendant, he shall file with the said recorder an affidavit setting forth the nature and character of his defense to said action, and that said appeal is not entered for the purpose of delay, which affidavit shall be filed, with the transcript of said appeal, in said court of common pleas, and said court of common pleas may grant judgment for want of sufficient affidavit for the defense on such appeal in like manner and with like effect as in suits brought in said courts. plaintiffs and defendants taking appeals from any judgment rendered by said recorder shall give bail in a sum certain sufficient for all costs that may accrue or be legally recoverable on such appeal to be approved by said recorder: Provided, That no affidavit of defense shall be required by executors and administrators or municipal corporations. All SECTION 5. Any process issued by such recorder upon judgments, claims, or demands not exceeding one hundred dollars shall be directed to and executed by any constable of the proper county; and where the judgment, claim, or demand shall exceed one hundred dollars, such process and all warrants, subpoenas, and commitments in criminal cases may be directed to and executed by either such constable or the sheriff of the proper county; and upon any such process directed to him the said sheriff shall be entitled to like fees and mileage as if such process had been issued by the respective courts of the proper county; and upon all such process directed to any constable, he shall be entitled to like fees and mileage as if the same had been issued by a justice of the peace or alderman; that, except as herein otherwise provided, all process issued by said recorder shall be executed in like manner and have like effect as if the same had been issued by any alderman or justice of the peace. SECTION 6. That all executions issued by such recorder, directed to the sheriff, shall be a lien on the personal property of the defendant from the time the same is received by the sheriff the same as writs issued by the several courts of common pleas of this Commonwealth now are, and all executions issued to the sheriff shall be returnable on the first Monday of the month next succeeding the date of issuing the same: Provided, The sheriff of the county to whom any writ of execution from said recorder is directed may claim the benefit of the sheriffs' interpleader act to the court of common pleas of such county, and all questions arising under said interpleader act on such writs shall be entertained and determined by the said court of common pleas in the same manner and with like force and effect as in like writs issued by said court of common pleas. SECTION 7. That said recorder may issue attachments in executions on all judgments rendered by him, or any predecessor in office, without first having issued an execution and obtained a return of nulla bona on the same. SECTION 8. That said recorder shall fix the return day of all summons and attachments issued by him not less than five nor more than fifteen days from the date thereof, which writs shall be served at least four days before the return day thereof, and he shall have and exercise like control over his judgments, writs, and other process to the extent, only, however, of opening such judgments and staying such writs or other process, as the several courts of common pleas of this Commonwealth now have and exercise over their judgments, writs, and other process. SECTION 9. That upon all judgments obtained before such recorder, not exceeding three hundred dollars in amount, the defendant shall be entitled to the same stay of execution that he would be entitled to on a judgment for like amount, rendered before a justice of the peace or alderman, and where the judgment exceeds three hundred dollars, the defendant shall be entitled to like stay as if the judgment had been recovered in the court of common pleas. SECTION 10. That the party in whose favor a judgment is entered before said recorder may at any time remove the same by transcript, duly certified by the said recorder, into the court of common pleas of the county wherein such city is situated; which judgment, when entered in such court, shall become a lien, and have like force and effect as if originally recovered in said court, and thereafter all process of execution or revival on said judgment shall be issued by, from, and out of the said court of common pleas. SECTION 11. That in all actions on book-account, promissory note, and other evidence of indebtedness, instituted before said recorder, a sworn copy of the same shall be prima facia evidence, and in actions on book-account, the plaintiff shall not be required to produce his books of original entry, where such sworn copy has been filed, unless the defendant shall file a counter affidavit, setting forth that the plaintiff's claim is incorrect, and naming the items which are objected to. SECTION 12. That said recorder shall have power to make rules regulating and governing the practice in said court, and to enforce them in the same manner that the courts of common pleas are now authorized to enforce their rules. SECTION 13. That said recorder shall keep a seal, which shall have on it the words of his official title, and the name of the city of which he is the recorder, and all process issued by him shall be stamped with, and bear the impression of such seal. SECTION 14. That all fines and penalties imposed by such recorder for violation of city ordinances, and all moneys that shall be paid to or received by him as such on acccount of such fines and penalties, shall belong to said city, and the said recorder shall report to the city council at the first regular meeting in each month, during the term of his office, the number and names of persons against whom judgments and sentence for violations of such ordinances shall have been rendered, and all moneys collected by him on such fines and penalties, or otherwise, for violation of ordinances, he shall pay over to the city treasurer monthly, with a statement of the sources from which the same were received. SECTION 15. In all actions before said recorder, where the plaintiff's demand does not exceed one hundred dollars, and in all criminal suits and proceedings, the said recorder shall be entitled for his services to like fees as are now allowed by law to aldermen and justices of the peace for similar services; and where there is a contest and trial, the sum of one dollar additional, and where the plaintiff's demand shall exceed one hundred dollars, the said recorder shall be entitled to charge and receive like fees as the prothonotaries of the several counties are entitled to charge and receive for similar services and for administering oaths, taking the testimony of witnesses, and the acknowledgment of deeds, like fees as are now allowed by law to notaries public for similar services. SECTION 16. In all civil suits brought before such recorder in which either party shall appear by attorney, and in which judgment of no cause of action, a discontinuance or a nolle prosequi shall be entered in favor of the defendant, or in which the plaintiff shall recover against the defendant, the said recorder shall tax, as part of the costs in such suit, for the use of the attorney of the successful party, the same as costs are now taxable by law in the several courts of common pleas of this Commonwealth. SECTION 17. That before any person elected to the office of recorder shall enter upon the discharge of the duties of his office, such person shall take and subscribe an oath to support the Constitution of the United States and of this Commonwealth, and to perform the duties of said office with fidelity, which oath, with the commission issued by the Governor as aforesaid, shall be recorded in the office for the recording of deeds, et cetera, in the proper county; and he shall also give bond, with two sureties, in the sum of five thousand dollars in the name of the Commonwealth, with condition for the faithful application of all moneys that may come into his hands as such officer, which bond shall be approved by the court of common pleas of the proper county, and be filed and recorded in the office for recording deeds in the said county, and a certified copy thereof may be used in evidence with like effect as the original. SECTION 18. The provisions of this act shall not take effect in any city of the fifth class within this Commonwealth in which there is now no office of city recorder until the same shall have been approved and adopted by ordinance of the council or councils of such cities, and a certified copy of such ordinance shall have been recordea in the office of the recorder of deeds, et cetera, in and for the proper county. In case the council or councils of any city shall approve and adopt the same any time after the next annual election for city officers, the said office shall be filled as provided in case of a vacancy by the first section of this act: Providing, That any person holding the office of recorder in any city of the fifth class shall be ineligible to hold the office of justice of the peace, alderman or notary public. JAMES L. GRAHAM, Speaker of the House of Representatives. AMOS H. MYLIN, President pro tem. of the Senate. [The foregoing bills, Nos. 80 to 87, inclusive, were embraced under the one following veto:] EXECUTIVE DEPARTMENT, COMMONWEALTH OF PENNSYLVANIA, OFFICE OF THE Governor, I herewith file, with my objections, in the office of the Secretary of the Commonwealth, Senate bill No. 81, entitled "A further supplement to an act, entitled 'An act dividing the cities of this State into three classes, et cetera approved May twenty-third, one thousand eight hundred and seventy-four, providing for the assessment and collection of city and school taxes."" Senate bill No. 82, entitled "An act relating to the duties of the city. treasurer in cities of the third class." Senate bill No. 207, entitled "An act for the government and regulation of county jails and prisons." Senate bill No. 269, entitled "An act to reduce the number of common councilmen in cities of the third class, and to fix the terms of office of select and common councilmen in such of said cities as accept the provisions of this act." House bill No. 113, entitled "An act to provide for the more efficient collection of delinquent taxes and municipal claims in cities of the fourth and fifth classes, and for the preservation of the lien of the same." House bill No. 192, entitled "An act to prohibit the peddling, selling, or hawking of produce and merchandise in cities of the fourth and fifth classes within this Commonwealth without a license." House bill No. 194, entitled "An act providing for the incorporation and government of cities of the fourth class in this Commonwealth; regulating the passage of ordinances; authorizing the increase of indebtedness and the creation of a sinking fund to redeem the same; providing for the assessment and collection of taxes; defining and punishing certain offenses, and providing for the making of contracts for supplies and work for said cities;" and House bill No. 223, entitled "An act to establish and define the duties and powers of recorders in cities of the fifth class." All of these bills contain an option clause providing that they shall not apply to the localities that would otherwise come under the operation of the enactments unless such localities elect to accept the legislation. This option, in my opinion, adopts a distinction unauthorized by law, and that makes the bills special, and therefore unconstitutional. Senate bill No. 81 provides that it shall apply to "every city of the third class which shall accept" the same by ordinance. Senate bill No. 82 contains this clause: "The provisions of this act shall apply only to such cities of the third class as shall by ordinance, regularly passed by two thirds of the members elected to each branch of the councils thereof voting therefor, and approved by the mayor accepting the same." |