The driver took no precautions whatever as he approached the tracks, until, according to his own testimony, it was too late for him to stop, and the only thing to do was to take the chances of getting over."

In view of these authorities, it is obvious, from the plaintiff's evidence, that his driver did not comply with the established rules. It was admitted that he could see up Duke Street, the direction from which the car came, before he arrived at the east crossing, and that the car tracks were laid in the middle of that street. If, then, as he says, the horse was struck immediately upon his reaching the track, it follows that he could not have looked, or he would have seen. That he did not stop is not disputed. "In an action against a street railway company to recover damages for personal injuries, it is not enough for the plaintiff to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he drove directly in front of a moving car.' See Bornscheuer vs. Consolidated Traction Co., 198 Pa., 332; Pieper vs. Union Traction Co., 202 Pa., 100; Bobb vs. Union Traction Co., 206 Pa., 265.

After carefully considering the case, I am of the opinion that the non-suit was properly entered, and I, therefore, discharge this rule to take it off. Rule discharged.

COMMONWEALTH vs. C. C. ROSE.

Appeal-Summary Conviction Under Ordinance-Repeal of Ordinance Pending Hearing of Appeal.

The superintendent of a coal mining company was summarily convicted before a magistrate for refusal to furnish certain maps and plans to a bureau of mine inspection created by city ordinance pursuant to Act of July 26, 1913, P. L. 1439. An appeal was taken and pending the hearing thereon the ordinance creating the bureau, and under which the proceeding was brought, was repealed by the city. Held, that the repeal ended the case, since it operated to nullify the act of assembly so far as it had any bearing on the charge against the defendant.

The repeal of the ordinance and consequent destruction of the machinry essential to the effective accomplishment of the purpose of the act, was also in effect an abandonment by the city for the time being of any intention of enforcing the provisions of the act.

The constitutionality of the act of assembly was not an issue at the hearing of the appeal in such case, and was therefore not a matter to be passed upon by the court.

Appeal from summary conviction. In the Court of Quarter Sessions of Lackawanna County. No. 6 January Sessions, 1914.

D. J. Davis, City Solicitor, for Commonwealth.

Welles & Torrey and Warren, Knapp, O'Malley & Hill, for Defendant.

Edwards, P. J., July 2, 1914. The appeal in this case involves the consideration of the Act of July 26, 1913, P. L. 1439, regulating the mining out of coal from under the streets of certain municipal corporations.

alia:

Counsel have agreed upon the following facts, inter

1. The Delaware and Hudson Company operates three collieries, viz., the Marvine, Leggett's Creek, and Von Storch, which are wholly or in part located in the city of Scranton. C. C. Rose, the defendant, is the superintendent in charge of the mining operations.

2. The City of Scranton, on August 5, 1913, adopted an ordinace, No. 44, creating a bureau of mine inspection and surface support, for the purpose of carrying into effect certain provisions of the act of assembly above mentioned. About five months later, on January 10, 1914, the city repealed said ordinance No. 44.

The other facts referred to in the agreement of counsel are of no importance, in view of the disposition we intend to make of the present case.

According to the record of the magistrate the information charges the defendant as superintendent of the coal department of the Delaware and Hudson Company, with neglecting and refusing to furnish "to the Bureau of Mine Inspection and Surface Support of the City of Scranton" maps or plans of the workings of certain mines, etc. The complaint does not charge anybody with the mining of coal or other minerals from under the streets of the city. The specific charge is the failure of the superintendent to furnish maps and plans to the said Bureau of Inspection.

The hearing before the magistrate was had on December 4, 1913, at which hearing the defendant was found guilty of the charge set forth in the information and was sentenced to pay a fine of $1,000, or to undergo

imprisonment in the county jail for ninety days. The appeal from the action of the committing magistrate was filed on December 5th. While the appeal was pending, and long before the argument of the appeal before us, the ordinance creating the Bureau of Mine Inspection was repealed, and thus the machinery for carrying into operation several important sections of the act of assembly was destroyed by the act of the city itself.

An examination of the Act of 1913 will show that the creation and continued existence of a Bureau of Mine Inspection is an essential requirement in the effective accomplishment of the purpose of the act. The very first section provides for the creation of such a bureau by ordinance; the second section states how the bureau shall be constituted; section three gives the members of the bureau the right to enter and inspect mines; section four provides for the furnishing of maps and plans to the bureau, and section five directs that extensions shall be placed from time to time on the maps so furnished. Section six is of a general character. It prohibits the removal of any material forming the natural support of the surface of the streets and highways of any municipal corporation in the state, and providing for the construction of adequate artificial support. Section seven specifies the penalties following the violation of any of the provisions of the act, and section eight authorizes the councils of municipal corporations to enact ordinances for the proper enforcement of the provisions of the law.

This act of assembly is of great importance to the people of the cities to which it applies. It indicates a serious attempt on the part of the legislature to solve a difficult problem, and to guard against the dangers confronting the inhabitants of municipalities in the anthracite region. But, the act is a dead letter without the machinery to carry its provisions into effect; and, so far as the present case is concerned, it makes no difference whether the act is constitutional or unconstitutional. Any discussion of this question would be purely academic and we decline to indulge in such a discussion when no practical purpose is to be accomplished. The city cannot complain because it is the city itself that has created the present condition. In August last the city proceeded to provide the machinery necessary to make the act of

assembly effective by enacting an ordinance creating the Bureau of Inspection, and by appointing the members of the bureau. These members proceeded to enforce the provisions of the act. They demanded of the defendant maps and plans of certain mines. There was a refusal, and a consequent arrest and conviction, and an appeal to the court. While the appeal was pending the city deliberately repealed the ordinance, wiping out the bureau and the ordinance itself, and thus nullifying the act of assembly, so far as it has any bearing on the present case.

It will be noted that we are confining our statement to the bearing which the action of the city has on the case of defendant. The charge against the defendant is the refusal to furnish maps and plans to the Bureau of Inspection-nothing else; and, according to section four of the act, these maps and plans are to be furnished. within three months "after the passage and approval of an ordinance * creating a Bureau of Mine Inspection," etc. The act is not self-executing. There must be an ordinance, under section four. Without an ordinance to carry out the provision of said section, there could be no charge brought such as we find in the information disclosed by the present record.

It may be contended that, at the time the defendant was convicted, there was an ordinance in force and a Bureau of Mine Inspection in being, and that the case ought to be judged as of the date of the trial before the magistrate. This is a very narrow view to take of the situation. We do not think for a moment that the city wants to collect a fine for the sake of adding a sum of money to the city treasury. That is not the purpose of the proceeding. The city solicitor is anxious to reap the full benefit of the legislation provided by the Act of 1913. His aim is to protect the streets of the city; but the city council has made it impossible for him to do this, because it has destroyed the very machinery by which such a result can be accomplished. The appeal of the defendant is to be heard de novo. The only limitation is that the case must be tried upon the basis of the original charge. That cannot be enlarged. It is agreed that after the appeal was taken, and pending the hearing of the appeal before the court, the ordinance under which the proceedings were brought was repealed. That fact alone,

in our judgment, has ended the case against the defendant.

There are plenty of instances in our own court where proceedings under improvement ordinances are begun, and, after the cases come into court on exceptions, or in some other way, it transpires that, pending the hearings, the ordinances authorizing the improvements have been repealed. That fact ends each of such cases. An ordinance authorizing a bond issue was attacked. At the hearing it appeared by proper pleading that the ordinance. was repealed before the rights of other parties had intervened. It was useless for the court to continue the hearing. Analagous cases are found in quo warranto and contested election proceedings.

We look upon the act of the city in repealing ordinance No. 44 as a declaration on the part of the city that, for the time being, it has no intention of enforcing the provisions of the Act of 1913.

For the reasons above stated the appeal in this case is sustained and the proceedings dismissed at the costs of the city of Scranton.

tion.

MANDOUR vs. WALUKAS.

Act of 1856, P. L. 534-Marshalling of Liens-Subroga

The ninth section of the Act of 1856, P. L. 534 provides that real estate of several persons is subject to the lien of any judgment to which they should contribute or to which one should have subrogation against another, any one, in case of payment, may obtain a rule on the plaintiff to show cause why he should not sell such real estate, etc. Rule to stay execution, No. 454 November T., 1912.

N. S. Farquhar, for Rule.

A. L. Shay and D. P. Ferguson, Contra.

Bechtel, P. J., April 27, 1914.

This case comes before us on a rule issued on the 12th of March, 1914, on the petition of Andrew Karpowsky, directed to the plaintiff, to show cause why the execution issued in this case should not be stayed until